State of California (Department of Personnel Administration) (California Association of Professional Scientists) (PERB 1244S)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA ASSOCIATION 	OF
PROFESSIONAL 	SCIENTISTS,
Charging 	Party,
v.
STATE 	OF CALIFORNIA 	(DEPARTMENT
OF PERSONNEL ADMINISTRATION),
Respondent.
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) 	Case No. 	SA-CE-806-S
PERB Decision No. 	1244-S
January 	27, 	1998
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Appearances; 	Steven B. 	Bassoff, 	Attorney, 	for California
Association of Professional Scientists; 	Robert K. 	Roskoph,
Attorney, 	for State 	of California 	(Department 	of 	Personnel
Administration).
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
the 	State 	of 	California 	(Department 	of 	Personnel 	Administration)
(State 	or DPA) 	to a proposed decision by a 	PERB administrative
law judge 	(ALJ). 	The ALJ found that 	the State violated
section 3519(a), 	(b) 	and 	(c) 	of the Ralph C. 	Dills Act 	(Dills
Act) 1 when it unilaterally changed the vision care benefits 	of
1The Dills Act 	is 	codified at 	Government 	Code 	section 	3512
et 	seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government Code. 	Section 3519 	states, 	in
pertinent part:
It 	shall 	be unlawful 	for 	the 	state 	to do any
of 	the 	following:
(a) 	Impose 	or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
_____ )

employees 	represented by 	the 	California Association 	of
Professional 	Scientists 	(CAPS) 	without 	providing 	CAPS with notice
or 	the 	opportunity to meet 	and 	confer over 	the 	change.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the unfair practice 	charge and complaint, 	the hearing
transcript, 	the proposed decision and the 	filings 	of 	the parties.
The 	Board 	concludes 	that 	CAPS 	has 	failed 	to 	demonstrate 	that
there 	has 	been a 	significant 	impact 	on 	the 	actual 	vision 	care
benefits 	received by employees 	as 	a 	result 	of 	the 	State's 	action.
The 	Board hereby 	reverses 	the ALJ's 	proposed decision 	and
dismisses 	the unfair practice 	charge 	and 	complaint 	in accordance
with 	the 	following 	discussion.
BACKGROUND
CAPS 	is 	the 	exclusive 	representative 	of 	employees within
State Bargaining Unit 	10. 	For approximately 10 years, 	Unit 	10
employees 	have 	been provided with vision 	care 	benefits 	pursuant
to 	their 	collective bargaining agreement 	(CBA) 	with the State.
The parties' 	1987-88 	CBA contained a vision care provision which
stated, 	in pertinent part:
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to. employee organizations rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and confer in
good 	faith with 	a 	recognized 	employee
organization.
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The vision 	service plan 	shall 	be 	the 	State's
plan and 	shall 	provide 	for an annual 	eye
examination and 	frames 	and lenses. 	There
will 	be a 	$10.00 	employee 	co-payment 	for 	eye
examinations 	and a 	$25.00 	employee 	co-payment
for frames and lenses.
The 	1989-91 	CBA vision 	care provision stated, 	in pertinent part:
The 	employer agrees 	to provide 	a vision
service plan 	to 	eligible 	employees 	and
dependents. 	The vision service plan provided
by 	the 	State under 	this 	Section 	shall 	contain
the 	same benefits 	and services 	as 	those 	in
effect in June 30, 	1988, 	with the same
employee co-payments 	($10, 	$25), 	and the
employer shall pay 100% 	of 	the premium.
The 	1992-95 	CBA vision care provision stated, 	in pertinent part:
The 	employer agrees 	to provide 	a vision
service plan to 	eligible 	employees 	and
dependents. 	The vision service plan provided
by the 	State under 	this 	Section 	shall 	contain
the 	same benefits 	and services 	as 	those 	in
effect on June 30, 	1991, 	with the same
employee co-payments 	($10, 	$25) 	for
examination and materials. 	The 	employer
shall 	pay 	100 	percent 	of 	the premium.
The parties' 	1992-95 	CBA expired on June 30, 	1995. 	At 	the
time 	of 	the alleged unlawful 	conduct 	in this 	case, 	the parties
were 	negotiating 	over a 	successor 	CBA but 	had not 	reached
agreement. 	An employer must maintain certain 	terms 	and
conditions 	of 	employment 	embodied 	in an expired agreement 	while
the parties 	are 	engaged 	in bargaining 	over a 	successor agreement.
(State 	of 	California 	(Department 	of 	Forestry and 	Fire 	Protection)
(1993) 	PERB Decision No. 	999-S.) 	It 	is undisputed that the State
was 	obligated 	to maintain 	the vision 	care benefits 	embodied 	in
the parties' 	1992-95 	CBA while 	the parties 	negotiated over a
successor agreement.
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On June 	5, 	1995, 	DPA notified CAPS 	that 	it had posted an
intent 	to award 	the 	new contract 	to provide Unit 	10 	employees
with vision care benefits 	to Vision Service 	Plan 	(VSP). 	The
contract 	in effect at that 	time, 	which also was with VSP, 	was
scheduled to expire on July 31, 	1995. 	DPA advised that a
contract 	protest 	had been 	filed, 	and 	that DPA would 	seek an
extension of 	the 	existing VSP 	contract 	if 	the protest was 	not
resolved quickly. 	The new contract was 	for VSP's 	Regional
Network Plan 	(RNP), 	which contained some provisions 	different
from those 	of 	the VSP plan provided under 	the 	expiring 	contract.
DPA provided 	CAPS 	with no 	information 	concerning 	the 	RNP 	or 	any
difference 	in 	the provisions 	of 	the 	expiring and 	the 	new VSP
contracts. 	The new VSP contract was signed on July 20, 	1995, 	and
went 	into effect on August 	1, 	1995.
Near the end of August 	1995, 	a Unit 	10 member called Kristen
Haynie 	(Haynie), 	a labor relations consultant with CAPS. 	Haynie
testified 	that 	the 	employee 	complained about 	having 	to pay more
for eyeglasses 	than in the past, 	due 	to an increase 	in the 	cost
of 	frames. 	Haynie 	did not 	know specifically what 	type 	of 	frames
had been purchased, 	but 	testified that 	the 	employee 	indicated
that 	the 	frames 	were 	in the 	same price 	range as 	those which had
been purchased 	in 	the past.
Haynie 	contacted DPA and 	requested 	copies 	of 	the prior and
new VSP 	contracts. 	After further contact with DPA, 	Haynie was
provided 	a 	copy 	of 	a 	one-page 	document 	which described 	components
of 	the prior and new VSP plans 	covering Unit 	10 	employees. 	This
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document, 	introduced 	into evidence as 	charging party exhibit
number 5 	(CP 5 ) , 	is entitled 	"State of California Plan Design."
The 	document 	indicates 	that 	the amount 	of 	the 	employee
deductible, 	the coverage 	for examinations and lenses, 	including
contact 	lenses, 	and the 	covered options 	component 	are 	identical
in 	the prior and new VSP plans. 	The document 	also presents
several apparent differences 	in the plans, 	including:
A 	reduction 	in 	the 	premium paid by 	the 	State
from $11.94 	to $8.98;
a 	reduction 	in 	the 	number of 	California
providers 	participating 	in 	the 	plan 	from
4,200 	to 	"about 	75-85%" 	of 	that number;
a 	change 	in 	the benefit 	for 	frames 	from 	"$30
wholesale, 	control on extras" 	to 	"$30
wholesale 	or $75 	retail 	allowance";
a 	change 	in 	the benefit 	for 	cosmetic 	extras
from 	"Dispensed at 	a 	controlled 	cost" 	to
"Usual 	and 	customary 	charged";
a 	change 	in the 	"Frame Coverage" 	from
"Wholesale Difference x 2" 	to U and C 	[usual
and customary] 	minus $75";
a 	change 	in 	"Doctor 	Fees" 	from 	"Standard
Discounted Fee 	for Service" 	to 	"RNP 	fixed
fees 	in California";
a 	change 	in 	"Doctor 	Fees 	for Covered Options"
from 	"Discounted" 	to 	"No service 	fee, 	only
for material";
a 	change 	in the 	"Lab Agreement" 	from 	"65 	labs
in California" 	to 	"Limited number of 	CA
Labs."
On November 8, 	1995, 	Haynie met with DPA and followed up
with a November 22 	letter which states, 	in part:
A major 	concern with 	the 	1995-1998 	VSP
contract 	is 	that 	the 	state no 	longer
guarantees 	a mark up rate 	cap 	for 	frames.
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Previously, 	the VSP 	contract 	limited the mark
up rate at 250% 	of 	the wholesale value. 	This
rate 	is no 	longer guaranteed, 	enabling vision
care providers 	to 	charge 	inflated rates 	for
frames.
The 	"mark up 	rate 	cap for frames" 	is 	a 	cap on the 	retail price
providers 	can 	charge 	for 	frames. 	Haynie 	specifically requested
that 	DPA amend the VSP 	contract 	"to 	incorporate 	the 	250% mark up
rate cap."
In a December 21, 	1995, 	letter, 	DPA responded that 	the prior
agreement 	between VSP 	and 	the 	State 	contained 	no 	requirement 	that
VSP include a cap on frame retail prices. 	Therefore, 	DPA
asserted 	that 	it was unable 	to amend the new VSP 	contract 	to
include 	such a 	requirement.
The parties' 	expired CBA indicates 	that 	"the 	same benefits
and 	services" 	in effect under the previous 	CBA will 	be provided,
but 	there 	is 	no 	specific 	reference 	to matters 	such as 	frame
retail prices, 	numbers of providers available, 	or numbers of
laboratories participating 	in the vision 	care program. 	Under the
new contract with VSP, 	the State 	continues 	to provide a vision
care plan which 	includes 	an annual 	eye 	examination and 	frames 	and
lenses, 	with employee 	co-payments 	of 	$10 	for eye examinations and
$25 	for 	frames and lenses. 	These are the 	components 	of 	the
vision 	care 	benefit 	which are 	specifically 	referenced 	in 	the
expired 	CBA.
On February 	6, 	1996, 	CAPS 	filed an unfair practice 	charge
alleging 	that 	the State violated the Dills Act 	on August 	1, 	1995,
by unilaterally 	changing 	the vision 	care 	benefits 	provided 	to
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Unit 	10 	employees. 	Among other changes, 	CAPS alleges 	that 	the
vision 	care provided under 	the 	new 	contract 	with VSP 	offers 	fewer
providers 	and laboratories 	at 	lower reimbursement 	levels, 	and
eliminates 	the 	retail price 	cap on frames, 	both of which result
in higher costs to employees. 	On May 2, 	1996, 	the PERB Office of
the 	General 	Counsel 	issued a 	complaint 	alleging 	that 	the 	State
violated Dills Act section 3519(a), 	(b) 	and 	(c) 	when it entered
into 	the 	new VSP 	contract 	without 	providing 	CAPS 	with notice 	or
the 	opportunity 	to bargain.
A 	PERB-conducted 	informal 	settlement 	conference 	did 	not
resolve 	the 	dispute. 	A formal 	hearing before 	an ALJ was 	held on
December 16, 	1996. 	On May 27, 	1997, 	the ALJ issued a proposed
decision 	finding 	that 	the 	State violated 	the Dills 	Act by
unilaterally 	changing 	the vision 	care benefits 	of 	Unit 	10
employees 	by 	eliminating 	the 	cap 	on 	the 	retail 	price 	of 	frames
which was 	a 	feature 	of 	the prior VSP plan.
DISCUSSION
Statute 	of 	Limitations 	Issue
Under Dills Act 	section 3514.5,2 PERB may not 	issue 	a
complaint 	based 	on alleged 	conduct 	which 	occurred more 	than 	six
2Dills Act 	section 3514.5 	states, 	in pertinent part:
(a) 	Any employee, 	employee organization, 	or
employer shall 	have 	the 	right 	to 	file 	an
unfair practice 	charge, 	except 	that 	the board
shall 	not 	do either of 	the 	following: 	(1)
issue 	a 	complaint 	in 	respect 	of 	any 	charge
based upon an 	alleged unfair practice
occurring more 	than 	six months 	prior 	to 	the
filing of 	the 	charge;
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months prior to 	the 	filing of 	the unfair practice 	charge. 	CAPS
filed the 	instant 	charge on February 6, 	1996. 	To be 	timely,
therefore, 	the alleged unlawful 	conduct must have 	occurred on or
after August 	6, 	1996.
In a unilateral 	change 	case, 	the 	statute of 	limitations
contained 	in 	section 	3514.5 	begins 	to 	run when 	the 	charging party
has 	actual 	or 	constructive notice 	of 	the 	respondent's 	clear
intent 	to 	implement 	the alleged change. 	(The Regents 	of 	the
University of California 	(1990) 	PERB Decision No. 	826-H.) 	Actual
or 	constructive 	notice 	occurs 	when 	the 	exclusive 	representative
has 	been 	clearly 	informed of 	the proposed 	change. 	(Marin
Community College District 	(1995) 	PERB Decision No. 	1092.)
DPA asserts that CAPS' 	February 6, 	1996, 	charge is untimely.
DPA notes 	that 	the 	PERB 	complaint 	in 	this 	case 	specifically
references August 	1, 	1995, 	as 	the date the change 	in vision care
benefits 	occurred. 	Further, 	DPA argues 	that CAPS 	had notice of
the 	impending change on June 	5, 	1995, 	when DPA advised CAPS 	that
it 	had posted notice 	of 	intent 	to award the new VSP 	contract.
DPA's advisory to CAPS on June 5, 	1995, 	of 	its 	intent 	to
award 	the 	new VSP 	contract 	did not 	provide 	CAPS 	with actual 	or
constructive 	notice 	of 	the 	alleged 	change 	in vision 	care
benefits. 	DPA provided 	CAPS 	with no 	information 	concerning 	the
specific aspects 	of 	the new VSP plan, 	or any information
comparing 	the prior and new VSP plans. 	It was 	not possible 	for
CAPS 	to discern 	from the June 	5 	notification that 	the new VSP
plan 	involved 	the 	changes 	which 	form the basis 	of 	the 	instant
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unfair practice 	charge. 	It was not until 	after August 	6, 	when an
employee 	complained 	in late August, 	that 	CAPS 	first became aware
of 	the possibility that vision 	care benefits 	had been changed
under 	the 	new VSP 	contract. 	After 	requesting 	further 	information
and discussing 	the matter with DPA,. 	CAPS 	filed 	its 	unfair
practice 	charge on February 6, 	1996, 	less 	than six months after
it became aware of 	the alleged change. 	Therefore, 	CAPS' 	unfair
practice 	charge was 	timely 	filed.
Unilateral 	Change 	Issue
In order to prevail 	on a unilateral 	change 	charge, 	the
charging party must 	establish that 	the 	employer, 	without
providing 	the 	exclusive 	representative with notice 	or 	the
opportunity to bargain, 	breached or altered the parties' 	written
agreement 	or 	established past 	practice 	concerning 	a matter within
the 	scope 	of 	representation, 	and that 	the 	change has a
generalized 	effect 	or 	continuing 	impact 	on 	the 	terms 	and
conditions 	of 	employment 	of bargaining unit members. 	(Pajaro
Valley Unified School District 	(1978) 	PERB Decision No. 	51
(Pajaro Valley); 	Grant Joint Union High School District 	(1982)
PERB Decision No. 	196.)
Cases 	involving 	changes 	in health benefit plans 	and health
benefit 	plan administrators 	present 	a unique 	type 	of 	unilateral
change allegation 	for several 	reasons. 	While health benefits 	are
fundamental 	elements 	of 	the 	terms 	and 	conditions 	of 	employment,
the 	actual 	benefits 	employees 	receive 	are 	typically provided
under a 	contract 	between 	the 	employer and a health benefit 	plan.
99

Health benefit plans 	are dynamic 	creatures, 	and minor adjustments
in 	the 	nature 	and variety of 	services 	and benefits 	provided 	to
employees under a health plan are a normal, 	if 	not 	constant,
occurrence. 	Also, 	while different health benefit plans 	often
provide 	similar arrays of actual 	services 	and benefits, 	they also
typically 	include 	some variations 	since 	no 	two plans 	are 	likely
to be 	identical. 	In recognition of 	this, 	health benefit
provisions of CBAs 	rarely, 	if ever, 	contain a comprehensive 	list
of 	the benefits 	employees 	are 	to receive, 	and often do not
specify a particular health benefit 	plan 	to be 	provided.
In considering alleged unilateral 	changes 	in this area, 	the
Board has 	attempted 	to balance 	the bargaining 	rights 	and
obligations 	of 	parties 	who have 	entered 	into general 	health
benefit 	CBA provisions 	with 	the 	need 	to 	avoid 	the 	disruption
which would 	result 	from 	requiring 	negotiations 	over 	each and
every adjustment 	in 	services 	or benefits 	offered under a health
benefit plan. 	As 	a result, 	the Board has held that a 	change 	in
health benefit plans 	or administrators 	is 	negotiable 	only 	if 	the
change has 	a material 	or significant 	effect 	or 	impact 	on the
actual 	benefits 	received by employees. 	(Oakland Unified School
District 	(1980) 	PERB Decision No. 	126; 	affd. 	Oakland Unified
School Dist, 	v. 	Public Employment Relations Bd. 	(1981)
120 Cal.App.3d 1007, 	1012 	[175 Cal.Rptr. 	105]; 	Palo Verde Unified
School District 	(1983) 	PERB Decision No. 	321; 	Trinidad Union
Elementary School 	District/Peninsula Union 	School 	District 	(1987)
PERB Decision No. 	629 	(Trinidad/Peninsula); 	Savanna School
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District 	(1988) 	PERB Decision No. 	671.) 	It 	is not enough to
theorize 	or 	speculate 	that 	a 	change 	could 	impact 	employees. 	The
actual 	effect 	on employees, 	caused by 	the health benefit-related
change, 	must be 	shown. 	(Trinidad/Peninsula.)
In a 	recent 	case, 	Oakland Unified School 	District 	(1994)
PERB Decision No. 	1045, 	the Board considered the employer's
alleged unilateral 	change 	resulting 	from 	the 	decision 	to 	contract
with a different 	health plan 	to provide 	health benefits 	to
employees. 	The Board determined that 	a 	comparison of 	the
benefits 	available under 	the 	old and new plans 	demonstrated 	that,
while 	employees 	continued to receive 	the 	same basic benefits, 	the
costs 	of 	those benefits 	had 	changed 	significantly under 	the 	new
plan. 	For example, 	the employee cost of prescription drugs had
changed from $1 	to $5 	- 	$7; 	the 	cost of emergency care visits had
changed 	from no 	employee 	co-payment 	to a 	$35 	co-payment; 	and the
employee 	co-payment 	for a 	series 	of 	other health 	care benefits
had changed from 10 	to 20 percent 	to no 	co-payment. 	Since 	it was
clear 	that 	the 	change 	in health plan providers 	had resulted 	in a
material 	and significant 	impact 	on 	the 	cost 	of 	the actual 	health
benefits 	received by employees, 	the Board 	concluded that 	an
unlawful 	unilateral 	change 	had 	occurred.
Here, 	the parties' 	expired 1992-95 	CBA requires 	the State to
provide vision 	care benefits within certain parameters, 	while
listing 	few details 	of 	the 	specific benefits 	to be provided. 	The
contractual 	language 	references 	the benefits 	and services
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provided under 	the previous 	contract, 	which 	contained a 	similar
reference 	to an 	earlier agreement.
The 	State points 	to Yuba 	Community 	College District 	(1990)
PERB Decision No. 	855 	(Yuba CCD) 	in arguing that 	the status quo
is 	defined by the negotiated 	language 	of 	the expired CBA, 	which
clearly lists 	specific vision 	care benefits 	to be 	received by
employees. 	Since 	these benefits 	continue 	to be provided under
the new VSP plan, 	the State asserts 	that 	the status quo has been
maintained and no unilateral 	change 	has 	occurred.
Yuba CCD 	is 	clearly distinguishable 	from the 	case 	at bar.
In that 	case, 	the parties' 	contract 	specified that health benefit
coverage 	would be 	provided through a 	specific 	Blue 	Cross
insurance plan. 	During 	the 	time 	that 	the plan had been specified
in the 	contract, 	several 	uncontested changes 	in benefits and plan
provisions 	had been 	implemented by Blue 	Cross. 	The Board
concluded that 	the status quo, 	therefore, 	included a regular and
consistent pattern 	of 	changes 	in 	the 	specified Blue 	Cross 	health
plan. 	(Pajaro Valley.) 	In this 	case, 	there is no evidence
suggesting 	that 	there 	had been a 	regular and 	consistent 	pattern
of 	changes 	to 	the benefits provided to 	employees pursuant 	to 	the
vision care provision of 	the parties' 	CBA.
As 	is 	typical with health benefit provisions, 	the actual
vision 	care benefits 	received by employees 	pursuant 	to 	the
contract 	include 	services 	and benefits 	not 	specifically 	listed 	in
the 	current 	or 	former CBAs. 	This array of actual 	benefits
received by employees 	represents 	the 	status 	quo which the 	State
12

is 	bound 	to maintain. 	Any unilateral 	change 	resulting 	in a
significant 	impact 	on these actual benefits, 	or their cost 	to
employees, 	may violate the Dills Act, 	even though the benefits
impacted 	have 	never been 	specifically 	listed 	in 	any 	of 	the
parties' CBAs.
It 	is 	clear that 	the 	State 	entered 	into a new contract 	with
VSP 	to provide vision care benefits, 	a subject within the 	scope
of 	representation. 	It 	is also clear that 	the State did so
without 	providing 	CAPS with notice 	or 	the 	opportunity 	to
negotiate. 	The 	issue presented by this 	case 	is whether the
change 	to 	the new VSP plan had a 	significant 	impact 	on 	the 	actual
vision care benefits 	received by employees, 	or 	the 	cost 	of 	those
benefits 	to employees.
An 	examination 	of 	the 	record 	reveals 	that 	CAPS 	has 	failed 	to
meet 	its 	burden 	of 	demonstrating by a preponderance 	of 	the
evidence3 that 	a 	significant 	impact 	on actual vision 	care
benefits, 	or their cost 	to employees, 	resulted from the change to
the new VSP plan.
According 	to 	CP 	5, 	the new VSP plan was 	different 	from the
prior plan 	in several 	ways. 	Among the differences 	were a
reduction 	in 	the premium paid by the 	State, 	a 	reduction 	in 	the
number of participating providers, 	a change 	in 	"Doctor Fees," 	and
a 	reduction 	in 	the 	number 	of 	laboratories 	participating 	in 	the
: 3PERB Regulation 32178 	provides 	that:
The 	charging party 	shall 	prove 	the 	complaint
by a preponderance 	of 	the 	evidence 	in 	order
to prevail.
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plan. 	CAPS 	suggests 	that 	these 	changes have an 	impact 	on the
cost 	of actual benefits 	received by employees, 	but 	fails 	to
provide 	any evidence 	of 	impact. 	Speculation that 	a 	change 	in the
cost 	of 	actual 	vision care benefits 	resulted from these 	features
of 	the new VSP plan is 	insufficient 	to establish that 	a
unilateral 	change 	has 	occurred. 	(Trinidad/Peninsula.)
CAPS 	focuses 	its 	attention 	in demonstrating actual 	benefit
impact 	on the 	cost 	of 	eyeglass 	frames under the new VSP plan.
CAPS 	asserts 	that 	the new contract between the 	State 	and VSP
eliminated the 	frame 	retail 	price 	cap 	of 	250 percent 	of 	wholesale
value. 	As a result, 	CAPS asserts 	that new VSP plan providers are
free 	to 	charge 	retail 	frame prices without 	limit, 	resulting 	in
higher prices 	to employees, 	a significant 	impact 	on their actual
vision care benefits.
Neither 	the prior or new contract 	between 	the 	State 	and VSP
was 	introduced into the 	record, 	so 	it 	is not possible 	to review
their 	specific 	provisions 	pertaining 	to 	the 	retail 	pricing 	of
frames. 	However, 	charging party exhibit number 8, 	a brochure
describing 	the new VSP plan, 	indicates 	that 	"Participating member
doctors 	are 	required 	to maintain a 	selection of 	frames 	which are
fully covered under the your 	[sic] 	VSP plan." 	It 	is 	clear,
therefore, 	that 	the new VSP plan provides 	for some 	cap on the
retail price of 	frames, 	at 	least with respect to 	"a selection of
frames." 	Assuming that CAPS' 	description of the price cap within
the prior VSP contract 	is 	correct, 	the Board further notes 	that
there are many 	factors which affect 	retail 	pricing, 	including
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supply and demand, 	level 	of 	competition and general 	economic
conditions. 	Additionally, 	wholesale price 	changes may or may not
result 	in corresponding 	changes 	in retail 	pricing. 	Essentially,
the 	record 	contains 	no 	evidence 	concerning 	the 	actual 	retail
pricing 	of 	frames under the prior and new VSP plans. 	Based on
the 	evidence presented, 	it 	cannot be 	concluded 	that 	the new VSP
contract 	contains no 	control 	on the 	retail pricing of 	frames, 	or
that 	the elimination of a retail price 	cap of 	250 percent 	of
wholesale had a 	significant 	impact 	on the 	retail 	price 	of 	frames
paid by 	employees.
CP 	5, 	the 	comparison of 	features 	of 	the prior and new VSP
plans, 	addresses 	frames 	in two areas. 	Frame benefits under the
prior plan are described as 	"$30 wholesale, 	control 	on extras,"
and as 	"$30 wholesale or 	$75 	retail 	allowance" 	under the new VSP
plan. 	Obviously, 	the description of 	the 	frame benefit 	is
somewhat 	different under 	the new VSP plan, 	but 	CAPS 	offers 	no
explanation or evidence 	concerning 	the 	effect 	of 	this 	difference,
so no 	finding 	of 	a 	significant 	impact 	on actual 	employee benefits
can be made.
CP 	5 	also 	indicates 	a 	change 	in 	frame 	coverage 	from
"Wholesale Difference X 2" 	under the prior plan, 	to 	"U and C
minus 	$75" 	under the new VSP plan. 	It 	does not appear that 	this
provision refers 	to 	the 	cap on 	frame 	retail 	prices 	discussed
above, 	because that 	cap was asserted to be 250 percent of 	the
wholesale price. 	Additionally, 	the relationship of 	frame
benefits 	to 	frame 	coverage, 	both of which are 	included in CP 	5,
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is unexplained, 	as 	is the meaning of 	"wholesale difference"
referred to under the prior VSP plan. 	CAPS 	offers 	no evidence
concerning 	the 	effect 	of 	the 	change 	in 	frame 	coverage noted 	in
CP 	5, 	so no 	finding of a significant 	impact 	on actual benefits
received by 	employees 	can be made.
Finally, 	Haynie's 	testimony concerning 	the 	employee
complaint 	about 	the 	increased 	cost 	of 	frames 	is unhelpful 	to
CAPS. 	Haynie was unable 	to provide any details 	concerning 	the
employee's purchase, 	but 	the suggestion that 	the 	employee
purchased 	frames 	in 	the 	same price 	range 	as 	previously 	certainly
does 	not 	support 	the 	claim that 	there has been an increase 	in
retail prices under the new VSP plan. 	Further, 	the 	record
indicates 	that 	frames 	in the 	same price 	range would likely 	carry
the 	same 	employee 	cost under both 	the 	prior and new VSP plans,
since 	the 	$25 	employee co-payment 	for frames has 	not 	changed. 	It
appears 	likely that 	factors 	other than 	frame 	cost 	increases 	led
to 	the 	higher 	cost 	experienced by 	the 	complaining 	employee.
Summary
To prevail 	in this 	case, 	CAPS must present evidence of 	the
impact 	on actual vision care benefits, 	or their cost 	to
employees, 	which resulted from the State's action. 	The 	evidence
CAPS presents is either speculative,
developed 	or
unhelpful 	in demonstrating this 	impact. 	Therefore, 	CAPS has
failed to meet 	its burden of 	showing that 	there has 	been a
significant impact on the actual vision care benefits received by
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employees, 	or the employee cost of those benefits, 	resulting from
the 	change 	to 	the 	new VSP plan.
ORDER
The unfair practice 	charge 	and 	complaint 	in Case
No. 	SA-CE-806-S are DISMISSED WITHOUT LEAVE TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
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