Oakland Unified School Dist. v. Public Employment Relations Bd.

• Decision Date: 26 June 1981
• Citation: 175 Cal.Rptr. 105,120 Cal.App.3d 1007
• Court: California Court of Appeals Court of Appeals
• Parties: OAKLAND UNIFIED SCHOOL DISTRICT, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; OAKLAND EDUCATION ASSOCIATION, CTA/NEA, Real Party in Interest. Civ. 49667.

Page 105

175 Cal.Rptr. 105

120 Cal.App.3d 1007

OAKLAND UNIFIED SCHOOL DISTRICT, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent;

OAKLAND EDUCATION ASSOCIATION, CTA/NEA, Real Party in Interest.

Civ. 49667.

Court of Appeal, First District, Division 3, California.

June 26, 1981.

Rehearing Denied July 24, 1981.

Hearing Denied Sept. 16, 1981.

Michael S. Sorgen, Legal Adviser, Sandra Woliver, Asst. Legal Adviser, Oakland Unified School Dist., Oakland, for petitioner.

Barry Winograd, San Francisco, for respondent.

Kirsten L. Zerger, Raymond L. Hansen, Diane Ross, Burlingame, for real parties in interest.

SCOTT, Associate Justice.

The Oakland Education Association (Association) complained that petitioner Oakland Unified School District (District) had committed an unfair practice when it unilaterally terminated Blue Cross as the administrator of employee medical claims and substituted Western Administration Company as the district's medical claims processor. The Association contended that the change of administrators was a meet and confer item requiring collective bargaining negotiations. In particular they contend that the change in claims processor resulted in the loss of the Blue Cross identification card which is nationally recognized and provides guaranteed payment for admission to any of Blue Cross' 7,000 member hospitals and in the loss of the right on termination from employment with the District to convert to Blue Cross Health Insurance. Neither of those benefits were available to members of the Association with Western Administration administering the self-insured health plan of the District. A hearing officer found in favor of the Association. Upon review the Public Employment Relations Board (PERB) affirmed the hearing officer's findings and ordered certain remedies. In its petition for a writ of review of the PERB order the District contends that PERB erred in finding that the District erred in unilaterally changing its medical plan administrator and further contends that the remedies ordered constitute an abuse of discretion. We issued a writ of review upon application of the District. We conclude that the Board's decision should be affirmed.

Until 1975 Blue Cross was the carrier for the District's employees health claims. In 1975 the District became self-insured and contracted with Blue Cross to administer the self-insured employees health plan. The benefits flowing to the employee were exactly the same. This change came about without negotiations with the Association. In fact it appears that the Association members were not aware of the change until 1977 when the Association members were advised that Western Administration Company was replacing Blue Cross as the new administrator of the health plan. The Association's president requested to negotiate with the Board concerning the change of administrators. However, the District refused to negotiate contending that the subject was beyond the scope of negotiation.

I. MOOTNESS

The petitioner initially contends that the unfair practices charge is moot because after the hearing on the Association's charges a collective bargaining agreement was entered into by the parties and that the agreement constituted a waiver of the previous unfair practices charge. Petitioner concedes that the identity of a claims administrator was never negotiated nor was it included expressly in the 1978 agreement. The Board concluded that the present issue had not been mooted by the subsequent agreement. We agree. The mere fact that the parties entered into a collective bargaining agreement subsequent to the hearing order in this case certainly does not lead to a conclusion that the parties intended in that agreement to resolve this dispute.

The facts indicate that throughout the negotiations between the District and the Association the District firmly resisted negotiations on the subject of the health plan administrator change and the Association's contention that related benefits would be affected. The District now makes the incongruous argument that the 1978 collective bargaining agreement resolved the health plan administrator issue. This argument is made despite the fact that the District had never in fact negotiated the issue and despite the fact that the contract was silent on the issue. Petitioner goes on to argue that the complete absence of any bargaining and the refusal to even discuss the issue should be construed as a waiver by the Association of its right to a determination by the Board on the subject of the unfair practices charge. We miss the logic of this argument.

Courts examine the defense of waiver carefully in order to ensure the protection of a party's rights, especially when these rights are statutorily based. In the area of labor relations, the statutory right to press unfair practice claims is preserved where a subsequent contract is silent on an issue previously in dispute (Timken Roller Bearing Company v. N. L. R. B. (6th Cir. 1963) 325 F.2d 746, relying on National Labor Relations Board v. J. H. Allison Co. (6th Cir. 1948) 165 F.2d 766. This rule is premised on the fact that silence in a bargaining agreement with respect to an issue previously in dispute does not meet the test of "clear and unmistakable" language of relinquishment of that issue (Timken, supra, 325 F.2d at p. 751).

Petitioner relies upon a clause of the 1978 agreement in support of its waiver contention. The provision known as a "zipper" clause provides "(t)his agreement fully and completely incorporates the understanding of the parties hereto, constitutes the entire agreement between the parties, and supersedes all previous agreements, understandings and prior practices related to matters included within this Agreement." This language hardly provides the "clear and unmistakable" language of relinquishment referred to in Timken, supra. It is apparent that there was no language in the 1978 agreement that remotely suggests a waiver of the unfair practice charge which is the subject matter of this petition much less any clear and unmistakable language.

II. UNILATERAL ACTION OF DISTRICT

The central issue in this case is whether the District's unilateral action in changing its health plan administrator was a matter within the scope of representation under Government Code section 3543.2. This section provides: "The scope of representation shall be limited to matters relating to wages, hours of employment, and other terms and conditions of employment. 'Terms and conditions of employment' mean health and welfare benefits as defined by Section 53200 ¹ ...." (Emphasis added).

It is undisputed that insurance benefits are within the scope of representation under Government Code section 3543.2. Petitioner argues, however, that its change in administrators was not negotiable since the change did not affect the benefits available to employees. Both the hearing officer and the Board, however, found that the change in the District's administrator was linked to a change in certain employee benefits. Therefore, they concluded, the subject of the change was negotiable.

The question is whether the change in administrators had a "material and significant effect or impact upon the terms and conditions of employment." (See Keystone Steel & Wire, etc. v. N. L. R. B. (7th Cir. 1979) 606 F.2d 171, 179.)

Initially we observe that the relationship of a reviewing court to an agency such as PERB, whose primary responsibility is to determine the scope of the statutory duty to bargain and resolve charges of unfair refusal to bargain, is generally one of deference (Ford Motor Co. v. NLRB (1979) 441 U.S. 488, 495, 99 S.Ct. 1842, 1848, 60 L.Ed.2d 420). The Supreme Court stated in Ford that the delegation of those duties to agencies such as the NLRB was the intent of Congress, and thus deference to their findings is entirely appropriate since they are "tasks lying at the heart of the Board's function" (id., at p. 497, 99 S.Ct. at p. 1849). The Court noted that the Board's view should be accepted if it is "not an unreasonable or unprincipled construction of the statute" (i...