December 31, 2010

Unilateral changes in health insurance

Unilateral changes in health insurance
Civil Service Employees Association v PERB, 274 AD2d 930

Since 1990, Dutchess County employees represented by CSEA were offered a prescription drug plan for negotiating unit members enrolled in the Mohawk Valley Physicians’ Health Plan [MVP] that provided for employee co-payments of $3 for generic prescriptions and $5 for brand name drugs.*

Effective January 1998 MVP discontinued its $3/$5 co-payment rates. Employees were then provided with the lowest co-payments available from MVP: $4 for generic prescriptions and $7 for brand name drugs.

CSEA filed an improper practice charge with PERB, contending that by unilaterally increasing the co-payment to be paid by unit members enrolled in the MVP plan, the County breached its duty to negotiate with CSEA in violation of Civil Service Law Section 209-a(1)(d). PERB dismissed petitioner’s improper employer practice charge, finding that:

1. The record did not establish a past practice of providing prescription drug coverage with a co-payment at a fixed cost to employees of no more than $3 for generic prescriptions and $5 for brand name drugs; and

2. The record was equally supportive of the County’s argument that the past practice was to provide unit employees with a prescription drug plan with the lowest co-payment amounts available from MVP.

The Appellate Division sustained PERB’s determination, pointing out that CSEA had burden of proof with respect to the preliminary factual issue -- the existence of the past practice it relied upon in its improper practice claim.

Citing Essex County Local 816 v County of Essex, 31 PERB 3026, the court said that:

Where the record is susceptible to two or more equally reasonable conclusions, one of which is inconsistent with the proposition asserted, the party bearing the burden of proof on the proposition asserted cannot prevail.

In other words, if the record could be read as either supporting the existence of a past practice or supporting the absence of such a past practice, CSEA could not win on the basis of its claim that there was a past practice concerning the amount of the co-payment for prescriptions that the county was required to support.

* CSEA and the County stipulated that [f]rom its initiation in 1990 until January 1, 1998, the co-pay amounts for CSEA bargaining unit members under the MVP prescription rider were $3 and $5, the lowest available from MVP.

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