Banning Unified School District (PERB 0536E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BANNING 	TEACHERS ASSOCIATION,
CTA/NEA,
Charging 	Party,
V .
BANNING 	UNIFIED 	SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-1890
PERB 	Decision 	No 	536
November 18, 	1985
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Appearances: 	Charles 	R. 	Gustafson, 	Attorney for the Banning
Teachers Association, 	CTA/NEA; Atkinson, Andelson, 	Loya, 	Ruud
and 	Romo by Ronald 	C. 	Ruud 	for 	Banning Unified 	School 	District.
Before Hesse, 	Chairperson; 	Burt and Porter, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by the Banning Teachers 	Association, 	CTA/NEA 	(Association) 	to
the proposed decision, 	attached hereto, 	of a PERB
administrative 	law 	judge 	(ALJ). 	The ALJ dismissed a complaint
alleging 	that 	the 	Banning 	Unified 	School 	District 	(District)
violated section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment 	Relations 	Act 	(EERA or 	Act),'1 by executing 	a
1EERA 	is 	codified at 	Government 	Code 	section 	3540 	et
seq. 	Unless 	otherwise 	indicated, 	all 	statutory references
herein are to the Government 	Code. 	Section 3543.5 reads, 	as
follows:
It 	shall 	be unlawful 	for 	a public 	school 	employer 	to:
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(a) 	Impose 	or 	threaten to 	impose 	reprisals 	on
employees, 	to discriminate or 	threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of 	rights
guaranteed 	by 	this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and negotiate 	in
good 	faith 	with an 	exclusive 	representative.
(d) 	Dominate or 	interfere with 	the 	formation
or 	administration 	of 	any 	employee
organization, 	or contribute 	financial or
other 	support 	to 	it, 	or 	in any way encourage
employees 	to 	join any organization 	in
preference 	to another.
parity agreement 	with 	its 	classified 	employees. 	We 	affirm the
dismissal 	for 	the 	reasons 	set 	forth below.
FACTUAL 	SUMMARY
The 	District 	and 	the Association 	were 	signatories 	to a
collective 	bargaining 	agreement 	covering 	the period 	of 	February
1981 	to June 	1984. 	Pursuant 	to 	the 	reopener 	language 	in 	that
agreement, 	on or 	about May 1983, the parties 	commenced
negotiations 	for 	the 	1983-84 school 	year on the 	subjects 	of
salaries, 	fringe benefits, 	grievance procedure, 	and hours of
employment.
On or about September 	29, 	1983, 	the District reached a
"partial 	agreement" 	on salaries 	with the classified 	unit. 	Such
agreement provides 	as 	follows:
Salary: 	Effective July 1, 	1983 	5% applied
to base 	schedule plus 	$13,000 	to be 	applied
to range 	adjustments 	for 	these departments,
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maintenance, grounds, transportation,
mechanic, 	and custodians.2 Agree 	that 	any
other 	unit 	receiving 	a higher 	salary 	increase
than this agreement stipulates, 	this unit
will 	be 	adjusted 	to the higher 	amount.
The 	Association 	subsequently 	filed 	an 	unfair 	practice
charge 	against 	the 	District, 	alleging a 	violation of 	section
3543.5(a), 	(b), 	(c), 	and 	(d) of the EERA based on the parity or
"me-too" 	clause of 	the classified unit 	contract. 	On February
7, 	1984, 	a complaint was 	issued alleging that the
above-referenced parity, 	or 	"me-too," 	clause violated 	section
3543.5(a), 	(b), 	and 	(c). 	Other allegations set forth in the
unfair practice 	charge were dismissed and, 	accordingly, 	were
not 	addressed by 	the ALJ 	in 	the proposed 	decision.
The 	case 	was 	submitted on 	stipulated 	facts 	and 	the 	ALJ's
proposed 	decision dismissed 	the 	charges. 	The 	issues 	before 	the
Board are:
1. 	Does 	a parity agreement 	with one 	exclusive
representative 	constitute 	a per 	se 	violation of 	the
EERA?
2. 	Does 	a parity agreement 	with a 	classified 	unit
which 	ties 	salary 	increases 	to 	the 	certificated 	unit
violate EERA's mandate for a separation of units?333
2The ALJ 	found 	that 	only these 	five 	(5) 	groups 	of
classified 	employees 	would 	receive 	the parity adjustment. 	That
finding 	is 	in error. 	Instead, 	the parity agreement provides
the 	equivalent percentage 	salary 	increase 	to 	the 	entire
classified 	unit.
3EERA section 	3545(b)(3) 	provides:
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Classified 	employees 	and 	certificated
employees 	shall 	not be 	included 	in 	the 	same
negotiating 	unit.
DISCUSSION
The Association raises 	two arguments 	in the exceptions.
First, 	it 	argues 	that 	the statutory 	"wall of separation"
between 	the 	classified 	and 	certificated 	units 	prohibits 	parity-
clauses 	and, 	thus 	the 	District 	committed a per 	se 	violation of
EERA by agreeing 	to this parity clause. 	The Association also
claims 	that 	it was, 	in effect, 	forced to negotiate on behalf of
the classified 	employees. 	It 	asserts 	that 	since 	the Wisconsin
and Michigan 	labor 	laws 	do not mandate 	separate units, 	those
cases 	relied 	on by 	the ALJ are 	not 	applicable 	to cases 	under
EERA. 	The Association 	further 	asserts 	that 	Education Code
section 	41372
requires 	that 	certificated 	classroom
teachers 	receive 	the 	greatest portion of 	a
school 	district's 	expense 	of 	education 	in
the 	form of 	wages 	and benefits.
(Association's 	Exceptions, 	p. 	9.) 	(Emphasis
in 	original.)
Second, 	the Association argues 	that 	such a parity clause
limits 	the 	District's 	ability 	to negotiate 	in good 	faith 	with
the 	Association 	and 	does 	not 	promote 	labor harmony.
The 	legality of parity, 	or 	"me-too," 	clauses 	is one of
first 	impression 	for 	this 	Board. 	Other public 	sector
jurisdictions have considered such clauses, 	but 	the diversity
in 	the 	results 	of 	these public 	employee 	cases 	limit 	their
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usefulness to PERB.4
One 	of 	the 	realities 	of 	the 	collective bargaining process
is 	that 	multi-unit 	employers 	must 	consider 	the 	effect 	of 	one
bargaining unit's 	contract 	on other 	units, 	and 	that parity
clauses 	reflect 	this 	need. 	It 	is 	indeed 	incongruous 	to
suggest, 	as 	some of the authorities do, 	that the employer may
legitimately bargain 	for 	parity 	in 	fact, 	but 	may not properly
include 	a parity clause 	in a collective bargaining 	agreement.
We 	agree 	with 	the 	ALJ 	that:
[T]o 	find 	that 	the 	clause 	at 	issue 	in the
instant 	proceeding 	coinstituted 	[sic] 	a
violation of 	the 	District's 	duty to bargain
in 	good 	faith with 	the Association would
establish 	an 	artificial 	and 	technical
barrier 	to 	the 	District's 	right 	to strive
for 	a particular 	result 	in 	its 	negotiations
with 	its 	classified 	and 	certificated
employees. 	Moreover, 	a 	finding that the
clause 	was 	unlawful 	might 	interfere 	with
that 	which 	the 	EERA was 	intended 	to promote;
labor 	peace 	and 	enhanced 	communications.
(Proposed Decision, 	p. 	13.)
Thus, 	we hold 	that parity clauses 	are not 	"per se" 	unlawful
under 	the 	EERA.
This 	is 	not 	to say, 	however, 	that by agreeing to a parity
clause, 	an employer 	could never 	violate 	the Act. 	We 	find 	it
appropriate 	to decide 	the 	issue on a case-by-case basis.
4 We note 	that 	although 	there 	is 	a split 	in authority 	in
public 	sector 	jurisdiction, 	parity agreements 	appear 	to be
allowed 	in the private sector. 	(See 	Teamsters, 	Local 	126
(Inland Steel) 	(1969) 	176 NLRB 407 [71 LRRM 1661]; 	Carpenters,
Local 379 v. 	Day & Zimmerman, 	Inc. 	(D.C. 	Tex. 	1982) 	531 F.Supp.
696 	[110 LRRM 2246], 	affd. 	(5th Cir. 	1983) 	706 F.2d 313 	[113
LRRM 	2736].)
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Depending on 	the 	facts 	of a particular 	case, 	a parity clause
might 	cause 	a district 	to engage 	in bad 	faith 	collective
bargaining with 	the 	employees. 	No evidence 	is presented here,
however, 	on which 	to base 	such a 	finding.
The philosophy behind a parity clause 	is not unlawful. 	An
employer may, 	for valid business purposes, 	hold 	firm 	in the
desire to provide 	uniform raises 	to all 	units. 	In this 	case,
the 	classified 	contract 	did not 	restrict 	the 	District's
"flexibility" 	to negotiate with the Association, 	because 	the
agreement 	did 	not 	directly prohibit 	the 	Association 	from
receiving 	a 	salary 	increase 	greater 	than 	that 	already granted
to 	the classified employees. 	As 	the ALJ 	indicated, 	a district
is 	not 	"required 	to 	commit 	or make 	available 	all 	its 	resources
for 	its 	negotiations 	with 	the Association."
The 	District 	may 	lawfully decide 	to grant 	the 	same
percentage 	increase to all 	employees 	and, 	therefore, 	allot only
a portion of 	its 	resources 	to any one 	unit. 	Only one 	subject
of 	bargaining 	was 	affected 	by 	the parity 	clause—percentage 	of
salary 	increase. 	The ALJ 	indicated 	that 	the 	law does 	not
prohibit 	an employer holding 	fast 	on one particular 	item 	in
negotiations 	in order 	to reach a particular result. 	This
parity 	clause 	merely 	formalized 	this 	position and 	yet 	allowed
an 	early settlement 	with most 	of 	the 	District 	employees. 	To
find 	this 	parity clause 	to be a per 	se 	violation of 	the 	EERA
would 	force 	employers 	to 	refuse 	to 	reach 	agreement 	with any of
the 	units 	until 	salaries 	are agreed 	to by all. 	This 	would not
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foster 	labor harmony or 	effectuate 	the purpose of 	the 	EERA.
The Association, 	in essence, 	asserts 	that Education Code
section 	413725 mandates 	that 	its 	members 	receive 	a greater
raise 	than those employees 	in 	the classified unit. 	We disagree.
The 	Education Code section 	requires 	that 	a certain
percentage of a 	district's 	education budget be 	"for payment 	of
salaries 	of 	classroom teachers," 	but does 	not 	require 	that 	the
certificated 	bargaining 	unit 	receive 	that 	percentage.
Additionally, 	this provision of 	the 	Education Code does 	not
reflect 	the 	same 	dichotomy between 	classified 	and 	certificated
employees 	as 	the 	EERA does 	in 	its 	language 	regarding 	separate
units. 	For 	instance, 	salaries 	for 	instructional aides 	are
included 	in 	the 	definition 	of 	"salaries 	of 	classroom 	teachers"
(Ed. 	Code sec. 	41011(c)), 	yet instructional aides are members
5Education 	Code section 41372 provides, 	in relevant part:
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
There 	shall 	be 	expended 	during 	each 	fiscal
year 	for payment 	of 	salaries 	of 	classroom
teachers:
(a) 	By an elementary school district, 	60
percent 	of 	the district's 	current 	expense of
education.
(b) 	By a high school district, 	50 percent of
the 	district's 	current 	expense 	of 	education.
(c) 	By a unified school district, 	55 percent
of 	the district's 	current 	expense 	of
education. . . .
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of 	the classified bargaining 	unit.6 In contrast, 	school
nurses 	and counselors 	are members 	of 	the 	certificated 	unit,7
but 	their 	salaries 	are not 	included 	in 	this 	Education Code
mandate. 	To apply this provision 	to the 	entire 	certificated
unit 	would be 	to 	ignore 	the 	clear 	meaning of 	the 	statute.
Thus, 	we hold 	that parity clauses 	are not prohibited by the
statutory 	"wall 	of 	separation" 	mandated by the 	EERA or 	that
such clauses 	cause a 	"blurring of unit 	lines." 	Therefore, 	we
find 	that 	this 	parity clause does 	not 	break down 	the 	"walls 	of
separation" 	between 	the 	classified 	and 	certificated units. 	In
doing so, 	we 	reject 	the ALJ's 	discussion of 	the
statutorily-mandated 	separation 	of 	the 	classified 	and
certificated 	units.8 This 	separation 	of 	classified 	and
certificated 	units 	is 	not 	"merely a 	statutory recognition of
unit 	appropriateness," 	but 	rather 	it 	is 	a statutory mandate
dictated by the 	express 	language of 	EERA. 	This 	Board may not
61982-85 	Banning 	Unified 	School 	District 	Collective
Bargaining Agreement 	with 	California 	School 	Employees
Association Chapter 	147, 	Appendix A.
71981-84 	Banning 	Unified 	School 	District 	Collective
Bargaining Agreement 	with Banning Teachers Association, 	p. 	1
8The 	ALJ 	stated 	that
The 	separation of 	classified 	and
certificated 	employees 	is 	. . . 	merely a
statutory 	recognition 	of 	unit
appropriateness 	and 	the 	separation 	should be
considered 	no more 	sacred 	than 	those
separate 	units 	determined 	by 	the 	PERB
itself. 	(Proposed Decision, 	p. 	6.)
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change or 	alter 	the 	separation as 	it 	can with non-EERA units.
The 	limited 	evidence provided by 	the parties 	shows 	that
each bargaining 	unit 	negotiated 	on 	its 	own behalf. 	We 	find no
"delegation of 	the duty to negotiate 	for wages 	and benefits 	of
the 	classified 	employees."
We 	find, 	also, 	that 	the 	instant parity agreement does 	not
require 	the Association 	to 	negotiate 	on behalf 	of 	the
classified 	unit. 	The 	classified 	unit 	negotiated 	and 	reached
agreement 	with 	the 	District 	on a 	new collective 	bargaining
agreement. 	One of 	the negotiated aspects 	was 	this 	clause,
which 	would become 	effective 	only 	if 	the 	Association 	negotiated
a 	raise 	higher 	than 	that 	previously 	negotiated 	by 	the
classified employees. 	Otherwise, 	the 	clause has 	no effect.
ORDER
For 	the 	foregoing 	reasons, 	we hereby DISMISS 	the charge 	in
Case No. 	LA-CE-1890.
Members 	Burt 	and Porter 	joined 	in this 	Decision.
99

. .. . .
STATE 	OF CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
BANNING TEACHERS ASSOCIATION, 	CTA/NEA,
Charging 	Party
v.
BANNING UNIFIED SCHOOL DISTRICT,
Respondent
)
) 	Unfair 	Practice
Case No. 	LA-CE-1890
PROPOSED DECISION
(10/23/84)
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Appearances; 	Charles Gustafson, 	Attorney 	(California Teachers
Association) 	for Banning Teachers Association; 	Ronald Ruud,
Attorney 	(Atkinson, Andelson, 	Loya, 	Ruud & Romo) 	for Banning
Unified 	School 	District.
Before 	Barbara E. 	Miller, 	Administrative Law Judge.
I. 	PROCEDURAL HISTORY
On December 	7, 	1983, 	the Banning Teachers Association,
CTA/NEA 	(hereinafter 	Charging 	Party or 	Association) 	filed 	an
Unfair 	Practice 	Charge 	against 	the 	Banning 	Unified 	School
District 	(hereinafter Respondent or District). 	In 	its Charge,
the Association 	alleged 	numerous 	violations 	of 	sections
3543.5(a), 	(b), 	(c) 	and 	(d) of the Educational Employment
Relations Act 	(hereinafter EERA or 	Act).
,1 For 	purposes 	of
the 	instant proceeding, 	the 	relevant 	section of 	the Charge
alleged 	that 	the Respondent 	executed 	a 	"me-too" 	or 	parity
agreement 	with 	its 	classified 	employees 	providing 	that
1The Educational 	Employment 	Relations 	Act 	is 	codified
beginning 	California 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	a l l 	s t a t u t o r y 	references 	are 	to 	the
Government 	Code.
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
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maintenance, grounds, 	and transportation workers, mechanics and
custodians 	would 	receive 	a 	salary 	increase 	equal 	to 	that
achieved 	by any other 	bargaining 	unit 	pursuant 	to
negotiations.
Pursuant 	to 	the 	practices 	of 	the 	Public Employment
Relations Board 	(hereinafter 	PERB or 	Board) 	the Charge was
investigated 	and on February 7, 	1984, 	a Complaint 	issued
alleging 	that 	the 	above-referenced 	"me-too" 	agreement 	violated
sections 3543.5(a), 	(b), and 	(c). 	On February 9, 1984, other
allegations 	set 	forth 	in 	the Unfair 	Practice Charge 	were
dismissed 	and, 	accordingly, 	they are 	not 	before 	the 	undersigned
for 	disposition.
On February 23, 	1984, 	the Respondent 	filed 	its Answer
denying 	that 	it 	violated 	any provisions 	of 	the EERA 	but
admitting 	that 	it 	had 	executed 	a 	"me-too" 	or 	parity agreement
with 	its 	classified 	unit.
Prior 	to convening 	the 	formal 	hearing, 	a 	pre-hearing
conference 	was 	scheduled 	and 	held 	at 	Los Angeles 	Regional
Office 	of 	the Public Employment Relations Board. 	At 	that 	time,
the 	parties 	entered 	into a 	stipulation obviating 	the 	need 	for 	a
formal 	evidentiary hearing. 	A briefing 	schedule was 	agreed 	to,
the parties filed 	responsive pleadings, 	and on May 14, 	1984,
the 	case 	was 	submitted 	for 	proposed 	decision.
II. 	FINDINGS OF FACT
Pursuant 	to 	the 	stipulation 	entered 	into at 	the 	pre-hearing
conference 	and 	the Respondent's Answer, 	it 	is 	found 	that 	the
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Respondent 	is 	a public 	school 	employer 	and 	that 	the Charging
Party 	is 	an 	employee 	organization 	as 	those 	terms 	are 	defined 	in
the EERA. 	The Association 	is 	the 	exclusive 	representative of
the 	certificated 	unit 	at Respondent's 	school 	district.
The 	Respondent 	and 	the Charging 	Party 	are 	signatories 	to a
Collective 	Bargaining 	Agreement 	effective 	during 	the 	period 	of
February 1981 	to June 	1984. 	Pursuant 	to the 	reopener 	language
in said Agreement, 	on or about May 1983, 	the parties commenced
negotiations for 	the 	1983-84 	school 	year 	on 	the 	subjects 	of
salaries, 	fringe benefits, 	grievance procedure and hours of
employment. 	As of January 13, 	1984, 	the parties had 	failed 	to
reach 	a 	final 	agreement on 	reopener 	negotiations.
On or 	about September 	29, 	1983, 	during negotiations between
Respondent 	and 	representatives 	of 	the 	classified 	unit,
Respondent 	reached 	a 	"parity agreement" 	on 	salaries 	with 	that
unit. 	Such agreement provides as 	follows:
Salary: 	Effective July 	1, 	1983 	5% applied
to base 	schedule plus 	$13,000 	to be 	applied
to 	arrange 	adjustments 	for 	these
departments, maintenance, grounds,
transportation, mechanic, and custodians.
Agree 	that 	any other 	unit 	receiving 	a 	higher
salary 	increase 	than 	this 	agreement
stipulates, 	this unit will be adjusted to
the 	higher 	amount.
The 	Charging Party 	alleges 	that 	the 	agreement 	with
classified 	unit 	constitutes 	a 	violation 	of 	the EERA.
III. 	ISSUES
1. 	Do parity agreements with 	one 	exclusive 	representative
constitute 	per 	se 	violations 	of 	the EERA?
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2. 	Do parity agreements 	with 	a 	classified 	unit which 	ties
salary 	increases 	to 	the 	certificated 	unit 	violate EERA's
mandate 	for 	a 	separation of 	units?
IV. 	DISCUSSION
A. 	Position of 	the 	Parties
1. 	Association
The 	question of 	the 	legality of 	parity clauses 	is 	one 	of
first 	impression for 	the PERB. 	In 	its 	brief, 	the Charging
Party pursues 	two related 	but distinct 	theories. 	First, 	the
Charging 	Party 	argues 	that 	parity 	agreements 	represent 	an
inherent 	frustration 	to meaningful 	negotiations. 	Relying 	upon
a 	series 	of 	cases 	decided 	by 	the New Jersey Public Employment
Relations 	Commission 	and 	the 	Pennsylvania 	and 	Connecticut 	Labor
Relations Boards, 	the Charging Party argues 	that:
The mere 	existence of 	the 	clause 	is
sufficient 	to chill 	the 	free 	exchange
between 	the 	public 	employer 	and 	an 	employee
organization 	by 	permitting 	a 	third 	employee
organization, 	not a party to the
negotiations, 	to have 	impact on those
negotiations. 	(City of Plainfield 	(5/5/78)
PERC Decision No. 	78-87 	[4 NJPER 4130].)
2 The 	Charging 	Party and 	the 	Respondent 	discuss 	or 	make
reference 	to 	the Administrative Law Judge's 	decision 	in
Sweetwater 	Union High School 	District 	(1983) 	Case
No. 	LA-CE-1334 	[7 PERC 14238]. 	Exceptions were filed to that
proposed 	decision 	and 	ultimately 	the 	underlying 	unfair 	practice
charge was withdrawn. 	Accordingly, 	the Board never 	addressed
the 	issues 	raised 	therein 	and 	the 	proposed 	decision 	itself
never 	became 	a 	final Administrative Law Judge 	decision.
4

Next, 	relying on 	the 	same 	authorities 	from other
jurisdictions, 	the Charging Party argues 	that a parity
agreement 	which 	ties 	the 	salaries 	of 	classified 	employees 	to
the 	salaries 	of 	certificated 	employees 	violates 	the EERA's
mandate 	for 	separate 	bargaining 	units 	of 	such 	employees.
Section 	3545(b)(3) 	of 	the EERA provides 	that 	"[c]lassified
employees 	and 	certificated 	employees 	shall 	not 	be 	in 	the 	same
negotiating 	unit." 	According 	to 	this 	theory, 	even 	if parity
agreements 	are not per 	se violations of 	the Act, 	they
inevitably 	lead 	to 	a 	blurring 	of 	the 	statutory distinction
between 	classified 	and 	certificated 	employees 	and, 	in 	the
instant case, 	require 	the 	certificated employees 	to bargain on
behalf 	of 	the 	classified 	employees 	in 	violation of 	the
segregation of 	those 	units mandated 	by 	the EERA.
2. 	Respondent
The 	Respondent 	addresses 	both 	facets 	of 	the 	arguments
raised 	by 	the Charging 	Party. 	The Respondent 	first 	argues 	that
parity agreements 	are not 	per 	se violations 	of 	the Act. 	Unlike
other 	per 	se 	violations 	such 	as 	unilateral 	changes or 	blanket
refusals 	to negotiate 	which 	are 	completely 	destructive 	of 	the
bargaining process, 	a parity agreement, 	reviewed 	in a factual
vacuum, 	cannot 	be 	considered 	"inherently destructive 	of 	the
bargaining 	process." 	Whether 	or 	not 	a 	parity agreement might
constitute 	a violation of 	the Act 	is, 	the Respondent argues, 	a
matter 	which must 	be 	reviewed on 	a case 	by case 	basis 	to
determine whether 	a particular 	parity agreement did, 	in 	fact,
55

unduly hamper 	the 	employer's 	obligation 	to 	bargain 	in good
faith.
Similarly, 	the Respondent 	argues 	that 	a parity clause 	does
not, 	by 	itself, 	undermine 	the statutory separation of
classified 	and 	certificated 	units. 	The 	separation of
classified 	and certificated 	employees 	is, 	as 	the Respondent
argues 	and 	I 	agree, 	merely a 	statutory recognition of 	unit
appropriateness 	and 	the 	separation 	should 	be 	considered 	no more
sacred 	than 	those 	separate 	units 	determined 	by 	the 	PERB
itself. 	Accordingly, 	the Respondent's 	argument on 	the 	second
issue 	dovetails 	into 	its argument on the 	first. 	Namely,
whether 	or 	not 	a 	parity clause 	undermines 	the 	separation of
bargaining 	units 	or 	constitutes 	evidence 	of 	bad 	faith
bargaining 	is 	a 	question which 	should 	be 	determined 	by
reference 	to 	the 	factual 	context 	in which 	such parity
agreements 	exist. 	The question cannot be 	resolved 	in 	the
Charging 	Party's 	favor 	simply 	because 	a 	parity agreement
exists.
A. 	Proposed 	Decision
The 	question 	presented 	in 	the 	instant 	unfair 	labor 	practice
proceeding 	is not easily resolved. 	Indeed, 	both the Charging
Party 	and 	the 	Respondent 	have 	articulated 	logical 	arguments 	on
behalf 	of 	their 	respective 	positions on what 	is 	ultimately 	a
matter 	of policy. 	As noted 	above, 	there 	is no PERB decision on
the 	issue 	presented. 	Other 	jurisdictions 	which 	have 	considered
the 	issue 	in 	the 	context of public 	labor 	management 	relations
66

have 	resolved 	the 	question 	in different 	fashions. 	Connecticut,
Pennsylvania, 	and New Jersey 	have 	uniformly 	held 	that 	parity
agreements 	are 	unlawful.3 In New York, 	although 	the 	same
ultimate 	result 	has 	been 	reached, 	the cases 	which have 	reached
that 	state's 	courts 	seem 	to 	require 	a 	case-by-case
approach.4 As will be discussed 	in greater 	detail, 	infra,
Wisconsin 	and Michigan 	have 	apparently 	resolved 	the 	issue 	in
favor 	of 	the 	legality of 	parity clauses. 	Cases 	arising 	in 	the
private 	sector 	have 	been 	found 	to 	contribute 	little 	to 	the
analysis 	of 	this 	issue 	and 	indeed 	no cases 	were 	cited 	by 	either
the Charging Party or 	the Respondent.555
The Charging 	Party, 	relying 	heavily 	upon 	the 	analysis 	set
forth 	by 	the Administrative Law Judge 	in Sweetwater 	Union High
School District, 	supra, 	at fn. 	2, 	essentially argues as follows:
[P]arity 	agreements 	necessarily 	affect
subsequent 	negotiations, 	impermissibly 	bring
another 	party to 	the 	bargaining 	table, 	and
thereby 	interfere 	with 	good 	faith
negotiations 	between 	the 	employer 	and 	the
union 	not 	protected 	by 	a 	parity 	agreement.
Commonwealth of Pennsylvania 	(3/22/78) 	Case
No. PERA-C-7323-C 	[9 PPER 9084].
3 See, 	City of New London 	(1973) 	Ct. 	Board of Labor
Relations, Case No. MPP-2268 	[505 GERR F-l]; 	City of Scranton
(2/2/84) 	PLRB Case No. 	PF-C-82-86-E 	[15 PPER 15047]; 	City of
Plainfield 	(5/5/78) 	PERC Decision No. 	78-87 	[4 NJPER 4130].
4Niagra Wheatfield Central School District 	(1978) 	44 NY
2d 	68 	[11 NY PERB 	7512].
5 See, however, 	Inland Trucking Co. 	(1969) 	176 NLRB No. 	52
[71 LRRM 1661].
77

The 	view 	that 	parity 	agreements 	unlawfully 	bring 	a 	third
party 	into 	bilateral 	negotiations 	is 	also 	shared 	by 	the
Connecticut 	Public Employment 	Relations 	Board 	and 	affirmed 	by
the Connecticut Supreme Court. 	In Local Union 	1219,
International Association of Firefighters, 	Connecticut State
Board of Labor Relations 	(1973) 	171 Conn. 	342, 	370 A.2d 952 	[93
LRRM 2098], 	the Court noted:
By voiding parity clauses 	. 	. 	. 	the board
preserves 	the wall 	of 	separation 	[between
bargaining 	units] 	mandated by 	the 	statute.
The 	[board's] 	action will 	also ensure 	that
the 	units 	will 	be 	allowed 	to 	tie 	themselves
to 	a 	rule 	of 	equality only 	if 	each 	unit
agrees 	with 	the other 	that 	their 	interests
are 	the 	same.
Although 	the 	authorities 	cited 	by 	the Charging 	Party
support 	both 	its 	argument 	that 	parity clauses 	are 	per 	se
violative 	of 	the EERA 	and 	its 	argument 	that 	parity 	clauses
violate 	the concept, 	mandated by statute, 	that certificated and
classified 	employees 	should 	be 	separate, 	I 	find 	those
authorities 	to be 	unpersuasive.
The 	defect 	I 	find 	in 	the 	authorities 	cited 	by 	the Charging
Party 	is 	that 	the 	respective 	employment 	relations 	boards 	and
courts 	do 	not 	address 	or 	even 	seem to appreciate 	certain
realities 	facing 	a multi-unit 	employer 	and 	its 	concern 	for
"industrial" 	peace or labor harmony. 	Ironically, 	however, 	the
authorities 	seem 	to 	recognize 	that 	certain 	advantages may
result 	to employer 	and employees 	if 	the 	employer 	bargains 	for
00	8

parity 	in 	fact 	but does 	not 	commemorate 	parity 	in 	a written
collective 	bargaining 	agreement.
Although 	some 	parity 	agreements 	may 	indeed 	constitute 	an
abrogation of 	the 	employer's duty to 	bargain 	in good 	faith, 	the
agreement 	at 	issue 	in 	the 	present dispute does not 	rise 	to that
level. 	The 	agreement 	between 	the Respondent 	and 	its 	classified
employees 	is very limited 	in scope; 	it only applies 	to the
percentage 	salary 	increase. 	Moreover, 	the wording of 	the
parity 	agreement 	does 	not 	evidence 	an 	intent 	to 	restrict 	the
employer's 	freedom 	to 	bargain 	with 	the 	certificated 	unit 	or 	its
ability 	to 	reach 	agreement 	with 	the 	certificated 	unit 	on 	any
appropriate 	salary 	level 	as 	determined 	by 	the 	negotiation
process. 	The Charging Party argues 	that 	by a priori 	committing
some of 	its 	available 	resources 	to classified 	salaries, 	the
Respondent 	has 	limited 	its 	flexibility with 	respect 	to 	its
salary 	negotiations 	with 	the Association. 	Such 	an 	approach
erroneously 	suggests 	that 	the Respondent 	is 	required 	to commit
or make 	available 	all 	its 	resources 	for 	its 	negotiations with
the Association. 	Nothing 	in the 	law, 	however, mandates 	such a
result. 	Indeed, 	if an employer 	in good 	faith determines 	that
it 	is 	in the employer's best 	interest 	to grant 	the same
percentage 	increase to all 	its 	employees, 	there 	is nothing 	in
the 	law which 	prohibits 	the 	employer 	from 	settling 	first with
the 	certificated 	employees 	for 	a 	specific 	percentage 	increase
and 	thereby 	allocating 	only 	some 	of 	its 	resources 	to
99

certificated 	negotiations 	based 	on 	its 	predetermined 	knowledge
that 	it will grant 	that 	same 	amount 	to 	the 	classified
employees. 	In other words, 	the 	law does 	not prohibit an
employer 	from holding 	fast on one 	particular 	item 	in
negotiations 	in order 	to reach 	a particular 	result.
In 	essence, 	a parity agreement may be 	viewed 	as one
employer 	device 	to achieve 	labor 	harmony. 	In 	the 	instant 	case,
the 	employer 	was 	able 	to conclude 	negotiations with 	the
classified 	unit 	and 	ratified 	a 	collective 	bargaining 	agreement,
leaving 	open only 	the 	ultimate 	question of 	salary
increases.6 After 	concluding 	negotiations 	with 	the
classified 	unit, 	the 	classified 	contract 	did 	not 	restrict 	the
employer's 	flexibility 	to 	negotiate with 	the Charging Party.
This 	is 	not a case where 	the 	employer 	agreed 	that 	the
certificated 	employees 	would 	not 	get 	a 	salary 	increase 	higher
than 	that 	granted 	to 	the 	classified 	employees. 	Accordingly,
the 	only 	restriction 	upon 	the 	Respondent's 	bargaining 	was 	the
Respondent's resources, 	and, 	as mentioned above, 	the allocation
of 	those 	resources 	is a management 	right, 	not 	in 	fact hampered
by 	the 	parity 	agreement 	with 	the 	classified 	unit.
6It 	is 	interesting 	to note 	that 	in New York, 	one
jurisdiction relied 	upon by 	the Charging 	Party, 	if 	the
Respondent 	herein 	had 	merely 	agreed 	to 	reopen 	negotiations 	with
the 	classified 	unit on 	the 	question of 	salaries 	after 	the
conclusion of 	certificated 	bargaining, 	that 	jurisdiction would
have 	found 	the agreement lawful. 	City of Yonkers 	(1977) 	PERB
Case No. U-2079 	[10 PERB 3048].
10

As 	noted 	by 	the Wisconsin Employment 	Relations 	Commission
in West Allis Professional Policemen's Protective Association
v. 	City of West Allis 	(5/17/74) 	WERC Decision No. 	12706, 	parity
agreements 	are 	common 	and 	may 	simply 	be 	a written 	commemoration
of 	a reality 	in the work place. 	I 	find 	the analysis of 	the
Wisconsin Commission 	to be quite 	persuasive. 	The Commission
noted:
Such 	agreements 	are 	not 	rare 	or 	limited 	to
police 	and fire 	settlements 	and do, 	as 	the
Complainant 	urges, 	affect 	the 	calculations
of 	a municipal 	employer 	in 	its 	subsequent
negotiations 	with 	other 	labor 	organizations.
However, 	even 	in the absence of such
agreements, employers, whether 	in the public
or private sectors, 	calculate the affects of
proposed 	settlements 	upon 	their 	relations
with other groups of employes 	(sic), 	both
unorganized 	and 	represented 	by 	other
unions. 	This 	is a "fact of life" 	in
collective 	bargaining. 	The 	Complainant
realizes 	this, 	but distinguishes 	the present
case on 	the 	basis of 	the 	existence of 	a
formal agreement. 	This distinction, 	in
turn, 	focuses 	on the 	legally binding nature
of 	the 	instant parity agreement, 	as
contrasted 	to 	the 	practical 	considerations
of 	the more 	common 	tacit practices 	to which
we 	refer.
We 	hold 	that 	this 	distinction 	is 	artificial
and 	not 	to be 	adopted 	herein. 	The 	parity
agreement does 	not 	place 	an 	absolute
"ceiling" 	on 	settlements 	with 	the
Complainant. 	It adds 	to the costs of 	higher
settlements. 	The normal, 	unformalized,
considerations of 	employers, 	on the other
hand, 	are very compelling, 	not only because
of cost considerations, 	but 	because of very
significant 	tactical 	considerations 	that 	an
employer 	dealing 	with 	a 	number 	of 	unions
must make 	respecting 	the 	relative 	positions
of 	such 	unions. 	We would 	indeed 	be
unrealistic 	and 	excessively 	legalistic 	if 	we
11

attempted 	to minimize 	or 	eliminate 	these
considerations. 	We would 	be 	engaging 	in
unwarranted 	conclusions 	if 	we 	held
agreements 	reflecting 	such 	considerations 	to
be 	contrary 	to 	the 	duty 	to 	bargain 	in good
faith. 	(Citations 	omitted.)
Thus, 	the Wisconsin Commission 	recognized 	the
appropriateness 	of 	parity 	clauses 	and 	refused 	to 	find 	the
practice 	of 	acknowledging 	parity 	arrangements 	in written
contracts 	illegal. 	Similarly, 	the Michigan Employment
Relations 	Commission 	has 	found 	that 	insistence 	on parity
between police 	and 	fire 	employees 	did 	not 	constitute 	a
violation of 	the City of Detroit's 	duty 	to bargain 	in good
faith. 	Although 	the 	case 	arose 	in 	a posture 	quite 	different
than 	that 	presented 	by 	the 	instant 	proceeding, 	the Commission's
observations 	in 	reversing 	its 	hearing 	officer 	are 	germane:
Wage 	policy 	in 	the 	private 	sector 	has 	been
described 	as 	a political 	process 	in which
wage 	patterns 	are 	created 	by 	unions
operating 	in 	"orbits 	of 	coercive
comparison." 	Under 	these 	circumstances
small differences 	become large, 	and equal
treatment 	becomes 	the 	sine 	qua non of
industrial peace. 	Arthur Ross, 	Trade Union
Policy, 	53 74 	(1948). 	A public employer
engaged 	in 	collective 	bargaining must 	a
fortiori, 	determine the effect of one
bargaining 	unit's 	contract on 	any other. 	To
foreclose 	such 	considerations 	during 	the
course 	of 	bargaining would 	cause 	an
undeniable hardship. 	City of 	Detroit and
Detroit Police Officers Association
(12/29/72) 	MERC Case No. C72 A-l.
Unlike 	the 	decisions 	from other 	jurisdictions 	which 	seem 	to
reach 	blanket 	conclusions 	without 	clearly 	analyzing 	the
12

realities of 	collective 	bargaining relationships, 	I 	find 	that
the Michigan 	and Wisconsin 	decisions 	properly 	reflect 	a 	balance
between concepts 	and practicality. 	Indeed, 	to find 	that 	the
clause 	at 	issue 	in 	the 	instant 	proceeding 	coinstituted 	a
violation of 	the District's duty 	to bargain 	in good 	faith with
the Association would 	establish 	an 	artificial 	and 	technical
barrier 	to 	the District's 	right 	to strive 	for 	a particular
result 	in 	its 	negotiations 	with 	its 	classified and 	certificated
employees. 	Moreover, 	a 	finding 	that 	the 	clause was 	unlawful
might 	interfere 	with 	that 	which 	the EERA was 	intended 	to
promote; 	labor 	peace 	and 	enhanced 	communications.
Thus, 	based 	upon the 	analysis 	of 	the 	authorities 	cited and
the positions 	urged, 	it 	is 	found 	that 	the 	"me 	too" 	clause
between 	the District 	and 	its 	classified 	employees 	did 	not
violate sections 3543.5(a), 	(b), or 	(c) 	in terms of the
District's 	obligations 	vis 	a vis 	the Association.
V. 	PROPOSED ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusion of
law, 	it 	is determined 	that 	the Unfair Practice Complaint 	issued
in this matter 	is DISMISSED 	in 	its 	entirety.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this Proposed Decision and Order 	shall
become 	final on 	November 13 	, 	1984, 	unless a party files 	a
timely statement of exceptions. 	In accordance with 	the 	rules,
the 	statement 	of 	exceptions 	should 	identify 	by page 	citation or
13

exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 	8,
part 	III, 	section 32300. 	Such statement of 	exceptions and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment Relations Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento 	before 	the 	close 	of 	business 	(5:00 	p.m.)
on 	November 	13	---- - --	
, 	1984, 	or 	sent 	by 	telegraph or 	certified
United States mail, 	postmarked 	not 	later 	than 	the 	last 	day for
filing 	in order 	to be 	timely filed. 	See California
Administrative Code, 	title 8, 	part III, 	section 32135. 	Any
statement 	of 	exceptions 	and 	supporting 	brief 	must 	be 	served
concurrently with 	its 	filing 	upon each 	party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	be 	filed with 	the Board
itself. 	See California Administrative Code, 	title 	8, 	part III,
section 	32300 	and 	32305.
Dated: 	October 	23 	, 	1984 Barbara E. 	Miller
Administrative 	Law Judge
14