Los Angeles Unified School District/United Teachers Los Angeles (PERB 1079E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ASSOCIATED ADMINISTRATORS 	OF 	LOS
ANGELES AND 	SERVICE 	EMPLOYEES
INTERNATIONAL UNION, 	LOCAL 	99,
Charging 	Parties,
v.
LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent;
UNITED TEACHERS 	LOS ANGELES,
Joined 	Party.
Case No. 	LA-CE-3336
PERB Decision No. 	1079
January 4, 	1995
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Appearances: 	Posner & Rosen by Howard Z. 	Rosen, 	Attorney, 	for
Associated Administrators 	of 	Los 	Angeles 	and Service 	Employees
International 	Union, 	Local 	99; 	O'Melveny 	& Myers by Steven M.
Cooper, 	Attorney, 	for Los Angeles Unified School District;
Taylor, 	Roth, 	Bush & Geffner by Jesus E. 	Quinonez, 	Attorney, 	for
United Teachers 	Los Angeles.
Before Caffrey, 	Carlyle and Garcia, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before 	the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by the Los Angeles
Unified School District 	(District) 	to a proposed decision
(attached) 	by an administrative 	law judge 	(ALJ) 	in which the ALJ
found that 	the District 	had violated section 3543.5(b) 	and 	(c) 	of
the 	Educational 	Employment 	Relations 	Act 	(EERA).1 After
1EERA is 	codified at Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein are
to the Government Code. 	EERA section 3543.5 provides, 	in
pertinent part:

reviewing the entire record, 	including the parties' 	exceptions
and responses, 	the Board affirms 	the ALJ's proposed decision.
JURISDICTION
PERB has 	jurisdiction over 	this 	case 	for 	the 	following
reasons: 	The District 	is 	a public 	school 	employer under EERA.
The Associated Administrators 	of Los Angeles 	(AALA) 	at 	all 	times
relevant 	has 	been 	the 	exclusive 	representative 	of 	a bargaining
unit 	of 	approximately 	1,900 	certificated 	supervisory 	employees.
Service Employees 	International Union, 	Local 99 	(SEIU) 	at all
times 	relevant has 	been the 	exclusive 	representative 	of 	three
units 	of 	the District's 	classified employees.2 The 	joined party,
United Teachers 	Los Angeles 	(UTLA) 	at all 	times 	relevant 	has been
the 	exclusive 	representative 	of 	a 	31,000-member unit 	of 	teachers
It 	shall 	be unlawful 	for a public 	school
employer 	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
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 negotiate 	in
good 	faith with 	an 	exclusive 	representative.
2These are an 	8,000-member unit 	of 	instructional 	aides, 	an
8,000-member unit 	of 	operations, 	support 	employees 	and a 	9,400-
member unit 	of 	teaching assistants.
22

and other certificated employees.3 Also, 	the matter 	in dispute
was 	not 	subject 	to any grievance 	agreement 	between any of 	the
unions 	(AALA, 	SEIU or UTLA) 	and the District. 	Charges were
timely 	filed.
BACKGROUND
AALA and 	SEIU 	claim 	that 	the 	collective bargaining 	agreement
(CBA) 	between 	the District 	and UTLA contains an 	illegal 	provision
that 	prevents 	the District 	from engaging 	in good 	faith bargaining
with 	their unions. 	The 	disputed provision 	is 	a bonus 	clause
which reads:
"Me-Too" 	and 	"Equitable Treatment"
Agreements: 	The District agrees 	that 	if 	it
enters 	into a 	"me-too", 	"most-favored
nations" 	or 	"equitable treatment" 	provision
with any 	other District 	bargaining unit 	for
the 	1994-95 	school 	year, 	UTLA bargaining unit
members 	shall 	receiver 	lump 	sum bonus
equivalent to 10% of the employees' 	1994-95
annual 	salary. 	The parties, 	in the
interpretation and application 	of 	this
provision as to a 	"me-too", 	"most-favored
nations" 	or 	"equitable 	treatment" 	provisions
are 	referring 	to 	the 	substance 	of 	such
provisions 	that 	have 	been negotiated between
the 	District 	and 	other District 	bargaining
units 	for the 	1992-94 	school years.
(1992-1994 	CBA between UTLA and District,
Art. 	XIV, 	section 1.0(e).)
3UTLA joined this 	case 	as 	a 	respondent.
3

The bonus 	clause4 requires 	the District 	to pay a 	10 	percent
salary bonus5 to employees 	represented by UTLA in the 	event 	the
District 	enters 	into 	"me-too" 	clauses with any other bargaining
unit. 	AALA and SEIU 	filed 	charges 	only against 	the District 	and
alleged that 	the bonus 	clause 	operates 	to violate 	EERA section
3543.5(a), 	(b) 	and 	(c).
ALJ'S 	PROPOSED 	DECISION
The ALJ began his 	analysis 	by noting 	that 	EERA does 	not
specifically prohibit 	the 	type of bonus 	clause at 	issue here. 	If
the effect of 	such a clause is 	repugnant 	to EERA, 	however, 	a
violation may be 	found. 	Using Banning Unified School 	District
(1985) 	PERB Decision No. 	536 	(Banning)6 for guidance, 	the ALJ
recited a 	"flexibility" 	test:
Specifically, 	the question is whether the
disputed 	clause 	restricts 	the 	employer's
"flexibility" 	to negotiate with other
exclusive 	representatives.
Applying 	that 	standard to the 	facts before him, 	the ALJ
found 	overwhelming 	evidence 	that 	the 	clause 	would prevent 	good
4In 	the proposed decision, 	the ALJ refers 	to 	the 	disputed
clause as an 	"anti-me-too" 	clause, 	since 	it enforces a high
penalty 	should the 	employer again agree 	to a 	"me-too" 	clause with
any other union. 	Throughout 	the record, 	this 	type of 	clause 	is
also 	referred 	to as 	a 	"most-favored nation," 	"equitable
treatment" 	or 	"parity" provision.
5The estimated cost, 	should the District 	ever have 	to pay
the 	10 percent bonus, 	ranges 	from $112 million 	(UTLA's 	estimate)
to 	$127 million 	(District's and AALA and SEIU's 	estimate). 	The
variation depends 	on 	the number of members 	in the unit 	when 	the
penalty 	is 	calculated.
6Affirmed in Banning Teachers Assn. 	v. 	Publi	-------	c Employment
Relations Bd. 	(1988) 	44 Cal.3d 799 	[244 Cal.Rptr. 	671].
44

faith negotiations 	and 	stated 	that 	it 	"seems 	likely 	that 	such was
exactly 	the 	intended effect." 	He 	concluded 	that 	the huge 	size 	of
the bonus makes 	it 	"inconceivable" 	that 	the District 	would agree
to otherwise 	legal 	"me-too" 	clauses with the other units, 	and
therefore found violations of EERA section 3543.5(b) 	and 	(c);
however, 	the ALJ found no violation of 	3543.5(a), 	since there was
no 	evidence 	that 	the 	failure 	to negotiate 	in good 	faith also
denied to 	individual 	employees 	rights 	protected by EERA. 	The
remedy 	ordered 	in 	the 	proposed decision was 	to void and 	nullify
the 	clause 	and require 	the District 	to post 	a notice 	of 	the
violation.
DISTRICT'S 	EXCEPTIONS
The 	District 	excepts 	to 	the ALJ's 	proposed decision on
several 	grounds. 	First, 	the District 	claims 	that 	the ALJ omitted
a 	finding 	that 	District 	policy 	is 	to 	treat 	all 	unions 	equitably
during 	1994-95 	school 	year negotiations; 	the policy expressed
intent 	to negotiate with each unit 	on 	its 	own merits.7
Second, 	the District argues 	that 	the bonus 	clause does 	not
violate Banning. 	and that 	"flexibility" 	was 	the wrong test.
UTLA'S 	EXCEPTIONS
UTLA objects 	to 	the ALJ's 	characterization of 	the weight 	of
evidence as 	"overwhelming." 	Likewise, 	UTLA objects 	to 	the ALJ's
conclusion that 	"the huge 	size 	of 	the bonus makes 	it
7Since we 	find that 	this policy 	is 	only be one 	of 	the many
factors 	that bear on the 	legality of 	the District's motive, 	it
did not 	change 	the 	conclusion 	reached by the ALJ.
55

inconceivable" 	that 	the District would agree 	to otherwise 	legal
clauses 	with the 	other units.
DISCUSSION
The 	District 	argues 	that 	the ALJ misstated 	the 	holding 	in
Banning because 	"flexibility" 	is 	the wrong 	test 	for measuring 	the
legality of 	a bonus 	clause. 	We 	agree with 	the District 	on 	that
point, 	but we 	still 	find that 	the District has 	committed a
violation of 	EERA for the 	reasons 	explained below.
A review of 	Banning and 	the unanimous 	decision 	of 	the
California 	Supreme 	Court 	affirming 	Banning 	leads 	to 	the
conclusion 	that 	restricted 	flexibility 	is 	not 	the 	test 	for
legality of 	a bonus 	clause. 	To the 	contrary; 	those 	cases merely
recognize 	that 	restricted 	flexibility 	is 	a natural 	consequence 	of
favored clauses.
In Banning, 	the 	issue was whether a proposed parity clause
in an 	agreement 	between a 	classified unit 	and 	the 	Banning Unified
School District was 	a per se violation of 	EERA. 	In the parity
agreement at 	issue, 	classified employees' 	subsequent 	salary
increases would be 	tied 	to 	those achieved on behalf 	of 	the
certified unit 	employees. 	The parity 	clause was 	alleged to
violate 	EERA's mandate of 	separate unit 	negotiation.
In Banning, 	the Board also held that parity clauses 	are 	not
per se 	illegal, 	since negotiators have a right 	to bargain for a
goal. 	To 	find such clauses 	illegal 	per se might 	interfere 	with
labor peace and enhanced 	communications. 	Therefore, 	the 	legality
of 	parity clauses 	is 	to be decided on a 	case-by-case basis.
66

Since 	there was 	no 	evidence 	of bad 	faith bargaining 	in 	that 	case,
PERB 	found 	that 	the 	clause 	did not 	restrict 	the 	district's
flexibility to negotiate with the 	other unit. 	"Flexibility" 	was
not adopted as a test; 	rather, 	it was 	just one 	indicator of
whether 	a 	particular 	clause 	directly prohibited 	another
bargaining unit 	from achieving a 	legitimate 	goal 	in negotiations.
Looking at 	all 	the 	facts, 	the Board 	found no violation of 	EERA.
Affirming Banning, 	the California Supreme Court, 	in Banning
Teachers Assn. 	v. 	Public Employment Relations Bd., 	supra,
44 	Cal.3d 799, 	also rejected a 	"flexibility" 	test 	to determine
the 	legality of parity agreements, 	noting that:
Parity agreements 	no more 	restrict 	the
District's 	bargaining position 	than 	do 	the
confines 	of 	a 	limited budget 	which exist
absent 	such agreement. 	Each employee
bargaining unit 	necessarily has 	an 	impact 	on
the 	negotiations 	of 	every other unit,
regardless 	of 	the 	order 	in which contracts
are 	negotiated 	or whether 	the District 	enters
into parity agreements.
A parity agreement, 	which 	is 	a 	contractual
budgetary restriction, 	is no more a
disincentive 	to bargain than 	is 	a 	finite
budget 	absent 	such agreement. 	[Id. 	at
807-808.]
Declining 	to hold that 	parity agreements 	constitute 	a per 	se
violation of 	the 	statutory duty to negotiate 	in good 	faith, 	the
California 	Supreme 	Court 	supported 	deferral 	to 	administrative
77

agencies 	to decide, 	on a case-by-case basis, 	whether a given
parity agreement violates labor laws. 	[Id. 	at 808.]8
Although 	there 	is 	little 	PERB precedent 	interpreting 	the
Banning view, 	federal 	labor law provides 	guidance 	to determine
the 	legality of 	conduct. 	Sheet Metal Workers 	Local 	80 	(Limbach
Co.) 	305 NLRB 312 	[138 LRRM 1468] 	(Limbach), 	affirmed in relevant
part by the U.S. 	Court of Appeals, 	examined the union's motive to
determine whether 	its 	conduct9 amounted 	to an 	illegal 	secondary
boycott, 	in violation of the National Labor Relations Act 	(NLRA),
which provides 	that 	it 	is 	an unfair labor practice 	for a union
to:
. 	. 	. 	engage in, 	or to induce or encourage
any 	individual 	employed by 	any person 	engaged
in commerce 	. . . 	to engage 	in, 	a strike 	or a
refusal 	in the 	course 	of 	his 	employment 	to
use, manufacture, process, transport, or
otherwise 	handle 	or work on any goods,
articles, 	materials, 	or commodities or to
perform any services 	. 	. 	. 	." 	[NLRA section
8(b)(4), 	29 U.S.C. section 158(b)(4).]
The 	Limbach 	court 	agreed with 	the National 	Labor Relations 	Board
(NLRB) 	that 	the union had a motive 	to achieve an illegal
objective, 	citing Gottfried v. 	Sheet Metal Workers 	(1989)
8The 	California 	Supreme 	Court 	thus 	expressly left 	open 	the
possibility 	that 	"under different 	circumstances 	an 	employer might
violate 	the 	EERA by entering 	into a parity agreement." 	[Id. 	at
809.]
9The 	union 	had 	disclaimed 	representation 	of 	members 	who
stayed with Limbach, 	followed by various 	other acts 	such as
distributing 	letters 	to 	the membership 	encouraging 	them to walk
off 	the 	job; 	speaking to various 	employees 	to convince 	them to
leave 	Limbach; 	announcing 	to union members 	that 	employees 	staying
on with Limbach as 	nonunion labor would be 	subject 	to a 	loss 	of
pension benefits, 	among other tactics.
8

876 	F.2d 	1245 	[131 	LRRM 2488] 	(Gottfried) 	for the proposition
that 	"an action normally 	lawful 	may be unlawful 	if 	undertaken 	to
accomplish a 	forbidden 	objective." 	The 	Limbach 	court 	had 	"no
doubt" 	that 	the union's 	otherwise 	lawful 	conduct was 	"intended"
to achieve an 	illegal 	objective.10
In Kenrich Petrochemicals v. 	NLRB 	(1990) 	893 	F.2d 1468
[133 LRRM 2417] 	(Kenrich), 	the U.S. 	Court of Appeals applied the
NLRB 	rule 	that 	an otherwise 	legal 	act becomes 	illegal 	if 	the
objective 	is 	to achieve an unfair labor practice. 	In Kenrich.
the 	employer had discharged a 	supervisor, 	normally an unfettered
right 	of 	an employer 	since 	supervisors 	are 	not 	protected
employees under the NLRA. 	However, 	it was 	alleged that 	the
firing had an 	illegal 	objective: 	to 	send a message 	and 	retaliate
against protected employees. 	The 	court 	held:
Once a prima facie 	case 	[of a violation] 	is
established 	the 	burden 	shifts 	to 	the 	employer
[respondent] 	to prove by a preponderance 	of
the 	evidence 	that 	it 	would have 	[acted as 	it
did] 	even absent 	its unlawful motivation.
(Kenrich. 	supra, 	at 1479.)
Similarly, 	in NLRB v. 	Transportation Management Corp. 	(1983)
462 U.S. 	393 	[113 LRRM 2857] 	(Transportation Management). 	the
U.S. 	Supreme 	Court provides 	a detailed discussion of 	the 	evidence
rules 	in a 	"repugnancy" 	case under 	the NLRA. 	After 	reviewing all
the evidence11 in this 	case, 	and employing the 	tests 	of 	Kenrich
10Limbach at 313, 	citing Gottfried. 	876 	F.2d 1245 at 	1247.
11For example, 	Board President 	Leticia Quezada 	testified 	that
"the implementation of this ten percent 	. 	. 	. 	was never
foreseen." 	(R.T. p. 	23, 	lines 18-19.) 	Later, 	"The prospect of
paying a 	ten percent 	[penalty], 	however dim that prospect might
99

and Transportation Management, 	we 	conclude 	that 	the District
acquiesced 	in 	the 	goal 	of UTLA, 	and had little 	or no 	intention of
negotiating me-too 	clauses 	in 	the 	future with other unions.
Despite UTLA's 	exceptions 	on this point, 	testimony shows 	that 	the
ALJ 	correctly 	characterized 	the weight 	of 	evidence 	as
"overwhelming." 	Likewise, 	we 	are not persuaded by UTLA's
objection to 	the ALJ's 	conclusion that 	"the huge 	size 	of 	the
bonus makes 	it 	inconceivable" 	that 	the District would agree 	to
otherwise 	legal 	clauses with the other units.
CONCLUSIONS
Although 	the ALJ 	correctly 	ruled 	that 	the 	District 	has
committed a violation of 	EERA section 3543.5(b) 	and 	(c), 	the
proper 	test 	is 	not 	"restricted 	flexibility." 	Under Banning 	and
federal 	precedent, 	the 	legality of 	a 	contract provision should be
measured by 	the particular 	facts 	and motives 	that 	exist 	in a
given 	case using 	the 	rules 	employed 	in Kenrich and
Transportation Management.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record 	in this 	case, 	the Board 	finds 	that 	the
Los Angeles 	Unified School 	District 	(District) 	violated the
Educational 	Employment Relations Act 	(EERA), 	Government 	Code
be, 	I 	think would put us back into the deficit 	column." 	(R.T. 	p.
29, 	lines 2-4.) 	Similarly, 	another District 	representative 	(Mark
Shrager), 	responding to questions 	regarding the 	impact on the
District 	if 	it 	had 	to pay a penalty under 	the bonus 	clause,
testified 	that 	it 	"would be 	a very difficult 	task 	. . . 	I 	don't
want 	to 	say it would be 	impossible, 	but 	it would be 	close 	to 	it."
(R.T. 	p. 	94, 	lines 25-26 and p. 	95, 	lines 3-4.)
10

section 3543.5 (b) 	and 	(c) . 	The District violated EERA by-
agreeing 	to an 	illegal bonus provision 	in 	its 	contract 	with 	the
United Teachers 	Los Angeles 	(UTLA). 	The provision would require
the District 	to pay a 	10 percent bonus 	to members 	of 	the UTLA-
represented unit 	if 	the District agrees 	to a 	"me-too" 	clause with
any other bargaining unit 	in 	1994-95. 	Because 	this 	action had
the additional 	effect 	of 	interfering with the 	right 	of 	the
Associated Administrators 	of 	Los Angeles 	and Service 	Employees
International Union, 	Local 	99 	to represent their members, 	the
agreement 	to 	the 	illegal 	clause 	also was 	a violation of 	EERA
section 3543.5(b).
The 	allegation 	that 	the District's 	conduct violated 	section
3543.5(a) 	and all 	other allegations 	are 	hereby DISMISSED.
Pursuant to EERA section 3541.5(c), 	it hereby is ORDERED
that 	the District, 	its 	governing board and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Agreeing 	in negotiations with UTLA to any provision
which by 	specific 	wording 	or 	effect 	would preclude 	the 	District
from negotiating 	about 	any 	lawful 	subject 	with 	the 	exclusive
representatives 	of 	other bargaining units.
2. 	Giving any present 	or prospective 	effect 	to Article
XIV, 	section 1.0(e) 	of 	the 	1992-1994 	agreement between the
District 	and UTLA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	EERA:
11

1. 	Within thirty-five 	(35) 	days 	following the date
this decision is 	no longer subject 	to reconsideration, 	post at
all 	work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the Notice attached as 	an Appendix hereto.
The Notice must 	be 	signed by an authorized agent 	of 	the 	District,
indicating 	that 	the District will 	comply with 	the 	terms 	of 	this
Order. 	Such posting 	shall 	be maintained for a period of 	thirty
(30) 	consecutive workdays. 	Reasonable steps shall be 	taken to
ensure that 	the Notice is not 	reduced in size, 	altered, 	defaced
or 	covered with any 	other material.
2. 	Written notification of 	the actions 	taken 	to 	comply
with this 	Order 	shall 	be made 	to 	the 	Los Angeles 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accord with
the director's 	instructions.
Member 	Carlyle 	joined 	in 	this 	Decision.
Member Caffrey's 	concurrence begins 	on page 	13.
12

CAFFREY, 	Member, 	concurring: 	I concur in the finding that
the Los Angeles Unified School 	District 	(District) 	violated
sections 	3543.5(b) 	and 	(c) 	of 	the Educational 	Employment
Relations Act 	(EERA) 	when it agreed to a bonus 	clause 	in 	its
1992-1994 	collective bargaining agreement 	(CBA) 	with United
Teachers 	Los Angeles 	(UTLA). 	I write separately to distance
myself 	from the unfortunate 	analysis 	included 	in 	the majority
opinion.
As 	noted by the administrative 	law judge 	(ALJ), 	the 	Public
Employment 	Relations 	Board 	(PERB or Board) 	has 	held that 	agreeing
to a CBA provision such as a 	"me-too" 	clause, 	or the bonus 	clause
at 	issue 	in this 	case, 	does not 	constitute a per se violation of
EERA. 	(Banning Unified School District 	(1985) 	PERB Decision
No. 	536.) 	Instead, 	the Board will 	review these provisions 	on a
case-by-case basis 	to determine whether 	they have 	the 	effect 	of
precluding 	good 	faith negotiations 	with other parties. 	(Ibid.)
Where a 	"me-too" 	or bonus 	clause has 	that effect, 	it will be
found 	to violate 	EERA.
The ALJ properly 	found 	that 	the 	effect 	of 	the 	bonus 	clause
in this 	case 	is 	clear and unmistakable. 	Under the 	clause, 	the
District 	would be 	required 	to pay a bonus 	to UTLA members 	of 	at
least 	$110 million 	if 	it 	negotiated a 	"me-too" 	provision with any
other District bargaining unit. 	The 	obvious 	result was 	that 	the
District 	was 	effectively barred 	from negotiating 	in good 	faith
with 	the 	Associated Administrators 	of 	Los Angeles 	and Service
Employees 	International Union, 	Local 	99 	(AALA and SEIU) 	over the
13

subject of 	"me-too" 	clauses, 	a lawful 	subject 	of bargaining.
Accordingly, 	the District violated EERA when it 	agreed to 	the
bonus 	clause 	with UTLA.
For reasons 	that are not 	clear, 	the majority eschews 	the
straightforward analysis 	employed by 	the ALJ, 	preferring a
discussion 	of 	secondary boycott 	and 	employer discrimination 	cases
considered by the National 	Labor Relations Board 	(NLRB), 	and an
assessment 	of 	the motives 	of 	the District 	and UTLA in agreeing 	to
the bonus 	clause. 	Regardless of 	its motives, 	the District's
action was 	unlawful 	because 	it 	had 	the 	effect 	of preventing good
faith bargaining with AALA and 	SEIU. 	The majority's 	reliance 	on
unrelated NLRB 	cases 	to 	reach 	the 	sweeping 	conclusion 	that 	the
legality 	of 	a 	contract 	provision 	should be measured by 	the
motives 	of 	the parties 	seriously distorts 	both 	the 	cited 	legal
precedent and the 	issue presented by this 	case. 	I 	reject 	this
unsupported 	and 	incorrect 	view.
14

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An agency of 	the 	State 	of 	California
After a hearing 	in Unfair Practice 	Case No. 	LA-CE-3336,
Associated Administrators 	of 	Los Angeles 	and Service 	Employees
International Union. 	Local 	99 v. 	Los Angeles Unified School
District, 	in which all parties, 	including the United Teachers Los
Angeles 	(UTLA), 	had the right to participate, 	it has been found
that 	the 	Los Angeles Unified School District 	(District) 	has
violated section 3543.5(b) 	and 	(c) 	of 	the Educational 	Employment
Relations Act 	(EERA). 	The District violated EERA by agreeing to
an 	illegal 	bonus provision 	in 	its 	contract with the UTLA. 	The
provision would require 	the District 	to pay a 	10 	percent 	bonus 	to
members 	of 	the UTLA-represented unit 	if 	the District 	agrees 	to a
"me-too" 	clause with any other bargaining unit 	in 1994-95. 	This
action amounted 	to a 	failure 	to negotiate 	in good 	faith with 	the
Associated Administrators 	of 	Los Angeles 	and Service 	Employees
International 	Union, 	Local 	99 	and 	it 	interfered with the 	right 	of
these parties 	to 	represent 	their members.
As 	a 	result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will 	abide by the 	following. 	We will:
CEASE AND DESIST 	FROM:
1. 	Agreeing 	in negotiations 	with UTLA to any provision
which by 	specific 	wording 	or 	effect 	would preclude 	the 	District
from negotiating 	about 	any 	lawful 	subject 	with 	the 	exclusive
representatives 	of 	other bargaining units.
2. 	Giving any present 	or prospective 	effect 	to Article
XIV, 	section 1.0(e) 	of 	the 	1992-1994 	agreement between the
District 	and UTLA.
Dated: 	LOS ANGELES 	UNIFIED 	SCHOOL
DISTRICT
By:. Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ASSOCIATED ADMINISTRATORS 	OF 	LOS
ANGELES AND 	SERVICE 	EMPLOYEES
INTERNATIONAL 	UNION, 	LOCAL 	9 9 ,
Charging 	Parties,
v .
LOS 	ANGELES 	UNIFIED 	SCHOOL
DISTRICT,
Respondent,
UNITED TEACHERS 	LOS ANGELES,
Joined 	Party.
Unfair 	Practice
Case No. 	LA-CE-3336
PROPOSED 	DECISION
( 6 / 6 / 9 4 )	)
)
)
)
)
)
)
)
Appearances: 	Posner & Rosen by Howard Z. 	Rosen, 	Esq., 	for
Associated Administrators 	of 	Los Angeles 	and Service 	Employees
International Union, 	Local 	99; 	O'Melveny & Meyers by Steven
Cooper, 	Esq., 	for the Los Angeles Unified School District;
Taylor, 	Roth, 	Bush & Geffner by Jesus E. 	Quinonez, 	Esq., 	for
United Teachers 	Los Angeles.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
Two unions 	here 	attack a 	contract provision which a public
school 	employer has 	entered with a 	third union. 	The 	disputed
provision might 	best 	be 	described as 	an 	"anti-me-too 	clause" 	for
it 	enforces 	a 	high penalty 	should 	the 	employer again agree 	to a
"me-too" 	clause with any other union. 	The unions 	that are
challenging 	the provision have 	"me-too" 	clauses 	in 	their current
agreements with the 	employer. 	They contend that 	the 	effect 	of
the 	disputed 	clause 	effectively will 	be 	to 	remove 	a 	lawful,
negotiable 	subject 	from future 	negotiations.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.

The 	employer argues 	that 	the 	disputed 	clause will 	not
prevent 	it 	from negotiating 	in good 	faith. 	It 	argues 	that 	the
clause does 	not 	on 	its 	face preclude 	it 	from entering a 	"me-too"
clause with other unions. 	In addition, 	the employer continues,
the 	clause will 	have 	the beneficial 	effect 	of 	encouraging each
union to bargain for 	its 	own unit 	solely on 	the merits. 	The
teachers' 	union says 	the disputed clause was written because 	of
the negative 	effects 	of 	the 	"me-too" 	clauses 	secured earlier by
other unions, 	including the charging parties. 	The teachers'
union joins 	the 	employer 	in arguing 	that 	the 	clause 	does 	not
actually prohibit 	the 	employer 	from entering 	"me-too" 	clauses
with the other unions. 	It is, 	therefore, 	a lawful provision.
The Associated Administrators 	of 	Los Angeles 	(AALA) 	and the
Service 	Employees 	International Union, 	Local 	99 	(SEIU or
Local 99), 	commenced this action on August 18, 	1993, 	by filing an
unfair practice 	charge against 	the 	Los Angeles 	Unified 	School
District 	(District). 	The Office of 	the General 	Counsel 	of 	the
Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	followed on
September 28, 	1993, 	with a complaint against the District.
The 	complaint 	alleges 	that 	the District 	committed an unfair
practice 	by writing a 	conditional 	10 	percent 	lump 	sum bonus
provision 	into 	its 	agreement 	with 	the United Teachers 	Los Angeles
(UTLA). 	That provision would require 	the District 	to pay the
bonus 	if, 	in the 1994-95 	school year, 	the District 	enters 	into a
"me-too," 	"most 	favored nation" 	or 	"equitable 	treatment"
provision with any 	other bargaining unit. 	The 	complaint 	alleges
2
2

that by entering 	the 	agreement with UTLA, 	the District 	failed to
negotiate 	in good 	faith, 	denied 	the 	charging parties 	the 	right 	to
represent 	their members 	and 	interfered with employee 	rights.
This 	conduct was 	alleged 	to have been 	in violation of 	Educational
Employment Relations Act 	(EERA) 	section 3543.5(a), 	(b) 	and 	(c).1
The District 	answered the 	complaint 	on October 28, 	1993,
denying 	that 	it 	had committed an unfair practice. 	On November 3,
1993, 	the UTLA was granted 	its 	request 	to join the 	case as a
party. 	A hearing was 	conducted 	in Los Angeles 	on March 23
and 24, 	1994. 	With the filing of briefs, 	the matter was
submitted for decision on May 23, 	1994.
FINDINGS 	OF 	FACT
The District 	is 	a public 	school 	employer under 	the 	EERA.
The 	charging party AALA at 	all 	times 	relevant 	has 	been 	the
1Unless otherwise 	indicated, 	all 	statutory references 	are 	to
the Government 	Code. 	The 	EERA is 	codified at Government 	Code
section 3540 	et 	seq. 	In relevant part, 	section 3543.5 provides
as follows:
It 	shall 	be unlawful 	for a public 	school
employer to:
(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. 	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 negotiate 	in
good 	faith with 	an 	exclusive 	representative.
33

exclusive 	representative 	of 	a bargaining unit 	of 	approximately
1,900 	certificated 	supervisory 	employees. 	Charging party 	SEIU at
all 	times 	relevant 	has been the 	exclusive 	representative 	of 	three
units 	of 	the District's 	classified employees. 	These are an
8>000-member unit 	of 	instructional 	aides, 	an 	8,000-member unit 	of
operations, 	support 	employees 	and a 	9,400-member unit 	of 	teaching
assistants. 	The 	joined party UTLA at 	all 	times 	relevant 	has 	been
the 	exclusive 	representative 	of 	a 	31,000-member unit 	of 	teachers
and 	other 	certificated employees.
The 	disputed 	clause 	is 	found at Article XIV, 	section 	1.0(e)
of 	the 	1992-94 	agreement between UTLA and 	the District. 	That
section reads 	as 	follows:
"Me-Too" 	and 	"Equitable Treatment"
Agreements: 	The District agrees 	that 	if 	it
enters 	into a 	"me-too", 	"most-favored
nations" 	or 	"equitable treatment" 	provision
with any 	other District 	bargaining unit 	for
the 	1994-95 	school year, 	UTLA bargaining unit
members 	shall 	receive 	a 	lump 	sum bonus
equivalent to 10% of the employees' 	1994-95
annual 	salary. 	The parties, 	in the
interpretation 	and 	application 	of 	this
provision as to a 	"me-too", 	"most 	favored
nations" 	or 	"equitable treatment" 	provisions
are 	referring 	to 	the 	substance 	of 	such
provisions 	that 	have 	been negotiated between
the 	District 	and 	other District 	bargaining
units 	for the 	1992-94 	school years.
This 	clause 	(hereafter 	"bonus 	clause") 	was 	agreed upon at
the 	conclusion 	of 	a 	contentious 	round of 	bargaining 	that 	started
in early 	1992 	with a District 	announcement 	that 	it had a 	$400
million budget 	deficit. 	The UTLA was 	the 	last 	of 	the unions
representing District 	employees 	to 	reach an agreement. 	A deal
finally was made with 	the 	assistance 	of 	California Assembly
4

Speaker Willie L. 	Brown, 	Jr. 	who served as a mediator at 	the
joint 	request 	of 	the District 	and UTLA.
The bonus 	clause 	followed a 	series 	of 	"me-too," 	"equitable
treatment" 	and 	"mutual protection" 	agreements 	which the District
had entered with various unions. 	"Me-too" 	clauses2 had become an
established 	feature 	of 	contracts 	between the District 	and 	its
classified employee unions 	over several 	rounds 	of 	negotiations.
But 	the 	provisions 	that 	the District 	entered 	into with 	the
charging parties 	and other unions 	in 	1992 	were unusual 	even 	for
these parties. 	They were 	the product 	of 	suspicions and
animosities 	that 	developed between 	the 	UTLA and 	the 	other unions
during a protracted series 	of 	budget 	crises.
Although 	the 	District 	has 	encountered budgetary 	shortfalls
for some 	time, 	the 	situation deteriorated markedly 	in the 	1991-92
school year. 	In the 	fall 	of 	1991, 	the District projected a
$126 million deficit. 	This 	followed a year in which, 	according
to a 	factfinding 	report, 	the SEIU units 	already had been severely
impacted by layoffs 	and 	the 	furlough of 	employees. 	The budget
reductions 	for 	1991-92 	resulted 	in still 	more pay reductions,
furloughs 	and layoffs 	for the 	SEIU units. 	Attendant with these
reductions 	was 	a workload 	increase 	for 	the 	employees 	who
remained. 	It 	was 	the view of 	SEIU negotiators 	that 	their units
had 	suffered a disproportionate 	share 	of 	the 	1990-91 	and 	1991-92
2A 	"me 	too" 	clause 	is 	a 	contractual 	provision wherein an
employer promises 	a union that 	it will 	receive 	the benefit 	of 	any
better deal 	that 	the 	employer might 	later 	reach with another
union. 	Such provisions also are known as 	"most 	favored nation"
and 	"parity" 	clauses.
55

reductions 	relative 	to 	those 	incurred by 	the 	UTLA bargaining
unit.
As 	noted, 	the 	1992-93 	negotiations began 	in an even worse
crisis, 	the projected deficit 	of 	$400 million. 	SEIU negotiator
Tom Newbery 	testified 	that 	SEIU entered 	the 	1992 	bargaining
convinced 	that 	the 	$400 	million deficit was 	real 	and perhaps
underestimated. 	Nonetheless, 	he testified, 	the objectives of
Local 	99 	were to avoid layoffs at all 	costs, 	preserve the salary
structure and protect the working poor 	in 	the 	SEIU units. 	He
said 	the 	union proposed 	to accomplish 	this 	by pressing 	the
District 	to 	enact 	a 	graduated pay 	reduction plan whereby 	the most
poorly paid 	employees 	would 	receive 	the 	smallest 	percentage 	pay
reduction.
Initially, 	all 	of 	the unions 	representing District 	employees
joined 	together 	in what 	they 	called 	the 	Unity Coalition. 	This
group was 	to work toward 	common objectives 	in 	the 	face 	of 	the
District's 	financial 	crisis. 	They 	staged some 	joint 	activities
including 	demonstrations 	at meetings 	of 	the District 	school
board, 	a 	rally at 	the 	State 	Capitol 	and a 	joint 	press 	conference
about 	the District's problems.
But 	in mid-June of 	1992, 	the Unity Coalition, 	in
Mr. 	Newbery's words, 	"blew apart." 	The 	cause of 	the eruption was
the preparation and 	release by 	the UTLA of 	what 	the 	UTLA called
the 	Restructuring 	Plan. 	The 	Restructuring 	Plan was 	a UTLA plan
for reorganization of 	the District. 	Several 	of 	its proposals
affected employees 	in other bargaining units. 	Among these was a
6

proposal 	to 	seek a 	transfer of 	all 	school 	police 	functions 	from
the District 	police 	force 	to 	the 	Los Angeles 	Police Department.
The UTLA also proposed a 	one-year 	freeze 	on 	the 	hiring 	of 	all
aides 	and 	teacher assistants 	except 	for 	special 	education and
bilingual 	aides. 	Another proposal 	called 	for a one-year
reduction 	of 	all 	non 	school 	based 	classified employees 	by
25 	percent 	to be 	accomplished 	through attrition 	or 	reassignment.
Another proposal 	was 	to 	reorganize 	student 	transportation 	to 	send
all 	students 	to the 	closest 	sites.
Mr. 	Newbery testified 	that 	even 	though 	the plan affected
employees 	in SEIU-represented units, 	no 	one 	from UTLA had
discussed 	the proposals 	with Local 	99. 	He 	said SEIU first
learned of 	the plan 	from representatives 	of 	the news media. 	At
that point, 	Mr. 	Newbery testified, 	the Unity Coalition 	"was
over." 	"We were supposed to be in a coalition and we were 	. 	. 	.
double 	crossed," 	he 	said.
All 	other 	organizations 	except 	for UTLA then 	formed 	the
Alliance for Education 	(Alliance). 	Its purpose, 	Mr. 	Newbery
said, 	"was basically to 	counter-balance UTLA's 	influence with the
Board and try to protect 	our 	interest." 	In addition 	to SEIU, 	the
Alliance 	for Education was 	composed of AALA, 	the 	California
School Employees Association 	(CSEA), 	the Los Angeles County
Building 	Trades 	Council 	and 	the 	Los Angeles 	Unified School
District 	Peace 	Officers Association.
All 	unions 	except 	for UTLA progressed rapidly 	in
negotiations with the District. 	By September, 	SEIU and the
7
7

District 	were 	sufficiently 	close 	that 	SEIU could 	send 	the
District 	a 	short 	list 	of 	items 	needed 	to 	reach agreement. 	Among
these was 	a most 	favored nation 	clause under which 	the District
would agree 	that 	the 	SEIU units 	would not 	receive 	a 	cut 	in pay
greater 	than 	that 	negotiated with 	or 	imposed upon any 	other unit.
In 	the 	event 	a more 	favorable 	compensation package was 	given 	to
another unit, 	SEIU demanded that 	the District would promise 	to
extend that benefit 	to the Local 	99 	units.
A report 	of a 	factfinding panel 	on September 10, 	1992,
supported SEIU's 	demand 	for a most 	favored nation 	clause. 	The
report 	commented 	that 	two 	of 	the 	SEIU-represented units 	"have
already 	incurred 	substantial 	layoffs 	and 	furloughs 	and 	felt 	the
direct 	impact 	of 	the budget 	crisis 	earlier 	than 	some 	other
bargaining units, 	especially 	the 	certificated 	teachers 	unit."
The panel 	found valid SEIU's 	concern 	that 	if 	it 	reached an
agreement 	prior 	to 	UTLA the 	SEIU-represented units 	might 	once
again suffer a disproportionate 	share 	of 	the 	reductions. 	The
District 	did not 	immediately accede 	to 	the 	demand but 	after 	SEIU
pressed 	its 	demand 	in 	conversations 	with 	school 	board members,
the 	District 	ultimately 	agreed.
Meanwhile, 	CSEA was pressing the District 	for what 	it 	called
a 	"no-subsidy" 	clause. 	District 	negotiator Richard 	Fisher
testified3 that 	CSEA told the District 	that 	as 	a result 	of 	the
3The 	parties 	stipulated 	to 	the 	admission of 	testimony given
by Richard 	Fisher at 	the 	hearing 	in 	consolidated unfair practice
cases 	LA-CE-3227 and LA-CO-604. 	Mr. 	Fisher's 	testimony is 	found
in Volumes VI, 	VII and VIII of 	that 	record.
8

UTLA restructuring plan a 	traditional 	"me-too" 	or most 	favored
nation 	clause would not 	be 	sufficient 	to 	secure 	an agreement. 	In
addition, 	CSEA demanded language 	to 	the 	effect 	that 	the 	cost 	of a
settlement 	in another bargaining unit 	could 	not 	be 	financed by
reductions 	in the CSEA unit. 	Again, 	the District 	initially-
opposed 	the 	proposal 	but 	ultimately 	changed 	its 	position after
appeals by CSEA to school board members. 	By late September, 	the
District 	was 	willing 	to meet 	CSEA's 	demand.
SEIU was unaware 	that 	the District was 	about 	to agree 	to
CSEA's 	demand 	for 	the 	no-subsidy 	clause until 	a 	negotiating
session that 	took place 	on or about 	October 	1. 	At 	the meeting,
Mr. 	Newbery asked District 	negotiator Framroze Virjee 	if 	any
union was going to get a better deal. 	Mr. 	Virjee 	told him of his
belief 	that 	the 	school 	board would grant 	CSEA's 	demand 	for a 	no-
subsidy clause. 	At 	that point, 	Mr. 	Newbery replied that 	SEIU
would not 	enter an agreement 	with 	the 	District 	unless 	it
contained a no-subsidy clause. 	On October 2, 	the District
unilaterally 	implemented 	conditions 	of 	employment, 	including pay
cuts, 	for most employees.
SEIU and 	the 	other unions 	continued 	to meet 	with 	the
District 	in an effort 	to 	reach an agreement. 	By mid-October
representatives 	of 	UTLA started making public 	comments 	about 	the
possibility of 	a 	strike by teachers. 	This prospect 	troubled 	the
leadership 	of 	SEIU and some 	of 	the 	other unions.
On behalf 	of 	the Alliance, 	Connie Moreno of 	CSEA invited
District 	negotiator 	Fisher 	to meet 	with 	representatives 	of 	the
99

various 	unions 	to discuss 	the 	impact 	of 	the 	threatened 	strike.
All unions 	in the Alliance attended the meeting with Mr. 	Fisher.
Mr. 	Fisher told the union representatives 	that 	if 	student
attendance 	fell 	at 	the 	same 	rate as 	occurred in a May 	1989
teacher strike, 	the District would lose about 	$1 million a day 	in
state 	support. 	He 	said he had no 	idea how those 	lost 	funds 	would
be made up.
One 	of 	the union representatives 	then asked Mr. 	Fisher 	if 	in
his 	view 	the 	CSEA-negotiated no-subsidy 	clause 	would protect 	the
other unions 	from losses 	caused by a UTLA strike. 	Mr. 	Fisher
said he 	did not believe 	it would, 	observing 	that 	the no-subsidy
clause was 	written to deal 	with the 	effects 	of 	a 	settlement 	or
imposition of working 	conditions by 	the District. 	He 	said the
no-subsidy 	clause would not 	be 	applicable 	to protect 	other unions
from strike 	losses. 	Mr. 	Newbery testified that 	the answer
produced 	"panic 	in 	the 	room."
The various 	union representatives 	then 	insisted 	that 	the
District 	agree 	that 	if 	they honored 	their 	contracts 	during a
strike 	that 	they would not be harmed. 	Mr. 	Fisher quoted 	the
union 	representatives 	as 	saying 	they were 	"not 	going 	to 	end up
paying 	the 	freight 	to make up 	for 	the District's 	losses 	during
the 	strike." 	Out 	of 	this 	conversation was born what 	came 	to be
known as 	the 	"mutual 	protection clause." 	Proposals 	containing
the 	clause 	were presented 	to 	the District 	shortly 	thereafter.
SEIU and 	the District 	reached an agreement 	on October 22,
1992. 	The agreement 	contains an 	"equitable 	treatment" 	provision
10

comprised of a 	"me-too" 	clause and a 	"no-subsidy" 	clause. 	It
also 	contains 	a 	"mutual 	protection 	clause." 	The 	"equitable
treatment" 	clause for bargaining unit C, 	operations 	support, 	is
representative.4 It 	reads as 	follows:
The District and Local 	99 	agree 	that Unit 	C
shall 	receive 	the benefit 	of any more
favorable 	compensation package 	(salary
adjustments 	including but 	not 	limited 	to
adjustments 	resulting 	from revenue 	sharing,
incentive plans, 	etc., 	and/or work year
adjustments) 	which the District grants to, 	or
unilaterally implements upon, 	any other
bargaining unit 	or unrepresented group 	on a
group-wide basis, 	with respect 	to the 	1992-93
and 	1993-94 	school years. 	For the purposes
of 	this 	clause, 	comparison shall not be based
upon a 	comparison 	of 	applicable 	salary bands
from Unit 	C with non-equivalent 	salary bands
from any other unit.[5]
If, 	during the life of this Agreement, 	but
after October 2, 	1992, 	the District enters
into an agreement 	with any other Unit 	which
triggers 	the 	above 	described 	equitable
treatment 	clause, 	no Unit 	C employee will
suffer a layoff, 	reduction in hours,
reduction 	in assignment 	basis 	or 	furlough 	in
order 	to 	subsidize 	and/or 	recover 	the 	costs
directly 	associated 	with 	implementing 	the
more 	favorable agreement. 	This prohibition
is not applicable to layoffs, 	or reductions
in hours 	or basis, 	or furloughs 	caused by
other factors.[6]
4See Charging 	Party Exhibit 	10 	at Appendix C, 	article 	5.
5This portion of 	the article 	is 	the 	"me 	too" 	or 	"most
favored nation" 	clause.
6This portion of 	the article 	is 	the 	"no-subsidy" 	clause.
11

The 	"mutual 	protection" 	clause 	for bargaining unit 	C,
operations support, 	is similarly representative.7 It reads:
As 	to Unit 	C, 	the Los Angeles Unified School
District 	(the 	"District") 	and the Los Angeles
City and 	County School 	Employees 	Union,
Local 99, 	("Local 99"), 	herein agree as
follows 	for the 	1992-93 	and 	1993-94 	school
years:
1. 	Any revenues which are 	lost 	to the
District 	or 	costs 	which are 	incurred by 	the
District 	as a 	result 	of 	a 	strike 	or other
concerted 	activity by 	the 	District 	employees
in a bargaining unit 	not 	represented by
Local 	99 	shall 	not be 	recouped by means 	of
layoffs, 	reductions in hours, 	reductions in
assignment basis 	or 	furloughs 	for Unit 	C
employees. 	This prohibition is not
applicable to any layoffs, 	reductions 	in
hours 	or basis, 	or furloughs 	caused by
factors 	unrelated 	to a 	strike 	or other
concerted 	activity.
2. 	This agreement 	is 	expressly subject 	to
the 	condition that 	Local 	99 	and 	its
represented 	employees 	comply with all 	terms
and conditions 	of 	the parties' 	collective
bargaining Agreement 	including, 	but not
limited to, 	all 	obligations under Article VI,
Work 	Stoppage.
With its 	agreement 	to accept 	the 	three 	clauses, 	the District
soon 	secured agreements 	from all 	the unions 	representing
classified 	employees 	and AALA. 	District 	negotiator 	Fisher
testified that 	the District 	was willing 	to accept 	these
provisions 	to 	get 	agreements 	and 	to 	improve 	its 	ability to
operate 	in 	the 	event 	of 	a strike by teachers.
7See Charging Party Exhibit 	10 at p. 	102. 	The disputed
bonus 	clause 	in the UTLA agreement makes 	no 	reference 	to 	this
provision. 	Apparently, 	the District would not be 	required to pay
the 	10 	percent bonus 	if 	it 	entered 	into another mutual 	protection
agreement with the 	charging parties 	in 1994-95.
12

Negotiations 	between 	the 	District 	and UTLA continued 	for
several 	months 	after 	the District 	reached agreements 	with 	its
other unions. 	Throughout 	these negotiations, 	UTLA continued to
press 	for a 	reduction in the amount 	of 	the pay cut 	which 	the
District 	had 	imposed 	on October 2. 	UTLA also 	complained about
the 	"me-too," 	no-subsidy and mutual 	protection 	clauses 	which 	the
District 	had agreed 	to with 	the 	other unions.8 Ultimately,
through 	the 	assistance of 	Speaker Brown, 	the District 	and UTLA
reached an agreement. 	The 	term of 	the agreement 	is 	"to and
including June 	30, 	1994, 	and thereafter extended on a day-to-day
basis 	until 	terminated by either party upon ten 	(10) 	calendar
days' 	written notice."
The parties 	are 	in dispute about 	what 	it 	would 	cost 	should
the District 	ever have 	to pay the 	10 percent bonus. 	District
calculations 	put 	at 	$1.269 	billion 	the portion of 	the 	1993-94
budget 	attributable 	to pay and benefits 	for 	the UTLA-represented
unit. 	The District 	thus 	calculates 	the 	cost 	of a 	10 percent
bonus 	for the UTLA-represented unit 	at 	about 	$127 million.
UTLA witness 	Sam Kresner 	testified 	that 	the 	District 	has
never given the union a 	consistent 	figure 	for the 	number of
positions 	in the UTLA-represented unit. 	He 	said the 	figures
provided by 	the District 	have varied by up 	to 	3,000 	employees.
8These 	clauses 	were 	challenged by UTLA 	in unfair practice
case 	LA-CE-3227. 	After UTLA and the District 	reached agreement
on the 	1992-94 	contract, 	UTLA withdrew the portion of 	the unfair
practice 	charge pertaining to 	the three 	clauses. 	The 	legality of
the me-too, 	no-subsidy and mutual 	protection clauses 	contained 	in
the 	contracts 	between 	the District 	and 	the 	charging parties 	is
not 	an 	issue here.
13

Obviously, 	if 	the unit has 	fewer members 	than the number used in
the District's 	calculations, 	the 	cost of a 10 percent bonus would
be 	smaller than 	$127 million. 	If 	the unit 	were 	3,000 	employees
fewer than the number used in District 	calculations, 	the 	cost 	of
a 	10 percent bonus would be 	$112 million, 	not 	$127 million.9
Charging parties 	contend 	that 	the 	disputed 	clause 	can be
interpreted 	to mean 	that 	UTLA-represented 	employees 	could 	receive
multiples 	of 	the 	10 percent bonus 	if 	"me-too" 	clauses were
written 	into more 	than one agreement. 	UTLA President 	Helen
Bernstein 	testified 	that 	UTLA never 	envisioned 	such 	a
possibility. 	She 	said UTLA negotiators 	assumed a maximum bonus
of 	10 	percent 	regardless 	of how many 	"me-too" 	clauses were agreed
to by 	the District.
Leticia Quezada, 	president 	of 	the District board of
education, 	testified 	that 	the board never had a 	discussion about
whether the bonus would be 	10 	percent 	or up to 	70 	percent. 	"I
think 	in 	effect 	the 	reason why we 	never 	even got 	to 	discussing
that 	is because, 	if 	in fact 	there was 	no possibility that we
would sign a 	'me-too' 	clause given the 	financial 	circumstances 	of
the District," 	she testified. 	"So, 	it was not foreseen, 	the
9This number is 	calculated as 	follows: 	Mr. 	Kresner
testified 	that 	the District puts 	at 	$50,000 	the 	cost per year of
each position 	in the UTLA-represented unit. 	Multiplication of
3,000 	positions 	by an annual 	cost 	of 	$50,000 	per position yields
$150 million as 	the amount 	of 	the possible 	overestimation of
costs 	for the UTLA unit. 	Subtraction of 	the 	$150 million from
the District's 	calculated 	total 	of 	$1.269 	billion 	reduces 	the
current 	annual 	cost 	of 	salaries 	and benefits 	for the UTLA unit 	to
$1.119 billion. 	A 10 	percent 	increase 	in a 	$1.119 	billion
expenditure 	would be 	approximately 	$112 	million.
14

implementation of 	this 	10 percent whether to one or to 	seven, 	was
never 	foreseen."
The 	charging parties 	have 	not 	yet 	attempted 	to bargain with
the District 	about 	"me-too," 	no-subsidy or mutual 	protection
clauses 	for a 	successor agreement. 	Consequentially, 	there 	is no
evidence 	that 	the 	clauses have yet had an impact.
LEGAL 	ISSUES
Did the District violate section 3543.5 (c) 	and/or 	(a) 	and
(b) 	by agreeing to pay a bonus 	to UTLA-represented employees 	if
the District 	in 	1994-95 	enters 	into a 	"me-too" 	clause with the
charging 	parties?
CONCLUSIONS 	OF LAW
It 	is 	axiomatic under 	collective bargaining 	laws 	that both
employer and union have 	the 	right 	and 	obligation 	to negotiate
during a 	time 	of 	bargaining about 	any 	lawful 	subject. 	A party
commits 	a per se 	failure 	to negotiate 	in good 	faith 	if 	it 	flatly
refuses 	to negotiate about 	any subject within 	the 	scope 	of
representation. 	(Sierra Joint 	Community College District 	(1981)
PERB Decision No. 	179.)
AALA and Local 	99 	argue 	that 	the District, 	by entering
into 	the bonus 	clause with UTLA, 	effectively has precluded
itself 	from agreeing 	in 	1994-95 	to 	"me-too" 	clauses with 	them.
This 	is because 	the 	size 	of 	the bonus would make 	it 	"impossible"
for 	the District 	to negotiate 	in good 	faith about 	"me-too" 	or
equitable 	treatment 	clauses. 	The 	charging parties put 	the amount
of 	the bonus at a minimum of 	$127 million. 	If 	the District were
15

to 	enter 	"me-too" 	clauses with multiple units, 	charging parties
continue, 	UTLA-represented employees would be 	entitled to 	$127
million multiple times. 	Such a prospect, 	they observe, 	caused
the president 	of 	the 	school 	board 	to 	concede 	that 	the District
would not 	agree 	to 	"me-too" 	clauses with any other unions 	in 	the
1994 negotiations. 	Since a 	"me-too" 	or parity clause 	is a lawful
subject 	of 	bargaining10 the 	charging parties 	contend 	that 	the
bonus 	clause must be 	illegal 	because 	it precludes 	the District
from negotiating 	in 	good 	faith with 	them.
The District 	argues 	that 	a 	"me-too" 	clause becomes 	unlawful
only if 	it 	dictates 	the 	terms 	of 	agreement 	for another unit 	or
prohibits 	the 	employer 	from negotiating 	in 	good 	faith with 	other
unions. 	Applying that rule to the bonus 	clause, 	the District
contends 	that 	the provision makes 	no 	intrusion 	into 	the wall 	of
separation 	that 	must 	exist 	between 	certificated and 	classified
employees. 	Conceding 	that 	the bonus 	clause would cause 	a
substantial 	financial 	impact 	if 	implemented, 	the District
contends 	this 	is 	simply an acknowledgment 	of 	reality 	for any
multiple-unit 	employer.
UTLA argues 	that by 	its plain language, 	the bonus 	clause
does 	not 	prohibit 	the District 	from granting 	to 	the 	charging
parties 	the 	same 	or better economic 	terms 	than what might be
10This 	conclusion 	is 	implicit 	in Banning Unified School
District 	(1985) 	PERB Decision No. 	536. 	(See also, 	Teamsters,
Local 	126 	(Inland Steel) 	(1969) 	176 NLRB 406 	[71 LRRM 1661].) 	A
"me-too" 	clause 	that 	requires 	an employer to provide a union with
any better benefits 	later 	given 	to 	another union would be 	within
the 	scope of 	representation as 	"wages" 	if 	it 	involved the 	size 	of
a pay 	increase or decrease. 	See 	section 3543.2.
16

granted to UTLA in the 	1994 bargaining. 	Nor, 	UTLA continues,
does 	the 	bonus 	clause prohibit 	the District 	from bargaining with
the 	charging parties 	over the 	subjects 	of 	equitable 	treatment 	or
a 	"me-too" 	clause. 	UTLA acknowledges 	that 	the 	clause 	creates a
potential burden on the District. 	However, 	UTLA continues, 	the
evidence 	fails 	to establish that 	the amount 	of 	the bonus 	is 	so
great 	that 	it would preclude District 	agreement 	to a 	"me 	too"
clause with 	charging parties.
As 	the various briefs make apparent, 	this 	case 	turns 	on the
legality of a contract provision. 	It 	thus 	raises 	a scope of
representation question 	in a novel manner. 	National 	Labor
Relations 	Board 	(NLRB) 	decisions 	long have divided bargaining
subjects 	into three 	classifications: 	mandatory, 	permissive and
illegal. 	Illegal 	subjects, 	as the name implies, 	are subjects
about which the parties may not negotiate and, 	if 	they do, 	may
not 	include 	lawfully 	in a 	collective bargaining agreement.11
Federal 	decisions 	identify two 	types 	of 	illegal 	subjects:
those prohibited by 	specific provisions 	of 	the National 	Labor
Relations Act 	(NLRA) 	or other laws12 and those which by their
11Honolulu Star-Bulletin 	(1959) 	123 NLRB 395 	[43 	LRRM 1449],
enf. 	denied on other grounds, 	Honolulu Star-Bulletin v. 	NLRB
(D.C. 	Cir. 	1959) 	274 	F.2d 567 	[45 	LRRM 2184].
12Such as 	"closed shop" 	clauses 	that would violate 	section
8(a)(3) 	and 8(b)(2) 	of 	the NLRA or 	"hot 	cargo" 	clauses prohibited
by section 8(e) 	or clauses 	that violate anti-trust 	laws. 	(See
United Mine Workers of America v. 	Pennington et al. 	(1965) 	381
U.S. 	657 	[59 	LRRM 2369.)
17

effect 	are 	"repugnant" 	to 	the basic purpose 	of 	the NLRA.13 In an
oft-quoted passage, 	the NLRB explained:
[W]hat 	the Act does 	not permit 	is 	the
insistence, 	as a condition precedent 	to
entering 	into 	a 	collective bargaining
agreement, 	that 	the 	other party to the
negotiations 	agree 	to a provision 	or
take 	some 	action which 	is unlawful 	or
inconsistent 	with 	the basic policy of 	the
Act. 	Compliance with the Act's 	requirement
of 	collective bargaining 	cannot 	be made
dependent 	upon 	the 	acceptance 	of 	provisions
in the agreement which, 	by their terms 	or
in their effectuation, 	are 	repugnant 	to the
Act's 	specific 	language 	or basic policy.[l4]
[Footnote 	omitted.]
In analyzing scope of 	representation questions, 	the 	PERB
generally has 	adopted 	the 	NLRB 	distinction between mandatory 	and
permissive 	subjects. 	(See 	Chula Vista City School 	District
(1990) 	PERB Decision No. 	834.) 	The Board also has acknowledged
that 	certain subjects 	can be 	illegal 	although 	it 	has yet 	to
consider 	illegality 	in the 	context 	of 	an 	existing 	contract
provision. 	In its 	single 	case on illegality, 	the 	PERB 	focused
upon whether 	a 	proposed 	contract 	term violated 	a 	specific
statutory proscription. 	(See 	San Benito Joint 	Union High School
District 	(19 84) 	PERB Decision No. 	406.) 	Finding that the
13Such as 	an 	employer 	demand 	for 	superseniority 	for
nonstrikers 	(Great Lakes Carbon Corp. 	v. 	NLRB 	(4th Cir. 	1966) 	360
F.2d 19 	[62 	LRRM 2088]). 	See generally, 	Hardin, 	The Developing
Labor Law at pp. 	949-954.
14National Maritime Union 	(Texas Co.) 	(1948) 	78 NLRB 971,
981-982 	[22 	LRRM 1289] 	enf. 	NLRB v. 	National Maritime Union 	(2nd
Cir., 	1949) 	175 	F.2d 	686 	[24 	LRRM 2268].
18

proposed 	language 	did not violate 	the 	statute 	either 	in wording
or effect, 	the Board affirmed the dismissal 	of 	the 	charge.
Obviously, 	there 	is 	no 	statutory provision prohibiting a
clause 	that 	would 	require 	an 	employer 	to pay a bonus 	to 	a union
if 	it agrees 	to a 	"me-too" 	clause with another union. 	Therefore,
the question here 	is whether by 	its 	effect 	the bonus 	clause 	in
the District-UTLA contract 	is 	repugnant 	to 	the basic policy of
the 	EERA.
Although 	this 	case 	involves 	a bonus 	clause and not 	a
"me-too" 	clause, 	its validity can be measured by the 	test 	set 	out
in Banning Unified School District, 	supra, 	PERB Decision
No. 	536.15 There, 	the Board held that 	the validity of a 	"me-too"
clause would be 	reviewed 	on a 	case-by-case basis 	to 	determine
whether 	the 	clause might 	cause 	the 	employer to engage 	in bad
faith bargaining. 	Specifically, 	the question is whether the
disputed 	clause 	restricts 	the 	employer's 	"flexibility" 	to
negotiate 	with 	other 	exclusive 	representatives.
By overwhelming weight, 	the evidence here 	is persuasive 	that
the bonus 	clause will 	have 	the 	result 	of barring 	the District
from negotiating 	"me-too" 	clauses with charging parties 	in 	1994.
Given UTLA's 	irritation about 	the 	clauses, 	it 	seems 	likely that
such was 	exactly 	the 	intended effect. 	Although there 	is 	some
conflicting evidence about 	the precise 	cost 	of 	a 	10 	percent 	bonus
for the UTLA-represented unit, 	it 	clearly would be 	$110 million
15Affirmed, 	Banning Teachers Assn. 	v. 	Public Employment
Relations Board 	(1988) 	44 Cal.3d 799 	[244 Cal.Rptr. 	671].
19

or more. 	Indeed, 	10 percent 	is 	exactly the amount 	of 	the pay cut
which 	the 	District 	insisted 	that 	the 	UTLA bargaining unit 	accept
in 	the 	1993-94 	school 	year 	to keep 	the District 	out 	of
bankruptcy.
Despite UTLA's 	contention that 	the bonus 	clause 	does 	not bar
the District 	from agreeing 	to 	"me-too" 	clauses with the 	other
units, 	the huge size of 	the bonus makes 	it 	inconceivable that 	the
District 	would do 	so. 	Board of 	Education 	President 	Leticia
Quezada 	conceded 	this point. 	She 	testified 	that 	the 	school 	board
never 	discussed 	the potential 	cost 	of 	the bonus 	clause 	because
"there was 	no possibility that we would sign a 	'me-too' 	clause
given 	the 	financial 	circumstances 	of 	the District." 	If 	there 	is
no possibility that 	the District will 	sign a 	"me-too" 	clause, 	the
effect 	of 	the bonus 	clause 	is 	clear. 	It 	removes 	the possibility
that 	the 	District 	will 	bargain with other unions 	about 	a 	lawful
subject. 	The bonus clause is, 	therefore, 	"repugnant" 	to the
basic 	policy 	of 	the 	EERA.
UTLA argues 	that 	such a 	finding 	is 	premature because 	the
bonus 	clause 	as 	yet 	has 	had no 	effect 	on bargaining between 	the
charging parties 	and the District. 	The parties 	have not been in
bargaining 	and 	there 	is 	no 	evidence 	that 	the predicted bad
effects will ever come to pass. 	Thus, 	UTLA reasons, 	a
fundamental 	requirement 	of Banning. 	a negative effect 	on
bargaining, 	has not been demonstrated.
This 	argument 	is 	not persuasive. 	The harm that 	occurs 	from
the 	negotiation 	of 	an 	illegal 	contract 	provision 	takes 	place 	at
20

the 	time 	the provision is 	negotiated. 	The violation is 	immediate
and 	is 	due 	to 	the 	nature 	of 	the provision 	itself. 	An 	illegal
clause 	is 	illegal 	at 	the moment 	it 	is 	entered 	into and there 	is
no 	need 	to 	establish a 	further 	impact.16 Whether 	the 	charging
parties 	have yet 	tried to negotiate a 	"me-too" 	clause 	is
irrelevant. 	Such violations 	as may have 	occurred 	took place 	when
the District 	acceded to UTLA's 	demand 	for the bonus 	clause.
Accordingly, 	I 	conclude 	that 	the District 	failed to
negotiate 	in 	good 	faith 	and 	thereby violated 	EERA section
3543.5(c) 	by agreeing to 	the bonus 	clause with UTLA. 	The
District's 	failure 	to negotiate 	in good 	faith also 	had 	the 	effect
of 	denying 	the 	charging parties 	the 	right 	to 	represent 	its
members 	in violation of EERA section 3543.5 (b) . 	However, 	there
is 	no 	evidence 	that 	the 	failure 	to negotiate 	in good 	faith also
denied 	to 	individual 	employees 	rights 	protected by 	the 	EERA.
Accordingly, 	the allegation 	that 	the District violated section
3543.5(a) 	must be dismissed. 	(See Tahoe-Truckee Unified School
District 	(1988) 	PERB Decision No. 	668.)
REMEDY
The PERB in section 3541.5 (c) 	is given:
. . . 	the 	power 	to 	issue 	a 	decision and 	order
directing 	an offending party 	to 	cease 	and
16Suppose 	for purpose of 	illustration, 	that 	the District 	had
agreed to a 	contractual 	clause with one 	of 	its 	unions 	that 	it
would not 	grant 	a pay increase 	in 	the next year 	to another union.
There would be 	no 	need 	for 	the 	aggrieved union 	to wait until 	the
next 	year 	to 	see whether 	the District 	actually would 	refuse 	to
negotiate with 	it 	about 	a pay 	increase. 	Such a provision would
be 	illegal 	from 	its 	inception and 	the 	aggrieved union would not
have 	to wait 	for an adverse 	impact 	to 	challenge 	it.
21

desist 	from the 	unfair practice 	and 	to 	take
such affirmative action, 	including but not
limited 	to 	the 	reimbursement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of 	this 	chapter.
Here, 	the District 	agreed to 	insert 	an 	illegal 	provision
into 	its 	contract 	with UTLA. 	The appropriate 	remedy in 	cases
where 	illegal 	provisions 	have been written 	into 	a 	contractual
agreement 	is 	that 	respondent 	cease 	giving any present 	or
prospective 	effect 	to 	the 	illegal 	clause. 	(Newspaper Agency
Corp. 	(1973) 	201 NLRB 480, 	494 	[82 LRRM 1509].)
It 	further 	is 	appropriate 	that 	the District be 	directed 	to
post a notice 	incorporating 	the 	terms 	of 	the order. 	Posting of
such a notice, 	signed by an authorized agent 	of 	the District,
will 	provide 	employees with notice 	that 	the District 	has 	acted 	in
an unlawful manner, 	is being 	required to 	cease and desist 	from
this activity, 	and will 	comply with the order. 	It 	effectuates
the purposes 	of 	the 	EERA that 	employees be 	informed of 	the
resolution of 	this 	controversy and 	the District's 	readiness 	to
comply with 	the 	ordered 	remedy. 	(Placerville 	Union 	School
District 	(1978) 	PERB Decision No. 	69.)
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record in the 	case, 	it 	is 	found that 	the Los
Angeles 	Unified 	School 	District 	(District) 	violated 	section
3543.5(c) 	of 	the Educational Employment Relations Act 	(Act). 	The
District 	violated 	the Act 	by agreeing 	to 	an 	illegal 	bonus
provision 	in 	its 	contract 	with 	the 	United Teachers 	Los 	Angeles
22

(UTLA). 	The provision would require 	the District 	to pay a 	10
percent 	bonus 	to members 	of 	the UTLA-represented unit 	if 	the
District 	agrees 	to a 	"me-too" 	clause with any other bargaining
unit 	in 	1994-95. 	Because 	this action had the additional 	effect
of 	interfering with the 	right 	of 	the 	charging parties 	to
represent 	their members, 	the agreement 	to the 	illegal 	clause also
was a violation of 	section 3543.5(b). 	The allegation that 	the
District's 	conduct violated section 	3543.5(a) 	and all 	other
allegations 	are 	hereby DISMISSED.
Pursuant 	to section 3541.5(c) 	of the Government Code, 	it
hereby 	is 	ORDERED 	that 	the District, 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Agreeing 	in negotiations with the UTLA to any
provision which by 	specific 	wording 	or 	effect 	would preclude 	the
District 	from negotiating about 	any 	lawful 	subject 	with 	the
exclusive 	representatives 	of 	other bargaining units.
2. 	Giving any present 	or prospective 	effect 	to
Article XIV, 	section 1.0(e) 	of 	the 	1992-1994 agreement between
the District 	and 	the 	UTLA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE 	POLICIES 	OF THE ACT:
1. 	Within ten 	(10) 	workdays 	of 	the service of a 	final
decision 	in this matter, 	post 	at all work locations where notices
to employees 	customarily are posted, 	copies 	of 	the Notice
attached hereto 	as 	an Appendix. 	The Notice must 	be 	signed by an
authorized agent 	of 	the District, 	indicating that 	the District
23

will 	comply with 	the 	terms 	of 	this 	Order. 	Such posting 	shall 	be
maintained 	for a period of 	thirty 	(30) 	consecutive workdays.
Reasonable 	steps 	shall be 	taken to ensure 	that 	the Notice 	is 	not
reduced 	in size, 	altered, 	defaced or 	covered with any other
material.
2. 	Upon issuance of a 	final 	decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with the Order to 	the
San Francisco Regional 	Director of 	the 	Public 	Employmen	- 	t
Relations 	Board 	in accord with 	the 	director's 	instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions 	with the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within 2 0
days 	of 	service of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions 	of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" when
actually 	received before 	the 	close 	of business 	(5:00 	p.m.) 	on 	the
last day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express 	United States mail, 	postmarked not 	later
than the last day set for filing 	. 	. 	. 	." 	(See Cal. 	Code of
Regs., 	tit. 	8, 	sec. 	32135; 	Code of Civ. 	Pro. 	sec. 	1013 shall
apply.) 	Any 	statement 	of 	exceptions 	and 	supporting brief 	must 	be
served 	concurrently with 	its 	filing 	upon 	each party 	to 	this
24

proceeding. 	Proof 	of 	service 	shall 	accompany each 	copy 	served 	on
a party or filed with the Board itself. 	(See 	Cal. 	Code 	of 	Regs.,
tit. 	8, 	secs. 	32300, 	32305 and 32140.)
O	Ronald E. 	Blubaugh
Administrative 	Law Judge
25