BANNING TEACHERS ASSOCIATION CTA NEA v. BANNING UNIFIED SCHOOL DISTRICT

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Court of Appeal, Fourth District, Division 2, California.

BANNING TEACHERS ASSOCIATION, CTA/NEA, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent; BANNING UNIFIED SCHOOL DISTRICT, Real Party in Interest.

E002690.

Decided: October 17, 1986

Charles R. Gustafson, Los Angeles, Kirsten L. Zerger, Burlingame, A. Eugene Huguenin, Jr., and Rosalind D. Wolf, Los Angeles, for petitioner. Jeffrey Sloan, Acting Gen. Counsel, Sacramento, and Martin Fassler, Staff Counsel, Fresno, for respondent. Atkinson, Andelson, Loya, Ruud & Romo, Ronald C. Ruud and Karen E. Gilyard, San Bernardino, for real party in interest.

This is a case of first impression in California.   The sole issue presented is:  does a school district which enters into a “parity agreement” 1 with its classified (non-teaching) employees, tying raises in wages and salaries in equal percentages to those later received by the district's certificated (teaching) employees, commit a per se violation either of the statutory requirement that classified employees and certificated employees not be included in the same negotiating unit (Gov.Code, § 3545, subdivision (b)(3)), or of the district's duty to negotiate with its certificated employees (Gov.Code, § 3543.5, subdivision (c))? 2 We answer the question affirmatively.

The case comes to us on a petition from the Banning Teachers Association (Association), which seeks review of a decision of the Public Employment Relations Board (PERB) dismissing the Association's unfair labor practice charge against the Banning Unified School District (District).   We issued a writ of review, and the matter is now before us for disposition.

FACTUAL AND PROCEDURAL BACKGROUND

The Association is the exclusive representative of the District's certificated employees' unit.   The collective bargaining agreement between the District and the Association was due to expire on June 30, 1983.3  Negotiations for a new agreement began about May 1983.

On or about September 29, 1983, before the District and the Association had reached a final agreement on the issues of salaries, fringe benefits, grievance procedures or hours of employment, the District entered into a salary agreement with its classified employees, which provided:

“Salary:  Effective July 1, 1983 5% applied to base schedule plus $13,000 to be applied to range 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.”  (Emphasis added.   The emphasized language will hereinafter be referred to as “the parity agreement.”) 4

On November 18, at a meeting with the Association's representatives, the District presented its “last, best, and final offer.”   The offer included a salary increase of 8 percent, proposals as to fringe benefits, grievance procedure and hours of employment, and a request that the offer be taken to the Association's general membership for a secret ballot.   The Association's representatives rejected the offer.   On November 21, the District chose to by-pass the Association and itself distributed the offer and a cover letter directly to the Association's members.   On November 24, the District's superintendent told representatives of the District's classified employees, pursuant to the foregoing parity wage agreement, that as of November 30 the salary of the classified employees would be increased to meet the terms of the District's offer to the certificated employees.5

On December 7, the Association filed an unfair practice charge against the District, alleging:  (1) the District's proposal as to grievance procedure violated section 3543.5, subdivision (c), supra;  (2) the District's circulation of its offer and cover letter to the Association's members violated section 3543.5, subdivisions (a), (b) and (c),6 and (3) the District's proposed salary increase to its classified employees violated section 3543.5, subdivisions (a), (b) and (c).

PERB's regional attorney dismissed the Association's charges as to the District's grievance procedure proposal and circulation of its offer.   However, on February 7, 1984, he issued a complaint based upon the District's proposed salary increase to its classified employees, alleging that the parity agreement violated section 3543.5, subdivisions (a), (b) and (c), in that it had been reached during negotiations “over the same subject” between the District and the Association.7

On March 19, a pre-hearing conference was held before the PERB hearing officer (ALJ).   The District's representative stated that no agreement had been reached to date between the District and the Association.8  The case was submitted on the complaint, the District's answer (in which the District admitted that it had executed the parity agreement, but denied that it had thereby violated section 3543.5, subdivisions (a), (b) or (c)), and briefs to be filed by the parties.   In the brief which it later filed, the Association also objected that the parity agreement violated the separate unit requirement of section 3545, subdivision (b)(3).

On October 23, 1984, the administrative law judge (ALJ) issued her proposed decision, concluding that no statutory violation had occurred and dismissing the complaint.   The ALJ's findings of fact recited that the findings had been made “[p]ursuant to the [parties'] stipulation,” and were confined to and almost identical to the allegations of the complaint, except for the omission of paragraph 3, the filing of the unfair practice charge.   In her discussion, the ALJ reasoned that parity agreements did not per se either abrogate an employer's duty to bargain in good faith, or violate the statutory separation of certificated and classified negotiating units, and that the agreement here was not illegal because its wording did not show an intent to restrict the District's freedom to bargain with the certificated unit.

The Association filed exceptions to the ALJ's proposed decision, and the matter came before the PERB.   The opinion of the PERB dismissed the charge, reasoning that parity clauses were not per se violations of an employer's duty to bargain or the statutory separation of bargaining units;  that the issues should be decided on a case-by-case basis;  and that no evidence had been presented of any bad-faith bargaining by the District, or of any required or actual negotiating by the certificated unit on behalf of the classified unit.

More specifically, the PERB's decision recited in relevant part:

“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․

“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.   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.

“․ 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․

“․ 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 foster labor harmony or effectuate the purpose of the EERA.  ․

“․

“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, this clause has no effect.”

This petition followed.

DISCUSSION

On review, the Association contends that parity agreements constitute per se violations of:  (1) the separate unit requirement of section 3545, subdivision (b)(3), and (2) the duty to negotiate reqirement of section 3543.5, subdivision (c).

I

THE SEPARATE UNIT REQUIREMENT

 As noted, the PERB decided that section 3545, subdivision (b)(3) ( “Classified employees and certificated employees shall not be included in the same negotiating unit.”) does not explicitly prohibit parity agreements in general, or this parity agreement in particular.   Because the Association's arguments on the separate unit contention are titled and phrased in terms of parity “agreements” (i.e., in general), we need not review the PERB's decision about this agreement in particular.   As to the PERB's decision regarding parity agreements in general (i.e., per se), “[u]nder established principles PERB's construction is to be regarded with deference by a court performing the judicial function of statutory construction, and will generally be followed unless it is clearly erroneous.”  (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 856, 191 Cal.Rptr. 800, 663 P.2d 523.)   This principle reflects the reviewing court's appropriate deference to the PERB's inherent expertise.   Nevertheless, the reviewing court will overturn PERB's construction of the statute when that construction is, for instance, overbroad or not “reasonably defensible.”  (See Moreno Valley Unified School Dist. v. Public Employment Relations Bd. (1983) 142 Cal.App.3d 191, 196, 202, 191 Cal.Rptr. 60;  cf. Oakland Unified School Dist. v. Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007, 1012, 175 Cal.Rptr. 105.)

The Association contends that parity agreements between a school district and separate bargaining units (here, the classified employees) constitute a per se violation of Government Code section 3545, subdivision (b)(3) because such agreements effectively require the subsequently-bargaining unit (here, the certificated employees) to negotiate for the other.   For the reasons stated hereafter, we agree with the Association and find PERB's conclusion to the contrary to be clearly erroneous.

The Legislature has expressly mandated that “Classified employees and certificated employees shall not be included in the same negotiating unit.”   (Gov.Code, § 3545, subd. (b)(3).)   This separation is congruent with the different and specifically defined subjects over which each group may negotiate.   Curriculum and student discipline issues for instance, are reserved to certificated employees.  (Compare Ed.Code, § 45100 et seq. with Ed.Code, § 44800 et seq.)   Thus, each unit has separate interests and bargaining abilities.   But parity agreements attempt to erode this separation by creating equal percentage increases in wages for the two separate bargaining units which are prohibited from bargaining as a single unit.

In light of the realities facing the negotiating parties, it is clear that such a parity agreement effectively includes the first unit's wages as an issue in the second unit's negotiations.   A school district has a finite capacity to pay salaries, wages and fringe benefits.   This limited fund is allocated to the certificated, classified and other employees as agreed to by the employer and each of the bargaining units negotiating separately.   It is the obligation of each of the bargaining units representing classified and certificated employees to obtain as large a share of the resources available as possible for the individuals for whom they are the designated bargaining unit.   To the extent that one bargaining unit is successful in obtaining an increased allocation of resources for its members, the remaining unit has suffered a detriment in that the total resources available has been reduced.   In short, the two units are in competition for the same dollars.   When, as here, an employer enters into a wage “parity” agreement with one unit, the remaining unit is seriously handicapped.   This handicap is obvious because the allocation of the employer's remaining resources are subject to a previously contracted allocation to the first unit which was neither negotiated by nor agreed to by the second unit.

We find persuasive that the Supreme Court of Connecticut reached the same conclusion in a similar situation in Loc. 1219, Intern. Fire Fighters v. Ct. L.R.B. (1976) 171 Conn. 342, 370 A.2d 952.   In that case statute provided for the separation of police and firefighter units.   Plaintiff firefighter unit secured a parity agreement wage, overtime and vacation benefits equal to those secured by the police officers' unit.  (Id., at p. 955.)   The high court upheld the Connecticut PERB's refusal to enforce the agreement, and reasoned:  “The parity clause is between one group, the plaintiff, and the borough, and will impose equality for the future upon another group, the police, which has had no part in making the agreement.   On this issue, the police union's right to bargain has been completely taken from it.   By voiding parity clauses in circumstances similar to those found in the present case, the defendant board preserves the wall of separation mandated by the statute.   The defendant'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.”  (Id., at p. 957, emphasis added;  see also, Local Union ## 1522 I. A. of F. v. Connecticut St. B. of L. R. (1973) 31 Conn.Sup. 15, 319 A.2d 511.)

In adopting this view of parity clauses with regard to statutorily segregated units, we reject as specious PERB's conclusion that, “It is indeed incongruous to suggest ․ that the employer may legitimately bargain for parity in fact, but may not properly include a parity clause in a collective bargaining agreement.” 9  The conclusion fails to separate goals (parity in fact) from means to those goals (parity agreements).   In addition to restricting the flexibility of subsequent negotiations (see discussion at II, infra), parity agreements have the impermissible effect of directly linking the two units which by statute must be kept apart.   The pernicious effect of this linkage, as distinct from a mere goal of parity, can be seen by considering the practical consequences of such an agreement.

We consider, for instance, a school district that enters into a parity agreement with the first bargaining unit.   Thereafter, the school district negotiators need only negotiate with one unit on wage and salary issues.   The employer's negotiators can quite properly refuse to offer adequate wage or salary increases to the second unit on the basis that to do so would increase the wages and salaries of the first unit at an expense beyond the capacity of the district.   If such an increase is not beyond the capacity of the employer, it results in the second unit having to bargain for the benefit of the first unit including justifying an additional increase in salary and wages for the benefit of the first unit.   Such a direct linkage would not be a necessary consequence of any two actors merely entertaining a goal of parity.

Moreover, we find misplaced PERB's reliance on Conn. Educ. Ass'n v. State Bd. of Labor Rel. (1985) 5 Conn.App. 253, 498 A.2d 102.   In that case the Connecticut State Board of Labor Relations had ruled that the criteria and procedures for displaced administrators to “bump” teachers were mandatory subjects of bargaining for the teacher's unit only, and that any such agreement must give displaced administrators and teachers equal bumping rights.   On appeal the administrators and the teachers both argued that the labor board's ruling violated the statutory principles of separation of units and exclusivity of dealing.   The teachers also argued that their unit should not be required to bargain about giving lay-off rights to members of the administrator's unit, because the teachers' unit “ ‘represents the teachers exclusively and has no authority to represent administrators, and ․ would [be] compel[led] ․ to breach its duty of fair representation of its own unit.’ ”  (Id., at p. 113.)

Although the appellate court upheld the ruling of the labor board, it is crucial to note the reasoning stressed the procedural and almost physical need for a unitary procedure.  “ ‘[T]he general rule in labor relations law is that the scope of the bargaining unit controls the extent of the right and duty to bargain.   In other words, those subjects which can be termed a mandatory subject of bargaining between an employer and the bargaining representative for a particular unit are only those subjects which concern the conditions of employment of the employees in that bargaining unit.   However, it is sometimes contrary to the reality of the workplace to argue that a given subject impacts only the members of a single bargaining unit.   It is obvious that in the most literal sense of the phrase, conditions of employment of both administrator unit and teacher unit members will be affected by procedures which determine bumping rights of displaced administrators vis a vis members of the teacher unit.  [Citation.]  This reality raises the question of whether it is necessary for both units to negotiate identical contractual provisions covering cross-unit bumping in order for such questions to be determined by the collective bargaining process.   We think the answer to this question is no.   The Negotiations Act provides for a highly structured negotiation and impasse resolution procedure ․ which throughout is directed to only bilateral (i.e., single unit) bargaining between boards of education and unions.  [Citation.]  There is no guidance in either the Negotiations Act or the Tenure Act on how such multilateral bargaining would be handled.   Given the lack of guidance for multilateral bargaining and what we see as extreme if not insoluble procedural and practical difficulties to such an approach, the likelihood for successful multilateral collective bargaining to occur on the subject in question appears to be remote at best.   This result would seriously frustrate the often stated policy of our State embodied in our labor relations statutes ․ that conditions of employment for employees who have chosen to become organized for purposes of collective bargaining should be resolved through the collective bargaining process․' ”  (Conn. Educ. Ass'n v. State Bd. of Labor Rel., supra, 5 Conn.App. 253, 498 A.2d 102, 112, emphasis added.)

In other words, the issue presented in Connecticut Educators, i.e., “bumping,” required a single, united agreed procedure between the unions if it was to be effective.   The situation there required a direct correlation so that each displaced individual would have fixed, equal rights as he or she moved between unions.   In contrast, in the case at bench there is no physical or procedural need for a linkage.   It is precisely because of the independence of the units' salary positions that one unit seeks by a parity agreement to create this artificial bond.

Further, we find PERB's citation to a New York case unpersuasive.   In that case, Niagara Wheatfield Adm'rs v. Niagara Wheatfield (1978) 44 N.Y.2d 82, 404 N.Y.S.2d 82, 375 N.E.2d 37, the court considered whether a parity agreement contravened public policy.   Similar to the clause in our matter, the clause there provided that any later changes in pay rates for the teachers would also be received by the administrators.   The court reasoned that “the tie-in provision alone is not offensive to public policy.   In fact, a tie-in provision similar to that here presented was statutorily required until 1971.”  (Id., at p. 85, 375 N.E.2d at p. 40.)   We find this reliance on a repealed law unconvincing, suggesting to us that the New York legislature reconsidered the wisdom of its earlier position.   In any event, we are bound not by the laws of New York, but by those of California, which have expressly separated the bargaining units of certificated employees from their classified coworkers.

II

THE DISTRICT'S DUTY TO NEGOTIATE

 As an alternate ground, the Association contends that the parity agreement restricts a district's flexibility to negotiate with the second bargaining unit.   We agree that the District's restricted negotiating position also violates per se the District's duty to negotiate in good faith under section 3543.5, subdivision (c).

The crux of the argument on this point is that a parity agreement so restricts a district's bargaining position that it amounts to a unilateral change in a condition or term of employment to the second bargaining unit.   Such per se violations of the duty to negotiate follow NRLB precedent;  the standard in such cases is whether “[u]nilateral action by an employer ․ amount[s] to a refusal to negotiate about the affected conditions of employment under negotiation, and must of necessity obstruct bargaining, ․” (N.R.L.B. v. Katz (1962) 369 U.S. 736, 747, 82 S.Ct. 1107, 1114, 8 L.Ed.2d 230, see also San Mateo Community College District (1979) PERB Dec. No. 94 [3 PERC ¶ 10080].)

We consider the parity agreement to meet this standard.   It is apparent that by its terms, in light of the District's fixed resources, the agreement significantly altered the District's position on salary negotiations before it began negotiations with the Association.   This advance limitation on the District's part is apparent despite the fact that in this case the District offered the Association an 8 percent pay raise, that is, 3 percent more than the 5 percent offered to the classified employees.   This parity agreement had fixed the District's position by linking both units' salaries.   Absent the agreement, the Association might well have been able to negotiate an offer even greater than 8 percent.10

Similar conclusions, holding parity agreements to constitute per se violations of statutory duties to negotiate in good faith have already been adopted in New Jersey and Pennsylvania.   The reasoning of the sister states' PERBs is convincing.   In considering this question, the New Jersey PERB stated:  “The parity clause has an inherently unavoidable coercive effect.   When considering the proposals of one employee organization, the public employer must inevitably reconcile such a proposal with the ultimatum of providing similar economic proposals to any other organization which has the protection of a parity clause․  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 (1978) 4 NJPER 4130 [PERC No. 78–87], emphasis added).)

The reasoning of the PERB of Pennsylvania was similar:  “While there can be no doubt that an employer is confronted with numerous economic facts of life during collective bargaining negotiations, substantially all of those considerations are beyond the control of the employer.   This clearly is not the case with parity agreements.   An employer may be required to bargain over parity because arguably parity affects wages and hours, but an employer does not have to include a parity agreement in the final agreement.   Furthermore, parity 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 (1978) 9 PPER 9084, emphasis added.)

We thus reject the PERB's conclusion that “the [parity] agreement did not directly prohibit the Association from a salary increase greater than that already granted to the classified employees.”   This argument is inapplicable to the facts of this case.

First, the PERB did not explain how the Association could receive a salary increase greater than that already granted to the classified employees.   The PERB's statement in this regard is pure sophistry.

Second, the impact of the parity agreement was not remote, but rather, direct.   Although it was not technically before the Association and the District as a subject of negotiation, the District would have to honor the agreement it had previously executed.   The agreement would thus have provided the direct disincentive to negotiation, albeit on a document distinct from the District's offer.   The argument which chooses to overlook this fact is blind to reality.

Finally, we conclude the facts in this case demonstrate the error of PERB's conclusion “to decide the issue [of parity agreements] on a case-by-case basis.”   In so doing, PERB took note of a New York appellate decision to the same effect in Niagara Wheatfield Adm'rs. v. Niagara Wheatfield, supra, 404 N.Y.S.2d 82, 85, 375 N.E.2d 37, 40.

Such an approach not only allows the parity agreement to obstruct bargaining, it severely hampers effective judicial review.   This reviewing court cannot know whether or not the Association could have negotiated a contract on behalf of its members providing for a percentage increase in excess of that received by the classified employees in the absence of the parity agreement.   Nor can this reviewing court determine which unit, if either, was deserving of a larger percentage increase.   Thus, only a conclusion that parity agreements are per se violative of the duty to negotiate will reconcile the charging party's burden of proof 11 with meaningful judicial review.   In this case the Association has met its evidentiary burden by presenting a pure question of law on undisputed facts.   To conclude differently would require the charging party to prove the speculative question of what it might otherwise have obtained.

DISPOSITION

For the foregoing reasons, we conclude that the parity agreements tying the wage increases of the classified employees to those later secured by the certificated employees constituted per se violations of sections 3545, subdivision (b)(3) and 3543.5, subdivision (c).   The decision of respondent PERB is annulled and the cause remanded for proceedings consistent with this opinion.

CERTIFIED FOR PUBLICATION.

I respectfully dissent.

The EERA created PERB “with broad powers and duties ․ [including the] oversee[ing] and facilitat[ing] [of] the negotiating process established by the Act.”  (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 856, 191 Cal.Rptr. 800, 663 P.2d 523.)   The majority in this case acknowledges PERB's expertise, and our obligation to regard its decisions with deference;  it then proceeds to substitute its (the majority's) own judgment for that of the board.

More specifically, on the separate negotiating unit issue (Gov.Code, § 3545, subd. (b)(3)), PERB found that each unit negotiated “on its own behalf,” and that the parity agreement did not require the Association to negotiate “on behalf of” the classified unit.   The majority disagrees, arguing that the Association would have to bargain “for the benefit of” the classified unit, in order to obtain a raise higher than the one obtained by that unit.   However, the Association may bargain “for the benefit” of the classified unit, without necessarily bargaining on that unit's “behalf,” in that the bargained-for item may incidentally “benefit” the classified unit, even though the Association had not bargained on that unit's “behalf” to obtain it.

For example, suppose the Association were to bargain for, and obtain, a one-hour reduction in the school day.   The shorter day would undoubtedly “benefit” the classified unit, but no one would argue that the Association had impermissibly bargained on that unit's “behalf” in order to obtain it.

Moreover, although the majority correctly observes that the Association and the classified unit are required to negotiate separately because some of the subjects they negotiate are different, the majority then draws the unwarranted conclusion that parity agreements (which, by definition, involve the same subject) “attempt to erode this separation by creating equal percentage increase in wages.”   The majority does not explain how the subject-matter distinction between the two units is “erode[d]” when the units are treated equally as to a subject which they share.

Further, the majority's statement that “the two units are in competition for the same dollars” may reflect the unfortunate result of the separate unit requirement, but cannot be its purpose.   Accordingly, any reduction in that competition by way of a parity agreement cannot “erode” the purpose of the separation, namely the difference in subject matter, and, as the Board observed, will “foster labor harmony” and “effectuate the purpose of the EERA.”

Finally, on the separate unit issue, the majority relies solely on a Connecticut case involving police and firefighters.   However, “because the Winton Act [the predecessor to the EERA] represents a statutory plan that is clearly unique, ․ the [construction of its provisions] is satisfactorily resolvable without resort to the persuasive value of foreign opinions” (Grasko v. Los Angeles City Board of Education (1973) 31 Cal.App.3d 290, 306–307, 31 Cal.App.3d 290, 107 Cal.Rptr. 334, criticized on other grounds in County of Los Angeles v. Superior Court (1975) 13 Cal.3d 721, 728, 119 Cal.Rptr. 631, 532 P.2d 495, and City and County of San Francisco v. Cooper (1975) 13 Cal.3d 898, 917, 120 Cal.Rptr. 707, 534, P.2d 403), particularly when, as here, the foreign opinion involves a noneducational context.

On the issue of the District's duty to negotiate (Gov.Code, § 3543.5, subd. (c)), PERB ruled that the parity agreement “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.”

The majority disagrees, on the grounds that “a parity agreement so restricts a district's bargaining position that it amounts to a unilateral change in a condition or term of employment to the second bargaining unit.”   The majority reasons that any parity agreement between the District and one unit, whether the agreement ties the second unit's benefits to those of the first unit, or ties the first unit's benefits to those of the second unit, “fixe[s]” the District's position as to the second unit, and provides a “direct disincentive to negotiate” with that unit.

The record here, significantly, reveals otherwise, in that the District, after negotiating with the Association, offered the Association a 3 percent higher increase than it had given the classified unit.   The majority's response to this state of affairs is that “[a]bsent the agreement, the Association might well have been able to negotiate an offer even greater than 8 percent.”   (Emphasis added.)   However, it is precisely the “might well have” aspect of the Association's alleged prejudice which validates PERB's decision to decide the issue on a case-by-case basis.

The majority argues that PERB's case-by-case approach “severly hampers effective judicial review,” and unfairly requires the second unit to prove the “speculative question” of what it might have obtained absent the agreement.   However, these problems would result from any salary agreement the District negotiated with the first unit, because of the finite nature of the District's resources.   For example, suppose the District did not sign a parity agreement with the classified workers, but agreed to give them an 8 percent salary increase, after which it offered the Association a:  (1) smaller, (2) equal, or (3) larger increase.   If one were to accept the majority's reasoning, then in any of the foregoing situations, the Association could claim a “per se” violation, on the grounds that the District's position was “fixed” as to it, the Association, because the District had allocated its remaining resources to the classified unit, and the Association would be unable to prove what it might have obtained absent the (nonparity) agreement with that unit.

In other words, it is not the existence of a parity agreement which “ ‘chill [s] the free exchange’ ” between the District and the Association, or “ ‘necessarily affect[s] subsequent negotiations,’ ” but the multi-unit bargaining process, and the finite nature of the District's resources.   In sum, as PERB's decision recites:  “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.”

By rejecting PERB's case-by-case approach, on the theoretical level, the majority has substituted its preference as well as opinions from foreign jurisdictions for PERB's expertise, and on the practical level, the majority has sharply limited PERB's “broad powers and duties ․ to oversee and facilitate the negotiating process established by the Act.”  (San Mateo City School Dist. v. Public Employment Relations Bd., supra, 33 Cal.3d 850, 856, 191 Cal.Rptr. 800, 663 P.2d 523.)

I would affirm PERB's decision.

FOOTNOTES

1.   As used in this opinion, the term “parity” does not mean or imply equal remuneration for equal work.   It means equal percentage increases in wages for two separate bargaining units.

2.   All statutory references hereinafter are to the Government Code, unless otherwise indicated.Government Code sections 3545 and 3543.5 are part of the 1975 Educational Employment Relations Act (EERA), Government Code, Chapter 10.7, section 3540 et seq., also known as the Rodda Act.Section 3545, subdivision (b)(3) provides:  “In all cases ․ [c]lassified employees and certificated employees shall not be included in the same negotiating unit.”Section 3543.5, subdivision (c) provides:  “It shall be unlawful for a public school employer to ․ [r]efuse or fail to meet and negotiate in good faith with an exclusive representative.”

3.   Although PERB's decision and other documents in the record state the foregoing expiration date as June 1984, it appears from additional evidence, particularly the fact that the parties were negotiating for the 1983–1984 school year, which began on July 1, 1983, that the existing agreement expired on June 30, 1983.

4.   It is not necessary to address the problems created by the peculiar draftsmanship and ambiguities of the quoted paragraph.

5.   The events described in the foregoing paragraph were recited in the Association's unfair practice charge (see infra).   However, they were not included in the unfair practice complaint which was later filed by PERB's regional attorney (see infra).

6.   Section 3543.5, subdivisions (a) and (b) provide:  “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.“(b) Deny to employee organizations rights guaranteed to them by this chapter.”

7.   The factual allegations in the complaint, other than the status of the parties, were as follows:“3. The charge was filed with the PERB on December 7, 1983.“4. The Respondent and Charging Party are signatories to a collective bargaining agreement effective during the period of February, 1981 to June, 1984.“5. Pursuant to reopener language in said agreement, the parties commenced negotiations for the 1983–1984 school year on the subjects of salaries, fringe benefits, grievance procedure, and hours of employment, on or about May, 1983.   Up until January 13, 1984, the parties had failed to reach a final agreement on the reopener negotiations.“6. On or about September 29, 1983, during negotiations between Respondent and representative of the classified unit, Respondent reached a ‘parity agreement’ on salaries with that unit.   Such agreement is described below:“SALARY:  EFFECTIVE July 1, 1983 5% applied to base schedule plus $13,000 to be applied to range 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.”

8.   Because there is no reference in the record to any such agreement, we therefore assume that none had been reached at the time the Association filed its unfair practice charges.

9.   Similarly, PERB also concluded:  “․  To find this parity clause to be a per se vioilation 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 foster labor harmony or effectuate the purpose of the EERA.”   The PERB ignored the fact that such independent agreements are reached by school districts and their bargaining units every year without “parity” agreements.

10.   The Association does not refer to the District's November 18 offer (supra) of a salary increase of 8 percent (hereinafter the 8% offer) which represented a 3 percent greater increase than the 5 percent the District had given to the classified employees.   The Association's brief recites that “The only evidence was that in the stipulated facts set forth ․ in the ALJ's proposed decision.”   As noted, the stipulated facts were restricted to:  the status of the parties, their unsuccessful negotiations, the execution of the parity agreement during those negotiations, and the parties' failure to reach a final agreement several months later.   However, the District's 8 percent offer was alleged in the Association's unfair practice charge (where a copy of the District's entire November 18 offer was attached to the charge);  the charge was referred to in paragraph 6 of the complaint (see fn. 6, supra), was undoubtedly before the ALJ and the PERB, and is reproduced in the record on appeal.   In view of the foregoing, the District's 8 percent offer to the certificated employees, after it had executed the parity agreement with the classified employees, is properly the subject of judicial notice by this court.   (Evid.Code, § 459;  Hogen v. Valley Hospital (1983) 147 Cal.App.3d 119, 125, 195 Cal.Rptr. 5.)

11.   Title 8, California Administrative Code, section 32178 provides:  “The charging party shall prove the complaint by a preponderance of the evidence in order to prevail.”

CAMPBELL, Presiding Justice.

RICKLES, J., concurs.