“Me-Too” Clause Not Triggered By Raise Based On Pay Disparity

The collective bargaining agreement between the Town of Smyrna, Delaware and the Smyrna Police Employees Association contains a “me-too” clause with respect to wages. The clause provides that “the Town agrees to provide the same Cost of Living Adjustment under this contract as it does for other Town employees. This section shall not be construed to include occasional salary adjustments to individual positions. The Town shall not use individual salary adjustments to avoid a Cost of Living Adjustment.”

On December 19, 2005, the Town Council passed a 2006 budget, which increased the pay scale for each existing and future non-sworn employee by a fixed $1500. When the Town refused to implement the same adjustment for members of the Association, the Association filed an unfair labor practice complaint against the Town. When Delaware’s Public Employment Relations Board (PERB) ruled against the Association, the Association challenged PERB’s decision in court. A trial court dismissed the Association’s unfair labor practice charge.

The Court found that the “me-too” clause in the Association’s contract only dealt with cost-of-living adjustments. That meant, the Court reasoned, that the issue before PERB dealt with the “real purpose of the salary scale adjustment granted to non-sworn employees.” As the Court described, the clause in the Association’s contract left the Town “with the flexibility to grant raises to non-sworn employees unfettered by the police contract so long as it is not in fact acting to grant the non-sworn employees protection against inflation under a rubric other than a COLA.”

The Association argued that the Town “simply cloaked a COLA in another garment as a pretext to avoid the Association’s ‘me-too’ clause.” However, the Court found that “the problem for the Association is that it did not convince the PERB of the merits of its factual argument. PERB concluded that the Town was motivated by its concern that its non-police employees were being paid substantially less than workers in nearby municipalities doing similar jobs and that this was affecting the Town’s ability to fill positions and its ability to retain and keep up the morale of existing employees. This finding of the PERB that this perceived gap drove the Town’s decision is supported by substantial evidence, and must be affirmed.”

Smyrna Police Employees Association v. Town of Smyrna, 2007 WL 3145286 (Del.Ch. 2007).

This article appears in the December 2007 issue