FINDINGS OF FACT
AND
RECOMMENDATION
CLE ELUM/ROSLYN SCHOOL DISTRICT
and
CLE ELUM/ROSLYN EDUCATION ASSOCIATION
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Representative of the District: |
Fact Finder: |
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Mr. Randy Bohannon |
Joseph A. Sinclitico |
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Representative of the Association: |
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Mr. Richard Iverson |
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I. GENERAL
The parties, Cle Elum/Roslyn School District (the "District") and the Cle Elum/Roslyn Education Association (the "Association") have negotiated the terms of the 1977 Collective Bargaining Agreement but have reached an impasse on one issue - binding arbitration.
Through the Public Employment Relations Commission they have agreed to Fact Finding pursuant to RCW 41.56.
Dean Joseph A. Sinclitico of 5023 - 91st Avenue West, Tacoma, Washington 98467, was agreed to and appointed as the Fact Finder ("F.F."). His findings and recommendations are not binding.
A preliminary conference was held at SeaTac on the morning of March 6, 1976. General procedures and formulation of the precise issue were discussed and agreed to, including appointment of representatives for each party. (See Appendix "C")
A formal hearing was held at the Cle Elum/Roslyn High School at 10 a.m. on Saturday, December 18, 1976. This was an open meeting by decision of the arbitrator and many citizens of the community attended but did not participate.
Both parties were given the opportunity to present testimonial and documentary evidence and in addition provided an opening and closing statement.
Evidentiary rules were not followed, by and large, except to the extent required by due process.
II. THE ISSUE
STATEMENT OF THE ISSUES
The Cle Elum/Roslyn Education Association and the Cle Elum/Roslyn Board of Education have resolved all Issues through negotiations, as evidenced by the tentative agreements present here, with the exception of the following issue.
ISSUE: Binding Arbitration
The Association is proposing that the third step of the grievance procedure culminate in binding arbitration.
The Board is proposing that the third step of the grievance procedure culminate with the school board making the final decision.
III. POSITION OF THE PARTIES
1. Position of the Association is Appendix "A", attached hereto and made a part hereof.
2. Position of the District, Appendix "B" is also attached herewith and made of part hereof.
IV. FINDINGS
The parties have agreed in principle in a grievance procedure. In fact, they have agreed to the provisions of Step 1 and 2. Their difference lies in the proposed third step i.e. arbitration.
The District maintains that the third step should consist of binding final decision by the Board except for court review. The Association would make the final step (#3) one of binding arbitration by a neutral third party reviewable and reverseable by the court (Superior), as any other arbitration decision.
It should be noted that the scope and grounds for review whether it would be from a decision of the School Board or an impartial arbitrator would be virtually the same. The difference would lie in that the Board, rather than a neutral, would establish the initial finality of the decision which is admittedly substantial.
The F.F. believes that as a matter of fairness and impartiality that a neutral should resolve the dispute at that stage rather than one of the contracting parties. This does not involve abrogation of the District's representative powers conferred upon the elected Board.
A Contract has been entered into. The terms are binding on the District - it cannot at this point through an adjuticative administrative process change the terms of wages, hours and conditions of employment, via an interpretation and application of the terms. The District has exercised its right and discharged its duty at the time it enters into the contract. Hence its contention that arbitration is in derogation of its powers is not well founded. The terms are fixed. What remains is only a fair application of them. Fairness would seem to require that the interpretation of the contract be by a party not involved in the contractual terms.
If one assumes that both parties wish to resolve some dispute under the contract fairly, it cannot, presumptively at least, be accomplished if one of the contracting parties determines how the contract should be applied.
I therefore find and recommend that any dispute arising pursuant to the terms of the contract that it be submitted to a neutral arbitrator for decision subject to the usual appeal to the court. Finality of the arbitrator's decision to be to the extent that arbitration opinions and award are usually deemed to be so.
The F.F. however does not recommend that this binding arbitration be the third step thus bypassing the Board. The F.F. strongly recommends that arbitration be the fourth step and that there be a third step in which the Board would participate.
The Board should have the right because it does have the fundamental basic duty to administer the affairs of the school district and to set its own policies including those affecting contractual terms. Hence the F.F. recommends very strongly that step three consist of a hearing to be held with the School Board.
I'm sure that the Board is capable of taking a more objective and dispassionate view, in fact a broader view, that may obtain at a lower level. I am sure that with the Board's intervention at the third step, most of the disputes that will arise will be settled at that level. Hopefully very seldom will the fourth step of impartial binding arbitration be necessary.
The third step alluded to above should be more formal, should involve a hearing de novo, but above all should provide for due process such, as adequate notice and opportunity to be heard.
At this point, I would like to review and comment on the position of the parties.
As to the Association's position - in general it reflects the position adopted by the F.F. and therefore requires no specific item comment except for the advocated position that the third step should be that of the School Board and not binding arbitration. Binding arbitration should be the fourth step.
The parties have already agreed to the first and second step. The F.F. therefore does not express any opinion on this aspect of the proposed clause.
As to the Association's position, the F.F. expresses the following opinion in order of the arguments presented.
1. The F.F. agrees that binding arbitration is not compulsory - see RCW 41.59.130. However, statistics show that a very substantial number of school districts in Washington are including binding arbitration in new Collective Bargaining Agreements - certainly settlements in the last two years indicate a very dramatic increase in adoption. Hence, it would appear that other school districts increasingly find arbitration as desireable. Why not Cle Elum?
2. I do not concur that there is erosion of power of the Board by adopting binding arbitration. This would presuppose that the Board, if a standard of fairness in resolutions of disputes is to be applied, has the power to resolve the dispute unilaterally.
If collective bargaining had not come on the scene, it perhaps would have been true, but collective bargaining as a corollary presupposes but does not mandate binding arbitration. Collective bargaining agreements are very complex contracts and generate controversy. A simple process of resolution should be adopted.
3. I question the assumption made. There may be some recognition of impartiality but as stated supra there is presumptively a conflict of interest if the Board is to be the finding authority on resolution of issues in which it is involved as a party.
In any event, with the advent of collective bargaining agreements this places a different hue as on any prior adjudicating imparitality.
4. As stated supra, review of the courts remains virtually unchanged. The scope of review is the same. Only the decision from which the review is made varies.
5. Once again, this procedure was established early and not with the full advent of collective bargaining in sight.
6. This position, if anything, strengthens the need for binding arbitration. The teachers do not have the right to strike. Hence they cannot bargain it away.
I have some difficulty with the logic that states because the teachers do not have a right to bargain away the right to strike that the District therefore should deny them the benefit which they would have achieved if they had the right to strike. The District always has the benefit of the no-strike obligation which is specifically prescribed by law, whereas in the industrial field where the workers do have the right to strike, they can exchange it. I repeat, the District already has the benefit of the no-strike provision by virtue of law if not by virtue of contract.
V. CONCLUSION
In conclusion, the F.F. makes the following finding and recommendation:
1. That the third step of the arbitration clause provide for a hearing in which the Association and the Board will review and attempt to resolve any dispute that has arisen by virtue of contract interpretation or application.
2. That the fourth step consist of binding arbitration by a neutral to be selected by the parties.
3. The F.F. does not suggest any given language to cover steps three and four. I would assume that the parties can work out their own language to cover the principle that is advocated by the F.F.
In the event that the parties cannot resolve appropriate language for inclusion in step three and four, the F.F. will be happy to assist in the process of deciding upon proper language.
4. The F.F. wishes to emphasize that the scope of any possible disputes under the grievance procedure already defined and therefore has not attempted to indicate what is and what is not subject to arbitration.
Prepared and rendered at Tacoma, Washington, February 9, 1977
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[SIGNED] |
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Fact Finder |
Prepared and rendered at Tacoma, Washington
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[SIGNED] |
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✔ |
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Richard Iverson For the Association |
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Concurs |
Dissents |
January 13, 1977
The Association basically concurs with the findings of fact submitted by the fact finder. On page 6 of the report, item #6, the Association does not agree with the fact finder's contention, "The teachers do not have the right to strike". There is no RCW prohibiting teachers from striking in Washington State.
Prepared and rendered at Tacoma, Washington
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Randy BohannonConcurs For the District |
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Concurs |
Dissents |
February 8, 1977
Mr. Randy Bohannon has indicated by phone today that he dissents. To be confirmed.