Hafer, Price, Rinehart and Schwerin, by John E. Rinehart, appeared on behalf of the complainant.

Gary P. Burleson, Prosecuting Attorney, by John H. Buckwalter, Deputy Prosecuting Attorney, appeared on behalf of the respondent.

In this case of first impression, we are called upon to determine the applicability of the Open Public Meetings Act, Chapter 42.30 RCW, to public sector collective bargaining. Specifically, we must determine:

1.      Whether an unfair labor practice is committed when a public sector employer negotiates a contract with the union and then refuses to present the contract to its elected governing board for proper ratification, declaring the contract and negotiations null and void; and

2.      The extent to which public sector collective bargaining in Washington is subject to the Open Public Meetings Act; and

3.      Whether curative action may be taken to remedy Open Public Meetings Act violations, and whether ordering the same is an appropriate remedy for an unfair labor practice.

This case was decided on summary judgment, the facts being undisputed. The county seeks review.

Teamsters Local 378 (the union) represents employees of Mason County (the county) employed in the Road Department. The union and the county were parties to a collective bargaining agreement in effect from January 1, 1983 through December 31, 1984. In September, 1984, the union and the county began negotiations for a new contract to cover the period from January 1, 1985 through December 31, 1986.

Negotiating sessions were held on September 18 and November 1, 1984. Certain county management employees represented the county. None of the three elected county commissioners were present at those initial meetings.

On November 16, 1984, a member of the union negotiating team discussed the status of negotiations with William Hunter and Ed Johnston, two of the three elected members of the Board of Mason County Commissioners.

On November 20, 1984, Commissioners Hunter and Johnston and two county employees represented the county at a bargaining session. At that session, the parties reached a tentative agreement on a contract. The proposed agreement was ratified by the union membership on November 26, 1984. The agreement was presented to the county on November 27, 1984, and was signed by commissioners Hunter and Johnston on that date.

None of the events described above took place at an open public meeting, as defined in RCW 42.30.

The Commission takes administrative notice of the fact that the terms of office of Messrs. Hunter and Johnston ended, and that new members of the Mason County Board of Commissioners took office in January, 1985.

On January 14, 1985, the county notified the union that it had repudiated the contract on the basis that the collective bargaining agreement had not been negotiated in conformance with the Washington Open Public Meetings Act. The county offered to renegotiate the entire agreement. The union responded by requesting the county to ratify the contract at an open public meeting. The county declined to do so.

The examiner found that any violation of the Open Public Meetings Act could be cured by having the tentative agreement presented to the county commissioners at an open public meeting for their good faith consideration on a question of ratification. He ordered the county to do so, holding that its earlier refusal to consider the tentative agreement for proper ratification under public scrutiny was an unfair labor practice in violation of RCW 41.56.140(1) and (4). It should be noted that the examiner did not order the county to ratify the contract. We affirm the examiner's decision in its entirety.

The Existence Of An Unfair Labor Practice

Under the National Labor Relations Act, Section 8(d), 29 U.S.C. sec. 158(d), the refusal of a party to sign a contract after agreeing to the same is a per se violation of that Act. Likewise, RCW 41.56.030(4) includes the specific obligation "to execute a written agreement". In Island County, Decision 857 (PECB, 1980), it was held that the refusal of a public employer to consider a contract for ratification, after negotiating it to agreement, is an unfair labor practice. That case arose when, after the union membership had accepted the employer's own offer, the employer tried to reopen negotiations concerning overtime pay, and would not ratify the contract. Likewise, in the case at hand, an agreement was reached between the union and authorized representatives of the county. The agreement was reduced to writing and was ratified by the union membership as well as by a majority of the county commissioners. Thus, the attempt by Mason County to disavow the contract in this case was a breach of good faith and an unfair labor practice under Island County, supra, and RCW 41.56.140(4).

The obligation of the employer under the Public Employees' Collective Bargaining Act, Chapter 41.56 RCW, is to bargain in good faith. This obligation attaches to the county and all of its authorized representatives, including those who are successors in office. Whether the negotiations or ratification by county officials violated the Open Public Meetings Act is arguably irrelevant to the question whether an unfair labor practice was committed. Clearly, if any Open Public Meetings Act violation occurred, it was not committed by the union. In fact, the union was never warned that the negotiations might be in violation of the Open Public Meetings Act.

Remedy

The Open Public Meetings Act issue raised in this case really pertains to remedies available in this unfair labor practice proceeding. The Washington Open Public Meetings Act requires all "action" by a "public agency" to be taken at meetings open to the public, and requires that proper advance notice of such meetings be given. RCW 42.30.020, .030, .060 - .100.

Although the Open Public Meetings Act is to be liberally construed, RCW 42.30.910, a few statutory exceptions are created. For example, RCW 42.30 .110 allows executive sessions:

(f) To evaluate the qualifications of an applicant to public employment ... However, subject to RCW 42.30. 140(4), discussion by a governing body of salaries, wages, and other conditions of employment to be generally applied within the agency shall occur in a meeting open to the public, and when a governing body elects to take final action hiring, setting the salary of an individual employee or class of employees, ... that action shall be taken in a meeting open to the public.

RCW 42.30.140(4) exempts from the Open Public Meetings Act:

... [t]hat portion of a meeting during which the governing body is planning or adopting the strategy or position to be taken by such governing body during the course of collective bargaining, professional negotiations, grievance or mediation proceedings, or reviewing the proposals made in such negotiations or proceedings while in progress.

The above-quoted language excepting certain actions from the Open Public Meetings Act appears too narrowly stated to encompass the actual process of negotiating a collective bargaining agreement. We conclude that the Open Public Meetings Act has some application to the case at hand, and we turn our attention to harmonizing its requirements with the requirements of the Public Employees Collective Bargaining Act.

"Action" is broadly defined in RCW 42.30.020(3) as:

... the transaction of the official business of a public agency by a governing body, including but not limited to receipt of public testimony, deliberations, dis-cussions, considerations, reviews, evaluations and final actions. "Final action" means a collective positive or negative decision, or an actual vote by a majority of the members of a governing body when sitting as a body or entity, upon a motion, proposal, resolution, order, or ordinance.

The Supreme Court held in State ex. rel. Bain v. Clallam County, 77 Wn.2d 542, 548 (1970) that public sector collective bargaining negotiations under Chapter 41.56 RCW were not subject to the Open Public Meetings Act then in effect, which required only that final action be taken at open public meetings. A revised Open Public Meetings Act was enacted in 1971. The new act defines a broad spectrum of "action" which must take place at open meetings. Thus, the continued validity of that aspect of the Bain decision is questionable.

A county board of commissioners is a "public agency" within the meaning of the Open Public Meetings Act, RCW 42.30.020(2), just as it is a "public employer" within the coverage of the Public Employees Collective Bargaining Act, RCW 41.56.020. "Governing body" is defined by RCW 42.30.020(2) as the:

... multimember board, commission, committee, council, or other policy or rule-making body of a public agency, or any committee thereof when the committee acts on behalf of the governing body, conducts hearings, or takes testimony or public comment.

Since the Open Public Meetings Act applies only to "action" by the "governing body", collective negotiations in which the "governing body" does not actually participate would not be subject to the Open Public Meetings Act. Such is the case with the September 18 and November 1, 1984 bargaining sessions between the county and the union. AGO 1971 No. 33, 15 23-24.

It is debatable whether the November 20, 1984 negotiating session, attended by two of the three county commissioners, was subject to the Open Public Meetings Act. The Open Public Meetings Act itself is not clear as to whether actions by less than the entire "governing body" are subject to the Act. The Washington Attorney General, relying on California Attorney General opinions and case law, has concluded that non-final actions, including collective negotiations by a majority membership of a governing body, are subject to the Open Public Meetings Act, while negotiations conducted by less than a majority are not subject to the Act. AGO 1971 No. 33, at 9, 23-25. The Attorney General observed, ibid. at 23, that the "problem of negotiating in a 'fishbowl' will, therefore, only be present when the negotiating group is a governing body or at least a majority thereof."[1] If the Attorney General's view is correct, then the November 20, 1984 negotiating session was subject to the Open Public Meetings Act.

The ratification of the contract itself on November 27, 1984 by a majority of the county commissioners, apparently at a closed meeting, quite likely violated the Open Public Meetings Act, being a "final action" by a majority of a "governing body" of a "public agency". This conclusion is reinforced by a colloquy between Representatives Thompson and Grant during debate on final passage of S.B. 485, on May 10, 1971, as quoted in the above-referenced opinion of the Attorney General, Id., at 24:

Mr. Grant: "Mr. Thompson, for the purposes of the record and the journal, is there anything in this act as far as you can tell that would prohibit closed sessions for the purpose of negotiating contracts of any public body?"

Mr. Thompson: "Not, Representative Grant, if they are conducted by representatives of the governing body of a public agency. When, following the conclusion of negotiations, the recommendations of negotiators are brought to the governing body for approval, this should be done, under the provisions of this act, in public."

We conclude that the November 27, 1984 ratification of the collective bargaining agreement quite likely violated the Open Public Meetings Act, as did the November 20, 1984 bargaining session.

The county argues that the contract itself, and negotiations leading thereto, are null and void, and therefore there is nothing left for it to ratify. The county relies on RCW 42.30.060 which states:

Any action taken at meetings failing to comply with the provisions of this section shall be null and void.

While action taken by two county commissioners at one or two meetings probably violated the Open Public Meetings Act, and was thus null and void, the examiner essentially held that a violation of the Open Public Meetings Act could be "cured" by action taken at a properly held public meeting.

The above-referenced Attorney General opinion, AGO 1971 No. 33, at 40 states:

... [I]f the final action taken by a public agency is in accordance with our open public meetings act requirements, then it would appear to us that this action would be defensible even though there may have been a failure to comply with the act earlier during the governing body's preliminary considerations of the subject. For example, if the members of the governing body had held an earlier meeting to discuss a certain proposal without complying with the act, but did comply in connection with the meeting at which the actual adoption of the proposal took place, the final action thus taken would be defensible. (footnote omitted)

We agree with the Attorney General. Although past action taken in violation of the Act may be null and void, it certainly does not follow that such action, or its effects, cannot later be recreated in conformity with the Open Public Meetings Act. This also provides a sensible vehicle for harmonizing the open meeting and collective bargaining statutes so as to protect all affected interests. A similar conclusion was reached in Dickinson Education Association v. Dickinson Public Schools, 252 N.W. 2d 205 (North Dakota, 1977), which held that although collective bargaining was subject to North Dakota's open meetings act, later public scrutiny "cured" any improper action. See, also, McClintock, Impact of the Open Public Meetings Act, 15 Gonz. L. Rev. 65, 91 (1980).

Accordingly, we conclude that the county's re-consideration, at an open public meeting, of the tentative collective bargaining agreement negotiated between the union and the county (and, if the county so chooses, its subsequent ratification) would not violate the Open Public Meetings Act. The examiner ordered the county to have the tentative agreement presented to the board of county commissioners for ratification. This is a lawful remedy and an appropriate one under the circumstances. The examiner further ordered the board of county commissioners to act in good faith when it considers the contract for ratification. Such good faith is required by the collective bargaining law.

ORDER

1.                  The findings of fact, conclusions of law and order of the examiner are affirmed and adopted by the Commission.

2.                  Mason County shall notify the Executive Director of the Public Employment Relations Commission, in writing, within thirty (30) days following the date of this Order, as to what steps have been taken to comply herewith, and at the same time shall provide the Executive Director with a signed copy of the notice required by the examiner's order.

ISSUED at Olympia, Washington, this 12th day of May, 1986.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JANE R. WILKINSON, Chairman

JOSEPH F. QUINN, Commissioner

Commissioner Mark C. Endresen did not take part in the consideration or decision of this case.