Webster, Mrak and Blumberg, by James H. Webster, Attorney at Law, appeared on behalf of the union.

Richard L. Andrews, City Attorney, by Richard L. Kirkby, Assistant City Attorney, appeared on behalf of the employer.

The City of Bellevue appeals from a decision of Examiner Katrina I. Boedecker, who found that the employer committed unfair labor practices by refusing to provide information requested by the union in the course of contract negotiations which led to interest arbitration.[1]

The parties submitted the issues to the Examiner on stipulated facts. The facts relevant to the issue on review are, as set forth in the Examiner's decision at pages 4-5:

An interest arbitration hearing pursuant to RCW 41.56.450 was scheduled to begin October 26, 1987. Prior to that date, the union requested that the city disclose the identity of fire departments it intended to assert should be used for the comparisons specified in RCW 41.56.460(c)(ii). The city refused to provide the requested information.

During the first day of the interest arbitration hearing, the neutral chairman ordered the city to produce for the union, the information requested regarding similar employers which the city was claiming were comparable…. During the second day of the interest arbitration hearing, October 29, 1987, the city provided the union with a list of five California departments, closest in size to the City of Bellevue, which were the comparable employers that the city chose to use.

At page 6 in her decision, the Examiner observed that:

[C]ollective bargaining is a process of communication; it is not a game of hide and seek…. The freest, most open flow of communication must be encouraged to insure that the process of collective bargaining is allowed to work.

The Examiner noted that the U.S. Supreme Court held, in 1956, that National Labor Relations Act language comparable to RCW 41.56.030(4) creates a duty to furnish relevant information at the request of the other party to the bargaining relationship. NLRB v. Truitt Manufacturing Co., 351 U.S. 149 (1956). The Examiner reviewed other precedent, including Commission cases, pertaining to the duty to furnish information, and observed that comparable wages, hours and conditions of employment are a relevant consideration in any interest arbitration proceeding under RCW 41.56.460(c)(ii). She stated, at 11, that:

Furnishing such information, upon request, at the bargaining table would greatly aid each parties' evaluation of the proposals on the table. Good faith bargaining requires that the reasons and rationale for a proposal be fully explained. The party receiving the proposal must itself fulfill the obligation to make a sincere effort to understand the position of the other, to breach differences and, if possible, to reach an agreement.

The Examiner rejected the employer's argument that the requested information was an attorney's work product that should be shielded from disclosure. She stated, at 11, that "The interpretation of the information received from the comparable employers might arguably be an attorney work product; but that is not what the union requested."

We agree with the Examiner's reasoning and conclusions, and are hard-pressed to improve upon them.

THE ISSUES RAISED BY THE PETITION FOR REVIEW

On review, the employer contends that the Examiner erred in concluding that the interest arbitration proceeding was part of the collective bargaining process. It argues that "arbitration, like resort to the judicial system, completely removes from the parties their respective ability to control the outcome of their dispute …" Based on that premise, the employer argues that the duty to furnish information, which is limited to the duty to bargain, does not apply.

The employer next contends that it had no "list" of comparables at the time the neutral chairman of the interest arbitration panel ordered disclosure of the employer's comparables. It contends that it only had documents containing information from numerous West Coast fire departments, and that it compiled such a "list" only in response to the neutral chairman's order. Moreover, the employer contends that there is nothing in the record showing it had decided, at any point prior to the interest arbitration hearing, which comparables to use. The employer maintains that the Examiner erred in finding that a "list" existed.

Finally, the employer renews its argument that the information sought by the union was attorney work product, and thus exempt from disclosure.

DISCUSSION

Interest Arbitration as a Separate Process

The employer argues, on the basis of City of Tacoma, Decision 322 (PECB, 1978) and Highland School District, Decision 2684 (PECB, 1987), that once a dispute has entered the jurisdiction of another body — in those cases the superior courts, and in this case the interest arbitration panel — that the Commission loses its unfair labor practice jurisdiction, at least as to matters within the jurisdiction of the other body. The employer characterizes "discovery" as such a matter.

We do not equate interest arbitration proceedings with the superior court lawsuits involved in Tacoma and Highland. It has long been established that this Commission does not assert jurisdiction to determine or remedy "violation of contract" through the unfair labor practice provisions of Chapter 41.56 RCW. City of Walla Walla, Decision 104 (PECB, 1976). Both Tacoma and Highland involved the processing of grievances under a collective bargaining agreement, and so were clearly outside of the sphere of activity which we regulate. In contrast to the situations in Tacoma and Highland, this case involves the negotiation of a collective bargaining agreement, a transaction that is regulated by the definition of "collective bargaining" found in RCW 41.56.030(4). Such contract negotiations are clearly subject to the unfair labor practice jurisdiction of the Commission through RCW 41.56.140(4) and RCW 41.56.150(4).

The duty to bargain in good faith continues between a particular employer and union so long as the union remains the exclusive bargaining representative of the employees. NLRB v. Acme Industrial Co., 385 U.S. 432 (1967). We view the interest arbitration process as concurrent with, or even a continuation of, the collective bargaining process created within the same chapter of the Revised Code of Washington. The duty to bargain in good faith does not end at the point where contract issues are certified for interest arbitration, nor does it end while interest arbitration proceedings are taking place. Rather, it continues at all times during the interest arbitration process. Although interest arbitration is triggered by the Executive Director's certification under RCW 41.56.450 that an impasse exists, that impasse can be broken at any time. In fact, it is in the public interest that such an impasse be broken, and that the parties proceed, if possible, to a negotiated resolution of their dispute.

Employers of "uniformed personnel" and unions representing "uniformed personnel" have been subjected to scrutiny by the Commission in a number of unfair labor practice cases for their alleged misconduct during or in connection with the interest arbitration process. For example, escalations of demands going into interest arbitration were found to be an unfair labor practice by an employer in City of Spokane, Decision 1133 (PECB, 1981),[2] and by a union in City of Pasco, Decision 2919 (PECB, 1988). In at least City of Wenatchee, Decision 780 (PECB, 1980) and City of Yakima, Decision 1130 (PECB, 1981), employers obtained "refusal to bargain" unfair labor practice rulings against unions for their pursuit of permissive "minimum manning" bargaining proposals into interest arbitration.[3]

The employer would have the Commission withdraw its jurisdiction when interest arbitration proceedings have commenced. As the above-cited cases illustrate, we will not do so. It is in the public interest to keep the collective bargaining process alive, and to protect that process.[4] RCW 41.56.010; RCW 41.56.430; RCW 41.58.005; RCW 41.58.040. We find it appropriate to exercise our unfair labor practice jurisdiction in this case.

The Existence or Non-existence of a "List"

Whether or not the employer had compiled a separate "list" of comparables is irrelevant. As the union points out, it has long been established that the duty to disclose information during the course of collective bargaining includes the duty to disclose pertinent economic information. NLRB v. Truitt Co., supra; General Electric Co. v. NLRB, 466 F.2d 1177 (6th Cir., 1972); General Electric Co. v. NLRB, 414 F.2d 918 (4th Cir., 1969); General Electric Co. v. NLRB, 400 F.2d 713 (5th Cir., 1968); City of Yakima, Decision 1124-A (PECB, 1981). The employer's contention that the comparables criterion was not legislatively established to "assist the parties in reaching a negotiated agreement" ignores the inherent relevance of such information during the course of collective bargaining negotiations. Thus, it is not a specific document ("list") that we are concerned with, but any relevant information showing comparable wages, hours or conditions. If, at any time, an employer has acquired information that it believes is relevant on the question of comparable wages, hours and conditions, it has the duty to disclose that information, upon request, during the course of negotiations.

Attorney Work Product

Assuming, without deciding, that an attorney's work product in connection with collective bargaining negotiations (presumably produced in anticipation of interest arbitration) would be exempt from the duty to disclose, we nevertheless disagree with the employer's assertion that the information requested by the union in this case represents "the mental impressions, conclusions, opinions, and legal theories of" the employer's attorneys. Information on comparable wages, hours and conditions is basic evidence in an interest arbitration case. It consists of data showing the wages, hours and working conditions of employees who hold comparable positions in comparable locations. While the employer's attorneys may choose to draw conclusions, opinions or formulate legal theories based on such data (some or all of which might qualify as an attorney work product), the data itself, and particularly the identities of the employers being considered for use as comparables, does not qualify as attorney "work product".

NOW, THEREFORE, it is

ORDERED

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

2.                  The City of Bellevue shall, within thirty (30) days following the date of this order, notify the complainant of the steps taken to comply with the Examiner's order and provide the complainant with a signed copy of the notice required therein.

3.                  The City of Bellevue shall, within thirty (30) days following the date of this order, notify the Executive Director of the Commission of the steps taken to comply with the Examiner's order and provide the Executive Director with a signed copy of the notice required therein.

ISSUED at Olympia, Washington, this 11th day of July, 1989.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JANE R. WILKINSON, Chairman

[SIGNED]

MARK C. ENDRESEN, Commissioner

[SIGNED]

JOSEPH F. QUINN, Commissioner