DECISIONS

Kitsap County, Decision 11869-A (PECB, 2014)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

kitsap County deputy sheriff’s guild,   Complainant,   vs.   kitsap county,   Respondent.

CASE 25227-U-12-6459   DECISION 11869-A - PECB     DECISION OF COMMISSION

 

 

Cline and Associates, by James M. Cline, Attorney at Law, for the union.

 

Prosecuting Attorney Russell D. Hauge, by Jacquelyn M. Aufderheide, Attorney at Law, and Deborah A. Boe, Attorney at Law, for the employer.

 

 

Public employers and unions representing public employees have a duty to bargain in good faith.  That duty includes an obligation to provide requested information relevant to the collective bargaining process, including interest arbitration.  In this case, the union made two requests for information.  The employer provided responsive information, but failed to provide all of the requested information in its possession.  Both the employer and union appealed the Examiner’s decision. [1]

 

This appeal presents four issues:  (1) whether the Examiner properly struck a portion of the union’s post-hearing brief; (2) whether the employer provided information in response to the union’s request for adjusted time information; (3) whether the employer provided information in response to the union’s request for wage and compensation data in advance of interest arbitration; and (4) whether the union is entitled to attorney’s fees.  The Examiner properly excluded the attachments to the union’s brief.  While the employer provided some data in response to the union’s information requests, the employer failed to provide signed time sheets and e-mail messages responsive to the union’s adjusted time request and did not provide all requested wage and compensation data in response to the union’s pre-interest arbitration information request.  The union is not entitled to attorney’s fees.

 

First, we will address the procedure for filing appeals and the standard of review.  Neither party appealed the Examiner’s Findings of Fact, therefore, those Findings of Fact are verities on appeal.  Second, we affirm the Examiner’s decisions:  (1) to strike the attachments to the union’s brief, (2) that the union was not entitled to attorney’s fees, and (3) that the employer violated its duty to bargain by failing to provide adjusted time data requested by the union.    Last, we will address the employer’s failure to provide requested information in advance of interest arbitration.

 

The procedure for filing an appeal of an unfair labor practice complaint is established by WAC 391-45-350.  A notice of appeal shall identify “the specific rulings, findings of fact, conclusions of law, or orders claimed to be in error.”  WAC 391-45-350(3).  A party must put the Commission and the opposing party on notice of the arguments it desires to advance.  Kiona Benton School District, Decision (EDUC, 2013), citing Clover Park School District, Decision 7073-A (EDUC, 2001), aff’d, DeLacey v. Clover Park School District, 117 Wn. App. 291 (2003).  Unchallenged findings of fact are accepted as true on appeal.  City of Vancouver v. Public Employment Relations Commission, __ Wn. App. __ (No. 43641-8-II, March 25, 2014); C-Tran, Decision 7087-B (PECB, 2002).

 

The Commission expects the parties to closely monitor their compliance with the rules.  If a party fails to comply with the rules, the Commission has an obligation to apply the rules in fairness to the opposing party.  Clover Park School District, Decision 7073-A.

 

The Commission reviews conclusions and applications of law, as well as interpretations of statutes, de novo.  We review findings of fact to determine if they are supported by substantial evidence and, if so, whether those findings in turn support the Examiner’s conclusions of law.  C-Tran, Decision 7087-B (PECB, 2002).  Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise.  C-Tran, Decision 7087-B.  The Commission attaches considerable weight to the factual findings and inferences, including credibility determinations, made by its examiners.  Cowlitz County, Decision 7210-A (PECB, 2001).

 

Neither party challenged the Examiner’s Findings of Fact.  Those unchallenged Findings of Fact are verities on appeal.  The employer appealed specific statements in the Examiner’s decision, appealed conclusions of law, but did not appeal the order.

 

In this case, both parties engaged in aggressive advocacy.  The union’s efforts included filing a post-hearing brief with 56 pages of attachments purporting to be evidence of the employer’s disregard for the law and the Commission’s procedures.  The attachments were intended to buttress the union’s assertion that it was entitled to attorney’s fees.  Neither party’s behavior serves the purpose of Chapter 41.56 RCW.

 

The union asserted, to the Examiner and on appeal, that the attachments were attached “for the Examiner’s convenience.”  The better practice would have been to offer the documents at the hearing.  The union has failed to establish that the Examiner abused her discretion in striking the attachments to its post-hearing brief or that the union was prejudiced by the Examiner’s action.  We affirm the Examiner’s decision striking the brief.

 

On appeal, the union argued it was entitled to attorney’s fees and invites the Commission to review and discuss the standard for awarding attorney’s fees.  The union asserts that an award of attorney’s fees in this case would effectuate the purpose of the statute because the employer was “willfully indifferent to its obligation” to provide the requested information and such an award would persuade the employer to change its behavior.  The union characterizes the employer’s approach to its bargaining obligations as “scorched earth.”  The Examiner fully and accurately set forth the standard for awarding attorney’s fees.  The union has failed to demonstrate that the standard is ambiguous or that this case presents any basis warranting deviation from that standard.  We affirm the Examiner. 

 

The Commission has fully considered the record and the parties’ arguments on appeal.  For the issue of whether the employer failed to provide e-mail messages and signed time sheets related to the union’s request for adjusted time information, we affirm the Examiner.  The Findings of Fact that were not appealed are verities on appeal and substantial evidence supports the portions of the Examiner’s decision the employer appealed.  The Findings of Fact support the Examiner’s conclusions of law.

 

We now address the remaining issue on appeal, whether the employer refused to bargain by failing to provide wage and compensation data requested by the union in preparation for the interest arbitration hearing.

 

CONCLUSION

 

The duty to bargain includes a duty to provide relevant requested information.  That duty extends to preparation for interest arbitration.  The employer refused to provide relevant requested information when it did not produce requested wage and compensation data before the interest arbitration hearing.  The employer was not obligated to create information to respond to the union’s request.  In this case, the employer’s objection to providing information on the basis of attorney work product was misplaced.

 

ANALYSIS

 

Legal Standards

The duty to bargain requires a public employer and the exclusive bargaining representative to bargain in good faith over grievance procedures, wages, hours, and working conditions.  RCW 41.56.030(4).  The duty to bargain in good faith extends to preparation for interest arbitration.  City of Bellevue, Decision 3085-A (PECB, 1989), aff’d, City of Bellevue v. International Association of Fire Fighters, Local 1604, 119 Wn.2d 373 (1992).  Interest arbitration is an extension of the collective bargaining obligation.  Id. 

 

The duty to bargain includes an obligation to provide relevant information needed by the opposite party for the proper performance of its duties in the collective bargaining process.  City of Bellevue v. International Association of Fire Fighters, Local 1604, 119 Wn.2d 373 (1992).  The obligation to provide information extends not only to information that is useful and relevant to contract negotiations, but also encompasses information necessary to the administration of the parties’ collective bargaining agreement.  King County, Decision 6772-A (PECB, 1999).  The flow of information between the parties must continue during the parties’ preparation for interest arbitration.  City of Clarkston (IAFF, Local 2299), Decision 3246 (PECB, 1989). 

 

In evaluating information requests, the Commission considers whether the requested information appears reasonably necessary for the performance of the union’s function as bargaining representative.  City of Bellevue, Decision 4324-A (PECB, 1994).  Failure to provide relevant information upon request constitutes a refusal to bargain unfair labor practice.  University of Washington, Decision 11414-A (PSRA, 2013).

 

Communication is essential to fulfilling the obligation to provide information.  Upon receiving a relevant information request, the receiving party must provide the requested information or engage in negotiations about the information request.  City of Yakima, Decision 10270-B (PECB, 2011); Seattle School District, Decision 9628-A (PECB, 2008); and Port of Seattle, Decision 7000-A (PECB, 2000).  During those negotiations, the receiving party must timely explain why it does not think the information request is relevant or clear.  Pasco School District, Decision 5384-A (PECB, 1996). 

 

The obligation to communicate about the information request continues once the responding party begins gathering responsive information.  The responding party must communicate with the requesting party to ensure that the information being gathered is the type of information that has been requested.  Kitsap County, Decision 9326-B (PECB, 2010), citing City of Seattle, Decision 10249 (PECB, 2008), aff’d, Decision 10249-A (PECB, 2009). 

 

The requirement to communicate continues once the responding party provides information to the requesting party.  After receiving a response, if the requesting party does not believe the information provided sufficiently responds to the original request, the requesting party has a duty to contact the responding party and engage in meaningful discussions about what type of information the requestor is seeking.  Kitsap County, Decision 9326-B (PECB, 2010). 

 

 

 

Application of Standards

Information about comparable wages, hours and working conditions is basic evidence in an interest arbitration case.  City of Bellevue, Decision 3085-A.  In City of Bellevue, the union requested the employer’s intended comparables.  The employer refused to provide that information, alleging that the information was protected under the work product doctrine.  The Commission presumed, rather than decided, “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.”  The Commission disagreed with the employer’s assertions that the requested information contained the “mental impressions, conclusions, opinions, and legal theories of” the employer’s attorneys.  The data, in particular the identities of the employers being considered for use as comparables, did not qualify as attorney “work product.”

 

In this case, in advance of interest arbitration, the union requested information about comparables, wage data, and analysis the employer planned to rely on.  The employer responded, providing some information, objecting to other requests, providing a time when certain information would be available, asserting that the employer did not have responsive information, and asserting that certain information contained in the attorney’s files was work product, therefore, not subject to disclosure.  The parties engaged in a robust e-mail discussion about what information the employer provided, what information the employer did not provide, and when information would be available.  The employer provided the union some wage data, but did not provide analysis.  The employer had not completed its wage analysis and exhibits until the eve of the interest arbitration hearing. 

 

The employer introduced exhibits at the interest arbitration hearing containing wage and comparable data it had not provided in response to the union’s information request.  Within the exhibits were e-mail communications with other employers about educational incentives.[2]  These e-mail communications establish that the employer began researching comparables in May 2012.  The e-mail communications were responsive to the union’s request for “all reports, documents and information relating to terms and conditions” for the employer’s proposed comparators’ wages, compensation, and terms and conditions of employment related to the issues certified for interest arbitration.  By not providing the union this information upon request, the employer refused to bargain by failing to provide requested information.

 

The duty to provide information does not include a duty to create information.  Kitsap County, Decision 9326-B (PECB, 2010); City of Seattle, Decision 534 (PECB, 1978).  The employer had not created its exhibits at the time the union made its information request.  A party has a duty to provide data, but cannot provide what does not exist.  The Commission declines to make a determination about when a party would have to complete a document to comply with an information request.  The employer was not obligated to provide analysis and exhibits it had not completed before the hearing.

 

Preservation of some artificial sphere of privileged information would only tend to promote gamesmanship by parties, and to encourage highly complex and detailed statistical presentations in interest arbitration proceedings that take on the appearance of a court trial.  City of Seattle, Decision 4845 (PECB, 1994).[3]  The duty to provide information includes “an obligation to be forthcoming with explanation of the proposals made or the positions taken in collective bargaining, as well as a duty to provide the opposite party with requested information that is reasonably necessary to prepare for collective bargaining or contract administration.  The duty to bargain in good faith is not terminated or suspended by a certification of a dispute for interest arbitration. . .”  Id.  Neither party has a duty to disclose every piece of information considered in putting a proposal together; however, neither party has a right to withhold information relating to proposals they have put on the table.

 

The employer provided the union with some, but not all of the requested wage and compensation data.  The employer introduced exhibits at the interest arbitration hearing that contained information the union requested which the employer had in its possession but did not provide to the union before the hearing.  The employer failed to provide requested information.  We affirm the Examiner.

NOW, THEREFORE, it is

ORDERED

 

The Findings of Fact issued by Examiner Kristi Aravena are AFFIRMED and an additional Finding of Fact is added:

 

32.  Included in the exhibits the employer introduced at hearing were e-mail communications with other employers about educational incentives.  The e-mail communications were responsive to the union’s request for “all reports, documents and information relating to terms and conditions” for the employer’s proposed comparators’ wages, compensation, and terms and conditions of employment related to the issues certified for interest arbitration. 

 

The Conclusions of Law 1, 2, 3, and 4 are AFFIRMED.  Conclusion of Law 5 is modified:

 

5.      As described in Findings of Fact 12 through 25, 28, and 32, the employer failed or refused to provide relevant collective bargaining information requested by the union concerning wage and compensation data before the parties’ interest arbitration hearing in violation of RCW 41.56.140(4) and (1).

 

The Order issued by Examiner Kristi Aravena is AFFIRMED and adopted as the Order of the Commission.

 

ISSUED at Olympia, Washington, this  17^th  day of April, 2014.

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

                                                MARILYN GLENN SAYAN, Chairperson

 

 

                                                THOMAS W. McLANE, Commissioner

 

 

                                                MARK E. BRENNAN, Commissioner