Community College 3 (Olympic), Decision 9156 (PSRA, 2005)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
JEANNE GARDNER	CASE 19429-E-05-3071
Involving certain employees of:	DECISION 9156-PSRA
COMMUNITY COLLEGE DISTRICT 3 (OLYMPIC)	DIRECTION OF ELECTION

Jeanne Gardner appeared pro se.

Linda Yeager, Director of Human Resource Services, for the employer.

Schwerin Campbell Barnard, by Lawrence Schwerin, Attorney at Law, for the incumbent intervener, Washington Public Employees Association, UFCW Local 365.

Jeanne Gardner filed a representation petition with the Commission on April 26, 2005, seeking decertification of the Washington Public Employees Association, UFCW Local 365 (union) as exclusive bargaining representative of certain employees of Community College 3 d/b/a Olympic College (employer). Although the petition described the bargaining unit involved as encompassing “all” classified employees of the employer and estimated there to be 149 employees involved, separate bargaining units of supervisors and nonsupervisory employees actually existed at the college,[1] and a representation petition was already pending before the Commission concerning the separate unit of supervisors.[2] The union moved for intervention in the proceedings on May 19, 2005, and that motion was granted under WAC 391-25-170.

During an investigation conference held on May 25, 2005, the parties entered into stipulations on the eligibility of various employees (including two who had voted in the election for the supervisory unit), but the union disputed the timeliness of the petition. The framing of those issues was confirmed in an Investigation Statement issued on May 25, 2005.[3]

Hearing Officer David Gerome held a hearing on August 2, 2005. The parties filed post-hearing briefs on September 1, 2005.

ISSUE

The sole issue currently before the Executive Director in this case is:

Was the petition filed in this case on April 26, 2005, untimely under the contract bar principle?

I conclude the contract bar rule principle does not apply, so that the Commission has jurisdiction to proceed with determination of the question concerning representation in this case.

APPLICABLE LEGAL PRINCIPLES

The Personnel System Reform Act of 2002 (PSRA) was passed by the Legislature and signed into law in 2002, with various effective dates. The authority to determine bargaining units formerly delegated to the Washington Personnel Resources Board and the authority to certify exclusive bargaining representatives formerly delegated to the Department of Personnel was transferred to the Public Employment Relations Commission by amendments to RCW 41.06.340 that took effect on June 13, 2002. RCW 41.80.080 took effect on July 1, 2004, and includes:

RCW 41.80.080 REPRESENTATION ‑‑ ELECTIONS ‑‑ RULES. (1) The commission shall determine all questions pertain­ing to representation and shall administer all elections and be responsible for the processing and adjudication of all disputes that arise as a consequence of elections.

. . .

(4) No question concerning representation may be raised if:

(a) Fewer than twelve months have elapsed since the last certification or election; or

(b) A valid collective bargaining agreement exists covering the unit, except for that period of no more than one hundred twenty calendar days nor less than ninety calendar days before the expiration of the contract.

(emphasis added). The “contract bar” principle is restated in the Commission’s rules. The general rule is WAC 391-25-030(1):

WAC 391‑25‑030 PETITION ‑ TIME FOR FILING. (1) A "contract bar" exists while a valid collective bargaining agreement is in effect, so that a petition involving any or all of the employees covered by the agreement will be timely only if it is filed during the "window" period not more than ninety nor less than sixty days prior to the stated expiration date of the collective bargaining agreement.

(a) To constitute a valid collective bargaining agreement for purposes of this subsection:

(i) The agreement must cover a bargaining unit that is appropriate under the terms of the applicable statute;

(ii) The agreement must be in writing, and signed by the parties' representatives;

(iii) The agreement must contain a fixed expiration date not less than ninety days after it was signed; and

(iv) The agreement will only operate as a bar for the first three years after its effective date.

(b) An agreement to extend or replace a collective bargaining agreement shall not bar a petition filed in the "window" period of the previous agreement.

(c) A "protected" period is in effect during the sixty days following a "window" period in which no petition is filed, and a successor agreement negotiated by the employer and incumbent exclusive bargaining representative during that period will bar a petition under this chapter. . . .

(emphasis added). A special rule for state civil service employees addresses the unique “window” period found in the PSRA, as follows:

WAC 391‑25‑036 SPECIAL PROVISION ‑ STATE CIVIL SERVICE EMPLOYEES. For state civil service employees:

(1) The "window" period specified in WAC 391‑25‑ 030(1) shall be computed as not more than one hundred twenty nor less than ninety days prior to the stated expiration date of the collective bargaining agreement.

(2) The "protected" period specified in WAC 391‑25­030(1)(c) shall be computed as ninety days. . . .

(emphasis added).

Collective bargaining laws protect, first and foremost, the right of employees to select their representation (if any) for the purposes of collective bargaining. See RCW 41.80.050. Any “contract bar” limits the rights of employees, and must be narrowly construed to maximize the exercise of employee rights. Roza Irrigation District v. State, 80 Wn.2d 633 (1972); Zylstra v. Piva, 85 Wn.2d 743 (1975); IAFF, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978).

ANALYSIS

Absence of Information or Misdirection to Employees

At the hearing in this case, the petitioner’s focus was on a claimed lack of awareness that two separate bargaining units existed among the classified employees of this employer. The petitioner would have the focus shifted to the filing of the first “all employees” petition. The argument is not persuasive for multiple reasons.

There was no possibility of voluntary recognition or any sort of home-grown bargaining relationships, and documentation of the existing bargaining relationships was available for the asking:

•                     RCW 41.80.005(9) defines “exclusive bargaining representative” as an organization certified under the PSRA. If there had been any change of the bargaining unit structure at the college after June 13, 2002, it would have been the subject of a formal order issued by the Commission. Any such document would have been available on the Commission’s web site, or by request to the Commission’s Olympia office.

•                     All bargaining units that existed prior to June 13, 2002, under the State Civil Service Law provisions that predated the PSRA, were certified by the Department of Personnel and/or the former Higher Education Personnel Board. RCW 41.80.900 and .901 directed the transfer of all files and records of such transactions to the Commission, and they were also available from the Commission, on request.

The “all employees” bargaining unit structures specified in both petitions were inappropriate on their face, under the PSRA. Persons who assert rights under statutes and rules can reasonably be expected to read the applicable authorities:

•                     RCW 41.80.070 expressly requires that supervisors be placed in separate bargaining units.

•                     Placement of supervisors in separate bargaining units was a long-standing rule and/or practice of the former Higher Education Personnel Board,[4] and that practice was continued in effect by the Washington Personnel Resources Board.[5]

The Commission cannot accept responsibility for damage done to parties by themselves or others.

•                     In waiting to file the first petition until two days before the end of the “window” period which is acknowledged by the union, the decertification proponents inherently limited their opportunity to effect a timely cure of any defect discerned by the Commission staff or pointed out by another party.

•                     There is no basis to accuse the union of unreasonable delay in responding to the first petition. It both filed its motion for intervention and pointed out (and documented) the existence of two separate units on April 14. That was close on the heels of the employer’s April 8 filing of a list of employees, and a week before the investigation conference in that case.

•                     Even if the proponents of this petition might have a claim against the employer for erroneously combining the two bargaining units in the first list it filed in response to the first petition,[6] the Executive Director must confine this decision to this representation case.[7]

Close examination of the two separate collective bargaining agreements signed by the union with this employer contradict the interpretation placed upon them by the petitioners in both of the representation cases:[8]

•                     Even though it contained the words “all classified employees” in its unit description language at Article 1, the collective bargaining agreement signed in 2000 for the nonsupervisory unit clearly went on to make explicit reference to (and to exclude) the supervisors in the same paragraph.[9]

•                     The separate contract signed for the supervisors unit in 2001 contained different unit description language in Article 1, and clearly dealt with the supervisors separately.

The Executive Director has reviewed the initial processing of the first petition in light of the arguments advanced by the petitioner in this case, and finds no fault with the actions of the Commission staff. Commission precedents granting waivers where parties have been prejudiced by errors on the part of the Commission’s staff are thus not applicable in this case.[10]

Cited Contract Expressly Overrules “Contract Bar” Principle

The collective bargaining agreement relied upon by the union as the basis for its “contract bar” argument bears a signature date of August 22, 2000, and included:

ARTICLE 37 - TERM OF AGREEMENT

Section 1. This Agreement shall become effective at 12:01 a.m. the day following its signature by the Chairman of the Board or designee, and shall remain in full force and effect until 12:00 midnight three (3) years hence.

Section 2. Either party may, on or before a date sixty (60) days prior to the date of expiration of this Agreement, request that any or all parts of this Agreement be reopened for negotiations. . . .

Section 3. If a request for negotiations is made pursuant to Section 2 of this Article, the terms of this Agreement . . . shall remain in full force and effect until a successor agreement is signed by both parties. If neither party requests that negotiations be reopened in accordance with Section 2 of this Article, the termination date of this Agreement shall automatically be extended for twelve (12) months.

In accordance with applicable Higher Education Personnel rules, any extension resulting from this section shall not operate as a contract bar regarding any representation issue.

Section 4. The termination date of this Agreement shall continue to be extended as provided in Section 3 above, until either party submits a timely request for negotiations. . . .

(emphasis added). While that contract would have expired according to its terms in August 2003, it is undisputed that neither party reopened the contract in 2003. Thus, that contract was in effect as of June 30, 2004, only by operation of the automatic renewal language set forth in Section 3 of Article 37.

The union asserts here that the last sentence of Article 37, Section 3, was only informational in nature, and cannot (or should not) be given effect. The argument is not persuasive, however.

The collective bargaining agreement relied upon by the union was negotiated when RCW 41.06.150 included:

RCW 41.06.150 RULES OF BOARD--MANDATORY SUBJECTS--VETERANS’ PREFERENCE--AFFIRMATIVE ACTION. The [Washington Personnel Resources] Board shall adopt rules, consistent with the purposes and provisions of this chapter, as now or hereafter amended, and with the best standards of personnel administration, regarding the basis and procedures to be followed for:

. . .

(13) Agreements between agencies and certified exclusive bargaining representatives providing for grievance procedures and collective negotiations on all personnel matters over which the appointing authority of the appropriate bargaining unit may lawfully exercise jurisdiction;

(14) Written agreements may contain provisions for payroll deductions of employee organization dues upon authorization by the employee member and for the cancel­lation of such payroll deduction by the filing of a proper notice by the employee with the appointing authority and the employee organization: PROVIDED, That nothing contained herein permits or grants any employee the right to strike or refuse to perform his or her official duties; . . . .

(emphasis added). When the cited contract was negotiated, RCW 41.06.340 included:

RCW 41.06.340 UNFAIR LABOR PRACTICE PROVISIONS APPLICABLE TO CHAPTER. Each and every provision of RCW 41.56.140 through [41.56.160] shall be applicable to this chapter as it relates to state civil service employees and the Washington personnel resources board, or its designee whose final decision shall be appealable to the Washington personnel resources board, which is granted all powers and authority granted to the [Public Employment Relations Commission] by RCW 41.56.140 through [41.56.160].

In Ortblad v. State, 85 Wn.2d 109 (1975), the Supreme Court of the State of Washington relied upon the provisions of Chapter 41.56 RCW when it interpreted the duty to bargain in Chapter 41.06 RCW.

In State ex rel. Bain v. Clallam County, 77 Wn.2d 542 (1970), the Supreme Court dealt with a dispute arising out of an oral agreement negotiated by a union with public officials at a local Elks Club. The Court wrote:

[T]he oral tentative agreement is not subject to enforce­ment . . . because it never achieved the status of a collective bargaining agreement. The statute which authorizes . . . collective bargaining agreements requires that the agreements be in writing:

“Collective bargaining” means the performance of the mutual obligations of the public employer and the exclusive bargaining repre­sentative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement . . .

RCW 41.56.030(4).

The foregoing section uses language designed to show a legislative intention that there be no oral collective bargaining agreements. . . . Obviously, the legislature in authorizing and in empowering county commissioners to enter into written agreements did so to avoid the very thing that happened here: conducting county business privately . . . from which the public could be excluded, possibly binding the county and its treasury to contractual obligations established only by parol evidence, and leaving the county dependent on the memory and recollection of the negotiators. . . .

(emphasis in original). The explicit reference to “written” agreements in RCW 41.06.150(13) as existed in 2000 supports a conclusion that the written contracts requirement should be applied to contracts negotiated under Chapter 41.06 RCW, particularly in light of the application of RCW 41.56.030(4) to state employees in Ortblad v. State, 85 Wn.2d 109, as described above.

The duty to bargain ceased to exist under the State Civil Service Law as of July 1, 2004, when amendments to RCW 41.06.150 enacted as part of the PSRA took effect, and the “shall not operate as a contract bar” language remained in the collective bargaining agreement at that time. Commission and judicial precedents enforce waivers contained in collective bargaining agreements signed by unions and employers, even if the union comes to have second thoughts at a later time.[11] That line of precedent is complimentary to the requirement for written contracts in State ex rel. Bain v. Clallam County, 77 Wn.2d 542: This union must be held to the terms of the written contract it signed in 2000,[12] and it cannot escape from the “shall not operate as a contract bar” language in this case. The employee who filed this decertification petition on April 26, 2005, was entitled to rely upon the written collective bargaining agreement, including the “shall not operate as a contract bar” language written into that contract.[13]

Statutory Extension Does Not Overrule “Contract Bar” Language

The union contends that Article 37 of the cited contract has no effect, because the PSRA extended all collective bargaining agreements that were in effect on July 1, 2004, through June 30, 2005. The argument is not persuasive, however.

The PSRA had staggered effective dates which created a transition period. The transition began on June 13, 2002, when the authority to process unit determination, representation, and unfair labor practice cases was shifted to the Commission in RCW 41.06.340, along with a new set of definitions in RCW 41.80.005 and a new set of unit determination criteria in RCW 41.80.070. The duty to bargain under RCW 41.06.150 remained in effect through June 30, 2004, and RCW 41.80.001 then took effect on July 1, 2004:

RCW 41.80.001 APPLICATION OF CHAPTER. Collective bargaining negotiations under this chapter shall commence no later than July 1, 2004. A collective bargaining agreement entered into under this chapter shall not be effective prior to July 1, 2005. However, any collective bargaining agreement entered into before July 1, 2004, covering employees affected by this section and RCW 41.80.010 through 41.80.130, that expires after July 1, 2004, shall, unless a superseding agreement complying with this section and RCW 41.80.010 through 41.80.130 is negotiated by the parties, remain in full force during its duration, but the agreement may not be renewed or extended beyond July 1, 2005, or until superseded by a collective bargaining agreement entered into under this section and RCW 41.80.010 through 41.80.130, whichever is later. . . .

(emphasis added). That statute does not specifically establish a new “window” period, but the union acknowledges that petitions were timely from March 3, 2005, at 8:00 a.m. (when the Commission’s office opened on the 120th day prior to July 1, 2005) through Friday, April 1, 2005, at 5:00 p.m. (when the Commission’s office closed on the 91st day prior to July 1, 2005).

The fatal flaw with the union’s argument is that RCW 41.80.001 did not add new substantive provisions to, or delete substantive provisions from, the collective bargaining agreements that it extended. In particular, the provision enacted to bridge the transition period while first contracts were being negotiated under the PSRA did not excuse or protect this union from its agreement to omit automatic extensions from the contract bar principle. Federal and state collective bargaining laws and rules establish “window” periods to put potential petitioners on notice of when they can take steps to challenge/upset otherwise-stable bargaining relationships. See King County, Decision 6291-A (PECB, 1998). The WAC 391-25-030 requirement for a written and signed collective bar-gaining agreement to invoke the “contract bar” is consistent with both State ex rel. Bain v. Clallam County, 77 Wn.2d 542 and the purpose of putting potential petitioners on notice. In this case, an employee looking at the contract signed by this union and the employer in 2000 was entitled to conclude there was no contract bar in effect after August 2003, because the contract itself stated that operation of the automatic renewal clause did not invoke the “contract bar” principle. There was no contract bar in effect for RCW 41.80.001 to extend on July 1, 2004. The petition was timely.

FINDINGS OF FACT

1.                  Community College District 3, operating as Olympic College, is a state institution of higher education within the meaning of RCW 41.80.005(10).

2.                  Washington Public Employees Association, UFCW Local 365, an employee organization within the meaning of RCW 41.80.005(7), is the exclusive bargaining representative of the employer’s nonsupervisory classified employees.

3.                  The employer and union signed a collective bargaining agree­ment under date of August 22, 2000. That contract was in effect for three years, and an automatic renewal clause kept it in effect from year to year thereafter in the absence of notice from one of the parties to reopen the contract. That contract specifically provided that any extension resulting from operation of the automatic renewal clause shall not operate as a contract bar regarding any representation issue.

4.                  There is no claim or evidence that either the employer or union sought to reopen their contract in 2003, so the contract described in paragraph 3 of these findings of fact remained in effect after August 2003 only by operation of the automatic renewal clause which included the “shall not operate as a contract bar” limitation.

5.                  On April 26, 2005, Jeanne Gardner filed a properly supported petition for investigation of a question concerning representation with the Commission, seeking decertification of the exclusive bargaining representative identified in paragraph 2 of these findings of fact.

6.                  Prior to the hearing in this case, bargaining unit employees who had previously filed unfair labor practice charges that could have been a basis to invoke the “blocking charge” procedure in WAC 391-25-370 filed requests to proceed with the processing of this petition.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.80 RCW.

2.                  As of April 26, 2005, the collective bargaining agreement signed by the employer and union in 2000 remained in effect only by operation of the automatic renewal language in Article 37, section 3, that included the “shall not operate as a contract bar regarding any representation issue” language, so that no “contract bar” was in effect under RCW 41.80.080 and WAC 391-25-020 after August 2000, even if the contract continued in full force and effect between the parties by operation of RCW 41.80.001 through June 30, 2005.

3.                  The petition for investigation of a question concerning representation filed as described in paragraph 5 of the foregoing findings of fact was timely under RCW 41.80.080, WAC 391-25-020, and WAC 391-25-036.

4.                  A question concerning representation presently exists in the appropriate bargaining unit described in paragraph 2 of the foregoing findings of fact.

DIRECTION OF ELECTION

A representation election shall be conducted by mail ballot, under the direction of the Public Employment Relations Commission, in the appropriate bargaining unit described in paragraph two of the foregoing conclusions of law, to determine whether a majority of the employees in the bargaining unit desire to be represented for the purposes of collective bargaining by the Washington Public Employees Association, UFCW Local 365, or no representative.

Issued at Olympia, Washington, on the 28^th day of October, 2005.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This order may be appealed by filing timely objections with the Commission under WAC 391-25-590.