Clover Park Technical College, Decision 8534-A (PECB, 2004)

Rene Jankiewicz, Business Representative, for union.

Christine O. Gregoire, Attorney General, by Terrance J. Ryan, Assistant Attorney General, for the employer.

This case comes before the Commission on an appeal filed by Clover Park Technical College (employer), seeking to overturn Findings of Fact, Conclusions of Law, and Order issued by Examiner Starr Knutson. International Union of Operating Engineers, Local 286 (union) supports the Examiner’s decision.[1] We affirm.

BACKGROUND

The employer and union have been parties to their current collec­tive bargaining agreement since July 2001. The parking policy on the employer’s campus has changed to deal with specific problems as they occur. Although implementing a parking fee on campus had been discussed by the employer as early as 1999, the employer began serious consideration of a fee-based parking policy at the start of the 2001-2002 school year.

In September 2001, the employer formed a committee to examine implementing a parking fee on the campus. By April 26, 2002, the employer had formulated a draft parking policy. In June 2002, the employer initiated its proposed policy. On June 27, 2002, the union notified the employer that it was unaware of any proposed change to the current parking policy and requested bargaining over the issue. On July 10, 2002, the employer informed the union that it believed that the employer had the authority to unilaterally implement a parking fee and that the employer did not commit an unfair labor practice when it implemented the parking policy.

On August 13, 2002, the union filed a complaint alleging Clover Park Technical College (employer) violated RCW 41.56.140(4) and (1) by refusing to engage in collective bargaining with the union regarding employee parking. A hearing was held December 4, 2003, and on April 26, 2004, the Examiner issued her decision finding the employer failed to bargain in good faith with the union. The Examiner held that the employer failed to provide sufficient notice to the union regarding the change in the college’s parking policy and that when the union requested bargaining, the employer refused to honor that request. The employer filed a timely appeal.

DISCUSSION

Standard of Review

This Commission does not conduct a de novo review of examiner decisions in unfair labor practice proceedings under Chapter 391-45 WAC. Rather, we review the findings of fact to determine whether they are supported by substantial evidence and, if so, whether those findings of fact support the conclusions of law and order. Cowlitz County, Decision 7007-A (PECB, 2000). Substantial evidence exists if the record supports a finding of any competent, relevant and substantive evidence which, if accepted as true, would, within the bounds of reason, directly or circumstantially support the challenged finding or findings. Ballinger v. Department of Social and Health Services, 104 Wn.2d 323 (1985).

Waiver of Bargaining Rights of Mandatory Subjects

Parking is a Mandatory Subject of Bargaining -

RCW 41.56.140(4) obligates public employers and their employees’ exclusive bargaining representatives to meet at reasonable times, confer and negotiate in good faith, and to execute a written agreement, with respect to personnel matters, regarding wages, hours and working conditions. This Commission recently reaffirmed a longstanding principle that employee parking is a mandatory subject of bargaining. Western Washington University, Decision 8256-A (PSRA, 2004). See also City of Pasco, Decision 3368-A (PECB, 1990), aff’d, 119 Wn.2d 504 (1992).

Waiver by Inaction -

The obligation to bargain in good faith is mutual to both parties. For the mutual obligation owed between the parties to have meaning, the party wishing to make a change to the status quo, at the very least, must give timely notice of the change to the other party. Otherwise the party making the change fails to fulfill its bargaining obligation. See City of Brier, Decision 5089-A (PECB, 1995). While notice given to a party of a proposed change in the status quo need not be in writing, it must be sufficiently clear to afford the union reasonable notice of the intended change. See Washington Public Power Supply System, Decision 6058-A (PECB, 1998). Informal notice of proposed changes may be sufficient to satisfy the notice requirements, but the presentation as a fait accompli of a complete planned change in the status quo directly to employees without any prior contact, formal or informal, with the employees’ authorized bargaining agent does not create effective notice such that a failure on the part of the bargaining agent to request bargaining creates a waiver by inaction. See King County, Decision 5810-A (PECB, 1997).

It is not essential that the union be given formal notice of the intended change, if the union does, in fact, know of the plans and a formal announcement would be futile. Royal City School District, Decision 1419-A (PECB, 1982) (quoting Morris, The Developing Labor Law, 337 (BNA, ed.), 1971). In the absence of formal notice, however, it must be shown that the union has actual timely knowledge. Washington Public Power Supply System, supra.

An examination of the notice requirement is a key factor in distinguishing between a fait accompli by an employer and wavier by inaction by a union. Once an employer provides sufficient notice of a proposed change, the union must establish that it has made a timely request for bargaining. Lake Washington Technical College, Decision 4721-A (PECB, 1995). For a union’s inaction to ripen into a clear and unmistakable waiver of a bargaining right, its conduct must be such that the only reasonable inference is that it has abandoned its rights to negotiate.

When making determinations such as those presented in the instant case, the Commission focuses on the circumstances as a whole, and on whether an opportunity for meaningful bargaining existed. Seattle School District, Decision 5733-B (PECB, 1998). A union’s request for bargaining must adequately signify a desire to bargain over the issue; neither a strongly worded protest nor the filing of an unfair labor practices charge constitutes a valid bargaining request.

Employer failed to provide the Union with Adequate Notice -

On appeal, the employer argues that the evidence demonstrates the union had actual knowledge of change in the employer’s parking policy well in advance of their June 27, 2002, request for bargaining, and therefore the union’s inaction waived any bargain­ing right that the union may have possessed regarding the issue. Examining the record as a whole and the events leading up to the employer’s change in policy, we conclude the examiner properly found that the employer failed to properly inform the union and that the union did not waive bargaining over the issue.

To support its position that the union had notice, the employer argues that bargaining unit members sat in on the committee meetings formulating the parking policy and were allowed to comment on the parking policy during the course of these meetings. Thus, according to the employer, the union had implied knowledge of the change in policy based on the presence of union members during these discussions. This argument fails, however, because the evidence demonstrates not only that the employer was soliciting comments from all interested parties, and not just the specific union, but also that employees present at these meeting neither established an active presence at the meeting that could somehow be interpreted as bargaining, nor did these employees have the authority to bind the union to a particular bargaining position.

The crux of the employer’s position hinges on the testimony of Tony Robinson, the college’s vice-president for operations and facili­ties, who stated that Art Sandor, a bargaining unit member serving on the employer’s policy and procedures committee, was present at a April 26, 2002, meeting where Robinson elicited comments and questions about the proposed parking policy. Sandor testified that the first time he learned of the change in policy was either in May or June of 2002. Regardless of when Sandor actually learned of the proposed change, the employer failed to establish that it had directly communicated with or had any meaningful negotiations with the employees’ exclusive bargaining representative regarding the change in policy.

Furthermore, the Examiner correctly noted that an employer’s reliance on this type of notice could potentially undermine the concept of exclusive representation. An employer wishing to make any change to a mandatory subject of bargaining could simply notify any bargaining unit member of the proposed change and assume that the exclusive representative will receive the information. This type of contact between an employer and a bargaining unit member could potentially circumvent the union’s role as the exclusive bargaining representative of the employees.

Our decision in King County, Decision 5810-A, provides guidance regarding this type of situation, where we stated that although a group of employees met with their employer regarding a mandatory subject of bargaining, this did not constitute collective bargain­ing. We also noted that the employer would have, in fact, been liable for a circumvention violation had it directly negotiated with employees instead of the exclusive bargaining representative.

Finally, the employer historically bargained with James Wrenn, the union’s business agent, who had negotiated four previous contracts with the employer. The testimony of Ben Lastimado, the employer’s vice-president for human resources, reinforces this relationship when he stated that he had several conversations during the month of June with Wren regarding union personnel. Although employers are generally under no obligation to contact the employees’ exclusive bargaining representative in writing over a proposed policy change, responsibility nevertheless falls upon the employer to ensure that the bargaining representatives are informed of an impending change in policy.

The Employer Presented the Union with a Fait Acompli -

In determining whether a fait accompli has occurred, the Commission focuses on the circumstances as a whole, and whether the opportu­nity for meaningful bargaining existed. In Lake Washington Technical College, Decision 4721-A (PECB, 1995), we stated:

If the union is adequately notified of a contemplated change at a time when there is still an opportunity for bargaining which could influence the employer’s planned course of action, and the employer’s behavior does not seem inconsistent with a willingness to bargain if requested, then a fait accompli should not be found.

The employer re-asserts that because a union representative attended the April 26, 2002, presentation on the parking fee policy, the union waived its bargaining rights because it had notice of the impending change in policy.

We need not reiterate our earlier statement regarding the em­ployer’s failure to provide the union adequate notice to the union’s business representative of the change in parking. The record establishes that the employer implemented its change in parking in early June of 2002, and the union established that it was notified of the change in parking in early June 2002. Nothing in the record presented establishes that the employer allowed for meaningful bargaining over the change in the parking policy.

Because we hold that the employer presented the union with a fait accompli, and thus relieved the union of its obligation to request bargaining, we need not address whether the employer violated Chapter 41.56 RCW by refusing to bargain with the union.

NOW, THEREFORE, it is

ORDERED

The Findings of Fact, Conclusions of Law, and Order issued in the above-captioned matter by Examiner Starr Knutson are AFFIRMED and adopted as the Findings of Fact, Conclusions of Law, and Order of the Commission.

Issued at Olympia, Washington, the 29th day of October, 2004.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARILYN GLENN SAYAN, Chairperson

[SIGNED]

JOSEPH W. DUFFY, Commissioner

[SIGNED]

PAMELA G. BRADBURN, Commissioner