City of Anacortes, Decision 7768 (PECB, 2002)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
ANACORTES POLICE SERVICES GUILD,
Complainant,	CASE 14551-U-99-3634
vs.	DECISION 7768 - PECB
CITY OF ANACORTES,	FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Respondent.

Cline & Associates, by James M. Cline, Attorney at Law, for the complainant.

Keating, Bucklin & McCormack, by Deborah D. Brookings, Attorney at Law, for the respondent.

On April 27, 1999, the Anacortes Police Services Guild (union) filed a complaint charging unfair labor practices with the Public Employment Relation Commission under Chapter 391-55 WAC, naming the City of Anacortes (employer) as respondent. A preliminary ruling was issued under WAC 391-45-110 on July 8, 1999, finding a cause of action to exist on allegations summarized as follows:

The employer’s failure or refusal to bargain, in violation of RCW 41.56.140(4), by its delay in providing and/or refusal to provide infor­mation requested by the union as necessary for the processing of a grievance concerning the discharge of Officer Michael Catlin.

The employer filed an answer to the complaint, along with a declaration of its attorney. Kathleen O. Erskine was assigned as Examiner, to conduct further proceedings in the matter. A notice of hearing was issued in November of 1999, setting a date in February of 2000 for a hearing in the matter. In a letter issued in March of 2000, the Examiner set forth agreed arrangements for the parties to submit the case on stipulated facts, subject to the right of the Examiner to convene a hearing. After further hearing notices and postponements, a hearing was held before the Examiner on October 19, 2000, and January 8, 2001.The parties submitted post-hearing briefs.

Based on the evidence and arguments submitted by the parties, the Examiner concludes that the employer did not commit an unfair labor practice. The complaint is DISMISSED.

BACKGROUND

The employer provides customary municipal services in a portion of Skagit County, Washington, including law enforcement services provided through a police department.

The union is the exclusive bargaining representative of the employer’s commissioned law enforcement officers, excluding the chief of police, the assistant chief of police, the police captain, and an administrative assistant.

The employer and union were parties to a collective bargaining agreement effective from January 1, 1998, through December 31, 2000.That agreement contained several provisions pertinent to this dispute, including a grievance procedure that featured final and binding arbitration of disputes arising under the agreement. In particular, the grievance procedure included the following language regarding the arbitration of disputes:

ARTICLE 6 - GRIEVANCE

6(C)        The City and the Guild shall have the right to request the arbitrator to require the presence of witnesses or documents. The City and the Guild retain the right to employ legal counsel.

6(D)        The arbitrator shall submit his/her decision in writing within thirty calendar days following the close of the hearing or the submission of briefs by the parties, whichever is later, and such decision shall be final and binding upon all parties.

The collective bargaining agreement contained a provision regarding personnel records, which stated in relevant part:

ARTICLE 23 - PERSONNEL RECORDS

23.5         As used herein, a “personnel file” shall be defined as any file pertaining to the employment status, work history, disciplinary records, or other personnel-related matters pertaining to bargaining unit members. It is further understood that the term “personnel file” as used herein does not include material relating to medical records, pre-appointment in­terview forms, payroll or life insurance documents, Internal Affairs files, or applicant background investigation docu­ments such as, but not limited to psycho­logical evaluations and polygraph results.

Those contract provisions were in effect in July of 1998, when the employer terminated the employment of Michael Catlin as a police officer within the bargaining unit represented by the union.

The employer accused Catlin of violations of police department policies, violations of civil service rules, and criminal misconduct, including actions “tending to injure the public service, or any other willful failure on the part of the employee to properly conduct him/herself,” use of intoxicating liquors that “interferes with the efficiency or mental or physical fitness of the employee,” and, “[c]onduct not compatible with city employment, whether or not it amounts to a crime.” (emphasis added). The employer conducted a hearing under Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985).The reasons for termination were set forth in a letter from the mayor and the chief of police to Catlin, under date of July 15, 1998.[1]

The union filed a grievance protesting the termination of Catlin’s employment, and the matter was advanced to arbitration under the collective bargaining agreement. The parties selected an arbitra­tor, and an arbitration hearing was eventually scheduled for May 11 and 12, 1999.

The controversy now before the Examiner concerns an exchange of correspondence and documents between the parties that began in July of 1998 (when the union made its first request to the employer for information concerning the Catlin case) and continued into early May of 1999.As set forth below, the correspondence between the parties elucidates their positions and arguments.

The arbitration hearing was held on May 11 and 12, 1999.During the course of the arbitration hearing, the union availed itself of the employer’s offer of an opportunity to interview former city attorney Steve Mansfield outside the formal proceedings before the arbitrator, and to cross-examine his testimony. The arbitrator issued an award on August 16, 1999, denying the Catlin grievance.

POSITIONS OF THE PARTIES

The union asserts that it requested information that was necessary to its processing of the Catlin grievance, including possible settlement of that grievance. The union contends that the employer failed to provide what the union considered to be a complete and prompt response to the union’s request for information.

The employer contends that any delays in providing requested information were reasonable, that the Loudermill hearing tapes requested by the union did not exist, and that it made a good faith effort to provide the requested information. The employer attributes to “ministerial error” its furnishing of what it believed to be the requested tapes. It further asserts that the union’s request for “a list for all City of Anacortes employees for the past ten years who have engaged in known criminal conduct, and what discipline was imposed as a result,”[2] was neither retrievable or available in the employer’s records, nor relevant to the grievance concerning discipline of a commissioned police officer.

DISCUSSION

The Duty to Provide Information

The relationship between these parties is governed by the Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW. The definition of “collective bargaining” is set forth in RCW 41.56.030(3), as follows:

[T]he 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 with re­spect to grievance procedures and collective negotiations on personnel matters, including wages, hours and working conditions, which may be peculiar to an appropriate bargaining unit of such public employer, except that by such obligation neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this chapter. . . .

The duty to bargain includes a duty to provide relevant information needed by the opposite party for the proper performance of its duties in the collective bargaining process. City of Bellevue, Decision 3085-A (PECB, 1989), aff’d 119 Wn.2d 373 (1992).

For the duty to provide information to exist, the information requested must be relevant to the parties’ collective bargaining process and relationship. In Pasco School District, Decision 5384‑A (PECB, 1996), the Commission explored limits on the duty to supply information, as follows:

The duty to supply information turns upon the circumstances of the particular case, but a union’s bare assertion that it needs informa­tion to process a grievance does not automatically oblige the employer to supply all the information in the manner requested. Where the request puts the employer on notice of a relevant purpose, an employer is obligated to furnish the requested information. The requesting party must demonstrate more than an abstract, potential relevance of the requested information, and must show that the information is actually relevant. . . .

(emphasis added.)

Clearly, however, the duty to provide information generally applies to requests for information made by unions in connection with their representation of bargaining unit members in processing grievances to enforce the terms of negotiated contracts. Pullman School District, Decision 2632 (PECB, 1987); City of Seattle, Decision 3329-B (PECB, 1990).

Application of Precedent

The Union’s Initial Request -

On July 28, 1998, the union submitted a written request to the employer for copies of “Mike Catlin’s entire personnel file,” and for “[A]ll documents relating to the Internal Affairs investigation concerning Mike Catlin’s termination.” Approximately six days later, on August 3, 1998, Mansfield forwarded the requested information to the union’s attorney. Apart from the fact that the employer cannot be faulted for that seemingly-timely response, this complaint filed in April of 1999 was untimely under RCW 41.56.160 as to events in July and August of 1998.

The Union’s Followup Request -

More than six months after it received the employer’s response to its initial request for information, the union requested certain items that it believed were missing from its file. That request was in the form of a letter addressed to the attorney who repre­sents the employer in this proceeding, under date of February 17, 1999.[3]The union’s followup request included:

In reviewing this file, it has come to our attention that we may be missing certain items. I would ask that you re-review what materials you have and provide the needed missing documents on a follow-up basis.

The City previously, upon our request, provided a copy of Mike Catlin’s personnel file. But a number of items seem to be missing. In particular, we understand that he received a commendation in late May 1998, and that some type of newspaper clipping may have been added to his file. The copy of the personnel file we received also does not have a copy of his termination letter, although we received that separately. All of these omis­sions suggest to me that the City may have been behind on filing and when it produced Mike’s file to us in early August 1998, it might not have included all of the documents which are now there. We would request that you examine what you produced previously with what it is currently in the file and provide those documents on a follow-up basis.

It is also our understanding that a tape recording was made of the Loudermill hearing. We have not been provided a transcript of that recording. We would request that you do so.

Another item of information which we are requesting is the City’s discipline record concerning criminal conduct. We would request that you provide a list for all City of Anacortes employees for the past ten years who have engaged in known criminal conduct, and what discipline was imposed as a result.

We would request that you provide all of this follow-up material no later than Monday, March 1, 1999.

. . . .

Brookings replied to the union’s request two days later, on February 19, 1999, by a letter which included:

This letter is in response to your letter to me dated February 17, 1999, requesting information regarding the discharge of Mike Catlin. I have forwarded your letter to my clients, and will coordinate with them regard­ing the documents you requested.

You asked that the material referenced in your letter be provided to you by March 1, 1999.I will not be able to meet that deadline. Yesterday there was a death in my family, which will necessitate my absence from work for most of the coming week. I start a trial in Snohomish County on March 1, which is expected to last through March 5.I would hope to be able to get you all documents to which you are entitled by March 12, 1999.I hope this is acceptable to you.

In fact, Brookings did not meet the March 12 estimate set forth in that letter.

The union argues that the reasons given for the employer’s delay in responding to the union’s February 17 request were tantamount to “stonewalling” by the employer, but that argument is not persuasive. Those reasons (a death in Brookings’ family and an upcoming trial starting March 1, 1999) were articulated in the letter Brookings sent to Cline on February 19, 1999, and there is no evidence contradicting Brookings’ veracity in making those claims. Even without the death in the family, some delay could have been reasonable after a passage of more than six months. Moreover, Cline appears to have ignored (rather than disputed) Brookings’ timely explanation when he wrote to Brookings a month later claiming there had been “no response whatsoever” to the February 17 request. That clearly was not the case.

Reiteration and Expansion of the Union’s Request -

On March 18, 1999, the union’s attorney wrote another letter to Brookings, reiterating the February 17 request and requesting additional items, as follows:

Please find enclosed a letter dated February 17, 1999, requesting pertinent information. To date, we have received no response whatsoever. Unless we can receive the requested information by Monday, March 29, the Guild will be forced to consider filing an unfair labor practice complaint against the City.

In addition to the information previously requested, I would also request that you provide a couple of additional items. First, we would request a copy of any and all docu­ments relating to the 1997 alcohol incident. Second, it is my understanding in reviewing Officer Catlin’s personnel file, that he has no prior disciplinary action on record. Could you please confirm that the City will not be intending to offer any prior disciplinary records against Officer Catlin at his termination hearing. If, on the other hand, the City does now claim that Officer Catlin has some type of prior disciplinary record which it intends to offer, would you please immediately provide me copies of those disciplinary notices.

Again, we would request prompt production of these requested documents. Please don’t hesitate to contact me if you have any questions concerning the nature and scope of our requests.

The employer responded by a letter dated March 26, 1999, in which Brookings wrote:

Enclosed are documents responsive to the request in your letter dated February 17, 1999.I apologize for the delay in getting them to you. The delay was caused by me, and not by the City.

I have also reviewed the requests in your March 18, 1999, letter. I will gather those documents and provide to you everything to which you are entitled as soon as possible.

Together with the March 26 letter, the employer furnished the union with several documents:

•                     Copies of newspaper articles related to Catlin’s termination;

•                     A memorandum from Captain Ken Clark to Catlin under date of May 18, 1998, commending Catlin’s handling of an attempted suicide;

•                     A transcript of an interview of Catlin by Captain Ken Clark on June 18, 1998, conducted as part of an administrative investi­gation dealing with Catlin’s conduct on May 18, 1998;[4] and

•                     An outline of that interview taken “once the tape has been started.”

The Examiner is not persuaded that the employer committed an unfair labor practice in connection with this exchange. The union’s March 18 letter reiterated a request for what it had only characterized as “pertinent” information without further explanation offered, and it requested additional information not mentioned in its previous request for information. While the union was seemingly entitled to records concerning a 1997 alcohol incident involving Catlin and any prior disciplinary records the employer intended to rely upon in arbitration, the same cannot be said or assumed with regard to the union’s request for information regarding all criminal conduct by city employees in the past ten years. The union did not articulate a specific reason for such a broad and far-reaching request, and it takes on the appearance of being a fishing expedition precluded by Pasco School District, supra.

Additionally, the Examiner is not persuaded by the union’s implied claim of a right to set the deadline for the employer’s response. Cline’s March 18 letter included, “Unless we can receive the requested information by Monday, March 29, the Guild will be forced to consider filing an unfair labor practice complaint against the City.” There was no explanation or external reason for imposing such a deadline, particularly when the arbitration hearing was to be held more than a month after March 29.The most that the union was entitled to was a timely response under State of Washington, Decision 4710 (PECB, 1994), which states:

The Commission expects that parties will negotiate solutions to any difficulties they encounter in connection with information requests. This is consistent with viewing the duty to provide information as part of the obligation to bargain. Although an employer may initially reply to an information request by claiming that compliance is difficult or not warranted, it must also explain its con­cerns to the union and make a good faith effort to reach a resolution that will satisfy its concerns and yet provide maximum information to the union. City of Bellevue, Decision 4324-A (PECB, 1994); Pullman School District, Decision 2632 (PECB, 1987).

In fact, the documents provided by the employer on March 26 were at least partially responsive to the union’s requests. The letter also stated that the employer would provide the union “everything to which you are entitled” as soon as possible.

The Errant Tapes -

On April 13, 1999, Brookings sent the union what she believed to be copies of the tapes of the Loudermill hearing conducted by the employer on July 15, 1998.The employer’s letter included:

Pursuant to your request, enclosed are the copies of the tapes of the July 15, 1998, meeting. There is no transcript.

I will be in touch with you in the next couple of days regarding your remaining requests. I am currently preparing for trial in Pierce County Superior Court, and have limited availability for other matters. I apologize for any inconvenience this is causing you and your client.

In fact, the tapes provided at that time were from an internal affairs investigation interview of Catlin conducted in June of 1998, rather than tapes of the Loudermill hearing. There is no reason to characterize this as anything more than a simple error or misunderstanding.

On April 13, 1999, Brookings indicated that she would contact Cline within the next few days, to discuss the union’s remaining requests for information. There was no refusal to supply information; rather, Brookings apologized for the delay in responding to the union’s request, citing trial preparation as the reason for “limited availability” to tend to “other matters.”

Also on April 13, 1999, the union sent a letter to Brookings via telefacsimile, asserting that the employer had failed to produce what the union characterized as “relevant” information, as follows:

We are well past the time for your response to the request made by the Guild for information concerning this grievance. The City has still failed to produce the following relevant information:

1.                        A transcript of the Loudermill hearing;

2.                        Records of discipline for known criminal conduct for City of Anacortes employees for the past ten years;

3.                        Copy of the documents relating to the 1997 alcohol incident; and

4.                        An indication from the City that it does not intend to offer any prior disciplin­ary records concerning Officer Catlin at the termination hearing and a confirmation that he has no such prior disciplinary records.(Note also that in the event the City does attempt to claim Officer Catlin had some type of record for discipline, we had requested that you immediately produce those records on which you intend to offer).

By failing to produce these relevant requested documents, the City of Anacortes has committed an unfair labor practice. My client has authorized me to file such a complaint. The Guild can forebear on the filing of a complaint until Monday, April 19, if you immediately agree to begin the work on producing these documents and produce all of them to us no later than the close of business on that day.

Also, please advise of your availability next week for a conference call with the arbitrator so that the Guild can present its motion to have adverse inferences drawn against the City for its failure to produce these relevant documents.

Brookings responded with a lengthy letter dated April 26, 1999, which included:

This letter is in response to your discovery requests. As I told you in my letter dated April 13, 1999, I apologize for the inconvenience my April 26 trial is causing. If we are unable to get a judge and a courtroom, I will have more time next week and can participate in whatever meetings or conferences you wish.

You requested the 1997 alcohol incident records. Those are attached. We will indeed offer those records at the arbitration hearing, as they establish that Officer Catlin was on notice that his employment could be terminated upon further alcohol-related incidents. I have also included a report from Island Hospital dated October 31, 1990.This report was not one of the documents you requested, but because the City had a copy and Officer Catlin has a copy, I thought you should have it as well. It occurred to me that, because the letter was written in 1990, Mr. Catlin may not have retained his copy and provided it to you.

With respect to your request for the Loudermill tapes, I sent you tapes, but did not realize at the time that they were not of a Loudermill hearing. Instead, they were the tapes of Officer Catlin’s internal affairs investigation interview in June, 1998.No tapes were made of the Loudermill hearing. I apologize for the confusion.

You also requested that the City provide a list for all City employees for the past ten years who have engaged in known criminal conduct, and what discipline was imposed as a result. As nearly as we are able to discern, since the City does not keep records filed under a system relating to discipline, the only Police Department employee who engaged in criminal conduct was Dave Meade. He had become disabled and retired on a disability. The only other City employee responsive to your request is a sanitation worker. The City declines to produce to you his name and infor­mation concerning his conduct because it would violate his privacy and have no relationship to a case concerning discipline of a law enforcement officer.

If there is other information you need, please let me know. Again, I appreciate your patience.

Several documents were transmitted to the union under cover of that letter.

Again, the Examiner is not persuaded by the union’s assertion that the employer committed an unfair labor practice in regard to this exchange of correspondence. The March 29 deadline was arbitrarily imposed by the union’s attorney, and is belied by the fact that the union waited until late April to file this complaint. Within the period of a little more than two months that elapsed between the request in mid-February and the filing of the complaint, the employer had partially responded at least with respect to documents that were clearly identified, and had indicated its willingness to provide the union “with everything to which you are entitled as soon as possible.” Even though the tapes provided on April 13 were not the material requested, the fact of providing them evidences a willingness of the employer to provide what it could. As had been done in her letters of February 19 and March 26, Brookings offered reasonable explanations in April for her delays in producing all the requested documents to the union. In the April 26 letter, Brookings did what was required by State of Washington, supra, when she acknowledged the existence of a past criminal conduct situation but objected to supplying more inclusive or definitive information about that individual outside of the union’s bargaining unit based upon privacy and relevancy concerns.

Proposed Arbitration Stipulation -

Under cover of a letter dated April 30, 1999, the union proposed a stipulation in the arbitration proceedings that the employer would offer “no disciplinary records for any matters prior to the matter that is currently in arbitration . . .” and “no disciplinary records for any prior alleged infraction.” The April 30 letter included:

I am in receipt of your letter dated April 26, 1999, which we received in our office on April 28, 1999.In a number of respects, your response raises more questions than answers and actually, I believe, moves us further away from having the information we need to prepare for a hearing.

First, as to employees or other individu­als involved in criminal conduct, we do not believe you have at all satisfied our request. We did not simply ask for the discipline records for those employees actually disciplined, rather the list of all employees for the past ten years “who have engaged in known criminal conduct.” Therefore, if an employee engaged in criminal conduct but was not disciplined for the conduct, it would be relevant and subject to the request. Second, as to the employee who you asserted some type of “privacy” protection, I do not agree that there is any privilege to this material. Therefore, we continue to pursue this material which we are entitled to.

As to the Loudermill hearing, Mr. Catlin believes that this was taped. Moreover, for some reason if this was not taped, we would like an explanation as to why not.

In my March 18^th letter to you I stated:

Second, it is my understanding in reviewing Officer Catlin’s personnel [sic], that he has no prior disciplinary action on record. Could you please confirm that the City will not be intending to offer any prior disciplinary records against Officer Catlin at his termination hearing. If, on the other hand, the City does not claim that Officer Catlin has some type of prior disciplinary record which it intends to offer, would you please immediately provide me copies of those disciplinary notices.

Your April 26^th response does not indicate to me whether or not the City “has some type of prior disciplinary record which it intends to offer.” You included a letter written to the City in 1990.I assume you recognize that this is not a disciplinary record and should not be offered by the City against Officer Catlin.

You do indicate you intend to offer records from a 1997 alcohol incident as they established that Officer Catlin was “on notice.” As for the 1997 incident, offering such documents is highly problematic. First, you offer documents and letter which never became part of any formal disciplinary action against Officer Catlin, and to the best of our belief, was not part of his personnel file. It appears that Chief King did slip into the personnel file - after this latest incident arose - a letter regarding this matter.

Moreover, my specific question to you posed on March 8 was whether or not the City intended to offer any “disciplinary records” against Officer Catlin. I still need an acknowledgment from the City that it has no documents which would be considered “disciplinary records.” It was specifically contem­plated by the parties at the time when they discussed this in the fall of 1997 that whatever letter did arise would not be considered disciplinary in nature.

To resolve this part of our discovery issue, I am enclosing a stipulation. If you will sign this document, it should clarify to a large extent issues that remain outstanding. In the meantime, the Guild is still pursuing its request for the other outstanding materi­als.

Please don’t hesitate to call if you have any further questions.

The employer replied by letter dated May 5, 1999, stating in relevant part:

With respect to your letter dated April 30, 1999, you referenced the request you made in your April 13, 1999, letter for “records of discipline for known criminal conduct for City of Anacortes employees for the past 10 years.” I believe my response to that request, in my April 26, 1999 letter, fairly meets the substance of the request. Dave Mead, the Police Department employee who engaged in criminal conduct, engaged in such conduct in 1993.At the time, Mead was on a disability leave. He converted that leave to a disability retirement, and left the City’s employment on that basis. This information is from the recollection of City Attorney Steve Mansfield. There are no records. If you wish to obtain further information regarding Mead, his criminal conduct, and the City’s response, you are welcome to interview Mr. Mansfield at our mutual convenience at some point during our two-day hearing. If you believe he has information which will be of assistance to your case, you are free to call him as a witness.

You made further reference in your April 30, 1999 letter to the Loudermill hearing held in July 1998.My clients insist the hearing was not taped. To my knowledge, the City is under no duty to tape or not tape such a meeting. I am unaware of any need for further “explanation”.

You asked that the City stipulate that it will offer no prior disciplinary records at the hearing. I decline to sign the stipulation. The City will offer those documents it deems relevant, and you are of course free to characterize those documents as you see fit, and to make objections as to the admissibility of those documents and the weight to be given them. I have previously provided to you all documents which we may decide to offer.

You made some allegations on page 2 of your April 30, 1999 letter that Chief King inappropriately placed a document in Mr. Catlin’s personnel file. I am not sure to what document you are referring, but the City rejects any contention that it has done any­thing improper with respect to this case. The rest of your letter appears to be argument addressed to admissibility of documents, not production of documents.

I believe we have produced all informa­tion responsible to your requests to which you are entitled. If there are further matters which you feel should be addressed, perhaps we could take those up with the arbitrator at our hearing on May 11^th.I look forward to seeing you then.

(emphasis added).

The employer did not sign or otherwise enter into the stipulation proposed by the union.

Even if communications between these parties were faulty prior to the filing of this unfair labor practice complaint, the parties were clearly engaged by late April and early May in an attempt to negotiate the employer’s objections to the union’s requests for information:

•                     The fact that the union did not accept (and may not have liked) the employer’s explanation regarding there being no tape of the Loudermill hearing does not provide basis to find that the employer committed an unfair labor practice. Due process hearings under Loudermill are entirely separate and apart from the collective bargaining process regulated by Chapter 41.56 RCW and the Commission, and there is certainly no basis to find that Chapter 41.56 RCW obligated the employer to make a tape of the due process hearing.

•                     The union’s request for information regarding criminal conduct of all city employees exceeded the bounds of the bargaining unit represented by the union, and was insufficient to trigger a duty on the employer to supply the information in the format requested. The employer directly responded to that request in its April 26 letter, where it explained that no records are kept under a system relating to discipline. It went on to describe a police department employee who had engaged in criminal conduct, and it also described the situation of a sanitation worker while asserting both “privacy” and “relevance” reasons for declining to provide more specific information about that situation. The relevance of criminal charges concerning a sanitation worker to accusations against a commissioned law enforcement officer is certainly subject to question, even if the “privacy” concerns asserted by the employer were arguably incorrect.[5]Under Pasco, supra, the union had the burden to establish the relevance of its request for information about any employees outside of the bargaining unit it represented, and it did not meet that burden.

•                     The documents relating to the 1997 alcohol incident were provided to the union on April 26, 1999.When the employer provided copies of the documents relating to the 1997 alcohol incident, it also advised the union that it intended to offer those records at the arbitration.

•                     In its letter of May 5, 1999, the employer advised the union that the recollection of its former city attorney, Steve Mansfield, was the best available source of information in this regard, and that the union was welcome to interview Mansfield.[6]The duty to provide information does not compel either party to create records that do not otherwise exist.

•                     The employer’s letter of May 5 responded to the union’s proposed stipulation by stating that the employer had provided “all documents which we may decide to offer . . .” at the arbitration hearing, with acknowledgment that documents offered at the hearing would be subject to objections as to their admissibility at that time.

•                     Nullifying any potential for a remedy in this case, under Seattle School District, Decision 7349-A (PECB, 2001), and precluding the finding of even a technical violation under Whatcom County, Decision 7727 (PECB, 2002), the union neither asked the arbitrator to draw any adverse inference from the employer’s alleged delay in providing records to the union, nor requested any continuance of the arbitration proceedings. Further, the union did not invoke Article 6(C) of the parties’ collective bargaining agreement as basis for a request that the arbitrator require the presence of witnesses or documents.

The Examiner thus concludes that no unfair labor practice has been committed by the employer in this case. It is clear to this examiner from the evidence and testimony offered at the hearing on this matter that the employer did not refuse to provide relevant information to the union prior to the date of the filing of the complaint, and that it continued to provide both requested information and explanation of its concerns and/or inability to supply some information in the form requested even after the complaint had been filed.

FINDINGS OF FACT

1.                  The City of Anacortes is a municipal corporation of the State of Washington and is a public employer within the meaning of RCW 41.56.030(1).

2.                  The Anacortes Police Services Guild, a bargaining representa­tive within the meaning of RCW 41.56.030(5), is the exclusive bargaining representative of non-supervisory law enforcement officers employed by the City of Anacortes.

3.                  The employer and union were parties to a collective bargaining agreement effective for the period of January 1, 1998, through December 31, 2000.That collective bargaining agreement contains a provision concerning a grievance procedure that allows the parties to submit grievances to final and binding arbitration and a provision granting the parties the right to request the arbitrator to require the presence of witnesses or documents at arbitration proceedings.

4.                  In July of 1998, the employer terminated the employment of Michael Catlin, who was employed in the bargaining unit represented by the union. The union filed a grievance protesting that discharge, and that grievance was eventually advanced to arbitration under the parties’ agreement.

5.                  By letter dated July 28, 1998, the union requested information concerning Catlin and the grievance filed on his behalf. The employer provided a timely response to that request on August 3, 1998.The union did not object to the sufficiency of that response for more than six months thereafter.

6.                  By letter dated February 17, 1999, the union requested certain items it claimed were missing from the materials included in the employer’s response of August 3, 1998.

7.                  Between February 17, 1999, and April 27, 1999, the employer and the union exchanged correspondence concerning the union’s requests for information. The employer provided several items requested by the union. The employer provided certain audio tapes based on a mistaken belief that they concerned a due process hearing conducted by the employer, and then provided a timely explanation that no tape had been made of the due process hearing. The employer provided reasonable explana­tions for its inability to respond as quickly as the union requested, including the death of a family member and the obligations of counsel related to other proceedings.

8.                  With respect to a request for “records of discipline for known criminal conduct for City of Anacortes employees for the past ten years” made and reiterated by the union without explanation as to the basis for the request, the employer explained that such information was not retrievable from the employer’s existing files. The employer advanced a timely objection that information regarding employees who were not law enforcement officers was irrelevant to the discipline of a law enforcement officer. The employer also gave the union access to its former city attorney, whose personal memory was described as the best source of information of the type requested by the union.

9.                  Both prior to and after the filing of the instant unfair labor practice complaint, the employer made a good faith effort to comply with the requests for information made by the union, and to communicate both impediments to and concerns about the requests made by the union.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction over this matter under Chapter 41.56 RCW.

2.                  By its responses to the union’s requests for information in regard to the processing of the Catlin grievance, the City of Anacortes did not refuse to bargain or commit an unfair labor practice in violation of RCW 41.56.140(4).

Based upon the foregoing findings of fact and conclusions of law, it is

ORDERED

The complaint charging unfair labor practices filed by the Anacortes Police Services Guild in the above-captioned matter is DISMISSED on its merits.

Issued at Olympia, Washington, on the 14^th day of June, 2002.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

KATHLEEN O. ERSKINE, Examiner

This order will be the final order of the agency unless a notice of appeal is filed with the Commission under WAC 391-45-350.