DECISIONS

WEST VALLEY SCHOOL DISTRICT, DECISION 2913-B (PECB, 1988)

Teamsters, Local 524 v. West Valley School District

 

 

                    DECISION OF COMMISSION

 

On October 5, 1987, Teamsters Union, Local 524 filed a petition with the Public Employment Relations Commis­sion (PERC), seeking investigation of a question concerning representation of certain employees of West Valley School District (employer).  Public School Employees of Washington (PSE) was granted intervention as the incumbent exclusive bargaining representa­tive of the petitioned-for employees.  The Classified Public Employees Association / Washington Education Association (CPEA) moved for intervention and supplied the requisite showing of interest.  A hearing was conducted on December 15, 1987, before Walter M. Stutevil­le, Hearing Officer.  The Executive Director issued a Direction of Election (Decision 2913 - PECB) on April 22, 1988, rejecting a "contract bar" argument advanced by PSE in opposition to the petition.[1]

 

The initial representation election conducted by the Commission was inconclusive.  The tally of ballots issued on June 1, 1988, indicates that the CPEA and "no representation" received the fewest votes among the four choices on the ballot, and those choices were omitted from the ballot for the runoff election.  The runoff election was conducted by mail ballot.  The tally of ballots issued on June 23, 1988, indicates that 58 valid ballots were cast in favor of Teamsters Local 524 and 53 valid ballots were cast in favor of PSE.  Two challenged ballots were not sufficient to affect the outcome.

 

On June 28, 1988, PSE filed timely objections pursuant to WAC 391-25-590, assigning error to the Executive Director's ruling on the "contract bar" issue and asserting that letters sent by Teamsters Local 524 to eligible voters during the pre-election campaign improperly affected the outcome of the election. 

 

Teamsters Local 524 was directed to file and serve a response to the conduct objection.  The response which was filed admitted the issuance of the documents challenged by PSE, but not the characterization of those documents by PSE. 

 

The matter was thereupon transferred to the Commission.  The parties were notified on August 16, 1988 that the conduct objection would be decided on the basis of the documents on file, and were invited to file briefs.  Teamsters Local 524 and PSE each filed a brief on September 2, 1988.

FACTS

 

The facts concerning the contract bar issue are fully set forth in the Executive Director's decision, and are summ­arized here. 

PSE has represen­ted a bargaining unit of classified employees of the West Valley School District for many years.  In March, 1985, PSE and the employer signed a two-year collective bargaining agreement with a stated expiration date of August 31, 1987.  That collective bargaining agreement expired without a new agreement being reached.  PSE and the employer later executed the following document:

 

                      LETTER OF AGREEMENT  

THE PURPOSE OF THIS LETTER OF AGREEMENT IS TO EXTEND THE COLLECTIVE BARGAINING AGREEMENT PRESENTLY IN EFFECT BETWEEN THE PARTIES HERETO.

 

1.The parties hereto agree to extend the provision of the Collective Bargaining  Agreement presently in effect, which otherwise would expire on August 31, 1987 through October 31, 1987 or until a new Col­lective Bargaining Agreement is entered into between the parties, whichever is sooner.

 

2.It is agreed and understood by the parties hereto that this extension shall not constitute a waiver by either party of the right to bargain concerning any subject relative to wages, hours, and working conditions for the period beginning September 1, 1987.  It is further agreed and understood that this extension shall have no affect on any negotia­tions in which the parties are presently engaged.

 

3.This Letter of Agreement is entered into because the parties wish to have a clear statement and under­standing of wages, hours, working conditions, obligations, and duties during the period between August 31, 1987 and the execution date of a new Collective Bargaining Agreement, or October 31, 1987, whichever is sooner.

 

THE PARTIES ATTEST THAT THE ABOVE PROVI­SIONS HAVE BEEN AGREED TO.

 

The document was signed by the employer's Superin­ten­dent of Schools, over the date of September 25, 1987, and by local PSE officials, over the date of September 28, 1987. 

 

On October 5, 1987, Teamsters Local 524 filed the petition to initiate these representation proceedings in the classified employ­ee bargain­ing unit historically represented by PSE at the West Valley School District.  PSE resisted, asserting that the extension agreement barred the petition under the "contract bar" provisions of RCW 41.56.070.

 

The Executive Director relied on both the absence of normal ratification procedures and the absence of the full 30-day "window period" prescribed by RCW 41.56.070 in reaching a conclusion that the extension agreement signed by the employer and PSE did not constitute a "contract bar" to the petition filed by Teamsters Local 524.

 

On June 9, 1988, during the pre-election campaign period leading up to the runoff election, Teamsters Local 524 sent a letter to the employer and to PSE, which states, in pertinent part:

 

The issue of retroactive pay and benefits has come up during the course of the current election for a collective bargain­ing representative.  Rather than allow this issue to become clouded, we have prepared the following statement for your review and signature so that the positions of P.S.E. and the West Valley School District can be made clear.

 

                 *****************************

 

We, the undersigned representa­tives of Public School Employees of Washington and the West Valley School District hereby agree that should General Teamster's, Local No. 524 become elected as the bargaining representative for the Classified Employees of the West Valley School district, we GUARANTEE that we will prohibit retroactive pay or benefits of any type.

 

_________________   _______________________

Bill Gray, P.S.E.  Joe Batali, West Valley

of Washington      School District

 

                 ****************************

 

Please be aware that we have no expecta­tions that either party to the above agreement will enter into this stipulation.  We believed that continuation of rumor concerning this issue should be brought to your attention. 

 

     (capitalization in original)

 

On the same date, Teamsters Local 524 sent a letter to the eligible voters in the representation election which contained the foregoing letter as an insert surrounded by campaign text which states, in pertinent part:

 

Dear West Valley Classified Employee:

 

As we get closer to the run-off election, some questions seem to be coming up which we wanted to bring out into the open.  We're not afraid to take tough issues like these head on.  Likewise, we're not afraid to take the same no-nonsense approach to representing you.

Q)   Will there be retroactive pay if the Teamsters win?  We don't know of any legitimate reason why the district would withhold your money.  We have sent Mr. Batali and Mr. Gray the enclosed letter to bring this into the open.  Of course, we know they won't sign it, but then, if the rumor was true, why not?  This is an interesting issue because it was the Teamster's Union that tried to get you retro pay back in January.

 

Ask yourself which Union:

  -  objected to this vote last October thereby making retroactivity an issue?

  -  dragged this out by forcing a hearing rather than letting you change or reaffirm your Union representative?

  -  objected to your getting retro while waiting for a PERC decision?

  -  is now making threats to its own members rather than talking about the real issues of representation?

 

While we're talking about retroactive pay & benefits, what about the $12 per month in medical benefits that you haven't been getting for the previous two (2) years?  The Teamster's in the Yakima School District have had their medical plan paid for at the $179 per month level while you were stuck at $167 per month.  That's like charging you $288 for something you didn't get! 

 

                             * * *

 

Q)   Can the Secretaries still become a separate unit?

A)   Yes!  We have always "unitized" our contracts by department (aides, bus drivers, cooks, custodians, maintenance, & secretaries) on appendices to the main agreement.  That way, your specialized needs and concerns are addressed.  Plus, you'll have the statutory option at the end of the first contract to form a separate unit. 

 

     (emphasis in original)

 

PSE's objections characterized the document mailed to each member of the bargaining unit as one which:

 

... challenged [PSE] and the employer to sign an agreement regarding retroactive pay for members of the bargaining unit.  The document falsely implied that [PSE] would have the authority to negotiate wages for the members of the bargaining unit even in the event that the [Teamsters] were elected as the collective bargaining representa­tive.  Mailing the document was a mislead­ing and deceptive campaign practice improperly involving PERC and its proces­ses; specifically, implying that PERC could certify [PSE] as collective bargaining representative even if [the Teamsters] were elected as representative.

 

PSE also alleged that the document improperly implied that PERC would allow Teamsters Local 524 to accomplish the severance of secretarial/clerical employees from the historical bargaining unit if elected as exclusive bargaining representa­tive.

 

 

POSITIONS OF THE PARTIES

 

PSE contends that the Executive Director erred by concluding that the extension agreement was insuffi­cient to constitute a "contract bar" to the representation proceedings under RCW 41.56.0­70.  PSE urges, particularly, that no right of ratifica­tion had been reserved by the parties to that extension agreement, that the officers of the local PSE chapter were authorized by the PSE bylaws to enter into such an agreement, and that the employer's officials were acting within delegable authority.  PSE relies on the fact of a full "window period" having been available prior to the expiration of the 1985-87 collective bargaining agreement, and asserts that fact was overlooked by the Executive Director.  It also contends that a second "window" period existed in August of 1987, and that the unit was subject to a representation petition during the contractual hiatus which existed from September 1 to 28, 1987.  Turning to the actions of its ballot opponent, PSE contends that the June 9 mailings by Teamsters Local 524 disrupted the laboratory conditions for the elec­tion.[2]  The letter at issue is described as "peculiar", and as asking PSE and the school district to "... commit an unfair labor practice in the event that Local 524 was elected."   PSE goes on to suggest a reading of the June 9 letter as criticiz­ing PSE "for not negotiating a wage increase ... during the pendency of the QCR proceedings", as neglecting "to advise them that PSE was precluded by law from negotiating", and as "strongly" implying "that the employer would be obligated to give the unit members a retroactive wage increase if Local 524 were to win the election."  PSE also argues that the statement made concern­ing the separation and potential for severance of office-clerical employees was misleading, in light of the interlocutory order issued by the Executive Director dismissing a clerical severance effort.[3]

 

The employer has not taken a position on the objections.

 

Teamsters Local 524 did not file timely objections to conduct by PSE during the pre-election campaign, but offered affidavits and documents on August 25, 1988 in support of a contention that the doctrines of "unclean hands" and "pari delicto" should be applied in light of letters sent by PSE to bargaining unit employees on June 8, 1988, undertaking to bargain retroactive pay in the event PSE prevailed in the election.  Local 524 supports the decision of the Executive Director on the "contract bar" issue.  Responding to the PSE "conduct" objections, Local 524 first contends that its June 9 letters were neither objectionable as "misleading" under current National Labor Relations Board (NLRB) policy, nor suggestive that the Commission favored a particular outcome in the election.  Local 524 contends that, even if more stringent prior NLRB precedent were to be adopted by the Commission, the document does not contain the "substantial departure from the truth" necessary to invoke that precedent.  Local 524 calls attention to the terms of the document at issue, arguing that characterizations of that document by PSE are incorrect, and asserting that,

 

PSE's efforts to twist Local 524's effort ... into a deceptive attempt to convince voters that PSE could be certified even if Local 524 won is simply beyond the pale.

 

Responding to the claims concerning the secretarial/clerical employees, Local 524 contends that its statement was not misleading, but rather advised employees of their statutory rights under established Commission precedent.

 

 

DISCUSSION

 

                   The "Contract Bar" Issue

 

We first take up PSE's objection to the Executive Director's ruling on the "contract bar" issue, as that issue is jurisdic­tional to the conduct of any representation election on this petition.

 

PSE places the focus of its attention on the Executive Director's discussion concerning the absence of ratification of the extension agreement.  In doing so, it ignores or glosses over the much more significant problem it faces with the Executive Director's Conclusion of Law No. 3, as follows:

 

The document purporting to extend the collective bargaining agreement beyond its stated August 31, 1987, expiration date is void as a bar to third party representation petitions under RCW 41.56.070, by reason of its prejudice to the length of the period for filing allowed by statute.

 

PSE attempts to buttress its assertion that a normal "window" period was available in or about June of 1987 (which is true), and its assertion that a petition would have been timely if filed between September 1 and 28, 1987 (which also is true), with the incredible assertion that:

 

Under the agreement after extension (expiration date:  October 31, 1987) a second statutory window period came and went during the month of August, 1987.

 

The argument is patently frivolous.  The clock and calendar do not run backwards.  Nobody could possibly have known during August of 1987 that the employer and PSE would sign a contract weeks later which would extend the 1985-87 contract only to a variable date on or before October 31, 1987.  If Teamsters Local 524, the Classified Public Employees Associa­tion or even some other organization which has not been involved in these proceedings had taken steps to file a petition during the month of August, PSE would properly have objected that such a petition was untimely due to encroachment on the protected period created by the contract bar provision of the statute as to the original expiration date of the 1985-87 contract.  

Adoption of the arguments of PSE in this case would open the door to mischief of a type clearly never intended by the Legislature in adopting the "contract bar" policies of the statute.  A willing employer and an incumbent exclusive bargaining representative could perpetuate their relationship, and forever preclude the raising of a question concerning representation, by signing a succession of 59-day contracts.  While we do not suggest or imply that the West Valley School District had such an intent in this case,[4] adoption of PSE's theory here would leave no basis to distinguish legitimate from illegitimate contract extensions. 

 

The Executive Director's ruling on the "contract bar" issue is AFFIRMED.

 

                    The Conduct Objections

 

Election objections are not amendable after the close of the objections period, and the conduct objections in this case relate exclusively to the two documents issued by Teamsters Local 524 on June 9, 1988.  Local 524 has admitted the fact of having sent those letters, and they speak for themselves.

 

The Potential for Retroactivity -

The letter sent by Local 524 to PSE and the employer appears only to ask PSE and the employer to publicly take positions which they would legally be entitled to take.  If Teamsters Local 524 were to be certified as exclusive bargaining representa­tive, its rights would commence upon certification.  If the employer were to deal with Local 524 under such circumstances for a period prior to the certifica­tion (i.e., for a period during which PSE remained the incum­bent), then PSE would be in a position to file unfair labor practice charges.  Additionally, the employer could rely on Article II, Section 25 of the Constitution of the State of Washington, which generally precludes retroactive pay increases for public employees, as interpreted in Christie v. Port of Olympia, 27 Wn.2d 534 (1947), and upon RCW 41.56.950, which limits negotiation of retroactivity to the "termination date of the previous collective bargaining agreement between the same parties" (emphasis ours).

 

Finally, the disputed letter to the employees merely says "we don't know of any legitimate reason why the district would withhold your money" (emphasis in original).  The legitimacy of reasons which might be asserted for grant or denial of wage increases is in the eyes of the beholder.  Apart from some campaign puffery about who was responsible for the delays in this case up to that point, and about the benefits received by Teamster-represen­ted employees in another school district, the letter did not affirma­tively claim that the Teamsters would be in a position to guarantee retroactive pay.

 

The Potential for a Clerical Severance -

PSE and its counsel should be familiar with Commission precedent concerning the severance of bargaining units of office-clerical employees from broader units of school district classified employees, as the leading cases on that subject were cases in which PSE was involved.  Franklin Pierce School District, Decision 78-D (PECB, 1977); Mukilteo School District, Decision 1008 (PECB, 1980).  The policy, reiterated recently in Longview School District, Decision 2551 (PECB, 1986), is and continues to be that office-clerical employees will generally be recognized to have a community of interest separate from that of other employees of the employer, and so will be given the opportunity to vote in a unit determination election on severance from a broader historical bargaining unit.  The June 9, 1988 letter sent by Teamsters Local 524 to the employees correctly states that the clerical employees would have "the statutory option at the end of the first contract to form a separate unit".  The Executive Director's dismissal of a last-minute attempt to obtain a clerical severance in these proceedings was based upon entirely procedural considerations, and did not in any way preclude the office-clerical employees from attempting to assert their rights at a later time when such an effort would be timely.

 

        Involvement of the Commission and its Processes

 

We find no suggestion whatever that the Commission's processes were improperly involved in the June 9 letters, or that those documents suggested in any way that the Commission indicated any preference concerning the outcome of the election.

 

 

                       FINDINGS OF FACT

 

1.West Valley School District is a school district of the state of Washington operated under Title 28A RCW, and is a public employer within the meaning of RCW 41.56.030(1).

 

2.Teamsters Union, Local 524, a bargaining representative  within the meaning of RCW 41.56.030(3), filed a petition on October 5, 1987, for investigation of a question con- cern­ing representation of full-time and regular part-time clas­sified employees of the West Valley School District.

 

3.Public School Employees of Washington, a bargaining represe­ntative within the meaning of the RCW 41.56.030(3),

timely moved for intervention in this matter on the basis of its status as the incumbent exclusive bargaining representative of the petitioned-for employees.

 

4.The Classified Public Employees Association / WEA, a bargaining organiza­tion within the meaning of RCW 41.56.030(3), timely moved for intervention in this matter and furnished the required showing of interest.

 

5.The Executive Director ruled, following a hearing, that a contract extension signed on or about September 28, 1987 by Public School Employees of Washington and the West Valley School District, extending their 1985-1987 collective bargaining agreement for a period of not more than 34 days hence, to a date not later than October 31, 1987, did not bar the petition under RCW 41.56.070.

 

6.These representation proceedings have been conducted by the Commission in the bargaining unit described as:

 

All full-time and regular part-time classified employees of the West Valley School District, excluding supervisors and confidential employees.

 

7.All proceed­ings were conducted under the supervision of the Commission in a manner designed to afford the affected employees a free choice in the selection of their bargaining representative, if any.  A tally of ballots was previously furnished to the parties and is attached hereto. 

 

8.Public School Employees of Washington filed timely objections pursuant to WAC 391-25-590.  The record in the matter, including the briefs filed by the parties on the objections, has been transferred to and reviewed by the participating members of the Commi­ssion.

 

 

                      CONCLUSIONS OF LAW

 

1.The Public Employment Relations Commission has jurisdic­tion in this matter pursuant to Chapter 41.56 RCW and Chapter 391-25 WAC.

 

2.The agreement of the West Valley School District and Public School Employees extending their collective bargain­ing agreement to a date not later than October 31, 1987, is insufficient under RCW 41.56.070 to bar the representa­tion petition filed in this matter by Teamsters Union, Local 524.

 

3.The objections filed by Public School Employees alleging conduct improperly affecting the results of the represen­tation election are without merit.

 

4.The bargaining unit described in paragraph 6 of the foregoing Findings of Fact is an appropriate unit for the purposes of collective bargaining within the meaning of RCW 41.56.060; and all conditions precedent to a certifi­cation have been met.

 

 

NOW, THEREFORE, it is

 

                           CERTIFIED

 

The majority of the employees of the West Valley School District who are employed in the appropriate bargaining unit described in paragraph 6 of the foregoing Findings of Fact have chosen:

 

                  TEAMSTERS UNION, LOCAL 524

 

as their exclusive bargaining representative for the purposes of collective bargaining with their employer with respect to wages, hours and other terms and conditions of employment.

 

Dated at Olympia, Washington this      day of __________, 1988.

 

 

                        PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

 

                        JANE R. WILKINSON, Chairman

 

 

 

                        JOSEPH F. QUINN, Commissioner

 

 

Commissioner Mark C. Endresen

did not take part in the

consideration or decision of

this case.