APPEARANCES:

Ms. Symone Scales, Attorney at Law, appeared on behalf of the Petitioner.

Mr. Paul Rickman, Special Consultant to the President, appeared on behalf of the Employer

Mr. Roger D. Carlstrom, Representative, appeared on behalf of the Intervenor, Yakima Valley College Federation of Teachers, Local 1485, AFT, WFT, AFL-CIO.

MEMORANDUM DECISION

Yakima Valley College is a Community College organized and operated under the provisions of RCW 28B.50. The Employer has heretofore recognized the Yakima Valley College Federation of Teachers, Local 1485, AFT, WFT, AFL-CIO, as the representative of its academic employees. The Yakima Valley College Association for Higher Education filed a petition with the Commission on March 16, 1977 seeking a representation election. The petition was "refiled" on April 6, 1977 under cover of a letter in which the petitioner noted the "rather vague" terms of the current collective bargaining agreement and took the position that the petition was being refiled so as to be timely regardless of whether the existing agreement was deemed to terminate on June 10, 1977 (the last day of the Spring quarter) or on June 30, 1977 (the last day of the Employer's fiscal year). The matter was assigned to a member of the agency staff, who scheduled a pre-hearing conference for April 22, 1977. The pre-hearing conference resulted in stipulation as to the identities of all parties and as to the status of both the petitioner and the intervenor as "employee organizations" within the meaning of the Act. Pursuant to agreement of all parties, notice was issued setting hearing in the matter for May 19, 1977. On May 14, 1977 the petitioner filed a letter with the hearing officer amending its petition to reflect a unit description in conformity with the language of RCW 28B.52.020.

The hearing was held on May 19, 1977. The Employer's representative did not appear at the hearing, but filed an affidavit with the Commission on July 15, 1977 which states the position of the Employer on the matters in dispute. That affidavit references a lack of notice of the hearing, but does not deny that notice of the hearing was served on the President of the College at the address used by the College in all of its correspondence with the Commission. The Commission's file reflects issuance of the notice of hearing to the President of the Employer as well as arrangements for a hearing room on the Employer's premises made through the President. When contacted by the Hearing Officer immediately prior to the opening of the hearing, the Employer's representative declined to ask for any postponement of the hearing and indicated an intent to appear only if subpoenaed.

POSITIONS OF THE PARTIES

The petitioner contends that the collective bargaining agreement involved does not contain a definite expiration date, and that it could not be considered as a bar to a petition under the practices and precedents of the National Labor Relations Board. If the agreement is to be subjected to interpretation to ascertain its expiration date, the petitioner alleges that the "academic year" ended on June 10 or, in the alternative, on June 30, 1977. Under either of those June dates, the petition filed on April 6, 1977 would be timely under WAC 391-50-024.

The Employer contends that the agreement "will remain in full force and effect until the end of the current academic year, which is September 18, 1977".

The Incumbent/Intervenor contends that it and the Employer are in the best position to know what the "academic year" terminology in their agreement means, and that the parties understand it to mean September 18, 1977. It follows, according to the Intervenor, that the petition herein is untimely.

DISCUSSION

The front cover of the collective bargaining agreement in question contains the identities of the parties and the date: "1976-77". The Preamble to that agreement identifies it as "the 1976-77 Negotiated Policy Agreement between the (parties)". Article XXXI is entitled "Conditions & Duration" and contains the following:

"31.1 The Agreement shall become effective when adopted by the Board and shall remain in full force and effect during the 1976-77 academic year following its adoption and thereafter until amended, deleted, replaced or terminated in accordance with the Negotiations Procedure.

31.2 The Agreement may be reopened at any time on any subject as provided in the Negotiations Procedure.

31.3 This Agreement replaces the 1974-75 Negotiated Policy Agreement between the Board and the Union."

The extensive negotiations procedures contained in Article IV of the agreement provide for the submission of negotiations proposals without limitation as to time or number, and for counterproposals within 30 days following submission of any proposal.

Lacking an explicit expiration date, the meaning of the term "academic year" must be found, if at all, by reference to other provisions in the agreement. Among an extensive list of definitions contained in Article III, the following is noted:

"3.13 Full-time employment shall mean employment of an employee who is placed at full salary on the salary schedule for any regular college year." (Emphasis supplied)

"3.16 Regular college year shall mean a period of time inclusive of consecutive summer, fall, winter and spring quarters when instructional services are being provided."

The term "academic year" is not defined in the Article devoted to definitions, and the term appears in numerous other provisions of the agreement without any definition of precisely what it means.[1] Article X deals with organization of the College into divisions and Section 10.3 deals specifically with the election of Division Chairmen. Those elections are to be held in the spring quarter "unless a Chairman will not return the following year and then the election shall be held during the winter quarter". Those Division Chairmen have a term of office of three years beginning "after the retiring Division Chairman's assignment is completed at the end of the Spring quarter". The provisions for Department Coordinators found in Article XI are similar to those found in Article X for Division Chairmen, except that the term of office is two years. Again, the changeover occurs at the end of the Spring quarter. Section 12.6 contains a special scheduling provision for a cycle of 5 quarters beginning with the Summer quarter. Section 14.8 provides two options for pay installments, with the option to be exercised once each fiscal year on or before September 10. Section 16.16 provides for release time for the Union President on a quarterly basis or limited to the winter and spring quarters, but the mathematics of that arrangement are such that the amount of release time will be equal under either alternative if one assumes that the Union President will only be working in three of the four quarters of the "regular college year" defined in Section 3.16 of the agreement, quoted above. The month of September is established in Section 20.1 as the time for the election of members of the tenure Review Committee, but no changeover date is precisely established. The remaining provisions of Article XX are among the few in the agreement which make use of the "regular college year" terminology, and it appears that the work of the Review Committee is generally, if not entirely, to be conducted during the fall, winter and spring quarters. The layoff/recall procedures of Article XXI are geared to the end of the winter quarter or April 15. Section 23.1(b) specifies that the usual time for changing textbooks is the spring quarter, but does not specify whether the beginning or the end of that quarter is intended. Article XXIV makes use of the term "year" without either definition or a modifying "college" or "Academic".

Article XXVII deals with the calendar, and Section 27.3 deals specifically with the calendar for 1976-77 under the heading: "1976-77 Calendar". The first entry on that calendar is: "Summer Quarter June 17, 18 Advising/Registration". The calendar continues, in detail, through the fall and winter quarters and concludes with the following entry: "Spring Quarter ... June 10 Grades Preparation--Grades due in Admissions & Records Office by 4 p.m.".

RCW 28B.50.130 provides that the fiscal year of the community college district boards of trustees is to conform to the fiscal year of the State.[2] RCW 28.B.52.035 provides that collective bargaining agreements negotiated pursuant to the provisions of RCW 28.B52 "shall be for not more than three fiscal years". (Emphasis supplied).

Contract bar principles do not exist for the purposes of frustrating attempts to raise questions concerning representation, but rather exist to stabilize collective bargaining relationships by providing an orderly procedure for raising questions concerning representation. RCW 28.B.52 does not contain a statutory contract bar provision. The National Labor Relations Act similarly contains no contract bar provision, but the National Labor Relations Board has adopted the well-known "90th day to 60th day prior to expiration" window period as the most appropriate time for the raising of a question concerning representation. The legislature has adopted the essence of the NLRB rule in both RCW 41.56 and RCW 41.59. The Commission has adopted the NLRB rule in WAC 391-50-024, which is applicable to the instant case.

The NLRB will not honor a collective bargaining agreement as a bar to an election if it lacks a stated expiration date.[3] An organization seeking to raise a question concerning representation is not obligated to glean the timely window period by osmosis. In the agreement now under consideration there is no stated expiration date. The briefs of the Employer and the Intervenor indicate concurrence that the expiration date is September 18, 1977, but neither of them cites any reference to that date in the agreement and no such reference is noted by the Executive Director following examination of the agreement. The undersigned would therefore sooner find that the contract contains no expiration date than to find that it expires on the date claimed by the Employer and Intervenor.

Some of the evidence of past actions by the parties points in the direction of a conclusion that the contract expired on June 30, 1977 with the end of the fiscal year and fiscal biennium of the State. That evidence is by no means conclusive.

The best case appears to be made in favor of a June 10, 1977 expiration date. The contractual definition of "regular college year" certainly supports that view. The changeover of terms of office for Division Chairmen and Department Coordinators, the provisions for pay installments which omit payments during the summer months, the tenure provisions and the layoff/recall provisions also lend credence to the view that the annual cycle repeats from the end of the spring quarter. However, the most persuasive evidence would seem to be the 1976-77 calendar for the period from June 17 to June 10 which the parties to the agreement included in their agreement. It seems highly unusual that the parties, in the context of an understanding reached for an "academic year" ending on September 18, 1977, should fail to include any provision for the 1977 summer quarter or, for that matter, any reference to the period after June 10, 1977. Similarly, if the "academic year" which was to be covered by the agreement in question were clearly understood by the parties to commence with the 1976 fall quarter, there would have been no reason for the parties to include in that agreement the calendar for the 1976 summer quarter which antedated their intended effective life of the agreement.

Any issue concerning the appropriateness of the bargaining unit sought by the petitioner would seem to have been adequately resolved during the course of the hearing. RCW 28.B.52.030 specifies that a secret ballot election be held among "the academic employees within... (a) community college district". RCW 28.B.52.020 defines academic employee, and the parties were in agreement during the hearing that the unit description should conform to the statutory language.

The intervenor has objected to the assertion of jurisdiction by the Commission in this matter. The history of RCW 28.B.52.080 reveals that the authority to adopt rules for the administration of Chapter 28B.52 RCW was formerly vested in the Boards of Trustees of the individual community college districts. The 1975 amendments which created the Commission also deleted the rule-making authority of the community colleges and substituted rule making authority vested in the Commission. The Commission has, upon a finding of an emergency and on advice of the Assistant Attorney General, adopted Chapter 391.50 WAC. These proceedings are being conducted by the agency staff in accordance with those rules.

Upon the basis of the above and foregoing, the Executive Director makes the following:

FINDINGS OF FACT

1.                  Yakima Valley College, Community College District No. 16, is an employer subject to the jurisdiction of the Commission under RCW 28.B.52.

2.                  Yakima Valley College Association for Higher Education is an employee organization with the meaning of RCW 28.B.52.

3.                  Yakima Valley College Federation of Teachers, Local 1485, AFT, WFT, AFL-CIO is an employee organization within the meaning of RCW 28B.52.

4.                  The 1976-77 collective bargaining agreement between Yakima Valley College and Yakima Valley College Federation of Teachers does not contain a definite expiration date. If a duration is to be established by interpretation of that agreement, the most likely duration appears to be for a period commencing on or about June 17, 1976 and ending on or about June 10, 1977.

5.                  The petition filed in these proceedings on April 6, 1977 was filed within the period commencing on the 90th day and ending on the 60th day prior to June 10, 1977 and is otherwise timely under WAC 391-50-024.

CONCLUSION OF LAW

A question concerning representation has arisen in the bargaining unit consisting of all academic employees of Yakima Valley College, Community College District No. 16.

NOW, THEREFORE, it is

DIRECTED

An election by secret ballot shall be conducted under the direction of the Public Employment Relations Commission in the bargaining unit consisting of all academic employees of Yakima Valley College, Community College District No. 16, including any teacher, counselor, librarian or department head and excluding the chief administrative officer and any administrator, for the purpose of determining whether a majority of such employees desire to be represented by Yakima Valley College Association for Higher Education or by Yakima Valley College Federation of Teachers, Local 1485, WFT, AFT, AFL-CI0, or by neither of said organizations, for the purposes of meetings, conferences and negotiations as provided in RCW 28B.52.030

DATED at Olympia, Washington this 26^th day of August 1977.

[SIGNED]

MARVIN L. SCHURKE, Executive Director