DECISIONS

Appearances:

HERMAN WACKER, Attorney at law, for the petitioner.

ROBERT GEIGER, Councilman, and RICHARD N. BURT, Consultant for the employer.

PAMELA G. BRADBURN, Attorney at law, for intervenor, Washington

State Council of County and City Employees, AFL-CIO.

This motion is presented for decision on stipulated facts. The employer had recognized the WSCCCE as the exclusive representative of a unit which included police officers, and they were covered by a collective bargaining agreement which expired on December 31, 1977.

The employer and the WSCCCE entered into negotiation for a new agreement. At a meeting held on February 15, 1978 the employer made a package offer. That offer was put in writing in a letter dated February 17, 1978. The duration of agreement article proposed by the employer at that time contained an automatic renewal clause. At a meeting held on February 22, 1978 the WSCCCE members voted a conditional acceptance of the employer's offer, and those conditions were announced to the employer in a letter dated February 24, 1978. The duration of agreement article was one of those conditionally accepted; and the version proposed by the WSCCCE at that time reverted to the language of the previous contract with a 90th to 60th day reopener window, with no automatic renewal feature.

On March 1, 1978 the employer directed a letter to the union indicating the employer's concurrence in the changes proposed by the union. In that letter, the employer indicated acceptance of durationof agreement language along the lines proposed by the union. A draft of the formal agreement was to be prepared for signature. However, the draft sent to the union on March 7, 1978 again included an automatic renewal provision. The employer and the WSCCCE finally signed a collective bargaining agreement on March 13 which contains no automatic renewal clause.

The Teamsters petition for a separate "police" unit was filed on March 2, 1978. The employer was routinely requested to provide a list of employees and copies of any existing contracts. On March 10, 1978 the employer responded by a letter which recites bargaining history including the recent negotiations. The employer there noted that the agreement had been ratified by the WSCCCE local and "is presently in the hands of the parties for signature". On March 21, 1978 the WSCCCE filed a motion for intervention under WAC 391-21-110 as the incumbent representative, and simultaneously moved for dismissal of the petition as untimely under RCW 41. 56. 070.

The time for filing provisions of RCW 41. 56. 070 are similar to the "contract bar" rules followed by the National Labor Relations Board. The NLRB will not honor oral agreements, but will honor signed informal documents. See: Appalachian Shale Products Co. , 121 NLRB 1160 (1958) and Diversified Services, Inc. , 225 NLRB No. 158 (1976). The WSCCCE contends that the exchange of letters dated February 24, 1978 and March 1, 1978 were sufficient to comply with the NLRB precedents.

The first defect noted in the WSCCCE approach centers on the automatic renewal clause language contained in the proposals made both prior to and after the time an agreement is claimed to have been reached. Under RCW 41. 56. 070:"Any agreement which contains a provision for automatic renewal or extension of the agreement shall not be a valid agreement. " The Washington law is thus significantly different from practice in the private sector, where automatic renewal clauses are common and contracts containing such clauses are valid. The revival of the automatic renewal clause language on March 7, 1978 also casts doubt on the claim that a complete agreement had been reached as of March 1, 1978.

The second defect in the WSCCCE approach stems from the characterization of portions of the decision in State ex rel Bain v. Clallam County Board 77 Wn. 2d 542, 545-547 (1970) as dicta which can lightly be circumvented or ignored. Interpreting the definition of "collective bargaining" contained in RCW 41. 56. 030(4), the Washington Supreme Court held, as an alternate theory for its decision, that:

"The foregoing section uses language designed to show a legislative intention that there be no oral collective bargaining agreements. It means that until reduced to writing and executed by the bargaining parties, an agreement does not, under the statute, become a collective bargaining agreement. Any understanding arrived at in collective bargaining negotiations necessarily, therefore, remains preliminary, or, as the court found here, merely tentative until merged into a written agreement. 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--as in the Elks' Club--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. "

These and additional comments of the court in that case, which were concurred in by 8 of the justices with no dissent, require the careful attention of PERC as the agency now charged with administration of RCW 41. 56.

NOW, THEREFORE, it is

ORDERED

The motion of Washington State Council of County and City Employees, AFL-CIO, for dismissal of the petition in the above-entitled matter is denied.

DATED at Olympia, Washington this 7 day of August, 1978.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director