APPEARANCES:

LAWRENCE SCHWERIN, Attorney at Law, for the Complainant.

WESLEY M. WILSON, Attorney at Law, for the Respondent.

The above named labor organization, hereinafter referred to as the Union, filed a complaint with the Public Employment Relations Commission on September 16, 1976, wherein it alleged that Sunnyside Valley Irrigation District, hereinafter referred to as the Employer, had committed unfair labor practices within the meaning of RCW 41.56. The above named Employer filed a complaint with the Public Employment Relations Commission on September 24, 1976, wherein it alleged that the above named Union had committed unfair labor practices within the meaning of RCW 41.56. The two complaints were consolidated and the Executive Director designated Val Spangler, then a member of the PERC staff, to act as Examiner and to make and issue Findings of Fact, Conclusions of Law and Order. Pursuant to notice, a hearing was held at Yakima, Washington, on April 12 and 13, 1977, before the Examiner. Subsequently, the Examiner left employment with PERC. The proceedings have been transferred to the Commission, which has considered the evidence and arguments, and makes the following Findings of Fact, Conclusions of Law and Order.

POSITIONS OF THE PARTIES

The Union alleges that the Employer has committed unfair labor practices by attempting to delegate its duty to bargain to its District Manager and his attorney when those persons do not have the authority to make and implement agreements on behalf of the District; by implementing unilateral wage increases; by engaging in surface bargaining without intent to reach agreement; by conditioning bargaining on the Employer's demands; and by reducing pre-existing benefits and terms and conditions of employment without agreement.

The Employer alleges that the Union has committed unfair labor practices by bargaining in bad faith; by failing to be represented in negotiations by bargaining representatives who can effectively recommend a settlement; by retracting agreements on language and other items agreed to by the parties during bargaining sessions; by changing its position to add proposals, thus increasing its demands; and by failing to provide its representatives with authority to make binding agreements.

STATUTORY AUTHORITY:

Statutory provisions relating to unfair labor practices are set forth in RCW 41.56.140 through RCW 41.56.190 as implemented by WAC 391-20-301 through 391-20-380.

DISCUSSION

Both parties were represented for collective bargaining by representatives who had ample authority to negotiate and to recommend settlements. Both parties were represented by able and experienced legal counsel who had access to the same legal | authorities and who fully understood the obligation to bargain in good faith.

By imposing upon public employers and organized public employees the duty to bargain collectively, the legislature clearly established that parties such as these are obligated to deal with one another in good faith and to refrain from making any unilateral changes of existing wages, hours and conditions of employment unless the bargaining obligation has been satisfied. The record made here demonstrates that those obligations have not been met by either party.

The Employer unilaterally adopted wage increases totaling 25 cents per hour during the course of negotiations. The first of those changes, a raise of 10 cents per hour made effective on July 1, 1976, led to the filing of the original charges by the Union. The second increase, a raise of 15 cents per hour, was implemented following the filing of the Union's charges in these unfair labor practice proceedings. The parties continued to meet, under the auspices of a mediator, during the interim between the unilateral wage increases and for some time following the second increase. A cessation of negotiation did not occur until March, 1977. Even if one assumes that the first of these unilateral changes was made by the Employer in good faith at a point where it perceived an impasse to exist, there is no room for doubt as to the position of the Union concerning the subsequent wage increase. Particularly when viewed with the other factors present in this case, the Employer's unilateral actions are found to be in violation of RCW 41.56.140(4).

Early in the negotiations between the parties, the Employer adopted a stance that retroactivity, particularly as related to wages, was precluded by State law, as interpreted by the Attorney General in AGO 1974, No. 19. The Employer continued to maintain that posture throughout the 14 months of bargaining between the parties. The Employer did not furnish the Union with a copy of the Attorney General's Opinion on which it relied, and the Union apparently went on for some time accepting the Employer's interpretation of the Attorney General's Opinion. Closer scrutiny shows that the Opinion specifically addresses the subject as permissive where an interim agreement is adopted by the parties stating that wages paid for work performed is not necessarily the full compensation for that work. Had the Union representatives desired to do so, they could easily have procured a copy of the Attorney General's Opinion. The failure of the Union to verify independently the interpretation reported to it by the Employer leaves the Union in a situation of its own creation.

However, the testimony of employees that they were informed by the Employer at the outset of negotiations that the negotiations would be prolonged (to an estimate of 18 to 24 months), we suggest that the Employer at the outset embarked on a course of delay which continued throughout negotiations.

Unilateral action may also occur where existing benefits are discontinued. Prior to the onset of collective activity among the employees, the Employer had policies relating to social security contributions, health and welfare contributions, business leave, sick leave, and bad weather days. Social security contributions and health and welfare contributions became a matter of agreement between the parties, and are not of concern here. However, the other policies were altered or discontinued by the Employer following the onset of collective activity among the employees, without the agreement of the Union. Proposals by the Union to bargain continuation of the deleted policies were rejected summarily by the Employer as matters which were necessarily changed when the Employer came under federal wage/hour laws, and which were not bargainable. The Union continued to submit proposals on these matters throughout numerous bargaining sessions, and they remained as items in contention at the last bargaining session held between the parties in March, 1977. The Employer now admits that it is exempt from the coverage of the federal wage/hour law by virtue of its status as a public body.[1] The unilateral alteration or elimination of pre-existing practices, and the subsequent refusals to bargain with tie Union thereon, were in violation of RCW 41.56.140(4).

The Employer has bargained directly with the employees, thereby circumventing the bargaining representative chosen by the employees. The Employer admits in its brief that the offer which it submitted to the employees at an Employer-called meeting held on August 18, 1976 differed from the last offer which the Employer had submitted to the Union across the bargaining table. The changes consisted of a 10 cents per hour increase in the Employer's wage offer and a change of the sick leave accumulation maximum from 75 to 80 days. Both changes relate to mandatory subjects of collective bargaining which were in dispute at the bargaining table. We do not regard the Employer's offer of these changes to the Union by letter to be sufficient, since the letter containing the changes was mailed without sufficient time for the Union to give the changes consideration and make a reply prior to the meeting conducted by the Employer with the employees. The Employer cites Oneita Knitting Mills, 205 NLRB 500 (1973) as establishing the right of the Employer to hold such meetings with employees as an extension of the right of free speech. That the Employer is entitled to exercise of freedom of speech is undeniable. However, Oneita does not authorize disregard of the obligations of the bargaining process, and the employer in Oneita was found in violation of the NLRA for making unilateral changes.

The Employer contends that the Union had failed to inform ! the employees of the terms of the Employer's previous offer submitted for membership ratification, resulting in rejection by the employees. The testimony establishes that the absence of an affirmative recommendation by the Union's negotiators had a significant impact on the ratification vote and rejection. The timing of the Employer's last minute changes in its offer effectively deprived the Union of its opportunity to accept and recommend the Employer's offer if it desired to do so, and it is that evil which the circumvention cases seek to prevent. Whether or not the offered changes would have been accepted, the manner of their presentation was in violation of RCW 41.56. 140(4).

Any practice of increasing demands during bargaining or adding new demands assuredly hinders achievement of a complete agreement, and one must be suspect of the good faith of a party which "moves the target" during bargaining or as the moment of agreement approaches. The record demonstrates that the Union engaged in such conduct here on no less than two occasions, without any showing of outside factors influencing its action. Even though not obligated to come to the table with authority to bind its membership, the Union, as the representative of its members, must be expected to determine at the outset what they desire. In practice, collective bargaining negotiations generally result through give-and-take of bargaining in some compromise agreement between the parties, but it is no less destructive to the process if one party or the other refuses acceptance and asserts new demands. Such conduct on the part of the Union here is deemed to be a breach of its obligation of good faith in attempting to reach an agreement, and in violation of RCW 41.56.150(4).

FINDINGS OF FACT

1.                  Sunnyside Valley Irrigation District is a Public Employer within the meaning of RCW 41.56. Among other services, the District regulates the distribution of irrigation water and operates a maintenance department.

2.                  Laborers Union Local 614 is a labor organization and Orville Trepanier is the Business Manager of Local 614. Laborers Union Local 614 was certified as the exclusive bargaining representative of a bargaining unit consisting of "all employees including working foreman employed by the employer, excluding all supervisors and office-clerical employees" by the Department of Labor and Industries, State of Washington, on December 31, 1975.

3.                  The parties entered into bargaining in January, 1976. Their respective representatives had the authority to negotiate required by law. Proposals were exchanged and numerous sessions were held until June, 1976 when the Employer declared negotiations were at "Impasse." The Employer, after declaring impasse, unilaterally implemented a 10 cents per hour increase effective July 1, 1976.

4.                  The parties subsequently resumed negotiations.

5.                  The Employer conducted a meeting with bargaining unit employees on August 18, 1976. Employees were then presented copies of an Employer's offer which contained two changes from the last offer presented to the Union at the bargaining table. The changes were provided to the Union by letter without sufficient time for the Union to act upon the proposed changes prior to the meeting between the Employer and the employees.

6.                  On September 16, 1976, the Union filed a complaint with PERC alleging unfair labor practices by refusal to bargain.

7.                  On September 24, 1976, the Employer filed a complaint with PERC alleging unfair labor practices by refusal to bargain.

8.                  Bargaining sessions continued with the assistance of a PERC Mediator, until January, 1977, when the Employer again declared "Impasse." The Employer then unilaterally implemented a 15 cents per hour wage increase.

9.                  Bargaining sessions were again resumed with the assistance of the PERC Mediator and continued until the hearing in these proceedings.

10.              The Employer initially refused to bargain with the Union concerning bad weather days, business leave, Social Security contributions, sick leave, and retroactivity of wage increases. Thereafter, the parties did bargain on and reach agreement on Social Security contributions; but the remaining items were still unresolved at the time of the hearing in these proceedings.

11.              The Employer unilaterally terminated a vehicle allowance paid to employees as compensation for the use of their vehicles in the course of their employment and thereafter provided transportation to the affected employees, without bargaining with the Union concerning the change of practice or the effects thereof.

12.              The Employer embarked at the outset of the negotiations between the parties on a course of delay and has failed to meet, confer and negotiate with the Union in a good faith effort to reach an agreement.

13.              During the course of bargaining between the parties, the Union has advanced new proposals and increased its demands and, thereby, has failed to meet, confer and negotiate with the Employer in a good faith effort to reach an agreement.

CONCLUSIONS OF LAW

1.                  The Employer, Sunnyside Valley Irrigation District, has committed and is committing unfair labor practices in violation of RCW 41.56.140(4) and (1) by refusing to bargain collectively with Laborer's Local Union No. 614, by making unilateral changes in wages and other terms and conditions of employment, by conditioning bargaining on compliance with its demand that the Union's negotiators be authorized to reach a binding agreement without ratification of such agreement by bargaining unit employees, by circumvention of the Union and direct dealings with bargaining unit employees and by failing to meet, confer and negotiate with the Union in a good faith effort to reach an agreement.

2.                  The Union, Laborer's Local No. 614, has committed and is committing unfair labor practices in violation of RCW 41.56.150(4) by refusing to bargain collectively with Sunnyside Valley Irrigation District, by failing to meet, confer and negotiate with the Employer in a good faith effort to reach an agreement.

ORDER

1.                  Sunnyside Irrigation District, its officers and agents, shall immediately

a)                  Cease and desist from refusing to bargain collectively with Laborers Local Union No. 614 on mandatory subjects of bargaining;

b)                  Cease and desist from making changes of wages, hours or working conditions unless it has given notice to and bargained collectively with Laborers Local Union No. 614;

c)                  Cease and desist from dealing directly with employees on mandatory subjects of collective bargaining, in circumvention of the rights of Laborers Local Union No. 614 as the bargaining representative of its employees;

d)                 Upon request, bargain collectively with Laborers Local Union No. 614 as the representative of its employees in good faith in an effort to reach an agreement;

e)                  Post, in conspicuous places on its premises where notices to employees are usually posted, copies of the notice attached hereto and marked Appendix "A". Such notice shall be signed by the Chairman of the Board and Manager of the District and shall remain posted for sixty (60) days.

f)                   Notify the PERC, within ten (10) days following the date of this Order, as to what steps have been taken to comply herewith.

2.                  Laborers Local Union No. 614, its officers and agents, | shall immediately:

a.                   Cease and desist from making alterations in proposals or engaging in other conduct calculated to frustrate or prevent agreement in collective bargaining with Sunnyside Irrigation District;

b.                  Upon request, bargain collectively with Sunnyside Irrigation District in good faith in an effort to reach agreement;

c.                   Post, in conspicuous places on the employers premises where notices under paragraph 1(e) above are posted, copies of the notice attached hereto and marked Appendix "B". Such notice shall be signed by the President and Business Manager of the Union and shall remain posted for sixty (60) days;

d.                  Notify the PERC within ten (10) days following the date of this Order as to what steps have been taken to comply herewith.

DATED: This 13^th day of December, 1977.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

BY [SIGNED]

MARY ELLEN KRUG, Chairman

BY [SIGNED]

MICHAEL H. BECK, Commissioner

BY [SIGNED]

PAUL A. ROBERTS, Commissioner