APPEARANCES:

STEVE SHROPSHIRE, appearing on behalf of complainant.

RICHARD BURT, appearing on behalf of employer.

The International Association of Fire Fighters, Local No. 1352, (hereinafter referred to as the "complainant") filed a complaint with the Public Employment Relations Commission on April 5, 1977, wherein it alleged that the City of Auburn (hereinafter referred to as the "respondent" or "city") has committed certain unfair labor practices. The material portions of the complaint state:

"Basis of Charge

City of Auburn, on August 16, 1976, arbitrarily changed the pay schedule for employees from paydays on the 5th and the 20th of each month to paydays on every other Friday. Such action was accomplished without bargaining or negotiating with Local 1352."

"Relief Sought

Instruct the City of Auburn to change the paydays back to the 5th and 20th of each month and further instruct them to follow the lines set down by RCW 41.56, and negotiate any further changes to be made in wages, hours and working condistions of the Union Local."

The case was assigned to Examiner Jack Cowan of the PERC staff on December 27, 1977. A hearing was held on January 24, 1978.

BACKGROUND

The city historically made wage payments on the 5th and 20th of each month. On May 4, 1976, as a part of its settlement with Warehousemen's Union, Local No. 117, in a different bargaining unit, the city agreed to an every-other-Friday pay schedule. On June 11, 1976, Auburn Fire Fighters, Local 1352, sent a memo to the mayor expressing its disagreement with the proposed terms of the Local No. 117 agreement and requesting that the mayor take the fire fighter's opposition into consideration when making a decision on any changes of the pay schedule. The mayor issued a memo to all department heads on June 15, 1976, stating that a bi-weekly payroll would be implemented. Implementation occurred on August 16, 1976.

On December 1, 1976, representatives of the complainant appeared at a meeting of the city finance committee to request acknowledgement of a petition signed by 93 employees requesting a return to semi-monthly pay periods. The mayor reported that the city's negotiator had been instructed to give "number one priority" to either returning to semi-monthly pay periods or at least allowing all of the employees of the city to vote on the matter with the decision resting on the outcome of the majority. In a memo dated January 10, 1977, to the complainant the mayor stated the following

"The firemen have appeared at Finance Committee Meetings and were given assurances that every effort would be exerted to return to twice a month paydays. It was explained at these meetings that the change to twenty-six pay periods had been an agreement which was a part of the negotiated settlement of the 1976 contract with the Teamsters "Inside-Outside" Union. It was reported that a demand of the City for the 1977 contract would be an all City vote on choice of 24 vs. 26 paydays. This demand was a part of the negotiations of the December 22nd meeting with the Union. No settlement was made on this or other items of this meeting and mediation was called for. The Union's response to this specific demand was that this was an item they may negotiate provided that they received something in return.

Mediation is set for Jan. 21 and I assure you that we will pursue favorable settlement of this issue."

The city maintained a position of opposition to the alternate Friday pay period up to the last day of mediation in its negotiations with Local No. 117 but relinquished its opposition in order to consummate a labor agreement with that union.

POSITION OF THE COMPLAINANT

The complainant alleges that it exercised alternate persuasive means to try to avoid the change from 24 to 26 pay periods per calendar year and to dissuade the city from its continued use of the new pay schedule. The city is accused of acceding to the demands of Local No. 117 despite the mayor's assurance of equity on a general vote by city employees concerning the matter, so that the complainant found it necessary to pursue this case to continue its effort to restore previous status and benefits.

POSITION OF THE CITY

It is the position of the city that the change in pay periods was in response to the demands of the bargaining units of the Driver, Sales and Warehousemen Union Local No. 117. The action was not arbitrarily brought about by the mayor as charged but instead was a response to the request of a substantial number of bargaining unit employees of the city. The city contends the action taken falls within the prerogatives of Article XVII - Management's Rights, which states as follows:

"Article XVII - Management's Rights

The Union recognizes the prerogative of the City to operate and manage its affairs in all respects in accordance with its responsibilities, and the powers or authority which the City possesses. These include, but are not limited to, the following:

(a)           The Union recognizes the exlusive right of the City to establish reasonable work rules.

(b)           The City has the right to schedule overtime work as required and consistent with the requirements of municipal employment and the public interest.

(c)           It is understood by the parties that every incidental duty connected with operations enumerated in job descriptions is not always specifically described. Nevertheless, it is intended that all such duties shall be performed by the employees.

(d)           The City reserves the right to discipline employees or discharge employees for cause. The City reserves the right to lay off personnel for lack of work or funds, or for the occurrence of conditions beyond the control of the City or where such continuation of work would be wasteful and unproductive. The City shall have the right to determine reasonable schedules of work and to establish the methods and processes by which such work is performed.

"(e)          The City agrees to maintain a standard of work scheduling consistent with other cities in the area whose fire fighters work similar tours of duty."

The city points out that, during two subsequent rounds of labor negotiations between the parties, there were no demands brought forth relative to pay schedules. The city further contends the labor agreement does not specify an established or specific date of issuance of pay checks; that the employees represented by the complainant have suffered no loss in pay as a result of the change; and that the pay checks are issued to employees within or before the time span formerly involved.

DISCUSSION

The complainant in this case asserts that the city has violated Article V of the bargaining agreement and has gone beyond the scope of RCW 41.56 in arbitrarily changing the pay schedule for all city employees. Portions of the city's defense are directed to the question of whether the change of payday schedule was arbitrary or reasonable. None of the other unions representing city employees were joined in the proceedings.

The Commission does not remedy violations of collective bargaining agreements as unfair labor practices under RCW 41.56. City of Walla Walla, Decision No. 104 (PECB, 1976). The Examiner thus confines this inquiry to the allegation that the city has gone beyond the scope of RCW 41.56 in making the change of pay schedule, and to the defenses related thereto. The arguments developed by the parties focus attention on RCW 41.56.140-(4) and on the definition of collective bargaining set forth in RCW 41.-56.030(4), which states:

"(4) 'Collective bargaining' means the 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." (Emphasis added).

It is axiomatic that if a given subject falls within the meaning of "wages" as used in the statute, it is a mandatory subject of bargaining. The categories "rates of pay" and "wages" have been given a broad construction by the National Labor Relations Board (NLRB) and the courts to cover every form of compensation for labor performed, whether direct or indirect, as well as every form of agreement to protect standards of compensation. Topics which may not appear on their face to be wages have been held to constitute wages for purposes of mandatory bargaining. The time when a worker is to receive his pay is so closely related to how much he is paid that it reasonably falls within the term "wages". Accord: See City of Fort Dodge v. I PERB, 97 LRRM 2856.

The language "wages, hours and working conditions" fixes not only the subjects about which the employer and the union are compelled to bargain but also the field in which the employer is barred from unilateral action. NLRB v. Katz, 369 US 736 (1962). In the instant case, the change in pay period was promulgated without prior notification, consultation or negotiation with the complainant.

The city contends the change was brought about as a forced result of negotiations and agreement with a separate bargaining unit, Warehousemen's Union, Local No. 117. Rather than change the pay period for only the one bargaining unit, the city elected to change the pay period for all city employees. There is no evidence, however, of "impossibility" --no showing that the city had to maintain the same payroll dates for all employees. The Examiner can only presume that the change was made for the administrative convenience of the city.

Negotiations in any one bargaining unit must be confined to specifying the labor standards for employees within that bargaining unit. There is nothing in labor policy indicating that the union and the employees in one bargaining unit are free to bargain about the wages, hours and working conditions of other bargaining units or to attempt to settle these matters for the entire city. United Mine Workers v. Pennington, 381 US 657 (1965).

The city contends the complainant waived its right to complain by failing to utilize the grievance process provided by Article XIII of the agreement and by failing to introduce the pay period as a subject for bargaining in negotiation for subsequent contracts. The Examiner recognizes that a union can waive its right to bargain by failing to act in a timely fashion after receiving notice of the impending change. Coppus Eng. Corp., 195 NLRB 113 (1972). However, the employer's argument is bootstrapping. The evidence fails to disclose any direct notification of the proposed change nor any offer by the city to negotiate the matter with Local 1352. Despite its failure to grieve, the complainant strenuously objected to the change in a timely manner, and attempted to take remedial steps through the political process, albeit under the handicap of proposing a return to something that had already been changed. The complainant is correct in its claim that the change was unlawfully made. There was no need for the complainant to come forward to attempt to negotiate a right which already existed.

The collective bargaining agreement neither fixes the payday schedule (so as to make the matter clearly remedial through and deferrable to grievance arbitration) nor contains management rights or waiver of bargaining provisions on which to base a conclusion that the union clearly and unmistakably waived its statutory right to bargain changes of payday schedules during the life of the agreement.

REMEDY

Only by reinstatement of the payday schedule existing in the bargaining unit prior to the unlawful unilateral change can the status quo ante be restored and can future bargaining on the subject even approximate that which should have occurred. As noted by the employer, there has been no economic loss warranting imposition of any back pay remedy.

FINDINGS OF FACT

I. The City of Auburn, Washington is a "public employer" within the meaning of RCW 41.56.020 and RCW 41.56.030(1).

II. The International Association of Fire Fighters, Local No. 1352, is a "labor organization" within the meaning of RCW 41.56.010 and is the "bargaining representative" of certain employees of the city employed in the appropriate bargaining unit described as: all full-time fire fighters, lieutenant, captain and/or fire marshall.

III. As of August, 1976, the city and the complainant were parties to a collective bargaining agreement which made no specific mention of pay periods and which neither reserved to the employer a right to pay periods nor constituted a waiver of the complainant's right to bargain such matters.

IV. On August 16, 1976, the city changed the pay schedule for all city employees from paydays of the 5th and the 20th of each month to paydays of evey other Friday.

V. The city did not notify the complainant of the proposed change nor offer to consult or negotiate the matter with the complainant.

CONCLUSIONS OF LAW

I. The Public Employment Relations Commission has jurisdiction over this matter pursuant to RCW 41.56.060.

II. By unilaterally implementing changes in the manner and under the circumstances set forth above, the city has refused and continues to refuse to bargain the subject of pay periods with the complainant, and has committed and is committing an unfair labor practice within the meaning of RCW 41.56.

ORDER

It is ordered that

I.          The City of Auburn cease and desist from:

a)                  Refusing to bargain with I.A.F.F. Local No. 1352.

b)                  Making changes of wages, hours and working conditions without notice to I.A.F.F. Local No. 1352.

c)                  Paying employees represented by the complainant, Local 1352, on alternate Fridays.

II.        Take the following affirmative action which the Examiner finds will effectuate the policies of RCW 41.56:

a)                  Reinstate the prior pay practices of the employer, by paying employees represented by the complainant on the 5th and 20th of each month.

b)                  Negotiate any future proposed changes in pay periods with I.A.F.F. Local No. 1352.

c)                  Post the accompanying notice for a period of sixty (60) days on bulletin boards where notices to employees of the respondent are usually posted.

d)                 Notify the Executive Director of the Commission, in writing, within twenty (20) days following the date of this Order, what steps have been taken to comply herewith,

DATED at Olympia, Washington this 20th day of June, 1978.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JACK T. COWAN, Examiner