The captioned matters are unfair labor practice cases which the employer and the union have filed against one another in connection with their bargaining of a new collective bargaining agreement. These cases are before the Executive Director for preliminary rulings pursuant to WAC 391-45-110.

In addition to the cases identified above, the docket records of the Public Employment Relations Commission disclose a number of additional pending cases involving the same parties, as follows:

Case No. 5588-M-85-2318 is a mediation case opened on December 10, 1984. The parties were then approaching expiration of their January 1, 1983 - December 31, 1984 collective bargaining agreement, which had purported to cover both "firefighter" and "dispatcher" personnel. The Commission assigned a mediator on December 27, 1984. The issues in dispute included union security, management rights (rights of the parties), waiver and complete agreement, union business, vacancies and promotions, productivity and performance, wages for both firefighters and dispatchers, prevailing rights, lateral transfers, chain of command, and safety (minimum manning). As the mediation process wound down to a fruitless conclusion, the union sought interest arbitration on 15 topics while the employer protested that only six of those topics should be advanced to interest arbitration. All 15 of the topics raised by the union were listed in the letter initiating interest arbitration. For reasons described below, this mediation case has recently been reopened. A member of the Commission staff will be in contact with the parties in the near future to resume the mediation process.

Case No. 5610-U-84-1021 is another unfair labor practice case involving these parties. This case was filed on December 21, 1984. A preliminary ruling was issued on February 28, 1985[1] questioning both the propriety of the "mixed" unit consisting of firefighters who are "uniformed personnel" within the meaning of RCW 41.56.030(6) and dispatchers who are not uniformed personnel within the meaning of that statute, as well as the sufficiency of factual allegations concerning a revision by the employer of pre-hire minimum qualifications. The union filed an amended complaint, which was dismissed on April 10, 1985[2] solely on the basis that the factual allegations were insufficient to state a cause of action. The union petitioned for review, and that matter remains pending before the Commission for decision.

Case No. 5650-U-85-1035 is yet another unfair labor practice case involving these parties. The allegations filed on January 25, 1985 involve a transfer of work within the employer's workforce, between the uniformed firefighter personnel and the dispatchers. An Examiner was appointed, a hearing has been held and briefs have been filed. The union has recently filed a motion for amendment of the complaint and reopening of the hearing in that case to take evidence on allegations of an additional incident of transfer of work between the firefighter and dispatcher personnel.

Case No. 5810-I-85-131 is an interest arbitration case opened on May 7, 1985, following the failure of mediation in Case No. 5588-M-84-2318. The original list of 15 issues for arbitration was amended on June 13, 1985 to correct the reference to the dispute concerning the "management rights" article of the expired contract, and to add erroneously omitted disputes concerning the "waiver and complete agreement" and "productivity and performance" articles. For reasons described below, the authority of the parties to proceed to interest arbitration in this case was withdrawn on October 25, 1985.

Case No. 5816-A-85-457 is a grievance arbitration case docketed on May 10, 1985. The grievance submitted for decision involves the same change of pre-hire minimum qualifications involved in Case No. 5610-U-84-1021. An arbitrability issue has also been raised in that proceeding. A member of the Commission staff has been assigned as arbitrator and a hearing has been held.

Case No. 6041-U-85-1131 is another unfair labor practice case involving these parties. The complaint filed on October 18, 1985 involves a union allegation that the employer has refused to disclose bargaining information (i.e. the "comparables" upon which the employer intends to rely in interest arbitration) needed by the union for preparation and conduct of collective bargaining. By separate correspondence, that case is being assigned to an Examiner for further proceedings.

Case No. 6052-C-85-305 is a unit clarification case filed by the employer on October 24, 1985. This case squarely raises an issue as to the propriety of the mixed unit of firefighters and dispatchers. The matter will be set for hearing.

In summary, with the captioned matters, these parties have at least 10 cases pending at the present time before the Public Employment Relations Commission. This represents nearly 4% of all cases currently pending state-wide before the Commission. Against that background of litigation, the unfair labor practice allegations in the captioned cases are to be considered or, in the situation of Case No. 5847-U-85-1088, reconsidered at the preliminary ruling stage of the process.

Collective bargaining is a process for communications, designed to foster improved relationships and good faith. See; RCW 41.56.010; RCW 41.56.030(4). From the time of its earliest policy decisions, the Public Employment Relations Commission has encouraged parties to take a pragmatic, rather than legalistic, approach to "scope of bargaining" at the bargaining table. See: WAC 391-45-550. In the context of the "factfinding" procedures available under Chapter 41.59 RCW, the parties to negotiations under that statute are admonished to talk to one another, and to refrain from hanging up negotiations on scope of bargaining claims, until a legally cognizable impasse has been reached following the exhaustion of statutory impasse procedures. See: WAC 391-45-552. Even in the case of unit determination disputes, where the subject matter is ultimately for the Commission to determine, parties are directed to raise their concerns with the opposite party at the bargaining table prior to filing a unit clarification case with the Commission. See: Toppenish School District, Decision 1143-A (PECB, 1981).

With the enactment of Chapter 131. Laws of 1973, the legislature set forth a procedure for resolving impasses arising in collective bargaining involving "uniformed personnel", including the firefighter employees of this employer. See: RCW 41.56.430, et. seq. Those procedures move the parties along from bilateral negotiations to mediation and then to compulsory final and binding arbitration of disputes concerning the future interests of the parties (i.e., interest arbitration). At each successive stage of that process, the state takes an increasingly more pro-active role in controlling the destiny of the parties, thereby encouraging parties to resolve their differences in the less risky environment of the earlier stages of the process. The presence of interest arbitration procedures in the collective bargaining environment is clearly an exception from the norm. Unlike other bargaining environments, where the parties retain ultimate control over their agreements, determination of future interests by an impartial arbitrator bears some potential that an agreement will be imposed which would never have been accepted voluntarily by one (or even both) of the parties. To the extent that the subject matter of the interest arbitration award is a mandatory subject of collective bargaining within the meaning of the underlying collective bargaining statute, the possibility of a "we would never have agreed to that" result in interest arbitration is a limited risk imposed on the parties by the legislature in the name of maintaining labor peace. The same cannot be said, however, for permissive or illegal bargaining topics, where there was no underlying duty to bargain in good faith.

A key practical difference between "permissive" and "mandatory" bargaining subjects in both the public and private sectors is whether a party may lawfully insist, while at impasse, on concessions on the topic as a condition of agreement on mandatory topics. See: City of Tukwila, Decision 1975 (PECB, 1984) and Columbus Printing Pressmen, 219 NLRB 268 (1975). Accordingly, there has been an ongoing need to deal with "scope of bargaining" claims arising out of negotiations being submitted for interest arbitration under the provisions of RCW 41.56.430, et. seq.

During 1977, police officers employed by the City of Wenatchee exercised their right, through their exclusive bargaining representative, the Wenatchee Police Guild, bargain collectively and to use the mediation services of the Commission. The Guild advanced a proposal in those negotiations concerning "minimum manning". Upon the failure of the parties to reach agreement in mediation, the parties proceeded in November of 1977 with factfinding [3] under RCW 41.56.440 as then in effect. When the parties still reached no agreement, the Guild invoked interest arbitration in January, 1978 under RCW 41.56.450. The employer responded in February, 1978 with an unfair labor practice complaint alleging that the Guild had engaged in bad faith bargaining by insisting to the point of impasse on bargaining over the minimum manning clause and by seeking to have the minimum manning clause included in the collective bargaining agreement through interest arbitration. Consistent with the policy set forth in WAC 391-45-550, (i.e., that scope of bargaining questions are for determination by the Commission rather than by parties, mediators, factfinders or arbitrators) the Commission thereupon removed the disputed minimum manning topic from the issues to be addressed in the interest arbitration proceedings. A conclusion in the unfair labor practice case that the disputed proposal was not a mandatory subject for bargaining would, of course, lead to a remedial order requiring the proponent of the issue to remove it from the bargaining table and to cease and desist from pursuing the issue in interest arbitration. See: City of Yakima, Decision 1130 (PECB, 1981). On the other side of the same coin, the removal of the topic from interest arbitration was made subject to the possibility that, if the Commission concluded that the proposal was a mandatory subject of bargaining, the topic would be remanded to the interest arbitration process for determination on the merits. [4]The authority of the Commission to decide "scope of bargaining" issues was thus preserved. Parties offended by unlawful pursuit of a non-mandatory bargaining proposal were freed of the possibility of being stuck with that proposal by an interest arbitrator. The procedure also eliminated the possibility that a package structured in the interest arbitration process based on inclusion of the challenged proposal might be upset at a later time without opportunity to have that package restructured in light of only lawfully advanced proposals. The procedures used in that case have become the pattern followed in numerous subsequent cases by both labor and management, including the captioned cases.

The "Wenatchee" procedure has not been free of problems or criticism. Since parties are not obligated by WAC 391-55-220 to file and serve their final offers in interest arbitration until seven days prior to the hearing in the interest arbitration case, representatives of both labor and management have found themselves under tremendous time pressures to prepare, file and serve unfair labor practice charges protesting interest arbitration of proposals modified at the last minute. Where such charges have been filed, the time necessary for docketing of the case and the availability of the Executive Director of the Commission to act on such complaints have sometimes become crises in themselves. Parties may also have wasted effort preparing for interest arbitration on issues which have been removed from the interest arbitration process at the last minute, or may have had to delay interest arbitration in order to prepare for hearing on issues which they did not expect to face in interest arbitration. Despite its imperfections, however, no person or interest group has advanced a proposal for alternative procedures which would accomplish the several purposes of the "Wenatchee" procedure. The cases at hand suggest re-examination of the "Wenatchee" procedure, because they indicate that legal gamesmanship has supplanted effective communication as the focal point of the process.

Case No. 5847-U-85-1088 was filed by the union on June 6, 1985. It was previously processed under WAC 391-45-110, but is being reconsidered here based on the withdrawal of the case from the interest arbitration process. The statement of facts filed in support of that complaint alleges that the expired collective bargaining agreement contained "management rights" and "waiver and complete agreement" clauses, that the union had proposed modification of the management rights clause and deletion of the waiver clause, and that the employer had insisted on retention of the language of the expired contract. While the union alleges that the language of the expired contract constituted permissive waivers of statutory bargaining rights, there is no allegation that this concern was communicated to the employer during bilateral negotiations or in mediation. The issue was deleted from the list of issues for interest arbitration by a letter dated June 13, 1985. In October, 1985, the employer filed a new management rights proposal with the Commission and asked that its new proposal be submitted to interest arbitration. There was obviously no opportunity for discussion of the latter proposal in negotiations or in mediation.

Case No. 6044-U-85-1133 was filed by the employer on October 22, 1985. The employer alleges that the union security proposal made by the union was an illegal proposal in bargaining. There is no allegation that the claimed illegality had ever been called to the attention of the union at the bargaining table or in mediation. The employer alleges that the union's proposal on "rights of the parties" was a permissive bargaining topic. There is no allegation that the claimed defect (of being over-broad) had been called to the attention of the union at the bargaining table or in mediation. The employer alleges that the union's proposal on union business is an illegal proposal in bargaining. There is no allegation that the claimed illegality had ever been called to the attention of the union at the bargaining table. The employer alleges that the union's proposals on vacancies and promotions are permissive by reason of being over-broad so as to affect persons or positions outside of the bargaining unit. There is no allegation that the claimed defect was called to the attention of the union at the bargaining table. The employer alleges that the union's "prevailing rights" proposal is a permissive bargaining subject. There is no allegation that the claimed defect was called to the attention of the union at the bargaining table. The employer alleges that the union's proposal on lateral transfers could also reach persons or positions outside of the bargaining unit, so as to be a permissive bargaining subject. There is no allegation that this claimed defect was called to the attention of the union at the bargaining table. The employer alleges that the union's proposal on chain of command is a permissive bargaining subject. There is no allegation that this claimed defect was called to the attention of the union at the bargaining table. Finally, the employer alleges that the union's proposal on safety amounts to a permissive minimum manning proposal. There is no allegation that this claimed defect was called to the attention of the union at the bargaining table. The union responded to this complaint, offering its latest proposals (some of which were designed to cure defects noted by the employer). Further, the union has offered explanations of its intent on some of its proposals, and holds out the possibility of further modification of its proposals to clear up problems cited by the employer. In a letter dated October 28, 1985, the union points out items where the language called into dispute by the employer in this case had previously been agreed upon by both parties or had been proposed by the employer.

Case No. 6075-U-85-1139 was filed by the employer on October 29, 1985. In essence, the employer alleges that the union's last-minute attempts to cure defects in its "chain of command" and "vacancies and promotions" proposals in response to the unfair labor practice charges filed in Case No, 6044-U-85-1133 constituted both a bad faith escalation of demands and (for new reasons) permissive subjects. There is no allegation that these concerns have been presented to the union across the bargaining table prior to their being filed with the Commission.

Returning to the principle that the collective bargaining statute and process are intended to effect communications and to improve relations between public employers and public employees, it is difficult to explain why the processes of the statute and the authority of the Commission should be brought to bear for the assistance of parties who have not communicated their "scope" concerns at the bargaining table or in mediation. Viewed in that light, all of the refusal to bargain counts alleged in the captioned cases are defective. For the future, it will be the policy of this office, in the absence of an allegation that the claimed "scope" defect was in each case called to the attention of the proponent in collective bargaining and in mediation, to dismiss unfair labor practice charges alleging unlawful pursuit of permissive or illegal subjects in interest arbitration. If, given notice of the basis for a claim that a proposal is "permissive" or "illegal", the proponent refuses to modify its position (or modifies it only to a limited extent, so that a communicated concern remains), then it will come as no surprise if an unfair labor practice charge is filed following certification of the dispute for interest arbitration. The function of the mediator will remain the same: To seek a settlement of the dispute and, if necessary, to make a recommendation forwarding a list of all of the topics remaining in dispute between the parties. An unfair labor practice complaint would be timely immediately following certification of the dispute for interest arbitration, so there should be less time pressure and no last minute surprises. It may be necessary in the future to consider exceptions to the foregoing where substantially changed proposals are first introduced in the post-mediation period, but such late changes may put the good faith of the proponent into question or may warrant recall of the case for further mediation. For reasons indicated below, it is not necessary to consider such exceptions in the present cases.

Even prior to the filing of Case No. 6075-U-85-1139, it had become evident that there had been a serious lack of communications between these parties during bargaining and mediation. The certification of the dispute for interest arbitration was thereupon withdrawn by letter dated October 25, 1985, and the communications between the parties will again be effected under the guidance of a Commission staff member acting in the capacity of mediator. In the absence of an impasse, the captioned matters are subject to dismissal as being premature. City of Richland, Decision 1225 (PECB, 1981).

NOW, THEREFORE, it is

ORDERED

The complaints charging unfair labor practices filed in each of the captioned matters is dismissed.

DATED at Olympia, Washington, this 8th day of November, 1985.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director