On February 25, 1988, the Yelm School District filed a complaint with the Public Employment Relations Commission, alleging that the Yelm Education Association had committed unfair labor practices in violation of RCW 41.59.140(2)(c), by refusing to bargain collectively concerning the impact of a "no-smoking" policy adopted unilaterally by the employer[1], and by demanding arbitration of a grievance concerning whether the employer's "no-smoking" policy violates the terms of a collective bargaining agreement existing between the parties. The matter is before the Executive Director for a preliminary ruling pursuant to WAC 391-45-110. At this stage of the proceedings, it must be assumed that all of the facts alleged in the complaint are true and provable. The question at hand is whether the complaint states a cause of action for unfair labor practice proceedings before the Public Employment Relations Commission.

It has long been firmly established that the Public Employment Relations Commission does not enforce collective bargaining agreements or remedy contract violations through the unfair labor practice provisions of the collective bargaining statutes. City of Walla Walla, Decision 104 (PECB, 1976). While the arbitration of grievances is permitted (RCW 41.59-.130) and endorsed (RCW 41.58.020(4)) by collective bargaining statutes enforced by the Commission and applicable to the parties involved here, the remedy for contract violations in the absence of agreed-upon grievance arbitration procedures is, as for any other contract dispute, through civil proceedings in the courts.

Neither does the Commission become involved in enforcement of the agreement to arbitrate grievances. Thurston County (Communications Board), Decision 103 (PECB, 1976). Like a grievance for which there is no grievance arbitration procedure, a refusal to arbitrate or a challenge to the arbitrability of a grievance must be dealt with by the arbitrator or through civil proceedings in the courts.

In the instant case, the employer would evidently assert that its "no-smoking" policy was not a mandatory subject of collective bargaining under the Educational Employment Relations Act. Bargaining about a subject cannot convert a non-mandatory subject into a mandatory subject. WAC 391-45-550. A party who insists upon a non-mandatory subject after an impasse has been reached commits a "refusal to bargain" unfair labor practice. City of Wenatchee, Decision 780 (PECB, 1980). But parties are not precluded from bargaining on and making agreements concerning matters which are not mandatory subjects of collective bargaining. WAC 391-45-550. Once included in a collective bargaining agreement, agreed-upon terms are enforceable as part of that agreement during its term. The matter will still be a non-mandatory subject if disputed in a subsequent round of collective bargaining, and the proponent will again be at risk of committing an unfair labor practice if it insists to impasse upon retention of a non-mandatory provision in the collective bargaining agreement. City of Tukwila, Decision 1975 (PECB, 1985). But that is not the situation described in the instant complaint. The union is not accused of carrying the issue to impasse in bargaining.

Assuming, arguendo, that the "no-smoking" policy being disputed in the grievance arbitration proceeding is not a mandatory subject of collective bargaining under the statute, it nevertheless follows from the foregoing that the employer has no remedy available through unfair labor practice proceedings to preclude the exclusive bargaining representative from its pursuit of contractual rights. If the employer has agreed to contract language which limits its right to act in this (or any other) area excluded from the mandatory scope of collective bargaining, so be it. The unfair labor practice provisions of the statute are designed to protect the process of collective bargaining, not to protect the parties from themselves. The union cannot be faulted under RCW 41.59.140(2) for pursuit of rights which it claims under an existing collective bargaining agreement.

The allegation that the union has refused to bargain the impacts of the "no-smoking" policy is troublesome until taken in context with the unilateral adoption of the policy itself. It is well established that a union does not waive its bargaining rights by failing to request or participate in bargaining on mandatory subjects where presented by the employer with unilateral changes as a fait accompli. Spokane County, Decision 2167-A (PECB, 1985). There would be no need for bargaining on "effects" if the "no-smoking" policy were to be struck down by the arbitrator. If the policy complained-of in the grievance is upheld by the arbitrator as a contractual right of the employer, there would be no duty to bargain during the remaining life of the collective bargaining agreement as to the decision to adopt that policy, and that occasion would seem to be soon enough to commence bargaining concerning "effects".[2]

NOW, THEREFORE, it is

ORDERED

The complaint charging unfair labor practices filed in the above-entitled matter is dismissed for failure to state a cause of action.

DATED at Olympia, Washington, this 24th day of May, 1988.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This Order may be appealed by filing a petition for review with the Commission pursuant to WAC 391-45-350.