DECISIONS

Thomas J. Krett, Business Representative, represented the complainant.

Williams, Kastner & Gibbs, by Ronald J. Knox, Attorney at Law, represented the respondent.

The complaint charging unfair labor practices was filed in the above-entitled matter on May 21, 1990. The allegations involve a unilateral change of overtime practices, and the matter was deferred to an arbitrator in October of 1990. Arbitrator Michael E. de Grasse issued his arbitration award on the related grievance on November 19, 1990, concluding:

A reading of the contract language around which this dispute revolves shows the parties created two, distinct schemes for overtime compensation.

...

... Article 5.3 applies only to Associate Planners and the Head Greenskeeper. It is not a mandatory overtime provision. By its terms, it applies only to overtime work that is “required” by the employer.

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... Under Article 5.3, overtime compensation is received only in the form of compensatory time off on a one-to-one basis.

...

Given the unambiguous nature of the parties’ agreement, resort to past practice is unnecessary. In the instant case, past practice was not established sufficiently to require departure from the language of the parties’ agreement.

The arbitrator denied the grievance. In a letter directed to the parties on April 9, 1991, they were given until May 1, 1991 to show good cause why the arbitration award should not be regarded as dispositive of the unfair labor practice case. Nothing further was heard or received from the parties.

The Public Employment Relations Commission defers the processing of unfair labor practice allegations where an employer’s alleged “unilateral change” action is “arguably protected or prohibited” by an existing collective bargaining agreement between the parties. See, Stevens County, Decision 2602 (PECB, 1987). The Commission’s “deferral” policy is not indicative of an absence, surrender or loss of jurisdiction over the unfair labor practice allegations, but rather is an exercise of discretion in harmony with the preference for grievance arbitration shown by the Legislature in RCW 41.58.020(4).

If the arbitrator concludes that the employer’s action at issue in the unfair labor practice case was, in fact, prohibited by the contract, then the arbitrator should remedy the problem and the Commission will dismiss the case. [1] If the arbitrator concludes that the employer’s action was neither protected nor prohibited by the contract, the arbitration award will likely clear away any “waiver by contract” defense the employer could have asserted in the unfair labor practice case. But where, as here, the arbitrator finds that the employer’s action was protected by the collective bargaining agreement, the arbitration award will not only deny the grievance but will also foreordain dismissal of “unilateral change” unfair labor practice charges on the basis of “waiver by contract”.

NOW, THEREFORE, it is

ORDERED

The complaint charging unfair labor practices filed in the above captioned matter is dismissed.

Dated at Olympia, Washington, this 7th day of June, 1991.

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.