STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
PUBLIC SCHOOL EMPLOYEES OF WILLAPA VALLEY,	CASE 9429-U-91-2098
Complainant,	DECISION 4374 - PECB
vs.
WILLAPA VALLEY SCHOOL DISTRICT,	FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Respondent.

Caroline Lacey, Legal Counsel, appeared on behalf of the complainant.

Vanderberg and Johnson, by Clifford D. Foster. Attorney at Law, appeared on behalf of the respondent.

On October 22, 1991, Public School Employees of Willapa Valley, an affiliate of Public School Employees of Washington (PSE), filed a complaint charging unfair labor practices with the Public Employment Relations Commission. The complaint alleged that the Willapa Valley School District violated RCW 41.56.140(4), by unilaterally altering bargaining unit positions without negotiating the decision or effects.[1] The matter came on for hearing before Examiner Katrina I. Boedecker on December 4, 1992, in Olympia, Washington. The parties filed post-hearing briefs by February 12, 1993.

BACKGROUND

Willapa Valley School District and PSE have a long running collective bargaining relationship. At the time in question, they were operating under a collective bargaining agreement effective from September 1, 1989 through August 31, 1992. Through that agreement, PSE represents a "wall-to-wall" bargaining unit of all classified employees of the school district, specifically excluding the secretary to the high school principal, the secretary to the superintendent and the Tri-district coordinator.[2]

A full-time grounds/maintenance position has been included in the bargaining unit since at least 1980. The grounds/maintenance employee was generally responsible for performing a variety of carpentry, electrical, painting, plumbing, and grounds-care duties. The grounds/maintenance job started at 7:00 a.m., and had a 3:30 p.m. ending time. From May, 1980 through August, 1991, the position was filed by Buck Smith. Although other employees have assisted Smith in his duties, he ordinarily worked alone, planning, scheduling and completing his own work. In 1991, Smith was also president of the Willapa Valley chapter of PSE.

In the beginning of August, 1991, the employer had three custodian-/bus driver positions and one custodian position. The woman filling the custodian position gave notice that she would not return to work the 1991-92 school year.

On August 8, 1991, Superintendent Lafe Bretthauer gave a letter to Smith, as follows:

Buck, this letter is to inform you of the district's intent to restructure the building maintenance/grounds keeper position and possibly reorganize the high school custodial position. As you know, Linda Frederick's [sic] has resigned effective 16 August 1991.

With Linda leaving I am now looking into implementing changes that I feel will enhance the district's ability to meet its on going maintenance and custodial needs.

    Because you are involved both as PSE representative and as the districts maintenance person, I want to meet with you to discuss these changes. At that time I will outline how the proposed changes will effect [sic] you in respect to your hours of employment and general job classification.

The two men met the next day. During the meeting, the superintendent handed Smith a document entitled "Proposed Changes":

            The first paragraph, labeled "Tentative - Monday the 26th of August, 1991", stated that Hudson, formerly transportation supervisor, would be named transportation and maintenance supervisor. Maintenance employees and bus drivers would report to him for daily work assignments and instruction.

            The second paragraph, labeled "Tentative - Tuesday the 3rd of September 1991," detailed the reduction of the grounds/maintenance position from 2080 hours to 1040 hours. It also proposed changing the high school custodial position to a combination bus driver/ custodial position. The combination position would work an eight-hour shift starting at 2:45 p.m. and be for 2080 hours per year.

            The document concluded by asking Smith to notify the employer of his choice of position within five days of "the time this proposal is formally presented".

Smith was upset that his full-time day job was being eliminated. He left the meeting, and contacted PSE Field Representative Del Bausch.

On August 14, 1991, Bausch wrote Bretthauer citing specific sections of the collective bargaining agreement which "apply to this type of change in hours and working conditions". Bausch also requested additional time for Smith to consider his "choices", and sought a meeting the following week. Bausch thought that the employer had violated the collective bargaining agreement by its actions, but no grievance was filed.

Bretthauer, Bausch, Smith and bargaining unit member Keith Ping met for about one hour on August 23, 1991. Bausch testified that he did not consider the meeting to be a negotiations session, because there was no change in the employer's position and he did not get the sense of a "give and take" gathering. Ping, who had been the PSE chapter president for eight years, testified that he did not see the meeting as a negotiation session, because Smith was being directed to choose between one job or the other.

Ping did testify that the meeting was "very hostile, very warm". Arguments advanced by Ping at the August 23 meeting included that four hours per day was not enough time to cover all of the employer's maintenance needs, and that the maintenance tasks were not going to disappear just because the time allotted for them was shortened. Ping testified that Bretthauer replied he would make the job changes "fly, no matter what", and that Bretthauer explained that he believed one supervisor would more efficiently oversee the storehouse needs of the district, thereby reducing the number of trips to a neighboring town for supplies. Apparently, a majority of the meeting was spent seeing if the proposed change was in violation of the collective bargaining agreement and rehashing extraneous historical items.

At the conclusion of the August 23 meeting, it was agreed that Bausch would contact Bretthauer that afternoon with Smith's choice regarding the employer's "proposed changes". Bausch did telephone the superintendent to inform him that Smith had decided to take the custodian/bus driver assignment. Bretthauer then wrote to Smith, confirming the conversation as well as Smith's new reporting time and supervisor. In that letter, Bretthauer invited Smith to contact the employer if Smith disagreed with the employer's interpretation of the information provided by Bausch.

During either the August 23 meeting or subsequent telephone conversations, the parties discussed other possibilities. In reaction to the reassigning of another employee to the swing shift custodial work, the superintendent advanced that such a reassignment would violate the seniority clause of the collective bargaining agreement. Regarding the possibility of creating a four-hour maintenance / four-hour custodial job, the superintendent indicated that the maintenance/custodial combination would be a split shift with four hours in the morning and four hours in the evening. Regarding the August 23 meeting, he stated,

There's always — the more minds you get together the more ideas can be formatted. ... it was the best plan that I could come up with. I had others, but we never got to that point.

The superintendent testified that, in fact, he believed that his proposal was one of the better approaches.

As a custodian/bus driver, Smith received the same hourly rate and number of hours as he was given in his previous position. His work hours were changed from a "day" schedule to a shift running from 2:45 to 11:15 in the evening. For the first hour of his shift, Smith drives a school bus; for the remainder of the shift, he works as a custodian at the high school. A former substitute bus driver, Adolph Huber, was hired effective September 16, 1992, to fill the four-hour maintenance/grounds job.

POSITIONS OF THE PARTIES

PSE argues that the employer had a duty to negotiate the elimination of work hours, which it failed to do. The union characterizes the meetings with the superintendent as gatherings to receive a fait accompli, not as bargaining sessions. The union thus asserts that it did not have to demand bargaining, and it did not waive its right to bargain, because the decision to eliminate the work was made prior to the union receiving notice of the change. The union concludes that the actions taken by the employer make this a case of unilateral changes in matters that require bargaining, and constitute a refusal to bargain.

The employer contends that its action was protected by the parties' collective bargaining agreement. It asserts that the focus here should be on the interpretation of the contract, not on whether a duty to bargain arose. The employer argues that the language of the bargaining agreement gave it the clear right to create the new position; to reduce positions when necessary for business reasons; and to change an existing work week upon proper notice.

DISCUSSION

Deferral to Arbitration

Generally, allegations of "unilateral change-refusal to bargain" are reviewed pursuant to WAC 391-45-110 in light of policies set forth in Stevens County. Decision 2602 (PECB, 1987), and restated by the Commission in City of Yakima, Decision 3564-A (PECB, 1991). In certain cases where the employer conduct at issue in the unfair labor practice case was "arguably protected or prohibited" by a collective bargaining agreement, the processing of an unfair labor practice case will be "deferred" pending the outcome of grievance arbitration proceedings between the parties on related issues, if: (1) there was a collective bargaining agreement in effect between the parties at the time the cause of action arose; (2) the contract contains procedures for final and binding arbitration of grievances; and (3) there is no indication that the employer has asserted or will assert procedural defenses to arbitration. The Commission holds the unfair labor practice case as an open case on its docket, and the parties are directed to submit any arbitration award to the Commission for review to determine its effect on the unfair labor practice case.[3]

The complaint charging unfair labor practices filed in this case contained an allegation of "skimming of bargaining unit work" which was closely intertwined with the unilateral change allegation. No deferral inquiry was made, and the Commission's "deferral" policy was not invoked, since an arbitrator would have had no jurisdiction over the "skimming" charge.

An unusual situation has developed in this case, because the union abandoned its "skimming" allegation after the hearing had begun. The Examiner will have to interpret the parties' collective bargaining agreement in order to rule on the remaining "unilateral change" allegation, without any possibility of ordering a remedy for any contract violation which might be found. Cf., City of Walla Walla. Decision 104 (PECB, 1976). If the parties have agreed in their contract to authorize the employer to make certain changes, then it would not be unlawful conduct for the employer to make unilateral changes in a mandatory subject of bargaining. In such a case, the parties will have bargained the subject and "the union will have waived its bargaining rights by the contract language, taking the disputed action out of the category of the 'unilateral change' prohibited by RCW 41.56.140(4)." City of Yakima, supra.

Language of the Collective Bargaining Agreement

The employer claims that it had the authority under the collective bargaining agreement to make the changes that it did. The language the employer relies on is:

Rights of the Employer

Section 2.1 It is agreed that the customary and usual rights, powers, functions, and authority of management are vested in management officials of the District. Without limiting the foregoing, this shall include the right to direct and assign employees in positions; the right to suspend, discharge, demote, or take other disciplinary action against employees; and the right to release employees from duties because of lack of work or for other legitimate reasons. The District shall retain the right to maintain efficiency of the District operation by determining the methods, the means, and the personnel by which such operation is conducted.

. . .

Hours of Work

Section 7.1 Each employee will be assigned in advance to a definite work week with designated times of beginning and ending; provided, that the employer may change the existing workweek in case of emergency without prior notice and in any other case by five (5) days written notice to the employee.

If those two sections were the only parts of the contract to be considered, it would appear that the employer's action was permitted under the express provision of the parties' bargaining agreement:

            * The employer has the right to release employees for legitimate reasons, such as improving efficiency. The employer reduced the eight-hour maintenance position to a four-hour position to avoid duplication of trips to another town for supplies.

            * The employer had the right to add another transportation/ custodian position to the bargaining unit, since it had the right to determine the personnel needed to operate as a school district.

            * The employer had the right to change employee work shifts on five days' notice, and there is no contention that the employer failed to give Smith the required notice.

Other articles of the contract must also be considered, however. Specifically:

Appropriate Matters for Consultation and Negotiation

Section 5.1 It is agreed and understood that matters appropriate for consultation and negotiation between the District and the Association are hours, wages, grievance procedures, and general working conditions of employees of the bargaining unit subject to this Agreement.

Section 5.2 It is further recognized that this Agreement does not alter the responsibility of either party to meet with the other party to advise, discuss or consult regarding matters concerning working conditions not covered by this Agreement.

The language in Section 5.1 shows that the union clearly preserved its right to bargain any changes in hours. Now then, the inquiry turns to whether the employer met the bargaining obligation that is imposed upon it by the contract. Since no bargaining conduct standards are delineated in the agreement, the parties' conduct will be measured by principles established in case law interpreting the Public Employees' Collective Bargaining Act, Chapter 41.56 RCW.

Notice

If an employer desires to make a change in a mandatory subject of bargaining, it must deliver adequate notice to the exclusive bargaining representative. The "adequacy" of the notice has been at issue in a number of cases.[4] The Commission held that an employer's failure to perfect notice to the exclusive bargaining representative of its employees does not violate RCW 41.56.140(1) and (4), if the union has actual prior knowledge of the controversial proposal.[5]

The facts of the present case establish that PSE Field Representative Bausch had actual knowledge of the employer's ideas on or about the same day that Bretthauer met with Smith about the "proposed changes". The employer stated that it gave notice to Smith because he was the local PSE chapter president, as well as the affected employee. It would have been prudent for the employer to deliver notice to Bausch at the same time it gave notice to Smith, but the union's argument based on Royal City School District, Decision 1419 (PECB, 1982), is not persuasive. Since Bausch had actual notice of the proposed changes in a timely fashion, these facts do not establish defective notice.

Opportunity to Bargain

Were the "proposed changes" delivered as a fait accompli? The employer agreed with the union's request to meet August 23, 1991. The union insists that this was not a "negotiations" meeting, citing the absence of indicia of "traditional bargaining" (i.e., no written proposals citing contract changes, no rationales for positions set forth) . If this was not to be a collective bargaining session, it is unclear why the union requested the meeting. The superintendent admitted that he thought his proposals were the best alternative, but the record established that he also expressed rationale for his proposals and responded to the ideas advanced by the union.

The union's conduct at the meeting of August 23rd becomes pivotal to the disposition of this complaint. It is clear that the union wanted the job classifications, duties and hours to stay "the old way". Bausch testified, "Well, I believe that the district cannot arbitrarily change a person's hours and working conditions scotfree without a discussion of any kind from the union representative or a reference of the contract."[6] He thereafter admitted, however, "There was discussion on the 23rd, yes." The few options brought forth by the union at the August 23 meeting encountered other problems, and it appears as though the union became side-tracked with dredging up irrelevant historical criticisms.

The union ignores that RCW 41.56.030(4) defines "Collective bargaining" as 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

. . .

(Emphasis by bold supplied.)

The following excerpt of the employer's cross-examination of Bausch is illustrative:

Q.            [By Mr. Foster] But those discussions would have to result in agreement before a change could take place in your opinion of this situation; right?

A.            [By Mr. Bausch] Yes.

Q.            Now, so we could have talked about this for several years and as long as the union said no we wouldn't have had the ability to change; right?

A.            Yes.

The employer was required by the collective bargaining agreement to negotiate with the union over changes in hours. The employer gave the union adequate notice and opportunity to bargain. The employer was under no duty to modify its proposal when the union offered no viable alternatives, just a blanket "no". Newport School District, Decision 2153 (PECB, 1985). Neither a violation of the contractual duty to bargain nor an unfair labor practice was committed here.

FINDINGS OF FACT

1.         Willapa Valley School District is a public employer within the meaning of RCW 41.56.030(1). At all times pertinent hereto the superintendent was Lafe Bretthauer.

2.         Public School Employees of Willapa Valley, an affiliate of Public School Employees of Washington (PSE), a bargaining representative within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of classified employees of the Willapa Valley School District, excluding the secretary to the high school principal, the secretary to the superintendent and the transportation/maintenance supervisor. In 1991, Buck Smith was the president of the local PSE chapter, and Del Bausch was the PSE Field Representative for the unit. Keith Ping had previously been PSE chapter president for eight years.

3.         PSE and the Willapa Valley School District were parties to a collective bargaining agreement for the period from September 1, 1989 to August 31, 1992. The agreement was renegotiated in June and July, 1992, and was extended through August 31, 1993. The contracts contain language that requires the parties to negotiate "hours, wages, grievance procedures, and general working conditions of employees of the bargaining unit...".

4.         At least through August 8, 1991, Smith was assigned to a full time grounds/maintenance position scheduled to work on the day shift. On August 8, 1991, Smith received a letter from Bretthauer, requesting a meeting to discuss proposed changes in Smith's hours and general job classification.

5.         Smith and Bretthauer met on August 9, 1991. The superintendent delivered to Smith a document entitled "Proposed Changes" which outlined promoting an employee from transportation supervisor to transportation/maintenance supervisor; eliminating the full time grounds/maintenance position; creating a half-time grounds/maintenance position; and modifying a high school custodial position to an full-time custodial/bus driver position on the swing shift.

6.         Immediately after his meeting with Bretthauer on August 8, 1991, Smith contacted Bausch. Bausch then telephoned the superintendent and requested a meeting. Bretthauer agreed to meet with the union on August 23, 1991.

7.         Bausch, Smith and Ping met with Bretthauer on August 23, 1991. Bretthauer expressed his belief that the proposed changes were the most efficient use of the employer's resources, and gave his rational for the changes. The union did not offer any viable alternative options for the superintendent to consider; the union conveyed that it did not want any changes.

8.         Following the August 23, 1991 meeting, Smith chose to take the full-time swing shift custodian/bus driver position. He suffered no loss of pay or hours.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW.

2.         The reduction and modification of positions described in the foregoing findings of fact impacted the wages, hours and working conditions of bargaining unit members, giving rise to a duty to bargain under the language of Section 5.1 of the parties' collective bargaining agreement, so that a "waiver by contract" defense is inapplicable in this case.

3.         Inasmuch as the PSE field representative had timely and actual knowledge of the controversial matters referred to in the foregoing findings of fact, the "proposed changes" were not presented to the union as a fait accompli giving rise to a violation of the parties' collective bargaining agreement or RCW 41.56.140(4).

4.         By meeting with the representatives of PSE on August 23, 1991, the employer fulfilled its duty to bargain under the parties' contract and RCW 41.56.030(4). Inasmuch as PSE offered no convincing rationale or viable alternatives at the August 23, 1991 bargaining meeting or thereafter, the Willapa Valley School District did not violate the collective bargaining agreement nor did it commit unfair labor practices under RCW 41.56.140(4) when it implemented its proposed changes.

ORDER

The complaint charging unfair labor practice filed against Willapa Valley School District in the above-captioned matter is DISMISSED.

Issued at Olympia, Washington, this 11th day of May, 1993.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

KATRINA I. BOEDECKER, Examiner

This order may be appealed by

filing a petition for review

with the Commission pursuant

to WAC 391-45-350.