STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
WASHINGTON STATE PATROL TROOPERS ASSOCIATION,
Complainant,	CASE 9556-U-91-2135
vs.	DECISION 4710 - PECB
STATE OF WASHINGTON,	FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Respondent.

Aitchison, Hoag, Vick & Tarantino, by James M. Cline, Attorney at Law, appeared on behalf of the union.

Christine 0. Gregoire, Attorney General, by Chip Holcomb, Assistant Attorney General, appeared on behalf of the employer.

On December 26, 1991, Washington State Patrol Troopers Association filed a complaint charging unfair labor practices with the Public Employment Relations Commission, alleging that the State of Washington had violated RCW 41.56.140(1) and (4) by refusing to provide to the union information needed to process a grievance. On January 27, 19 93, the union amended its complaint to add an identical allegation arising out of the discipline of another member of its bargaining unit. The parties submitted the matter on stipulated facts to Examiner Katrina I. Boedecker on April 14, 1993. Both parties filed briefs.

BACKGROUND

The Washington State Patrol (employer) is a department of state government entrusted with a variety of police powers. Its statewide operations include security for state officials, centralized and high-technology crime information centers, performance of background checks, and enforcing speed limits on highways.

The Washington State Troopers Association (union) is the exclusive bargaining representative for a bargaining unit of approximately 960 non-supervisory employees of the Washington State Patrol.[1]

Before the employer disciplines a trooper, it investigates the alleged incident, obtaining sworn testimony from all witnesses. Once the investigation is complete, but before any discipline is imposed, superior officers in the chain of command are asked to review the investigation results and provide their "administrative insights" on such matters as: Whether the investigation is complete and thorough; whether the charges are sustained; possible sanctions and their supporting rationales; the existence of any exacerbating or mitigating factors, and whether the situation presents any issues for future training. The administrative insights process is intended to elicit frank and personal comments from officers who understand that their comments will be seen only by other command staff. Administrative insights are maintained in files separate from personnel and investigative files.

The parties' collective bargaining agreement requires cause for termination. It appears that troopers may challenge discipline through either a grievance process ending in arbitration or a statutory procedure involving an administrative law judge. Well before any hearing, the sworn testimony obtained by the employer during its pre-disciplinary investigation is provided to the trooper. The employer has always refused to release the administrative insights, on the grounds they are preliminary recommendations regarding policy and contain opinions which are exempted from disclosure by the Public Records Act, RCW 42.17.310(1) (i).

The two troopers involved in this case grieved a reprimand and a termination, respectively. In the course of processing their grievances, the union requested specified materials, including the administrative insights. The employer provided all requested documents except the administrative insights. Consequently, the union filed the complaint described above.

POSITIONS OF THE PARTIES

The employer contends that opinions and recommendations of subordinates to their superiors regarding whether discipline should be imposed, and the extent of any discipline are exempted from disclosure to the union by prior Commission precedent and by the Public Records Act, Chapter 42.17 RCW. The employer asserts that a case-by-case review by the arbitrator or administrative law judge who will ultimately decide the merits of a discipline grievance is preferable to the Commission setting a single hard and fast rule regarding disclosure of the administrative insights. The employer envisions an arbitrator or administrative law judge, not a Commission examiner, reviewing the administrative insights in camera to separate any raw factual data from frank expressions of opinions. The employer concedes that any raw factual data must be disclosed to the union, but contends that expressions of opinion must be withheld in order to protect frank internal discussion.

The union argues that recommendations considered by management representatives in imposing discipline are relevant information to which the union is entitled under the National Labor Relations Board's (NLRB) standard. The union asserts that the administrative insights must be disclosed under arbitration law because their content had a bearing on whether the employer had just cause for the reprimand and termination. The union contends that the employer's promises of confidentiality cannot be permitted to foreclose access to documents that would otherwise have to be released. Finally, the union argues that a standard of relevance in labor relations terms, not disclosability in Public Records Act terms, should govern this decision.

DISCUSSION

Obligations Under Collective Bargaining Act

The Commission has held numerous times that both public employers and exclusive bargaining representatives are obliged to promptly supply relevant information, when the other makes a clear request. City of Bellevue, Decision 4324-A (PECB, 1994); City of Seattle, Decision 3329-B (PECB, 1990); King County, Decision 3030 (PECB, 1988); Pullman School District, Decision 2632 (PECB, 1987); Toutle Lake School District, Decision 2474 (PECB, 1986); City of Yakima, Decision 1124 (PECB, 1981) (other conclusions of law reversed, Decision 1124-A (PECB, 1981)). Those decisions are consistent with National Labor Relations Act precedent. NLRB v. Truitt Mfg. Co., 351 U.S. 149 (1956); NLRB v. Industrial Co., 385 U.S. 432 (1967).

The requested information must be relevant to fulfillment of the statutory duties to negotiate or enforce collective bargaining agreements. For example: Toutle Lake School District, supra, involved a request for names of newly hired employees; Pullman School District, supra, arose out of a union's request for personnel files of all employees disciplined within the prior five years; King County, supra, involved access to the home addresses of bargaining unit members. The Commission has found that a refusal to provide relevant information is a "refusal to bargain" unfair labor practice under RCW 41.56.140(4).

Because the obligation to provide information is linked to the collective bargaining process, the Commission has refused to enforce it when the requesting party has sought redress in another forum. In Highland School District, Decision 2684 (PECB, 1987), a union appealed a discharge to court pursuant to Chapter 28A.88 RCW. When the employer resisted a subpoena for other employees' personnel files and documentation on other discharges, the union filed an unfair labor practice charge. Noting that the union had gone beyond the scope of the collective bargaining process by challenging the discharge in court, the Commission directed the union back to the court for relief on its discovery claim.[2]

It is worthwhile to note, however, that contemporaneous activity in another forum will not deter the Commission from requiring the production of information relevant to an ongoing collective bargaining issue. In City of Seattle, supra, the union had filed a contract violation grievance, and then filed a second grievance claiming the employer had discriminated against the grievant because of the first grievance. The union requested an investigation report the employer had prepared on the initial grievance. The employer refused to provide the report, citing that the union was litigating the discrimination claim both in arbitration and in court. The Commission found that the employer had committed an unfair labor practice, reasoning that the parties' collective bargaining obligation, which continues throughout the grievance and arbitration process, was not affected by the fact that the union had pursued additional relief in a judicial forum. City of Bellevue v. IAFF, Local 1604, 119 Wn. 2d 373 (1992), affirmed the ongoing jurisdiction of the Commission while the parties were involved in parallel interest arbitration proceedings.

The Commission expects that parties will negotiate solutions to any difficulties they encounter in connection with information requests. This is consistent with viewing the duty to provide information as part of the obligation to bargain. Although an employer may initially reply to an information request by claiming that compliance is difficult or not warranted, it must also explain its concerns to the union and make a good faith effort to reach a resolution that will satisfy its concerns and yet provide maximum information to the union. City of Bellevue, supra; Pullman School District, supra.

Obligations Under the Public Records Act

The Public Records Act, Chapter 42.17 RCW, was adopted by the citizens of the state of Washington, through the initiative process. The goal of the public records portion of the chapter is:

That, mindful of the right of individuals to privacy and of the desirability of the efficient administration of government, full access to information concerning the conduct of government on every level must be assured as a fundamental and necessary precondition to the sound governance of a free society.

RCW 42.17.010(11).

Documents deemed to be public records must be released to a person requesting them, unless disclosure is statutorily exempted. The party opposing disclosure bears the burden of proving that the documents fall within a particular exemption. Brouillet v. Cowles Publishing Co., 114 Wn.2d 788, 794 (1990). "Because the act favors disclosure, the statutory exemptions must be construed narrowly." Dawson v. Daly, 120 Wn.2d 782, 789 (1993).

It is not the role of the Commission to enforce the Public Records Act. Despite the fact that the ultimate decision-maker considered the administrative insights when deciding to discipline the two troopers involved in this case, the employer asserts that it is excused from releasing at least a portion of the administrative insights to the union under RCW 42.17.310(1) (i).[3] The employer contends that the Commission similarly excused disclosure of pre-decisional opinions and recommendations in Pullman School District, supra.

RCW 42.17.310(1)(i) has been understood as protecting "a deliberative or policy-making process". Hearst Corp. v. Hoppe, 90 Wn.2d 123, 133 (1978). However, it is clear that documents that initiate a disciplinary process against a specific individual "have to do with policy implementation not policy making". Brouillet, supra, at 799, overruling Hafermehl v. UW, 29 Wn.App. 366 (Div. I, 1981). In Brouillet the disputed documents were letters from a school superintendent that initiated the statutory certificate revocation process for specific teachers. Documents implementing personnel actions dealing with hiring, promotion, and discipline of employees thus do not fall within the narrow scope of the RCW 42.17.310(1) (i) exemption, and must be disclosed.

Even if the deliberative process exemption were to be interpreted as including recommendations concerning the discipline of subordinate employees, that exemption lasts only until discipline is actually imposed. Brouillet, supra. The courts have found no policy justification for continuing to withhold preliminary recommendations and opinions once the decision to discipline has been made. The deliberative process exemption protects the decision-making process, not the decision itself, from disclosure to the public.

Chapter 41.56 RCW Supersedes Chapter 42.17 RCW

The employer nonetheless contends that if the Public Records Act exempts it from releasing a particular document to a citizen, it need not provide the same document to the exclusive bargaining representative of its employees. That conclusion follows only if an exclusive bargaining representative stands in the same position as a member of the public with regard to access to documents. But an exclusive bargaining representative holds a special status in an ongoing relationship with the employer under RCW 41.56.080. When it requests a document that is relevant to its duty to bargain for members of the bargaining unit it represents, an exclusive bargaining representative has a separate right than an ordinary citizen cannot claim. Pullman School District, supra.[4]

The Legislature has decreed that the Public Employees' Collective Bargaining Act, Chapter 41.56 RCW, supersedes any other statute, ordinance, or regulation with which it conflicts. RCW 41.56.905. That section permitted a sheriff's employee to use the collectively bargained grievance procedure rather than a civil service process,[5] even though the civil service statute was adopted by initiative and purported to be mandatory. Rose v. Erickson, 106 Wn.2d 420, 423424 (1986). In King County, supra, it was held that a savings clause and the long-standing duty to provide relevant information required the employer to give home addresses to the union despite amendments to RCW 42.17.310 exempting public employee home addresses from disclosure to the general public.

The supremacy of the duty to provide information which grows out of the duty to bargain is also supported by sound policy considerations. A citizen's right to public records is predicated on an assumption that sound government and public confidence in that government both flourish in an atmosphere of full disclosure, subject to limitations to insure privacy rights and efficient administration of government. RCW 42.17.010(11). The public body interacts with the citizen on an elected official-electorate basis. On the other hand, the stated purpose of the collective bargaining act is to improve the relationship between public employees and public employers, by allowing employees to select an exclusive bargaining representative to deal with the employer on their behalf. RCW 41.56.010; RCW 41.56.030(3) and (4); RCW 41.56.080. In this situation the public body is acting as an employer, not as a governing body.

The conclusion that the obligation to provide relevant information to the exclusive bargaining representative may apply where the same information would be shielded from disclosure to an ordinary citizen is not unique to this Commission. The Illinois Local Labor Relations Board ruled that a public hospital committed an unfair labor practice when it refused to give the union a report regarding an incident for which an employee was discharged. The report contained the investigating officer's notes of witness statements, his subjective opinions on witness credibility, and his opinion on the need for additional investigation. In rejecting the employer's arguments based on the federal Freedom of Information Act and NLRB precedent excusing production of witness statements, the Illinois board said:

As a rule, an employer's interest in the enforcement of its disciplinary rules is not the equivalent of an administrative agency's interest in the enforcement of a legislative act and, in the context of collective bargaining, the former must to some extent give way to the public interest in a fairly and effectively functioning grievance and arbitration process. ... More to the point, the employer is not an impartial administrative agency with no personal interest at stake but is, instead, a party in interest. As such, there is no apparent reasonable basis for denying the other party in interest, the union, equal access to the information....

County of Cook, Docket L-CA-91-045 (1992).

Similarly, the Oregon Employment Relations Board rejected a claim that intermediate supervisors' recommendations concerning discipline were exempt from disclosure to the exclusive bargaining representative engaged in processing a grievance, because of a Public Records Act exclusion for intra-agency, advisory comments containing other than purely factual matters. State of Oregon, ERB UP-24-88 (1989). The Oregon board noted:

The provisions of ORS 192.502(1) provide only for an exemption, not a prohibition against the release of intra-agency advisory communications. We have held in construing a similar Public Records Law section that, in the absence of such a prohibition, [the collective bargaining law] requirements for disclosure take precedence.

State of Oregon, supra, at p. 730.

It is also instructive to consider Flint Community Schools, Docket C92 J-272 (Michigan ERC, 1993), where a union charged the employer with violating the law by refusing to disclose its grounds for suspending a teacher. Responding to the employer's contention that the information was privileged because it had been given to its attorney, the Michigan commission held:

[A] an employer cannot refuse to divulge information to a union in a disciplinary case just because such information has come into the hands of its attorney. A finding to the contrary would mean that an employer could withhold vital information simply by using its attorney, rather than some other employee, to investigate disciplinary matters. This in turn would subvert the collective bargaining process by depriving unions of information they need to make rational decisions regarding the processing of grievances.

[Emphasis by bold supplied.]

In ordering the school district to release the information given to its attorney, the Michigan commission observed:

If the information was so confidential that the respondent felt that it could not release it, then it would have been better advised not to impose discipline on this basis.

If the duty to provide information to the exclusive bargaining representative can override the well-established attorney-client privilege, it should not be surprising that it supersedes exemptions in public records acts.

Application of Precedent

Basic Assumptions -

The administrative insights are recommendations from intermediate officers to upper management. They include whether discipline should be imposed as a result of a particular investigation and, if so, the degree of the discipline. The parties agree that this procedure is intended to, and does, solicit the frank, personal comments of intermediate officers. The parties also stipulated that the "information contained in the administrative insights has a bearing on whether the employer had just cause for the disciplinary action".

In deciding this case, the Examiner accepts the parties' stipulation that the official who imposed discipline on these two grievants considered the administrative insights in making his or her decision to reprimand one trooper and discharge the other.

That distinguishes this case from the Commission's recent City of Bellevue case, Decision 4324-A, supra, where the employee had not yet been disciplined when the request for information was made.

Standard of Relevance -

The union contends the administrative insights are necessary to process the grievances and properly defend the grievants. Arbitrators presented with similar issues have required employers to disclose whatever information they relied on in deciding to discipline grievants. Conversely, Arbitrator C. Deke DeLoach rejected documents as exhibits in a case where the employer had not given them to the union, saying:

I find that the Employer's refusal to furnish the requested information is tantamount to a denial of procedural due process and prohibited the Union from fairly representing [the grievant] now, and more importantly, during the early stages of this grievance. ... In light of all of the above, I will not allow for the admission into evidence of Employer Exhibits 1 through 4 at this late date.

Avis Rent-A-Car, 99 LA 277 (1992) [emphasis in original].

Similarly, Arbitrator Erwin B. Ellmann refused to admit a supervisor's private diary with entries noting the grievant's performance deficiencies, because the employer had not previously provided it upon the union's request. Adrian College, 89 LA 857 (1987). The arbitrator noted that the diary had been maintained, and was offered as an exhibit, to justify the employer's discipline and therefore it should have been provided to the union.

The standard of relevance for information requests made under Chapter 41.56 RCW should be at least coextensive with the arbitration standard. Because the employer considered the contents of the administrative insights in deciding to discipline the two troopers, the union's requests clearly fell within the class of relevant information the Commission has defined in its earlier decisions.

This conclusion is consistent with decisions of other state labor relations agencies. Flint Community Schools, supra.

Delegation to Arbitrator Defense -

It may be that the type of information deemed relevant will vary from case to case, according to the parties' factual situation, but the Examiner still declines the employer's invitation to leave such matters to the person deciding the underlying grievances on their merits. The employer does not advance any substantive argument to support its contention that the ultimate decision-maker on the merits of a grievance, whether that be an arbitrator or an administrative law judge, is in any better position than the Commission to determine the relevance of requested information.

The statute which created the Commission, Chapter 41.58 RCW, made it the Commission's responsibility to:

[P]rovide, in the area of public employment, for the more uniform and impartial ... adjustment and settlement of complaints, grievances, and disputes arising out of employer-employee relations.

RCW 41.58.005.

The statutory goal of increased uniformity will more likely be achieved if these decisions are made by the Commission rather than by many individual arbitrators and administrative law judges. City of Bellevue v. IAFF, supra.

Protection of Internal Deliberations Defense -

The employer argues that preventing disclosure of the administrative insights is crucial to obtaining commanders' frank and uninhibited comments on a potential discipline situation. The employer correctly notes that Pullman School District expressed concern for the internal deliberative process. However, court decisions issued after Pullman School District have narrowed the protections for internal deliberations and have clearly ordered disclosure, despite privacy exemptions, of any documents relating to public employees' misconduct. Dawson, supra; Brouillet, supra.[6] Faced with a union's similar request and an employer's similar defenses, the Oregon board wrote:

To us, this argument [that disclosure would inhibit full and frank advice by superior] makes little sense. If anything, we would think that release of such disciplinary recommendations would tend to cause such subordinate commanders to be more careful and strive to be objective and consistent, thereby improving rather than destroying their usefulness to the superintendent.

State of Oregon, supra, at page 730.

Where management officials review and comment on the adequacy of a pre-disciplinary investigation, possible sanctions and exacerbating circumstances, and the ultimate decision-maker considers those comments in deciding to discipline a bargaining unit employee, the grievant's union is entitled to those comments.

CONCLUSION

Because the administrative insights documents requested by the union in this case were considered by the employer official who imposed discipline on the two troopers being represented by the union in grievance proceedings, the employer violated the law when it refused to provide the administrative insights to the union. This decision based on stipulated facts does not hold, and does not intend to suggest, that all documents containing opinions and recommendations must be disclosed by an employer or union to the other party in every situation.[7]

FINDINGS OF FACT

1.         The State of Washington is a public employer of state patrol troopers within the meaning of RCW 41.56.020.

2.         The Washington State Patrol Troopers Association, a "bargaining representative" within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of an appropriate bargaining unit of troopers employed by the Washington State Patrol.

3.         After supervisors in the Washington State Patrol investigate an incident involving bargaining unit employees, superior officers in the chain of command review the investigation results and make written comments before any discipline is imposed. Termed "administrative insights", those comments address matters such as the completeness of the investigation, whether the charges were sustained, possible sanctions and their supporting rationale, the existence of any mitigating or exacerbating factors, and whether the situation presents any issues for future training of troopers.

4.         The "administrative insights" procedure was intended to elicit frank and personal comments from officers who understood that their comments would be seen only by other command staff. The employer has consistently refused the union access to the administrative insights documents, on the grounds that they are exempted from disclosure as pre-decisional internal recommendations and opinions.

5.         In separate incidents, two employees in the bargaining unit represented by the union were disciplined by the employer. In making the decisions to discipline Troopers Powell and Arnold, the employer official who determined to discipline the two troopers considered the administrative insights generated in each case. Each of the disciplined employees grieved the discipline.

6.         The union requested copies of the administrative insights documents, in order to properly represent the disciplined troopers in the grievance and arbitration process. The employer refused to provide the administrative insights documents to the union.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391-45 WAC.

2.         By its refusal to provide the Washington State Patrol Troopers Association, upon request, with copies of the administrative insights which the employer considered in deciding to discipline Troopers Powell and Arnold, the Washington State Patrol committed an unfair labor practice within the meaning of RCW 41.56.140(4) and (1).

ORDER

The State of Washington, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

1.         CEASE AND DESIST from:

a.                   Refusing to bargain collectively in good faith with the Washington State Patrol Troopers Association, by refusing to provide relevant information requested by the union for its use in challenging discipline through the grievance process or other procedure, including administrative insights documents and other materials considered by the employer in deciding to discipline members of the bargaining unit represented by the union.

b.                  In any other manner interfering with, restraining or coercing its employees in the exercise of their collective bargaining rights secured by the laws of the State of Washington.

2.         Take the following affirmative actions to remedy the unfair labor practices and effectuate the purposes and policies of Chapter 41.56 RCW:

a.                   Upon request, promptly provide to the Washington State Patrol Troopers Association the administrative insights documents relating to the discipline of Troopers Powell and Arnold, or any other member of the bargaining unit represented by the Washington State Patrol Troopers Association who files a grievance or otherwise challenges resulting discipline.

b.                  Post, in conspicuous places on the employer's premises where notices to all employees are usually posted, copies of the notice attached hereto and marked "Appendix". Such notices shall be duly signed by an authorized representative of the above-named respondent, and shall remain posted for 60 days. Reasonable steps shall be taken by the above-named respondent to ensure that such notices are not removed, altered, defaced, or covered by other material.

c.                   Notify the above-named complainant, in writing, within 20 days following the date of this order, as to what steps have been taken to comply with this order, and at the same time provide the above-named complainant with a signed copy of the notice required by the preceding paragraph.

d.                  Notify the Executive Director of the Public Employment Relations Commission, in writing, within 20 days following the date of this order, as to what steps have been taken to comply with this order, and at the same time provide the Executive Director with a signed copy of the notice required by this order.

ENTERED at Olympia, Washington, on the 9th day of June, 1994.

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.