STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
KENT POLICE GUILD,
	CASE 11141-U-94-2595
Complainant,
vs.	DECISION 5417 - PECB
CITY OF KENT,
	FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
Respondent.

Cline and Emmal, by Stephen Garvey, appeared on behalf of the union.

Heller, Ehrman, White, and McAuliffe, by Rodney B. Younker, appeared on behalf of the employer.

On May 25, 1994, the Kent Police Guild filed a complaint charging unfair labor practices with the Public Employment Relations Commission under Chapter 391-45 WAC, alleging that the City of Kent had violated RCW 41.56.140(4) by making a unilateral change in practice regarding holiday work and premium pay for three bargaining units of employees in the Kent Police Department. On July 21, 1994, the Executive Director issued a preliminary ruling pursuant to WAC 391-45-110, finding that a cause of action existed in the matter.[1] A hearing was scheduled for February 1, 1995, but was delayed to accommodate the employer's schedule. A hearing was held before Examiner Martha M. Nicoloff on June 27, 1995. The parties submitted post-hearing briefs.

FACTS

The City of Kent (employer) is located in southern King County. Since June of 1991, Ed Crawford has been the employer's chief of police, supervising a department which includes commissioned law enforcement officers, corrections officers, and employees working in support of the police and corrections functions.

For a number of years, the three bargaining units involved in this matter were represented by Local 1088 of the United Steelworkers of America. Bruce Weissich was the president of Local 1088, and was also a member of that union's bargaining team.

The Kent Police Guild is a recently-formed independent organization. On October 29, 1992, the guild filed a petition for investigation of a question concerning representation in each of the three bargaining units involved here.[2]

Historic Scheduling Practices

The Law Enforcement Officers -

Commissioned personnel in the patrol division of the Kent Police Department are assigned to six squads which are scheduled to provide 24 hour per day coverage, 7 days per week. Each week, patrol personnel work four consecutive ten-hour days, and receive three consecutive days off. Squads are normally assigned to work either a Tuesday through Friday or a Friday through Monday workweek, so that two squads at a time are scheduled to work on Fridays. Because of having the additional employees on duty on that day, the patrol division often uses Fridays for staff training or special emphasis projects. When a holiday falls on a Friday, however, administrative employees such as the training officer are not scheduled to work, and training and special projects do not usually occur. Even so, the double shift of officers has historically been scheduled to work on Friday holidays.

According to Weissich, the practice in the Police Department during his years of employment has been that an employee would work on a holiday if it fell on a day when that employee would normally be scheduled to work. If the holiday fell on an employee's normally scheduled day off, the employee would not work. The only exception of which Weissich was aware involved detectives and administrative employees assigned to the investigations unit.

In contrast to Weissich's testimony, Captain Charles Miller of the administrative services division[3] testified that he was aware of some situations prior to 1992 in which police officers were directed not to work on a holiday for which they would normally have been scheduled. Miller testified that the department's practice historically was to identify a minimum holiday staffing level, and to deny an individual's request for the holiday off if it would put the staffing level below minimum. Miller noted, however, that the system was not formal, and that strict staffing levels were not determined.

Employees who worked on Thanksgiving or Christmas were paid at the double-time rate. Work on other holidays was compensated at the time-and-one-half rate. Martin Luther King Day, President's Day, Veteran's Day, and an individual's personal holiday were termed "buy-back" holidays, and employees who worked on those holidays received a day in their "holiday bank" as well as being paid for that day at the premium rate.

Support and Corrections Personnel -

Employees in the support and corrections functions are also scheduled on a "4 days on duty / 3 days off" basis, but they do not work in squads, and do not have the same "overlap" issues which occur in the patrol division. A reduced number of support services employees is normally scheduled for holidays, because personnel are not needed to prepare court documents, and because detectives (who utilize support services) do not usually work on holidays. A reduced number of corrections employees is normally scheduled for holidays, because court is not in session and transports for medical care are not performed except in response to an emergency.

Change in Holiday Scheduling Practices

On the Friday of his first Thanksgiving weekend as chief of police, in 1991, Crawford noted what he believed to be "an excessive amount of officers performing jobs where one officer could easily perform it". He saw this as "creating excess wages and no productivity", particularly since holiday pay rates were in effect. He was concerned with the effect of the scheduling practice on the department budget, since some reduction of personnel had occurred in 1991. Crawford made no change to the practice at that time, however.

The employer and Local 1088 opened negotiations in 1992, but had been unable to reach an agreement on their own. In response to their request, the Commission assigned a mediator. When the representation petitions were filed in late October of 1992, the mediator canceled a scheduled mediation session because of the existence of the questions concerning representation.

In early November, Don Olson, who was then the director of human resources for the employer, notified Weissich that the mediator had suspended the mediation process. At about that same time, Weissich sought information from the Executive Director of the Commission concerning the legal status of the bargaining process during the pendency of the representation proceedings. Weissich and Olson exchanged correspondence on November 10 and 12, 1992, in which they agreed, based on their understanding of the information received from the Commission, that bargaining would have to be suspended pending the outcome of the representation cases.

In the meantime, Chief Crawford was preparing to address the holiday scheduling issues which had come to his attention in 1991. He discussed the matter with the employer's legal department, and was advised that shift scheduling was a permissive issue about which he need not bargain. On November 9, 1992, he directed an "Email" (followed by a memorandum) to all employees of the police department. Both documents noted the following:

In an effort to not over-staff for holidays and in an attempt to reduce premium overtime pay and accrued holidays, the following changes will take place for holiday staffing.

All employees will be considered OFF on holidays. Division Commanders will determine appropriate staffing needs and then assign staff to work based on those needs. All other employees will take the holiday off.

This will not apply to those holidays affected by the holiday buy-back provisions. Division Commanders please note, the 14-day advance notice provision will be adhered to.

The "14 day" notice appears to have been in reference to the collective bargaining agreements then in existence.[4] Although there were potential staffing issues in the other bargaining units, Crawford testified that the employer's greatest concern with respect to overstaffing was in the patrol unit.

Miller understood the chief's November 1992 memorandum to mean that he should, when possible, go to minimum staffing for holidays for personnel under his command. He testified that staffing levels were reduced in his division for support and corrections staff on both Thanksgiving Day and the following Friday (November 26 and 27, 1992) , and were reduced in patrol on that Friday. Miller's method for dealing with the staffing for those days was to direct his sergeants to inquire as to which personnel might be receptive to working on the holiday, so that those persons would be the ones assigned to work. His hope was to minimize or reduce the numbers of employees assigned against their wishes.

Documents in evidence indicated that a number of employees (including Weissich) were notified that they would be scheduled to be off work on the day after Thanksgiving. Weissich completed a leave request form for that day, indicating he was using 10 hours of holiday time. In the comments section of that document, he noted: "I have been ordered to submit this form. I did not request 11-27-92 'off, but I was ordered not to report for work!"

Correspondence and Meetings Concerning the Chancre

On November 16, 1992, Weissich sent a letter to Chief Crawford on behalf of Local 1088, as follows:

This letter is to formally advise you, and the City of Kent, that your stated intention to make a unilateral change of an extended past practice that affects the hours, wages, and/or working conditions of our members without the matter being collectively bargained is (in our opinion) an unfair labor practice.

... This change directly impacts and affects the hours and wages of the members of our bargaining units.

We respectfully request that your directive of November 9, 1992, be withdrawn until such time that the matter can be collectively bargained, and look forward to your written reply to our request.

On November 20, 1992, Chief Crawford wrote a response to Weissich, noting:

It is our position that shift staffing levels are fundamental prerogatives of management and thus not subject to mandatory collective bargaining. Therefore, I am unwilling at this time to retract my decision and make shift staffing subject to collective bargaining.

Following the Thanksgiving holiday, Local 1088 requested a meeting with employer officials to discuss the holiday scheduling situation. The meeting was held on December 14, 1992, with Olson and Crawford in attendance on behalf of the employer, and Weissich and Bob Grajeda, a Steelworkers business agent, in attendance for the union. Weissich testified:

My recollection, my best understanding of what was taking place was that we were going in there basically stating our position, that we believed that what had been done was wrong -and not to go in to bargain anything.

There was no bargaining possible. There was no intent to collectively bargain anything. We couldn't. I believe that was very clear. But because of what had happened on the Thanksgiving holiday, we were hoping to get this thing maybe backed off because Christmas was coming up.

Testifying with respect to whether bargaining occurred, Crawford stated:

Well, in respect to everyone here, I have tried for three or four years to find the definition of bargaining and I'm led to believe that it's kind of elusive at times. So I don't know what you would define it as. We were discussing, absolutely.

Weissich noted further, with respect to that meeting:

A:            [by Mr. Weissich] I think basically we were asked what our position was. And we stated that there was some past practice, there waslong-standing past practice relating to holidays, that the change in that practice needed to be negotiated.

The position taken by Mr. Olson and Chief Crawford was that it was an issue of staffing and it was not subject to bargaining .

Q:           [by Mr. Garvey] Is it your recollection that the city refused to bargain over it?

A:           Well, not my understanding, they flat out said "No, it's not something we are going to bargain over, period."

Q:           And did in fact any bargaining take place on December 14th of 1992?

A:           No.

Q:           Was any consensus reached? A: Absolutely not.

Q:           When the meeting was over, what was your understanding of what the city was going to do in the upcoming Christmas vacation?

A: The same thing it had done on Thanksgiving .

Christmas fell on a Friday in 1992. Some patrol employees who would normally have been scheduled to work that day were directed not to report to work. The employer required that employees who had been directed to take the holiday off fill out a leave slip indicating that a holiday had been used.

Weissich discussed the possibility of filing an unfair labor practice with Grajeda, but was told that the Steelworkers "weren't going to spend any money. They knew what the outcome of the election was going to be and they weren't going to ... do it." No further discussions took place between the employer and Local 1088, and Local 1088 did not file an unfair labor practice complaint concerning holiday scheduling.

Although its representation petition was pending at the time of the Thanksgiving and Christmas holidays in 1992, the guild did not file any unfair labor practice complaint at that time. The guild was certified as exclusive bargaining representative of the three units on January 25, 1993.

Holiday Scheduling in Early 1993

Testifying on direct examination, Miller stated that Memorial Day (Monday, May 31) was the first holiday in 1993 for which staff reductions were necessary in corrections and support services. His recollection was that two persons from the day shift and one from the swing shift were required to take the day off in each of those areas. He indicated he personally received no complaints about the matter, and testified that he was unaware of complaints being filed elsewhere. Miller recalled that staffing levels for corrections and support were each reduced by one employee for the July 4th holiday, which fell on a Sunday in 1993, and that he received no complaints from the guild with respect to that holiday. Miller testified that another staffing reduction occurred in the corrections and support units on Labor Day, September 6, 1993, and no complaints were received from the guild regarding that day.

Under cross-examination, Miller was unable to recall whether he actually had to order any employees to take time off on the days he indicated, or whether the staff reductions had been accomplished by employees who had volunteered to take the time off.

Discussions and Bargaining in 1993

Wayne Himple was the chief negotiator for the guild in 1993. Hetestified that, at some point in the summer, Crawford inquired about what Himple believed the contract required with respect to reducing staff on days when too many people were scheduled to work.[5] Himple consulted with the guild's legal counsel, and then replied to Crawford by E-mail, dated July 27, 1993, as follows:

The issue is whether or not you can schedule people off expressly for the purpose of reducing the staffing when there is an overabundance of people scheduled to work on a particular day.

If a guild member's benefits are infringed upon, I intrepret [sic] the contract not allowing administration to make the schedule changes. Specifically, if you say that Officer X must take earned time on the books and take the day off when they do not want the time off, your scheduling them off under these conditions would be considered a grievable contract violation or an U.L.P. [sic]

Your past action of scheduling everyone off and then hiring back for holiday scheduling was a unique way of interpreting the 14 day rule. You might be on a bit more solid ground, but it probably would lead to a ULP claim by the guild.

The best solution all the way around is to have your supervisors solicit employees to take time off when they can see that too many people are on the schedule. ...

Himple testified that the parties bargained a change in language regarding the rate of holiday pay during their negotiations in1993, but that nothing was negotiated with respect to holiday work schedules.[6] According to Miller, who served on the employer's bargaining team in 1993, the guild did not raise the holiday staffing issue in those negotiations.

Weissich became the president of the guild following its certification as exclusive bargaining representative. He testified that the guild decided to "object" if the employer tried to use the same holiday scheduling in 1993 as it had in 1992, "because we believed it would be an unfair labor practice." Weissich believed that the employer was on notice that the guild wished to bargain such a matter, based on Himple's discussions with the chief and the E-mail which Himple had sent to the chief regarding the guild's concerns. Weissich expressed the view that the guild had not been confronted by the issue until Chief Crawford approached Himple.

Holiday Scheduling in Late 1993

On October 5, 1993, Crawford directed a memorandum to division commanders regarding holiday scheduling, to which he attached his November 19 92 memo on that subject. He noted that the memo was a reminder only, and that "by now this has become routine". Under cross-examination as to why he sent such a memo if the matter was in fact routine, Crawford noted:

[T] he holiday which is on a Friday of November is something that kind of runs up on you. And it's an important time, particularly then in the Christmas holiday in terms of having an excessive staff. Those are truly the only two days that the patrol side are really excessive .

On October 12, 1993, the commander of the patrol division notified certain employees, including Weissich, of the employer's position with respect to scheduling during the Thanksgiving and Christmas seasons. That memo included:[7]

The department position is that on holidays, all employees are off, except on purchased holidays, and that we need to provide coverage for the misc [sic] crimes that occur. In light of this, I have to "make" a certain number of officers provide basic service (work) to the city. ...

The next two (2) fridays are Christmas eve, and New Years eve. These are NOT holidays. . . . Please do not order any one off these last two fridays. They are just like any other friday of the year.

Weissich viewed that as a "notification", and testified that the employer never requested that the guild bargain the matter. In all three bargaining units, people who would normally have worked the day after Thanksgiving, 1993, were directed not to work.

Correspondence Concerning 1993 Holiday Scheduling

On December 10, 1993, Weissich directed an E-mail message to Crawford which included the following:

As I mentioned during our informal discussion today, the guild executive board has voted to authorize the filing of unfair labor practice (U.L.P.) charges if we are not able to bring these issues to a resolution A.S.A.P. [sic]

Although the Executive Board had originally discussed a deadline of 12-15, that deadline will now be extended to 12-24-93.

On December 13, 1993, Olson notified Weissich, by E-mail, that the employer would "meet and confer" with the guild with respect to the issues raised in Weissich's December 10 E-mail to the chief. The record does not reflect whether any such meeting took place.

Crawford later informed Weissich, by E-mail dated December 23, that he would be unable to respond to the guild's concerns until December 27. According to Weissich, while that timing did not affect the patrol unit, employees in records and corrections were "forced off" on the holiday due to the lack of resolution.

On or about December 27, 1993, Weissich received a memorandum from Chief Crawford in response to Weissich's December 10 E-mail. With respect to the issue of employees being directed to be off duty on holidays, the chief noted:

[That] Item . . . was bargained over last year with you and Mr. Grajeda, and we will continue to follow the Kent Police Department policy as indicated, unless mutually negotiated.

The guild did not believe that bargaining had ever occurred, and filed the instant unfair labor practice complaint in May 1994.

POSITIONS OF THE PARTIES

The guild asserts that holiday pay and scheduling are mandatory subjects of bargaining. Even if they are not mandatory subjects, the guild asserts that the effects of any changes in those areas are bargainable. The guild asserts that its complaint is timely, because it was filed within six months following the first change in holiday practice of which it became aware after being certified as the exclusive bargaining representative (i.e., the 1993 Thanksgiving holiday). While acknowledging that the previous exclusive bargaining representative had notice of the employer's intent to change its practice in 1992, it argues that bargaining was not available to either organization because of the pendency of the question concerning representation. It argues, in the alternative, that it would be fundamentally unfair to bind the guild to a practice which was implemented in the face of inaction by the prior representative. It reasons that the remedy for an unfair labor practice complaint filed by the guild while the representation cases were pending would have been restoration of the status quo, which would have necessitated a new election, thereby penalizing the guild for the employer's conduct. It asserts that the employer's claim that it had bargained with the Steelworkers in 1992 simply does not stand up in the face of the evidence, and that the guild cannot be found to have waived its bargaining rights in the face of a fait accompli. It claims that a new representative cannot be bound by any waivers in an expired collective bargaining agreement. Finally, it claims that the employer never observed any of the interest arbitration procedures in effect for uniformed personnel, nor did it abide by the provisions of RCW 41.56.123 regarding implementation of a change for employees who are not covered by interest arbitration procedures.

The employer asserts that the unfair labor practice complaint fails on three grounds: First, it is untimely; second, it does not cover a mandatory subject of bargaining; and third, any right the guild may have had to bargain about the matter was waived by its failure to request bargaining and by language in the parties' collective bargaining agreements. The employer asserts that it changed the way it controlled holiday staffing levels in November of 1992, more than 18 months prior to the filing of this unfair labor practice complaint. It notes that the guild had notice of the change in November of 1992, and could have filed timely unfair labor practice charges within six months of that date. Responding to the guild's argument, the employer contends that the statute of limitations does not reset each time a holiday occurs. Even if the statute of limitations was not already running when the guild was certified, the employer contends that it began to run for the patrol unit when the guild received notice that the employer was planning to continue the holiday practice begun in 1992, and at least from Memorial Day of 1993 forward for the corrections and support units. The employer asserts that the failure of Local 1088 to pursue an unfair labor practice complaint should not open the employer to an untimely charge by the successor exclusive bargaining representative. The employer argues, further, that the guild inherited a status quo which included the new holiday staffing procedure, and that there has been no subsequent change which the employer was required to bargain. It argues that the issue in this matter concerns staffing levels, which has long been recognized as a fundamental prerogative of an employer. It asserts that the matter of staffing is far closer to the core of entrepreneurial control that the issue of premium pay earned by only a few bargaining unit employees. Finally, the employer asserts that the guild did not make a timely request to bargain over holiday staffing, even assuming it had the right to do so, and that it thus waived any right to bargain the matter. The employer argues that the collective bargaining agreements in effect in 1992 gave the employer the right to determine staffing levels. It argues that the practice of the department over a number of years indicates that the employer has always had the right to control holiday staffing levels, and that it was clearly under no obligation to bargain regarding the matter.

DISCUSSION

Effect of Question Concerning Representation

Long-standing Commission precedent holds that an employer has the obligation to maintain the status quo with respect to wages, hours, and terms and conditions of employment during the pendency of a question concerning representation. Mason County, Decision 1699

(PECB, 1983); Snohomish County, Decision 2234 (PECB, 1985). Any petitioner or intervenor in the representation case would have legal standing to file and pursue unfair labor practice charges on an "interference" theory under RCW 41.56.140(1), in the event of a unilateral change made by the employer during such a time period.

Long-standing Commission precedent also holds that collective bargaining involving the future interests of the employer and the employees affected by a representation petition must cease until a question concerning representation is resolved. Yelm School District, Decision 704-A (PECB, 1980) . In the absence of such a shutdown of bargaining, a potential exists for the employer to improperly exert influence on the representation proceedings. The petitioner or any other intervenor in the representation case would have legal standing to file and pursue unfair labor practice charges on an "interference" theory under RCW 41.56.140(1) or an "unlawful assistance" theory under RCW 41.56.140(2), in the event it believed it was prejudiced by the employer's unfavorable or favorable dealings with an incumbent union.

In this matter, employer agents were clearly aware of the case law on the subject: The employer's human resources director was informed by Commission staff that mediation would be canceled, because of the petitions; after speaking with the Commission's Executive Director, the president of Local 1088 advised the employer's human resources director that bargaining could not occur at that time, and the human resources director acknowledged this in his letter to Local 1088, as follows:

I concur with [Executive Director] Schurke's observation's [sic]. I will be reviewing the Yelm School District case of 1980, which I may have authored, since I was sitting on the Commission at that time. It sure sounds familiar anyway.

All of this is in addition to the restrictions on unilateral action imposed by RCW 41.56.123 and 41.56.470.

Existence of Cause of Action in 1992

The employer does not dispute that a change of practice occurred in November of 1992, during the pendency of the representation petitions. The record amply establishes that some employees were forced to take time off on the Friday after Thanksgiving that year.[8]

Employer Defenses -

As one element of its defense that the change was lawful, the employer argues that it fulfilled any bargaining obligation which it might have had by its discussions with Local 1088 while the representation issues were pending. This is clearly circular and unsupportable. If there was a bargaining obligation, then any change during the pendency of the question concerning representation was unlawful. Equally clearly, bargaining such a change with the incumbent organization during the pendency of the representation cases would have been unlawful. Finally, the facts asserted as part of this defense are contradicted by the letter in which an employer official indicated awareness of the applicable precedents and agreed to place the negotiations with Local 1088 on hold.

The Guild's Standing to File a Complaint in 1992 -

The guild correctly notes that, prior to its certification, it lacked the ability to assert any "refusal to bargain" claim on behalf of these employees under RCW 41.56.140(4) . It did, however, have standing to file and prosecute an "interference" charge under RCW 41.56.140(1), once it filed the representation petitions covering the three bargaining units. Emergency Dispatch Center, Decision 3255-B (PECB, 1990) . The customary remedy in such a case would be a "cease and desist" order and restoration of the prior practice, as is being sought by the union here.

Contrary to the guild's argument in its brief, its successful prosecution of an "interference" charge would not have necessitated that an election result be vacated, overturned or even delayed. The guild would have had multiple options available to it: (1) It could have chosen to obtain a remedial order on the unfair labor practice charges before subjecting itself to the risks of an election; (2) it could have filed a "request to proceed" under WAC 391-25-370, which would have brought an early election; or (3) it could have waited to file a still-timely complaint until after the election was held. The guild would have then been in a position to commence bargaining from the base of the practice which was in existence at the time the representation petitions were filed.[9]

The failure of Local 1088 to file an unfair labor practice charge is of no help to the guild here. Once a representation petition has been filed and bargaining has been shut down under Yelm, supra, an incumbent exclusive bargaining representative stands in shoes that are similar to those of a petitioner or any other intervenor.

It would not have a right to demand bargaining, but could pursue an "interference" charge to obtain restoration of the status quo ante. The Steelworkers' inaction in 1992 did not diminish the independent rights of the guild, or absolve the guild of its own inaction.

Timeliness of the Complaint -

The Commission has consistently held that the six-month period of limitations set forth in RCW 41.56.160 begins to run as of the date a potential complainant has actual or constructive notice of the complained-of action. Emergency Dispatch Center, supra; City of Pasco, Decisions 4197-A and 4198-A (PECB, 1994). Given the timing of the changes implemented in November of 1992, any complaint filed after May 26, 1993 would be untimely as to the corrections and support units, and any complaint filed after May 27, 1993 would be untimely as to the patrol unit.

Existence of Cause of Action in 1993 or 1994

Employer Defenses -

City of Seattle, Decision 651 (PECB, 1979), stands for the proposition that an unchallenged unilateral change creates a new status quo which becomes the basis for subsequent bargaining.[10] See, also, Snohomish County, Decision 1868 (PECB, 1984). The employer in this matter persuasively argues that no further change of practice occurred after November of 1992, and that its actions on subsequent holidays were a repetition of the practice it implemented in 1992. Kitsap County Fire District 7, Decision 2872 (PECB, 1988), holds that an employer which is merely reiterating a preexisting policy does not thereby incur a new obligation to bargain.[11]

Even if one were to adopt much of the guild's argument regarding timeliness, the guild established as part of its case-in-chief that its president and a number of other employees were informed by at least October 12, 1993 that they were being scheduled off duty on the Friday after Thanksgiving, November 26, 1993.[12] The guild president testified that he viewed the October memorandum as a "notification". While the Examiner recognizes that his testimony was offered for another purpose,[13] that testimony makes it clear that the guild had notice of the disputed change of practice at least as of October 12, 1993. Consequently, even given that most generous reading of the "notice or constructive notice" precedents, any complaint filed after April 12, 1994 was untimely.

Conclusions

The complaint charging unfair labor practices in this matter must be dismissed on procedural grounds, as untimely. The Examiner therefore need not delve into questions of whether there was a duty to bargain the change or its effects, or evaluate any other claims of waiver asserted by the employer.

FINDINGS OF FACT

1.                  The City of Kent is a public employer within the meaning of RCW 41.56.030(1) . At all times pertinent to this proceeding, Ed Crawford was the employer's chief of police and Don Olson was the employer's human resources director.

2.                  The Kent Police Guild is an independent organization formed byemployees of the Kent Police Department, and is a bargaining representative within the meaning of RCW 41.56.030(3) .

3.                  Local 1088 of the United Steelworkers of America was theexclusive Bargaining representative of employees of the Kent Police Department prior to the events giving rise to this proceeding, and continued to hold that status into the period affected by this controversy.

4.                  Commissioned employees in the patrol division of the Kent Police Department normally work in squads assigned to either a Tuesday-through-Friday or a Friday-through-Monday workweek. As a result of the additional personnel on duty on Fridays under that scheduling practice, Fridays have historically been used for staff training and special emphasis projects. Employees in support and corrections functions of the department are not assigned to squads, and consequently are not "double-scheduled" on any given day.

5.                  When a holiday falls on a Friday, training and special projects do not normally occur, and certain corrections and support functions do not take place. Historically, however, the same numbers of personnel had been scheduled to work, regardless of the holiday status.

6.                  On the Friday after Thanksgiving in 1991, Crawford noted what he considered to be an excessive number of personnel on duty.He was concerned with the budgetary effect of the scheduling practice, but made no change of practice at that time.

7.                  On October 29, 1992, the guild filed three petitions for investigation of a question concerning representation with the Public Employment Relations Commission, involving certain employees of the Kent Police Department. The employer and Local 1088 suspended contract negotiations and mediation, pending the outcome of those proceedings.

8.                  On November 9, 1992, Crawford directed an electronic mail message, followed by a memorandum, to all employees of the police department, noting that changes were going to be made in holiday staffing practice. All personnel were to be initially considered off duty on holidays. Division commanders would determine staffing needs and assign certain staff to be on duty based upon those needs.

9.                  On Thanksgiving Day, November 26, 1992, normal staffing levels were reduced in the support and corrections units, and employees who would normally have been scheduled to work on that day were assigned to be off duty.

10.              On the Friday after Thanksgiving, November 27, 1992, normal staffing levels were reduced in all three bargaining units, and employees who would normally have been scheduled to work on that day were assigned to be off duty.

11.              On January 25, 1993, the guild was certified as the exclusive bargaining representative of an appropriate bargaining unit of corrections officers and corrections sergeants employed by the employer.

12.              On January 25, 1993, the guild was certified as the exclusive bargaining representative of an appropriate bargaining unit of records administration and clerical employees employed by the employer.

13.              On January 25, 1993, the guild was certified as the exclusive bargaining representative of an appropriate bargaining unit of all non-supervisory commissioned police officers employed by the employer.

14.              On various holidays between November 27, 1992 and October 12, 1993, the employer applied the scheduling policy implemented in regard to the Thanksgiving weekend of 1992, and employees in the bargaining units described in paragraphs 11, 12 and 13 of these findings of fact who would normally have been scheduled to work on those days were assigned to be off duty.

15.              On October 12, 1993, certain employees of the police department, including the president of the guild, were notified that they would were to be off duty on the Friday after Thanksgiving, November 26, 1993.

CONCLUSIONS OF LAW

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

2.                  As of October 29, 1992, the guild acquired legal standing to file a complaint charging unfair labor practices under RCW 41.56.16 0 and Chapter 3 91-4 5 WAC, to challenge employer violations of RCW 41.56.140, including unilateral changes of employee wages, hours or working conditions during the pendency of representation proceedings under Chapter 391-25 WAC.

3.                  By November 27, 1992, the guild knew or reasonably should have known of the change in scheduling practice which occurred in relation to the Thanksgiving weekend holidays in 1992, so that any complaint charging unfair labor practices filed after May 27, 1993 was untimely under RCW 41.56.160.

4.                  By at least by October 12, 1993, the guild knew or reasonably should have known that the employer intended to continue the holiday scheduling practices which it implemented in relation to the Thanksgiving weekend holidays in 1992, so that any complaint charging unfair labor practices filed after April 12, 1994 was untimely under RCW 41.56.160.

ORDER

The complaint charging unfair labor practices filed in the above-captioned matter is hereby DISMISSED as untimely.

DATED at Olympia, Washington, this 12th day of January, 1996.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARTHA M. NICOLOFF, Examiner

This order will be the final order of the agency unless appealed by filing a petition for review with the Commission pursuant to WAC 391-45-350.