Town of Steilacoom, Decision 5947 (PECB, 1997)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
STEILACOOM OFFICERS ASSOCIATION,
Complainant,	CASE 12218-U-95-2885
vs.	DECISION 5947 - PECB
TOWN OF STEILACOOM,	FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Respondent.

George L. Green, Association Representative, appeared on behalf of the complainant.

Glenn & Hoffman, by Larry Hoffman, Attorney at Law, appeared on behalf of the respondent.

On November 29, 1995, the Steilacoom Officers Association (union or “SOA”) filed a complaint charging unfair labor practices with the Public Employment Relations Commission under Chapter 391-45 WAC, alleging that the Town of Steilacoom (employer) refused to provide disciplinary records requested by the union and necessary to its representation of bargaining unit members. A hearing was held on August 28, 1996, before Examiner Paul T. Schwendiman. Both parties filed post-hearing briefs.

BACKGROUND FACTS

The employer and union are parties to a collective bargaining agreement which contains several provisions pertinent to this dispute. Those provisions include:

ARTICLE V

Labor Management Committee

5.1       Management and the Steilacoom Officers Association have established a Labor-Management Committee which may meet periodically during this Contract to discuss matters of mutual concern.

5.2       The Committee will meet on the request of either party when that party believes there are matters which merit discussion.

5.3       The Committee will include not more than one (1) representative of management and one (1) representative of the Association and, at other times, other representatives as mutually agreed.

5.4       It is understood that any items discussed in the Labor-Management Committee shall not add to or alter the terms of this agreement. It is also understood that neither party to this agreement waives its right to negotiate any mandatory subject of bargaining.

ARTICLE VI

Disciplinary Procedures

6.1       Employees shall be disciplined for just cause with the exception of employees during their probationary period, in which case a demonstration of cause is not required. Disciplinary action may include written reprimand, suspension without pay, reduction in rank, or discharge.

...

ARTICLE VIII

Grievance Procedure

8.1 Definition:

A grievance shall be defined as a dispute by an employee(s) concerning the interpretation or application of specific provisions of this agreement.

Step 1

Any grievance shall be taken up by the employee and the immediate supervisor within five (5) calendar days the occurrence [sic]. ... If no settlement is reached, the grievance shall be advanced to step 2 ...

Step 2

The grievance shall be reduced to writing .... The employee shall present the written grievance to the Director of Public Safety. ...

Step 3

If the grievance is not settled at Step 2, the employee shall submit the grievance to the Town Administrator ...

Step 4

The Steilacoom Officer Association may appeal an adverse decision of the Town Administrator to a neutral arbitrator. ...

Step 5

The arbitrator shall render a decision within thirty (30) calendar days of the hearing; which decision shall be final and binding on both parties. ...

This case arose out of employer discipline of Police Officer George Green, a member of the bargaining unit represented by the union. On August 16, 1995, the union filed a grievance under the parties’ collective bargaining agreement, protesting that discipline.

On October 5, 1995, the union submitted a written request to the employer for the disciplinary records of several police officers, as follows:

Please furnish the SOA with the disciplinary records of the following members: Art Centoni, Larry Collings, George Green, David Gall, and Vern Maneo for the period of 1-1-94 through 9-17-95.

The above information is necessary to fulfill the association’s obligation for member representation.

Although Green was not mentioned by name, the record establishes that the request was, in fact, made in connection with the union’s processing of the grievance concerning Green’s discipline.

On October 10, 1995, the employer responded to the union’s request, stating:

We will not provide you with any disciplinary records for the individuals that you have requested. The basis for this decision is Chapter 1.08.050 of the Steilacoom Personnel Regulations regarding employee personnel records. If each of the individuals identified is willing to provide us with a waiver to the right to confidentiality to these records, we would be willing to disclose their disciplinary records.

The cited provision of the Steilacoom Personnel Regulations provides:

(a)           A personnel file is kept for each employee in the Human Resources Office, Access [sic] is limited to the employee, employee’s immediate supervisor, the department head, Town Administrator, and the Mayor.

(b)           An employee has the right to review his/her file and may request removal of irrelevant or erroneous information in writing. If the Town denies the employee’s request to remove the information, the employee may file a written rebuttal statement to be placed in his/her file.

(c)           Personnel files are kept confidential to the maximum extent permitted by law (RCW 42.17.310) and shall not be released to any other unauthorized individual except with the written consent of the employee or in response to valid court orders or government requests directing the provision of information from personnel records. (Adopted 5-4-93)

No individual officer waived confidentiality, and the requested records were not provided to the union. The union continued seeking the requested information thereafter, and the employer continued its refusal to provide the requested information.

The union also requested a meeting of the labor-management committee to discuss its information request. Management personnel changes caused difficulties in appointing its representative to the committee, however, and the denial of the union’s request for information was not fully discussed at a meeting of the committee.

POSITIONS OF THE PARTIES

The union argues that the employer is required by Chapter 41.56 RCW to supply the union with personnel information relating to past discipline of police officers, when requested by the union to process a grievance related to the discipline of another officer.

The employer contends that the information requested by the union is private information, and is protected from disclosure without written release by the employee. It relies upon its personnel regulations and RCW 42.17.310(1) (b).

DISCUSSION

The relationship between these parties is governed by the Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW.

The Duty to Provide Information

The definition of “collective bargaining” is set forth in RCW 41.56.030(3), as follows:

[T]he 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, and to execute a written agreement with respect to grievance procedures and collective negotiations on personnel matters, including wages, hours and working conditions, which may be peculiar to an appropriate bargaining unit of such public employer, except that by such obligation neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this chapter. ...

The duty to bargain collectively includes a duty to provide relevant information needed by the opposite party for the proper performance of its duties in the collective bargaining process. City of Bellevue, Decision 3085-A (PECB, 1989), affirmed, 119 Wn.2d 373 (1992). The duty to provide information applies to requests for information necessary for the representation of bargaining unit members in processing grievances to enforce the terms of negotiated contracts. Pullman School District, Decision 2632 (PECB, 1987); City of Seattle, Decision 3329-B (PECB, 1990).

For the duty to provide information to exist, the information requested must be relevant to the collective bargaining process and relationship. In Pasco School District, Decision 5384-A (PECB, 1996), the Commission explored limits on the duty to supply information in regard to processing a grievance:

The duty to supply information turns upon the circumstances of the particular case, but a union’s bare assertion that it needs information to process a grievance does not automatically oblige the employer to supply all the information in the manner requested. Where the request puts the employer on notice of a relevant purpose, an employer is obligated to furnish the requested information. The requesting party must demonstrate more than an abstract, potential relevance of the requested information, and must show that the information is actually relevant. ... [W]here the circumstances surrounding the request are reasonably calculated to put the employer on notice of a relevant purpose which the union has not specifically spelled out, an employer may be obligated to furnish the requested information.

Information pertaining to employees in the pertinent bargaining unit has been held to be presumptively relevant. ... [Footnotes omitted]

In Pullman School District, supra, a union requested personnel files of all employees who had been disciplined within the prior five years, for use in a disciplinary grievance. That employer was ordered to provide the requested information. Citing Pfizer Inc. v. NLRB, 763 F.2d 887 (1985), the Examiner in that case explained the relevancy of disciplinary records in such a situation, as follows:

Arbitrators routinely consider employee work records in deciding whether employers have applied their disciplinary rules in a consistent and non-discriminatory manner. This is a fundamental principle of industrial justice.

The general relevance of comparative disciplinary records is thus clear in the context of a disciplinary grievance case. In the case now before the Examiner, the union also requested disciplinary records in the context of a pending discipline grievance. Its October 5, 1995 request was made only five days after it filed a grievance concerning the discipline of bargaining unit member George Green, and made reference to a pending grievance.

Information pertaining to employees in the pertinent bargaining unit is presumptively relevant. City of Tacoma, Decision 5439 (PECB, 1996). The request here for disciplinary records of five police officers who were bargaining unit members distinguishes this case from Pasco School District, supra, where the disputed request was for information about an excluded supervisor.

Based upon well-established and long-standing precedent under Chapter 41.56 RCW, and consistent with precedent developed by the National Labor Relations Board (NLRB) and the federal courts in their application of the National Labor Relations Act (NLRA), the union was entitled to the information it requested.

The Employer’s “Personnel Regulation” Defense

The employer does not contest the relevancy of the information requested by the union in this case, but defends its refusal on the basis of its personnel regulations. That defense fails.

The fact that the employer has embodied certain of its policies in the form of ordinances or rules is neither surprising nor significant. As a municipal corporation or political subdivision of the state of Washington, it draws its authority from the laws enacted by the state Legislature. Chapter 41.56 RCW is a statute of general jurisdiction which is applicable to all municipal corporations and political subdivisions of the state. RCW 41.56.020. The collective bargaining rights and obligations created by Chapter 41.56 RCW have been applied by the Supreme Court of the State of Washington to a wide variety of public entities. Roza Irrigation District v. State, 80 Wn.2d 633 (1972); Nucleonics Alliance v. WPPSS, 101 Wn.2d 24 (1984); Public Utility District 1 of Clark County v. PERC, 110 Wn.2d 114 (1988). No public employer subject to Chapter 41.56 RCW is in a position to overrule that statute as enacted by the Legislature.

In addition to general legal principles, RCW 41.56.905 expressly provides for conflicts between Chapter 41.56 RCW and employer ordinances and rules to be resolved in favor of Chapter 41.56 RCW:

The provisions of this chapter are intended to be additional to other remedies and shall be liberally construed to accomplish their purpose. Except as provided in RCW 53.18.015, if any provision of Chapter 41.56 RCW conflicts with any ... ordinance, rule or regulation of any public employer, the provisions of this chapter shall control.

[1983 c 287 § 5; emphasis by bold supplied.]

Application of that principle has led to invalidation of employer-adopted policies, rules or even ordinances in a variety of situations: (1) An employer’s change of health plans without bargaining;[1] an employer’s local civil service regulations;[2] an employer’s regulation protecting the confidentiality of the residential addresses of its employees confidential,[3] and other public employer ordinances, rules and regulations based on compliance with statutes, ordinances, rules, and city or county charters.[4]

Since Section 1.08.050 of the employer’s personnel rules, as interpreted by the employer in this proceeding, conflicts with RCW 41.56.030 (4), as interpreted by the Commission and the Supreme Court, it does not provide the employer any defense in this unfair labor practice proceeding under RCW 41.56.140-160.

The Employer’s “Public Records Act” Defense

Like the employer in Pullman School District, supra, the employer argues here that compliance with the union’s request is prohibited by the state Public Records Act.[5] This defense also fails.

The employer relies in this case upon language found in the Public Records Act at RCW 42.17.310(1), as follows:

42.17.310 Certain personal and other records exempt. (1) The following are exempt from public inspection and copying:

(a) Personal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients;

(b) Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy;

(c) Information required of any taxpayer in connection with the assessment or collection of any tax ...;

(Emphasis by bold supplied.]

The section continues with 32 additional subparagraphs, identified as (d) through (ii), which deal with a wide variety of materials and situations unrelated to the collective bargaining process.

Potential Conflict of Laws -

At worst, the Examiner is faced here with a conflict between two state statutes. If such a conflict in fact exists, the Examiner has the benefit of Supreme Court precedent on how the statutes ought to be interpreted.

Above and beyond dealing with conflicts between Chapter 41.56 RCW and ordinances, rules or regulations of a public employer, RCW 41.56.905 specifically deals with other statutes:

... if any provision of this chapter [41.56 RCW] conflicts with any other statute ..., the provisions of this shall control.

[1983 c 287 § 5; emphasis by bold supplied.]

RCW 41.56.905 originated in 1973, as part of legislation which created interest arbitration procedures for certain law enforcement officers and fire fighters defined as “uniformed personnel”,[6] and its early application was to resolve a conflict between the interest arbitration law and conflicting provisions of Chapter 35.22 RCW dealing with municipal powers.[7] The section was amended and re-enacted in 1983,[8] however, and the Supreme Court’s ruling in Rose v. Erickson, 106 Wn.2d 420 (1986) that Chapter 41.56 RCW prevails over other statutes was based on that subsequent legislative action. The Supreme Court wrote:

RCW 41.56.905 was added as a part of the 1973 amendment to chapter 41.56. Laws of 1973, ch. 131, sec. 10. Significantly, in Laws of 1983, ch. 287, sec. 5, the Legislature changed the references to the 1973 amendment and enacted the provisions stating that a liberal construction should be given to all of RCW 41.56 and conflicts resolved in favor of the dominance of that chapter. . . .

Rose v. Erickson at 424.

Rose v. Erickson was not some one-time aberration. The holding of that case has been repeated by the Supreme Court in at least City of Yakima v. Fire Fighters, 117 Wn.2d 655 (1991); City of Pasco v. PERC, 119 Wn.2d 504 (1992); and Peninsula School District v. Public School Employees, 130 Wn.2d 401 (1996). Thus, there is a strong basis for a conclusion that the duty to provide information under Chapter 41.56 RCW should prevail over a conflicting statute.

The employer’s defense is based on an exclusion from the employer’s duty to provide information under Chapter 42.17 RCW. The Public Records Act originated as part of Initiative 276, which was passed by Washington voters on November 7, 1972, after a vigorous campaign led by a “Coalition for Open Government”. The initiative was predicated on the principle that the right to receive information from government is fundamental to the right of free speech.[9] RCW 42.17.290 states that it is the intent of the chapter to provide full public access to public records. The provisions of Chapter 42.17 RCW requiring disclosure of public records are liberally construed, and its exemptions are narrowly confined. Servais v. Port of Bellingham, 127 Wn.2d 820 (1995); Hearst Corp. v. Hoppe, 90 Wn.2d 123 (1978). RCW 42.17.920 provides for primacy of Chapter 42.17 RCW over other statutes:

The provisions of this act are to be liberally construed to effectuate the policies and purposes of this act. In the event of conflict between the provisions of this act and any other act, the provisions of this act shall govern.

[1973 c 1 § 47 (Initiative Measure No. 276, approved November 7, 1972).]

The operative amendment to RCW 41.56.905 enacted in 1983 came much later, however, and is entitled to interpretation as the more recent of the statutes.

Even though RCW 42.17.290 originated from an initiative, the Washington State Constitution makes specific provision, at Article II, section 1 (c), for legislated changes to successful initiatives:

No act, law, or bill approved by a majority of the electors voting thereon shall be amended or repealed by the legislature within a period of two years following such enactment: Provided, That any such act, law, or bill may be amended within two years after such enactment at any regular or special session of the legislature by a vote of two-thirds of all the members elected to each house ...

[Washington State Constitution, Art. II, section 1(c), AMENDMENT 7, 1911 House Bill No. 153 p. 136. Approved November, 1912.]

Even if RCW 41.56.905 in its original form might not have prevailed over Chapter 42.17,[10] that two-year period had long since expired by the time RCW 41.56.905 was amended by the Legislature in 1983.[11]

The Legislature is presumed to be aware of prior enactments when it enacts new statutes. Baker v. Baker, 91 Wn.2d 482 (1979). In Hudgens v. Renton, 49 Wn.App. 842 (Division I, 1987) at 845, footnote 1, the court noted the effect of legislation enacted more than two years after RCW 42.17.920:

Appellant also argues that RCW 10.97.080 is inapplicable because RCW 42.17.920 states that, in the event of a conflict between the public disclosure act and any other act, the provisions of the public disclosure act shall govern. However, RCW 10.97.080 was passed 4 years after RCW 42.17.920. Since the Legislature is presumed to be aware of its prior enactments when it enacts new statutes, Baker v. Teachers Ins. & Annuities Ass’n College Retirement Equity Funds (TIAA-CREF), 91 Wn.2d 482, 588 P.2d 1164 (1979), it is clear that the Legislature intended for RCW 10.97.080 to control over RCW 42.17.920.

The Supreme Court denied a petition review. Hudgens v. Renton, 110 Wn.2d 1014 (1988). In this case, the Legislature must similarly be presumed to have been aware of Chapter 42.17 RCW when it amended RCW 41.56.905 in 1983, more than 10 years after Initiative 276 was passed, and must have intended for RCW 41.56.905 to control over RCW 42.17.920.

The language of RCW 41.56.905, as amended in 1983, is clear and unambiguous.[12] Based on that language, on the substantial Supreme Court precedent interpreting that language, and on Commission precedent such as King County, supra and Pullman School District, supra, the Examiner finds no basis to conclude that the Legislature intended to exclude Chapter 42.17 RCW from the supremacy of Chapter 41.56 RCW.

Harmonization of Statutes -

To conclude that RCW 41.56.905 settles a conflict between Chapter 41.56 RCW and another statute, an actual conflict between statutes must exist. In re Eaton, 110 Wn.2d 892 (1988). An apparent conflict between the provisions of Chapter 41.56 RCW and another statute is an actual conflict only if the statutes cannot be harmonized to reduce or eliminate the apparent conflict. Rose v. Erickson, supra at 424. No apparent conflict may be harmonized, however, without giving full effect to each statute, and without distorting the language used in each statute.[13] Based on a finding that no conflict exists between the duty to bargain in good faith (including the duty to provide information) under Chapter 41.56 RCW and any right of “personal” privacy under RCW 42.17.310(1) (b), the Examiner concludes that it is not necessary to rely on RCW 41.56.905 to resolve this dispute. Absent an apparent conflict, it is also not necessary to “harmonize” any provision of Chapter 41.56 RCW with RCW 42.17.310(1) (b).

The statutory language involved is unambiguous, and such statutes require no interpretation. Western Petroleum v. Friedt, 127 Wn.2d 420 (1995); PUD 1 of Clark County v. PERC, 110 Wn.2d 114 (1988); Seattle v. Ross, 54 Wn.2d 655, 658 (1959). Absent ambiguity, the plain wording of a statute controls. Anderson v. City of Seattle, 123 Wn.2d 847, 851 (1994). Thus:

•           The privacy exemption found in Chapter 42.17 RCW does not expressly address, let alone affect or limit, other rights of access to information (such as the duty to provide information which exists in Chapter 41.56 RCW) which exist independent of the rights conferred by Chapter 42.17 RCW.[14]

•           RCW 42.17.320(1) (b) is one of numerous exemptions found within a subchapter of statute which deals with public inspection and copying of documents in the possession of a public entity. It is clear that the privacy exemption of RCW 42.17.310(1) (b) is not designed to limit other than public access to documents.[15]

•           Other language in Chapter 42.17 RCW, at RCW 42.17.255, clearly limits the privacy exception of 42.17.301(1) (b) to apply only to Chapter 42.17 RCW,[16] so that the Public Records Act as a whole does not conflict with Chapter 41.56 RCW.

Additional reasons specific to this case buttress the Examiner’s conclusion that the privacy exemption to public access under Chapter 42.17 RCW does not infringe on this union’s independent right to information under Chapter 41.56.RCW. This is a bargaining unit of law enforcement officers, and the underlying dispute involves the discipline of a police officer for some alleged misconduct. In Cowles Publishing v. Washington State Patrol, 109 Wn.2d 712 (1988) at 726-727, the Supreme Court ruled that police officer misconduct is not shielded by the “privacy” exception of RCW 42.17.310(1)(b):

Instances of misconduct of a police officer while on the job are not private, intimate, personal details of the officer’s life ... They are matters with which the public has a right to concern itself.

... If the off duty acts of a police officer bear upon his or her fitness to perform public duty or if the activities reported in the records involve the performance of a public duty, then the interest of the individual in “personal privacy” is to be given slight weight in the balancing test and the appropriate concern of the public as to the proper performance of public duty is to be given great weight. In such situations privacy considerations are overwhelmed by public accountability.

The court also concluded that “[P]rivacy considerations never overwhelm public accountability in situations where the public has a right to concern itself.” Cowles Publishing, at 727.[17] Thus, RCW 42.17.310(1) (b) does not apply to the police officer disciplinary records requested by the union in this case.

CONCLUSION

The employer refused to bargain in violation of RCW 41.56.140(4), and therefore also interfered with employee rights in violation of RCW 41.56.140(1), when it refused to provide the union with requested information that was relevant to the union’s role as exclusive bargaining representative of an employee who had filed a grievance. The union was entitled to have the discipline records of other bargaining unit members, without need for releases signed by those other employees.

FINDINGS OF FACT

1.         The Town of Steilacoom is a public employer within the meaning of RCW 41.56.030 (1).

2.         The Steilacoom Officers Association, a bargaining representative within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of non-supervisory law enforcement officers employed by the Town of Steilacoom.

3.         The employer and union have negotiated a collective bargaining agreement which grants the employer the right to discipline for just cause, contains a grievance procedure incorporating final and binding arbitration of disputes concerning the interpretation or application of the agreement, and establishes a labor-management committee for discussion of matters of mutual concern to the employer and union.

4.         Prior to October 5, 1995, the union initiated a grievance under the parties’ collective bargaining agreement, protesting discipline imposed by the employer upon bargaining unit member George Green.

5.         On October 5, 1995, the union made a request of the employer for information from the employer’s files concerning previous discipline of bargaining unit members Art Centoni, Larry Collings, George Green, David Gall, and Vern Maneo.

6.         The request for information described in paragraph 5 of these findings of fact covered the period from January 1, 1994 through September 17, 1995, and was relevant to the grievance described in paragraph 4 of these findings of fact.

7.         The employer rejected the union’s request for information on the basis of Section 1.08.050 of its own personnel regulations and on the basis of RCW 42.17.310(1) (b), and conditioned the release of the requested information upon the union’s submission of written releases from the individual employees whose disciplinary records had been requested.

8.         The union requested discussion of its request for information in the labor-management committee forum provided by the parties’ collective bargaining agreement, but the employer did not discuss the matter in that setting.

CONCLUSIONS OF LAW

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

2.         By refusing to provide and/or conditioning the release of relevant information requested by the Steilacoom Officers Association and needed by that organization to perform its collective bargaining duties and responsibilities under RCW 41.56.030(4), the Town of Steilacoom committed unfair labor practices in violation of RCW 41.56.140(4) and (1).

Based upon the foregoing findings of fact and conclusions of law, the Examiner makes the following:

ORDER

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

1.         CEASE AND DESIST from:

a.         Refusing to provide relevant information requested by the Steilacoom Officers Association to fulfill its collective bargaining duties and responsibilities.

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

2.         TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter 41.56 RCW:

a.         Provide the information requested by the Steilacoom Officers Association in its letter of October 5, 1995.

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.

Dated at Olympia, Washington, on the 6^th day of June, 1997.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

PAUL T. SCHWENDIMAN, 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.