Perkins, Coie, Stone, Olsen & Williams, by Lawrence B. Hannah, Attorney at Law, appeared on behalf of the complainant.

Judith A. Lonnquist, General Counsel, Washington Education Association, appeared on behalf of the respondent.

The above named complainant filed a complaint with the Public Employment Relations Commission on July 13, 1978, wherein it alleged that the above named respondent had committed unfair labor practices within the meaning of RCW 41.59.140. The case was duly assigned to a staff member to act as Examiner. In due season, the record was made, appropriate briefs were filed by the parties and, under date of December 19, 1980, the Examiner issued his findings of fact, conclusions of law and order (Decision 1054, EDUC). The Examiner dismissed the complaint.

On January 9, 1981, the complainant filed with the Commission a petition for review pursuant to WAC 391-45-350, citing nine alleged errors by the Examiner. Five of the assignments of error concern the Examiner's factual conclusions, two concern the Examiner's legal analysis, and two concern the Examiner's dismissal order and its attendant omission of an award of attorneys fees to the complainant.

DISCUSSION

The nub of this controversy lies in a fairly simple fact situation which arose during the 1978 season of bargaining between teacher unions and school districts. It was a contentious period for many school districts. Few contracts were settled until late in the summer of 1978. The parties to this case settled their contract early in September, 1978. It is unnecessary to speculate on what overall strategy prevailed in bringing about a number of late settlements. Suffice it to say that a certain pattern of sameness existed.

What we do know from this record is that the Highline Education Association unilaterally absented itself from the bargaining table for a substantial period of time during the summer of 1978.

Initially, the HEA's absence was attributed to the traditional vacation time for teachers. The Examiner rejected that argument, and we concur that it is without merit. The summer is the time period when school negotiations traditionally take place. If one party or the other had valid reasons for excusing its chief negotiator, it also had the obligation to replace that individual with someone bearing the corresponding mantel of authority. As the Examiner noted at the opening of his Discussion:

"The duty to bargain collectively imposed on both of these parties by RCW 41.59.020(2) includes the obligation 'to meet at reasonable times in light of the time limitations of the budget-making process'. A bargaining agent undertakes, voluntarily, the obligation of bargaining. That is what it is in business to do. When a bargaining agent selects its negotiating team, it has a duty to select people that will be available to carry out the statutory bargaining scheme of meetings at reasonable times and places in good faith effort to reach agreement."

The HEA did not meet that obligation in the 1978 negotiations. Whether it was through ignorance of the law or by design is of no moment. The results were the same, and had the effect of stalling the negotiations and preventing the timely application of the impasse procedures provided in RCW 41.59. The Commission cannot turn its back on that fact. It was a noteworthy error on the part of the HEA, as it would be on the part of any other entity covered by the law. The Examiner's findings of fact are amended accordingly.

The HEA makes the point that certain essential data was not provided by the District in a timely manner. Specifically, the parties lacked current "scattergram" information showing staff mix which was essential for making cost estimates for bargaining. We find some merit to the futility defenses asserted by the HEA, but not as much merit as found by the Examiner. It is true that the duty to bargain collectively imposes on the employer the correlative duty to supply the union with sufficient information on which to bargain. It is true that there was some information lacking as bargaining between these parties headed into the summer of 1978. However, we conclude that these defenses were asserted as after-thoughts. The real reason for the shut-down of bargaining during the summer of 1978 was, we find, the vacation plans of DeHaven. That the absence of a current scattergram fell short of making further negotiations futile is a conclusion which flows necessarily from the testimony. DeHaven never made the absence of the scattergram a reason for his absence as a matter of record before the fact. (Tr. 198). It is doubly curious that the parties settled their wage and insurance issues for 1978-79 in September, over coffee, without benefit of an updated scattergram. The HEA had four "scattergram" documents in its possession as early as February 7, 1978. The settlement which was reached was negotiated by extrapolation from those documents, subject to confirmation by an updated scattergram when it became available. The confirming scattergram did not upset the settlement which had been reached, and there is no evident reason to conclude that the same successful negotiations could not have been conducted earlier in 1978, and particularly during the period when the HEA failed and refused to come to the bargaining table. Paragraph 8 of the Examiner's findings of fact contains an obvious typographical error, specifying the resumption of bargaining August 4, 1980 rather than August 4, 1978. That finding is amended to correct that error and to correct the Examiner's misinterpretation of the record, noted above, as to when the requested scattergram actually became available.

The Examiner identified Dennis Storkson as president of the Highline Education Association. The complainant assigned error, but notes in its brief that there was a change of HEA officers, effective July 1, 1978. We find this to be of little moment. The exchange of correspondence between the parties in which the employer protested the announced shutdown of bargaining occurred while Storkson was in office. By the time the new President took office, the shutdown of bargaining was a fait accompli, having been implemented by cancellation of a June 30, 1978 bargaining session. Contrary to the employer's assertion, this does not demonstrate any infidelity to the record.

The complainant has read its own implications into Finding of Fact number 4, but that finding is supported by the record and will stand.

The complainant has done some further nit-picking concerning Findings of Fact number 5 and 6. The Examiner's usage of "Between May 1, 1978 and June 30, 1978" is, at worst, ambiguous as to what happened on June 30, 1978. In relation to the whole range of issues which can and do appear in teacher-school district bargaining, we find the Examiner's characterization of the issues as "limited" to be entirely supported by the record. None of the limited issues had been settled prior to the hiatus in bargaining which is the real issue in this case, and no substantial concessions had been made. The employer acknowledges in its appeal brief that there was a delay in responding to requests for information.

REMEDY

The Highline Education Association will be ordered to cease and desist from the type of conduct identified here as improper, and its current officers will be required to notify the District of their compliance with that order. The award of attorneys fees is an exceptional remedy reserved for cases of flagrent violation, and is not available on the mixed facts of this case.

AMENDED FINDINGS OF FACT

1. Highline School District No. 401 is a school district created under title 28A RCW and is an employer within the meaning of RCW 41.59.020. Robert Sealy is Superintendent of Schools, Thomas Mikel is Administrative Assistant for General Administration and Employee Relations, and Joseph McKamey is Negotiations Policy Development Specialist.

2. Highline Education Association is an employee organization within the meaning of RCW 41.59.020 and is the exclusive bargaining representative for all non-supervisory certificated employees of Highline School District No. 401. Sam DeHaven is Uniserv Director and at the time relevant hereto Dennis Storkson was president of the Highline Education Association.

3. Highline School District No. 401 and Highline Education Association were parties to a collective bargaining agreement which was effective from August 1, 1977 to July 31, 1979. That agreement contained a reopener for salaries and medical and dental benefits for 1978-1979. Additionally, a class size provision in a separate Letter of Understanding was open for negotiations during July, 1978.

4. As early as February 1978, the respondent made a request of the employer for a scattergram showing salary placement of the certificated staff of the employer.

5. Prior to the onset of the negotiations between the parties in 1978, DeHaven advised the employer of his plans to take a vacation in Alaska during the month of July, 1978.

6. Between May 1, 1978 and June 30, 1978 the parties negotiated regarding the limited issues open for negotiations. Throughout that period of time, neither party made any substantial concessions from their original positions. Most of the bargaining sessions lasted three (3) hours of less.

7. During the negotiating sessions which were held in June, HEA asked the district to provide specific information regarding the certificated staff which would indicate the educational training and years of experience of each employee and the cost of medical and dental benefits, including proposed increased coverage. The employer indicated that it would be unable to comply with HEA's request until late July or early August.

8. Highline School District requested HEA to meet with the District's representatives, but the HEA refused to do so on and after June 30, 1978.

9. Bargaining resumed on August 4, 1978, after the District had provided the data requested by HEA regarding medical insurance costs. Dental insurance information was provided to HEA in mid-August, 1978. A settlement of the issues remaining between the parties was negotiated early in September, 1978 without benefit of an updated scattergram but subject to confirmation by an updated scattergram.

AMENDED CONCLUSIONS OF LAW

1. The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.59 RCW.

2. By failing and refusing to bargain collectively on and after June 30, 1978 and prior to August 4, 1978 in order to accommodate the vacation plans of its chief spokesman, Highline Education Association failed to meet at reasonable times and places as required by RCW 41.59.020(2) and thereby violated RCW 41.59.140(2)(c).

AMENDED ORDER

Upon the basis of the foregoing Findings of Fact and Conclusions of Law, and in order to effectuate the policies of the Education Employment Relations Act, RCW 41.59, it is ordered that Highline Education Association, its officers and agents shall immediately:

1. Cease and desist from failing and refusing to engage in collective bargaining at reasonable times and places in light of the time limitations of the budget making process.

2. Notify Highline School District No. 401, in writing, of the resolution of its governing body made in light of this Order that the Highline Education Association will henceforth designate as its representatives in collective bargaining persons who are prepared and authorized to bargain collectively and in good faith at reasonable times and places in compliance with RCW 41.59.020(2) and this Order.

3. Notify the Executive Director of the Commission, in writing, within thirty (30) days following the date of this Order, as to what steps have been taken to comply herewith, and at the same time provide the Executive Director with a signed copy of the notice required by the previous paragraph.

DATED this 24th day of June, 1981.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JANE R. WILKINSON, Chairman

[SIGNED]

ROBERT J. WILLIAMS, Commissioner

[SIGNED]

MARK C. ENDRESEN, Commissioner