Edward A. Hemphill, Association Counsel, appeared on behalf of the Public School Employees of Royal School District.

Robert D. Schwerdtfeger, Labor Relations Consultant, appeared on behalf of the Royal School District.

PROCEDURAL BACKGROUND:

On December 2, 1980, Public School Employees of Royal School District (PSE) filed a complaint with the Public Employment Relations Commission (PERC) charging unfair labor practices against Royal School District No. 160. Pursuant to a motion by the district requesting the complaint be made more definite and certain per WAC 391-45-050(3), an amended complaint was filed on January 6, 1981. The amended complaint alleged that the district engaged in bad faith bargaining by not informing the union during contract negotiations of the need to reduce the hours of teachers' aides if a raise offered by the employer were accepted. The complaint charged a violation of RCW 41.56.140(4). A hearing was held April 28, 1981 in Royal City before Katrina I. Boedecker, Examiner. At the hearing the complaint was amended by agreement of the parties to also charge a violation of RCW 41.56.140(1). The final briefs in the matter were filed July 8, 1981.

FACTS:

PSE represents twenty-seven classified employees of Royal School District and has a collective bargaining agreement with the district effective from September 1, 1979 through August 31, 1982. Wages, maintenance of membership and insurance were subject to renegotiation on September 1, 1980. In the spring of 1980, the school superintendent told the six aides that when the wages were reopened in September, 1980, they would receive a wage increase of 50$ an hour above the percentage increase given to all other classified employees. A new superintendent, Mike Altman, was hired in June, 1980. Altman testified he felt bound to give the previous superintendent's promised wage increase to the aides. Formal bargaining on the reopener appears to have begun on September 29, 1980, the date that the district's bargaining agent, Robert Schewardtfeger, presented the district's "last, best, and final offer" to the employees' bargaining agent, Mary Birmingham.

Apparently, Boyd Lindholm, a principal in the district, assisted Altman in preparing the wage proposal. Both Lindholm and Altman testified that they were aware that their wage proposal of an approximately 20% raise for the aides would require a cutback in hours for the unit members. Schwerdtfeger was never informed of the consequential cutbacks, nor was PSE representative Birmingham. When the parties failed to agree at the September 29th bargaining session, mediation was scheduled for October 14, 1980 with a PERC mediator. At that meeting, PSE orally accepted the district's offer without modification. On or about October 26th, Birmingham presented the proposal to the unit members for a ratification vote. The unit members ratified the agreement, but asked Birmingham to see if the insurance payments which were being paid over a nine-month period could be spread out for a twelve-month period. On November 1, 1980, Birmingham notified Schwerdtfeger of the ratification vote and requested a change in the calculation of insurance benefits. On November 4th, Superintendent Altman told the school board that an agreement had been reached but not formalized.

On November 6, 1980, Schwerdtfeger wrote back to Birmingham that the district could not change the administration of the insurance program. In the same letter he enclosed a "memorandum of agreement" which he stated "reduces our agreement to writing". The memorandum of agreement states in the first sentence "this agreement when signed and ratified by both parties, the Royal School District No. 160 and the Public School Employees of Royal School District, shall serve to conclude the collective bargaining process for the 1980-81 school year as follows…" This document was signed by both Schwerdtfeger and Birmingham and date stamped as being received back into Schwerdtfeger's office by November 19, 1980. Also, on November 6, 1980, PSE sent a copy of a "letter of agreement" to the district. PSE's letter of agreement stated that the provisions should be retroactive to September 1, 1980 and that the purpose of the letter was to set forth the agreements and understandings between the Public School Employees of Royal School District and Royal School District No. 160 which were in addition to the contractual agreement currently in effect between the parties. That document was signed by both the Public School Employees local president, Carl Begman, and by Superintendent Altman on January 9, 1981. The new pay and benefits schedule was implemented in November, 1980 and first included in the December 10th paychecks. The school board formally ratified the agreement February 2, 1981.

On the morning of the October 14th mediation session, Lindholm called all six aides, but not bargaining agent Birmingham into a meeting. Present at that meeting was Shirley Vander Vorste, an aide and member of the PSE bargaining team. Testimony is clouded about exactly what transpired. Lindholm testified that he delineated three possible courses of action if the funds received by the district were cut back: first, a partial layoff by reducing all aides hours; second, a layoff of the least senior aide; or third, continuation of the same staffing level until the district runs out of aide money completely. He further testified that the aides conveyed to him that a partial layoff was the best. Vander Vorste did not recall the October 14th meeting until after she had heard Lindholm testify. Thereafter she testified that she did not get the impression at that meeting that anyone's hours would be cut. It was her impression that Lindholm intended not to replace an aide who had quit and therefore to take those funds to pay for the district's proposed raise. Vander Vorste did not inform Birmingham about the meeting when she went to the mediation session. Vander Vorste was participating in bargaining for the first time. She testified that she did not think the meeting "would be significant". She also testified that she did not tell anyone on the team about what Lindholm had told her because she "did not want to upset anyone". Further she said she thought this was the annual "crying wolf" from the district about possible reductions.

On November 4th, three of the aides, Peggy Harless, Elaine Tritle, and Shirley Vander Vorste, were told by Lindholm that their hours as aides would be cut back from four hours to three and a half hours per day. While Tritle picked up other hours in other classified unit work, Harless and Vander Vorste lost their medical coverage since they fell below the minimum of twenty hours per week necessary to qualify.

POSITION OF THE PARTIES:

The district argues that at the October 14th meeting between Lindholm and the entire group of aides, the possibility of reduction of hours was discussed. The employer stresses that this meeting put the union on notice and at this meeting the aides were given a chance to suggest alternatives to layoffs. Further, the district argues that Vander Vorste waived the right to bargain the layoffs by remaining silent during the afternoon mediation session since she did not cause any proposals to be made which would prevent the district from reducing hours or having to layoff an aide. The district asserts that Lindholm acted in good faith by presenting options to the employees prior to executing an agreement and that no binding tenative agreement existed until after January 9, 1981 when it was signed by the superintendent and the PSE local president. Finally, the district argues that it had the right to unilaterally lay off employees under the management's rights clause of the collective bargaining agreement.

The union argues that there was a binding agreement reached in October of 1980. The union labels the district's failure to raise the issue of layoffs at the bargaining table as a refusal to bargain in good faith. Finally, the union stresses that the institution of the layoffs immediately after the association ratified the new agreement had the effect of intimidating employees in the exercise of their rights to bargain collectively.

DISCUSSION:

Disclosure Under Good Faith Bargaining Obligation

The record shows the district realized by September, 1980, that the wage offer to the classified employees' unit would necessitate some sort of reduction in force for teacher aides. An offer of a wage raise, if made in good faith, carries an implied ability to pay by the employer or imposes a duty on the employer to notify the union that reorganization in personnel or production will be required. When making a wage offer which carried with it impending layoffs, the district should have notified the union of the layoffs to meet its duty to bargain in good faith. Such notification is vital since there might have been other solutions more satisfactory to the parties which could have been reached through discussion with the bargaining agent. As was stated in an analogous situation:

"In this instance, the bargaining unit employees had a legitimate interest in finding out the effect that the layoffs and hours reduction would have. By unilaterally implementing the layoffs and hours reduction, respondent precluded complainant from properly representing the interests of bargaining unit employees. As a practical matter, respondent missed an opportunity to hear complainant's suggestions about the budget problem. By refusing to negotiate the effects of the personnel reductions, respondent committed an unfair labor practice." Entiat School District No. 127, Decision 1361 (PECB, 1982).

Adequacy of Notice to the Union

The "principals" in the negotiation process are the bargaining agents for each side. The district seems to argue that, since Vander Vorste was on the bargaining team, by talking to her at the October 14th meeting with all the aides, it gave notice to the exclusive bargaining representative. Acceptance of the employer's view would dangerously compromise the concept of exclusive representation whereby an employer must deal with the union and no longer bargain directly or indirectly with employees. General Electric, 150 NLRB 92 (1964); enf. 418 F.2d 736 (CA 2, 1969); cert. den. 397 U.S. 965 (1970). The district was using an inferior form of communication when it dealt directly with an employee as inexperienced in collective bargaining as Vander Vorste was. Since the district was the party trying to short-cut the established procedures, the burden is on it to establish the clarity of the communications. Vander Vorste's characterization of the meeting shows that the district did not clearly notify the union of the importance of the meeting. Nothing in the record indicates that the district took special precautions to establish that notice was given. The issue becomes the adequacy of the notice by the employer to the union of the impending layoffs. A union will not be found to have waived its right to bargain when the notice of potential layoffs is deficient. In the City of Bellevue, Decision 839 (PECB, 1980) the fire chief had an informal discussion with the president of the union regarding adoption of a code of ethics; no agreement was reached and thereafter such a code was instituted. The Examiner held that the informal nature of the discussion, reinforced by the city's failure to include its labor relations consultant in the discussion, could not be construed as collective bargaining on the subject. The Examiner wrote:

"While the city as contended did not 'refuse' a direct request for negotiations, the city's actions effectively precluded negotiations. The city transgressed its statutory bargaining obligation by failing to give the union notice of, and an opportunity to bargain about, this abrupt change from its past practices before embarking on it. … Given adequate notice, it would have become the responsibility of the union to request bargaining in a timely manner, Coppus Eng. Co., 195 NLRB 113 (1972)."

In contrast, in Renton School District, Decision 706 (EDUC, 1979) the Examiner found that the district did not refuse to bargain about the transfer of unit work since the union showed it had actual notice of the planned change for months and never requested bargaining. Evidence of the union's knowledge was established by the fact that the executive director for the union informed the district representative that the district's proposed action was illegal and might be a contract violation, four months prior to the change. There the Examiner cited Medicenter, 221 NLRB 105 (1975) where the board wrote:

"Where a union has actual notice of an employer's intentions at a time when there was sufficient opportunity to bargain prior to implementation of the change, the employer may not be faulted for failing to afford formal notification."

In Royal School District, the employer did not establish that there was a similar understanding on the part of the union to constitute actual notice to the aides of the proposed layoffs.

Employer Defenses

In the instant case, since the notice was inadequate there is no need to discuss whether or not the union waived by inaction its right to bargain the layoffs.

Additionally, the implementation of the layoffs by the distict was presented to the union as a fait accompli; a union is not required to request bargaining in such an instance. City of Bellevue, supra. In City of Yakima, Decision 1124-A (PECB, 1981) the Commission held:

"…that it is a violation of RCW 41.56.140(4) for an employer to throw a decision involving a transfer of unit work out of the bargaining unit at an exclusive bargaining representative as a 'fait accompli' without benefit of an opportunity for meaningful discussion. An employer which does so acts at its own peril."

At the hearing, the district made much of the fact that the school board did not ratify the agreement until January, advancing that thus the parties were still "bargaining" at the time this unfair labor practice was filed. This argument lacks merit on two fronts. The facts that the December paychecks reflected the change in both wages and hours, and the memorandum submitted for approval by the district representative Schwerdtfeger was returned signed in agreement by the union business agent Birmingham, show that a binding agreement existed at least by November 19, 1980. The duty to bargain in good faith is an ongoing duty. Here the parties made alterations in their employment situation based on their reliance on the "tentative" agreement. Even a tentative agreement cannot be pulled back when the negotiation teams have no reason to doubt that the agreement will be presented for ratification by the respective bodies. Island County, Decision 857 (PECB, 1980). Secondly, even if it were found that there was no binding agreement until January, the district's position still makes little sense. It seems to imply that an employer may make unilateral changes in working conditions during negotiations and thereafter bargain the effects.

The managements rights clause of the contract which the district advances as a defense, is not persuasive in the face of allegations that the district did not bargain the effects of the layoff decision.[1]

Interference Allegation

In the instant situation, Royal School District's unilateral implementation of layoffs of teacher aides was a violation of RCW 41.56.140(4). Further, the timing of the layoffs, immediately after the ratification of the contract proposal by the union, is an unfair labor practice in violation of RCW 41.56.140(1) in that by weighing all the actions of the district, the affected employees could easily believe the layoffs to be a punishment for their bargaining collectively. With such an association in their minds, the employees could be reluctant to enter collective bargaining in the future. The effect of having the individual aides threatened directly by the employer with the possibility of layoffs, is also a violation of the same subsection. It is one thing to give notice to a union business agent of impending layoffs, but quite another to tell the employees directly. The business agent is sufficiently experienced to be able to weigh and evaluate the message of the employer. The affected employees, when told directly by the employer, could easily be intimidated to the point where they would be hesitant to exercise their right to bargain collectively.

Remedy

Having found that Royal School District has engaged in certain unfair labor practices, the district will be ordered to cease and desist from those practices and take certain affirmative action designed to effectuate the policies of the Public Employees' Collective Bargaining Act, RCW 41.56.160.

To remedy the district's refusal to bargain over the effects of its layoff decision, Royal School District will be ordered to cease and desist from failing to give adequate notice of impending layoffs; that way in the future, the union may knowledgeably bargain or waive its rights to bargain. The district will be ordered to cease and desist from unilaterally changing conditions of employment and to bargain collectively, upon request, with PSE as exclusive representative of classified employees concerning terms and conditions of their employment. The district will be ordered to restore the status quo which existed at the time of its unlawful refusal to bargain by making whole all employees who were denied work opportunities solely as a result of the unilateral implementation of layoffs. To establish the status quo ante and make whole the affected employees, the district will be ordered to offer immediate and full reinstatement of hours that were cut back to Peggy Harliss, Elaine Trittle and Shirley Vander Vorste without prejudice to their seniority or other rights and privileges along with any backpay which they would have received but for their layoffs. Resumption of the status quo and imposition of make whole remedies are appropriate in a refusal to bargain situation in order to put the party that did not have a chance to bargain on the same footing it would have had had the other side met its bargaining duty. See: Boland Marine and Manufacturing Co., Inc., 225 NLRB 824 (1976) and 228 NLRB 1304 (1977), Atlas Tack Corp., 226 NLRB 222 (1976). Other states' Public Employment Relations Commissions have made similar orders. The New Jersey Public Employment Relations Commission was found to have authority under their Employee Relations Act (SLL40:245) to order a board of education that unlawfully reduced and altered working hours of employees during contract negotiations with the union, to pay backpay to employees for services not rendered as if their working day had not been reduced. The power to order employees be made whole through an award of backpay was found by the New Jersey Supreme Court to be necessarily subsumed within the broad remedial authority that the state legislature had entrusted to the Employment Relations Commission. Galloway Township Board of Education vs. Galloway Township Association of Educational Secretaries, 99 LRRM 2421 (1978). See also, In re Cumberland School District, 100 LRRM 2059 Pa Sp. Ct., (1978).

To remedy the interference violation, the district will be ordered to cease and desist from direct dealings with individual teachers' aides. Additionally, the district will be ordered to deal only with PSE as the exclusive bargaining representative of the aides group.

FINDINGS OF FACT

1.                  Royal Schoool District No. 160 is a public employer within the meaning of RCW 41.56.030(1) whose superintendent is Mike Altman and whose elementary principal is Boyd Lindholm. It is represented for collective bargaining by labor negotiator Robert Schwerdtfeger.

2.                  Public School Employees of Royal School District is a bargaining representative within the meaning of RCW 41.56.030(3). Mary Birmingham is its business agent. The union represents classified employees of the employer, including teacher aides Elaine Tritle, Shirley Vander Vorste and Peggy Harliss.

3.                  The employer and union are parties to a collective bargaining agreement in effect from September 1, 1979 through August 31, 1982. The agreement called for reopening negotiations on monetary items for the 1980-81 school year.

4.                  A negotiation session occurred September 29, 1980 wherein Schwerdtfeger gave Birmingham the district's "last, best and final offer" which included a general percentage increase for all unit members plus a 50¢ an hour increase for teacher aides.

5.                  Altman and Lindholm knew the wage offer to the aides would necessitate layoffs among that group of employees.

6.                  In the morning of October 14, 1980, Lindholm called all the teacher aides to a meeting where he presented possible ramifications of a reduction in funds to the teacher aides.

7.                  In the afternoon of October 14, 1980, a mediation session was held by a Public Employment Relations Commission mediator. Schwerdtfeger and Birmingham were present. No discussion was had regarding hours reductions for teacher aides necessitated by the wage offer from the employer. At this meeting, the union accepted the offer. The union ratified the agreement October 29, 1980.

8.                  On November 4, 1980, teacher aides Tritle, Vander Vorste and Harliss were told by Lindholm that their aide hours would be reduced. The reduction went into effect sometime in early November, 1980.

CONCLUSIONS OF LAW

1.                  By not giving notice to business agent Birmingham of the layoffs which were connected to the wage offer, the district failed to bargain in good faith and, therefore, refused to engage in collective bargaining in violation of RCW 41.56.140(4).

2.                  By unilaterally instituting reductions of the hours teacher aides Tritle, Vander Vorste and Harliss were working, without bargaining the effects of the reductions, the district refused to engage in collective bargaining in violation of RCW 41.56.140(4).

3.                  By circumventing the bargaining agent when meeting with the aides directly the district interfered with, restrained and coerced public employees in the exercise of their rights guaranteed by the Public Employees Collective Bargaining Act, in violation of RCW 41.56.140(1), and failed to bargain with Public School Employees as exclusive bargaining representative of said employees, in violation of RCW 41.56.140(4).

4.                  By timing the layoffs to begin immediately following the union ratification of the employer's wage offer, the district interfered with, restrained or coerced public employees in the exercise of their rights guaranteed by the Public Employees Collective Bargaining Act in violation of RCW 41.56.140(1).

ORDER

Upon the basis of the above findings of fact and conclusions of law and pursuant to RCW 41.56.160 of the Public Employees Collective Bargaining Act it is ordered that Royal School District No. 160, its officers and agents shall immediately:

1. Cease and desist from:

(a) refusing to give notice of, and bargain over, planned layoffs;

(b) unilaterally changing wages, hours and working conditions of its teachers' aides;

(c) circumventing the exclusive bargaining agent by meeting directly with teacher aides and discussing the ramifications of cuts in funds.

2. Take the following affirmative action to remedy the unfair labor practices and effectuate the policies of the Act:

(a) upon request, bargain collectively in good faith with Public School Employees of Royal School District regarding the effects of layoffs imposed on or about November 5, 1980, among teacher aides;

(b) reinstate aides Vander Vorste, Harliss and Tritle to their full hour complements prior to the layoffs in November, 1980 and grant these employees full back pay and other benefits of their employment which were reduced due to their hour reductions;

(c) 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 A". Such notices shall, after being duly signed by an authorized representative of the Royal School District No. 160 be and remain posted for sixty (60) days. Reasonable steps shall be taken by Royal School District No. 160 to insure that said notices are not removed, altered, defaced or covered by other material;

(d) notify the Executive Director of the Public Employment Relations Commission in writing within twenty (20) 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 preceding paragraph.

DATED at Olympia, Washington this 30th day of April, 1982.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

KATRINA I. BOEDECKER, Examiner