Law offices of Will Aitchison, by Peter A. Ravella, Attorney at Law, appeared on behalf of the complainant.

Ian R. Sievers, City Attorney, appeared on behalf of the respondent.

On September 22, 1986 the Bremerton Patrolman's Association filed a complaint charging unfair labor practices with the Public Employment Relations Commission, alleging that the City of Bremerton had refused to bargain and violated RCW 41.56.140(4) by unilaterally changing the shift rotation system for police officers. A hearing was held in Bremerton, Washington, on March 23, 1987, before William A. Lang, Examiner. The union filed a post-hearing brief under arrangements made at hearing.

BACKGROUND

Prior to 1986, the non-supervisory law enforcement officers of the Bremerton Police Department were represented for the purposes of collective bargaining by General Teamsters Local 589. The established practice concerning hours of work was that employees were assigned to "fixed" shifts. The employer and Local 589 were parties to a collective bargaining agreement with an expiration date of December 31, 1985. During the waning months of that contract, the employees moved to form an independent association, the Bremerton Patrolman's Association.

On October 22, 1985, the Bremerton Patrolman's Association filed a petition for investigation of a question concerning representation with the Public Employment Relations Commission, seeking certification as exclusive bargaining representative of the bargaining unit theretofore represented by Teamsters Local 589.[1] The Commission held an election, and the newly formed association was certified as the exclusive bargaining representative on January 10, 1986.[2]

The employer and the complainant union began bargaining on a new contract in March, 1986. No agreement had been reached by May 16 and 20, 1986, when the employer issued memos announcing that a "rotating" shift schedule system was to be implemented replacing the "fixed" shift schedule. The same announcements indicated that the hours of each shift were also to be changed.

The employees appealed to the chief of the police department, who rescinded his memos on May 22, 1986, announcing at that time that the shifts would not be changed.

On June 17, 1986, the employer again changed its position on the matter of work shifts, announcing that all employees would be placed on a rotating shift schedule on July 21, 1986 and that the shifts would change again in January, 1987.

Three days later, the union wrote to the employer demanding bargaining on the change and its impact, and requesting an immediate return to the status quo. The employer did not respond, and it proceeded to implement the new work schedule on July 20, 1986.

On August 22, 1986, the union repeated its demand for bargaining on the work shifts matter. On August 28, 1986, the employer's personnel director, David Hiestand, asserted in a letter to the union that the employer had the management prerogative to unilaterally change shift hours and schedules.

Negotiations for a collective bargaining agreement were completed on September 3, 1986. The agreement ratified at that time was to be effective retroactive to January 1, 1986 and prospectively through June 30, 1987.

DISCUSSION

The duty to bargain defined in RCW 41.56.030(4) and enforced by RCW 41.56.140(4) obligates an employer to maintain the status quo on all wages, hours and working conditions unless notice has been given to the union, an opportunity has been provided for bargaining prior to any change, and bargaining is conducted in good faith. South Kitsap School District, Decision 472 (PECB, 1978). The obligations on the employer here are somewhat higher than those generally applicable, since this case involves employees who are "uniformed personnel" within the meaning of RCW 41.56.030(6). As such, they are subject to the provisions of RCW 41.56.430 et seq. Among those impasse resolution procedures, RCW 41.56.470 prohibits any changes in existing wages, hours and other conditions of employment by action of either party without the consent of the other.

It is well settled, and beyond serious challenge, that the establishment of shifts and starting times are mandatory subjects of collective bargaining under Chapter 41.56 RCW, within the "hours" term of the statute. City of Yakima, Decision 767, 767-A (PECB, 1980); City of Auburn, Decision 901 (PECB, 1980).

The employer admitted in its pleadings that it received a timely request to bargain the changes in shift scheduling and shift starting times. It also admitted that it refused to bargain, contending that it had the right under the previous collective bargaining agreement to unilaterally make such changes. The defect with the employer's position, both when originally stated and in these proceedings, is that the contract provision relied upon was no longer in existence.

First, the contract cited by the employer was with another union which had, in the meantime, lost its status as exclusive bargaining representative of the employees.

Second, that agreement had expired according to its terms more than four months before the changes were first announced and more than six months before the changes were implemented.

Third, aside from the fact that the agreement relied upon was with a different union, the specific provision relied upon could not have been operative by the time the changes were announced and made. An expired collective bargaining agreement marks the status quo on those mandatory subjects contained in the expired contract, but waivers of bargaining rights are not, themselves, mandatory subjects of bargaining. As such, a waiver of bargaining rights contained in a contract ceases to exist when the contract expires. Seattle School District, Decision 2079-C (PECB, 1984). In this case, the provision relied upon by the employer would have been inoperative even if there had been no change of unions.

The city's refusal to bargain the shift schedule was an unfair labor practice in violation of RCW 41.56.140(4). The city could, with a minimum of effort, have ascertained its rights and obligations under the Act. Commission precedent since City of Seattle, 1667-A (PECB, 1984) has obligated parties subject to the "interest arbitration" provisions of the statute to utilize those procedures in the absence of agreement on mid-term changes. The employer first ignored its obligations and then, when pressed on the matter, put forth a reply which can only be characterized as outrageous.[3] It is clear the union would not have had to incur the expenses of this litigation, but for the employer's callous and inexcusable disregard of the rights of its employees. Therefore, the Examiner concludes that an extraordinary remedy, including costs and attorney fees, is warranted in this case. See, City of Tukwila, Decision 2434-A (PECB, 1987); Lewis County v. PERC, 31 Wn.App. 853 (Division II, 1982) and City of Mercer Island, Decision 1026-B (PECB, 1982).

FINDINGS OF FACT

1.                  The City of Bremerton is a public employer within the meaning of RCW 41.56.030(1).

2.                  Bremerton Patrolman's Association, a bargaining representative within the meaning of RCW 41.56.030(5), is the certified exclusive bargaining representative of non-supervisory law enforcement officers employed by the City of Bremerton.

3.                  In July, 1986, the City of Bremerton unilaterally changed the hours of work and shift scheduling system for the employees represented by the Bremerton Patrolman's Association, having refused to bargain the matter in response to a timely demand for bargaining made by the exclusive bargaining representative.

CONCLUSIONS OF LAW

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

2.                  Hours of work and shift schedules are mandatory subjects of bargaining under RCW 41.56.030(4), and there was no operative waiver of bargaining rights by the Bremerton Patrolman's Association.

3.                  By failing and refusing to bargain in response to the demand for bargaining made by the exclusive bargaining representative of its employees and by unilaterally changing mandatory subjects of collective bargaining, the City of Bremerton has refused to bargain and has committed and is committing unfair labor practices within the meaning of RCW 41.56.140(4) and (1).

4.                  Under the circumstances here present, the defenses asserted by the City of Bremerton were frivolous and entirely without merit.

ORDER

The City of Bremerton, its officers and agents, shall immediately:

A.                        Cease and desist from failing and refusing to bargain in good faith with Bremerton Patrolman's Association as the exclusive bargaining representative of its employees in the certified bargaining unit, with respect to all wages, hours and working conditions and specifically with respect to hours of work and shift scheduling procedures.

B.                        Take the following action to remedy the unfair labor practices and effectuate the policies of the Public Employees Collective Bargaining Act:

1.                  Reinstate the hours of work and fixed shift schedule system in effect prior to July 20, 1986.

2.                  Give notice to and, upon request, bargain collectively in good faith with the Bremerton Patrolman's Association prior to implementing any change of wages, hours or working conditions of employees in the certified bargaining unit; and, in the event that resolution of any matter is not achieved through negotiations, submit the dispute for mediation and, if necessary, for interest arbitration for determination as required by RCW 41.56.430, et seq.

3.                  Reimburse the Bremerton Patrolman's Association for its costs and reasonable attorneys' fees incurred in the prosecution of this case, upon presentation of a sworn and itemized statement thereof.

4.                  Notify all employees, by posting, in conspicuous places on the employer's premises where notices to bargaining unit 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 City of Bremerton and shall be and remain posted for sixty (60) days. Reasonable steps shall be taken by the City of Bremerton to insure that said notices are not removed, altered, defaced or covered by other material.

5.                  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 20th day of July, 1987.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

WILLIAM A. LANG, Examiner

This Order may be appealed by filing a petition for review with the Commission pursuant to WAC 391-45-350.