STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
MUKILTEO ASSOCIATION OF CLASSIFIED PERSONNEL, an affiliate of PUBLIC SCHOOL EMPLOYEES OF WASHINGTON,	CASE 8579-U-90-1860
Complainant,	DECISION 3795 - PECB
vs.
MUKILTEO SCHOOL DISTRICT 6,	FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Respondent.

Eric T. Nordlof, Attorney at Law, appeared on behalf of the complainant.

Montgomery, Purdue, Blankenship & Austin, by Christopher L. Hirst, Attorney at Law, appeared on behalf of the respondent.

On May 4, 1990, the Mukilteo Association of Classified Personnel, an affiliate of Public School Employees of Washington (PSE), filed a complaint charging unfair labor practices with the Public Employment Relations Commission. The complaint alleged that Mukilteo School District 6 (employer) violated RCW 41.56.140(4), by failing to bargain with the union concerning a change of the work schedule for certain classified employees. The employer filed an answer and affirmative defenses to the complaint on January 2, 1991. A hearing was held on February 19, 1991, before Examiner Walter M. Stuteville. The parties filed post-hearing briefs.

BACKGROUND

The Mukilteo School District operates schools in a portion of Snohomish County along the shores of Puget Sound, to the south of the city of Everett. In addition to administrators and certificated teachers,[1] a variety of classified employees assist in fulfilling the employer’s mission of providing public education.

For many years, the employer and PSE have had a collective bargaining relationship covering approximately 211 of the employer’s classified employees.[2] The classifications included in the bargaining unit involved were delineated in the parties’ 1988-1991 collective bargaining agreement, as follows:

ARTICLE I

Section 1.5. The bargaining unit to which this contract is applicable shall consist of all classified employees in the following general job classifications: Data Processing; Crossing Guard; Food Service; Secretarial/ bookkeeping; Transportation; Community Schools; Custodial; Maintenance; and Professional-Technical, except those mentioned in the categories in Section 1.3, and except temporary employees.

During all times pertinent to this case, the local PSE chapter president and principal representative in discussions with the employer has been Pearl Taylor, a journeyman mechanic assigned to the employer’s school bus operation. The employer’s principal representative in such discussions has been James F. Shoemake, the superintendent of the Mukilteo School District.

The “regular” work year for employees in the bargaining unit varies according to classification. Some employees, such as bus drivers, food service workers and educational services personnel, work only the 180 days per year that students are in attendance. Secretaries and bookkeepers may work 200 or 220 days each year, as do mechanics, groundskeepers, and custodial/maintenance employees. Still other bargaining unit employees work 240 or 260 days per year.

The parties 1988 - 91 collective bargaining agreement contained the following provisions pertinent to the issue herein:

ARTICLE VII

Section 7.5. In the event of an unusual school closure due to inclement weather, plant inoperation, or the like, the District will make every effort to notify each employee to refrain from coming to work. Employees reporting to work shall receive a minimum of two (2) hours pay at base rate in the event of such a closure; provided, however, no employee shall be entitled to any such compensation in the event of notification by the District. Notification normally will be made by radio stations KRKO, KWYZ, and KING.

. . .

ARTICLE XVIII

Section 18.7. The parties hereto agree that they have fully bargained with respect to wages, hours and other terms and conditions of employment and that all wages, conditions of employment and other benefits to be received are contained in this Contract.

The contract did not contain provisions specifying the school calendar for any year within its term. The 1989-90 school calendar provided, however, for March 16, 1990 to be an “inservice day”.[3] The usual and customary practice for such inservice days was that students did not attend classes, and the 180-day classified employees would not be scheduled to work.

Beginning in November of 1990, school officials and employees were aware that teachers employed by the Mukilteo School District were discussing the possibility of joining with teachers across the state for a state-wide teachers “strike”.[4] At that time, Taylor began talking with the employer’s administrators concerning various contingency plans if such an event should take place.[5]

On February 7, 1990, the employer notified PSE that it had received notice that the Mukilteo Education Association intended to conduct a one-day “strike” on February 13, 1990. Shoemake wrote:

Due to the walkout by members of the Mukilteo Education Association union scheduled for Tuesday, February 13, it appears that I must take emergency action. Without necessary staff availability, it would be an unsafe condition for students in our schools that day. Therefore, please accept this notice that I, as superintendent of schools, am invoking the emergency closing procedures for February 13, 1990. This will mean that all 180-day employees will not work on that date and an appropriate makeup [sic] day will be scheduled. If your have any further questions, please call.

Schoemake also sent a letter to all Mukilteo School District staff members, as follows:

As I am sure you are all aware, the MEA has voted to conduct a work stoppage on Tuesday, February 13, 1990. The School District has determined that it would not be in the best interest of the children to hold school on that day. Due to this condition, I am invoking the emergency closing provisions for the District. All classified employees who work 180 days or less should not report to work. This will include bus drivers, food service employees, educational services personnel, and any others not working more than 180 days. All certificated, non-administrative employees, should not report to work.

While we regret this situation has occurred, we must react this way at this time. The facilities will be closed on February 13 to everyone except administration staff and those classified employees who work in excess of 180 days.

If you have any questions about your personal work schedule, please contact your immediate supervisor to the Personnel Office for clarification.

I will be meeting with the union representatives to discuss a makeup [sic] day and will make a recommendation to the Board of Education so we can notify all concerned as soon as possible.

A one-day stoppage of all classroom activity occurred on February 13, 1990, as announced.

On March 6, 1990, the employer notified its employees, as well as its students and their parents, that it was scheduling March 16, 1990 as the “make up” day for the school day lost because of the teachers’ strike.

Because of the March 16 “make up” day, the classified employees represented by PSE lost neither wages nor benefits as a result of the February 13, 1990 school closure. Some of the classified employees represented by PSE had previously scheduled inservice training or continuing education programs for the March 16 “inservice” day. Those programs were not attended, of course, as those employees were required to be at work on their regular jobs on that day. Therefore, some employees lost registration costs or other prepaid expenses that were not refundable.[6]

The local PSE official testified, candidly, that the union had not proposed to bargain the school calendar with the employer.[7] While the employer candidly admitted that it had not bargained the school closure with PSE, it asserted that it talked with PSE about changing the calendar so that no employees would lose any pay.

POSITIONS OF THE PARTIES

PSE argues that the school calendar is a mandatory subject of collective bargaining under Chapter 41.56 RCW, and that the employer violated the law by ignoring its duty to bargain both the decision to change the calendar and the effects of that decision. PSE asserts that the parties’ collective bargaining agreement does not contain a “clear and unequivocally conveyed” waiver of the union’s bargaining rights in this case, because the contract section relied upon by the employer refers to physical emergencies over which the employer has no control or which occur on very short notice. It cites Timken Roller Bearing Co. v. NLRB, 325 F.2d 746 (1963) and City of Bellevue, Decision 839 (PECB, 1980).

The employer responds that the parties had never negotiated on, and that the parties’ contract does not contain any references to, the school calendar. Although admitting that the employer regularly negotiates a calendar with the organization representing its teachers, the employer states that PSE has never requested to negotiate a school calendar. Further, the employer contends that PSE did not request to negotiate the closing of school on February 13, 1990, although it knew in January of that year, or even earlier, that the teachers’ “strike” was a probability.

DISCUSSION

Mandatory Subject of Bargaining

As early as 1977, the Public Employment Relations Commission held that elements of the school calendar were mandatory subjects of collective bargaining. Edmonds School District. Decision 207 (EDUC, 1977). Although discussing the subject in terms of certificated personnel covered by the Educational Employment Relations Act, Chapter 41.59 RCW, the Examiner in the Edmonds case held that the school calendar was closely interrelated to “wages”, in that it regulates the number of pupil days, determines vacation periods and the length of the school year. The same result was reached in Pasco School District, Decision 1053 (EDUC, 1980). In Lower Snoqualmie Valley School District. Decision 1602 (PECB, 1983), the school calendar was found to more closely affect the interests of employees than the educational policy of the school district, and a duty to bargain was found to exist. The Examiner in Lower Snoqualmie further stated:

By establishing the starting day of the school year, the school district directly impacts the employees’ terms of employment.

. . .

True, the duty to bargain school calendar would exist with any group with which the district is statutorily obligated to bargain working conditions, ... It is not unusual in labor law to see one employer bargaining common proposals with several unions. Cities, counties and other school districts have bargained common insurance, vacation and leave plans.

Like Chapter 41.59 RCW, the provisions of the Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, entitle an exclusive bargaining representative to bargain collectively with the employer concerning “wages” and “hours”. The classified employees who work only the 180 days of statutorily required student attendance are, similar to the teachers, dependent upon the presence of students in the classroom. Thus, the same analysis used under Chapter 41.59 RCW applies in the instant case to classified employees, and particularly to those employees whose work year coincides with the school year. The school calendar directly relates to their wages and hours of work, and is therefore a mandatory subject of collective bargaining.

Absence of Change

The employer asserted that there was no change in current or past practice, because there had been no previous negotiations between these parties on the subject of the calendar. It quoted the decision in City of Bellevue, Decision 3007 (PECB, 1988), as follows:

. . . The existence of an obligation to bargain midterm in a collective bargaining agreement is triggered by some move to change the status quo or to deviate from past practice.

PSE acknowledged that the calendar had not been a subject of negotiations between these parties in the past, but the employer is incorrect in assuming that no obligation had been established.

Regardless of how the school year calendar was set,[8] a status quo was thereby established. The fact that the classified employees and their union were not involved in the original decision does not alter the fact that changes in the established calendar affected their wages and hours of work. Therefore, the employer did change the status quo by canceling school on February 13, 1990 and changing March 16 from an “inservice” day to a school day.

Implementation of the Bargaining Obligation

Having established that the scheduling of employee work is a mandatory subject of collective bargaining between the employer and PSE, the next issues to be determined are whether the closure of the employer’s schools on February 13, 1990 and/or the scheduling of a “make up” day on March 16, 1990, were negotiable in the context of the specific circumstances of this case.[9]

The Decision to Close Schools for the Teachers’ “Strike” -

As early as November of 1989, PSE had heard “rumor” or “scuttlebutt” that a teacher walkout was in the making. PSE official Taylor initiated “conversations” and “discussions” with the employer concerning the possible strike. On January 22, 1990, Shoemake received a letter formally notifying the employer that the teachers had voted to participate in the February 13, 1990 work stoppage. In turn, Shoemake informed all members of the school district’s staff on February 7, 1990, that the schools would be closed on February 13, 1990, because of the teachers’ walkout.

When faced with the impending reality of a one-day strike by a significant group of its employees, issues of safety and public order put the employer under a “compelling need” to make a decision concerning school closure. Without many discernable options, the employer had little upon which to negotiate with the non-striking bargaining units impacted by the strike. In furtherance of its obligation to protect students and property under its charge, the employer lawfully decided to close district schools. See, City of Chehalis, Decision 2803 (PECB, 1987), where a defense of “compelling need” was accepted as relieving the employer of its normal duty to bargain.[10]

Scheduling of the “Make Up” Day -

In a somewhat hyperbolic analysis by both parties, they agreed that their discussions of the impending strike did not constitute “negotiations”. Union official Taylor explained that, as a veteran of four sets of contract negotiations, he “knows the difference between negotiations and discussions”! The Examiner is not as convinced of the clarity of that distinction.

Taylor stated that the subject of his conversations with the employer was: “... trying to get our 180-day people to where they wouldn’t lose any pay”. It thus appears clear to the Examiner that at least the opening stages of “effects” bargaining were begun by the parties. Regardless of whether the meetings were formal or informal, or whether the usual trappings of contract bargaining were in place, the subjects discussed were clearly the teachers’ work stoppage and the mitigation of its impact on the classified workforce.

Having begun negotiations, albeit somewhat informal, with PSE concerning mitigation of the effects of the teacher’s “strike”, the employer then set and implemented the “make up” day for March 16, 1990, without further consultation with PSE. The union provided testimony that it only accidently received notice of the change in the calendar on March 6, 1990, when a student left a copy of the notice from the employer to parents on one of the school buses. It later learned that the employer had negotiated the “make up” day with the exclusive bargaining representatives of the teachers.

PSE had not been given notice of the proposed change nor had it negotiated the March 16, 1990 date as an additional work day for the classified employees. In relation to its organized, classified employees, the employer unilaterally altered the status quo. Thus, there is a basis to conclude that the employer is guilty of refusing to bargain with PSE on a mandatory subject of bargaining, a violation of RCW 41.56.140(4). See, Spokane Fire Protection District 9, Decision 3661 (PECB, 1990).

Affirmative Defenses

Having established the existence of a duty to bargain and an apparent violation of that duty, the affirmative defenses asserted by the employer must be examined. The employer has raised both “waiver by contract” and “waiver by inaction” defenses to explain why, from the employer’s perspective, bargaining did not take place between the employer and PSE on the “make up” day.

Waiver by contract -

Bargaining rights may be waived contractually, if the waiver is explicit and the affected party fully understands the waiver’s impact on the duty to bargain. See, City of Kennewick, Decision 482-B (PECB, 1980), where the employer unsuccessfully relied on broad language found in the “management’s rights” and “entire agreement” clauses of a collective bargaining agreement to give it the authority to subcontract bargaining unit work without prior notice and negotiations. The Commission ruled that the cited contract clauses did not contain specific references to subcontracting, and that the incumbent union was not, therefore, on notice that its right to bargain subcontracting was waived because of the contractual terms. Similarly, it was held in City of Clarkston, Decision 3286 (PECB, 1989), that a general management rights clause, allowing the employer to make future changes in the employment relationship, was not a sufficient waiver under Commission precedent. See, also, City of Wenatchee, Decision 2216 (PECB, 1985) and City of Pasco, Decision 2603 (PECB, 1987).

In the case before the Examiner, the employer argues that sections 7.5 and 18.7 of the parties’ collective bargaining agreement covered both the “strike” and the subsequent “make up” day. The Examiner is not persuaded, however, that the contract language conveyed a “clear and unequivocal” waiver of PSE’s right to bargain the effects of such decisions. See, City of Hoquiam, Decision 745 (PECB, 1979). Section 7.5 of the Mukilteo-PSE agreement clearly anticipates unexpected school closures for reasons such as “inclement weather” or “plant inoperation”, but does not mention a withdrawal of services by an organized group of employees.[11] There is no evidence of bargaining table discussion or past practice indicating application of Section 7.5 to “strike” situations.

The employer’s reliance on Section 18.7 of the parties’ collective bargaining agreement is also misplaced. While that provision states a mutual recognition that, by reaching agreement, the parties have bargained all mandatory subjects, a close reading of that language indicates no clear waiver of bargaining rights. The paragraph only refers to items contained in the contract; it makes no reference to items either not raised during bargaining or dropped by one of the parties during the course of bargaining. The calendar was a subject that both parties acknowledged was neither discussed nor included in their contract. Thus, Section 18.7 did not relieve the employer of the duty to bargain the “make up” day subject not raised during negotiations. See, City of Seattle, Decision 1667-A (PECB, 1984).

Waiver by Inaction -

An employer and exclusive bargaining representative are not expected to address every possible eventuality that could arise during the life of a collective bargaining agreement. Absence of bargaining at one or more potential opportunities to do so does not constitute a permanent relinquishment of bargaining rights on proposed modifications. City of Wenatchee, Decision 2194 (PECB, 1985). Should a party desire to make a change on a mandatory subject during the life of a collective bargaining agreement on a matter that is not covered by the contract, the moving party has a duty to give notice to the other side and provide opportunity for bargaining prior to making the change. Once notified of a proposed change of wages, hours or working conditions, the party receiving notice must make an affirmative effort to bargain if it desires to implement its statutory rights. City of Kelso, Decision 2120 (PECB, 1984); affirmed, Decision 2120-A (PECB, 1985). Just as a party can waive its bargaining rights by agreeing to specific language in a contract, bargaining rights may also be waived by inaction on the part of a union when presented with timely notice of an opportunity for collective bargaining. Typically, such a waiver occurs when a bargaining agent fails to make a timely response to an employer’s offer to negotiate on a mandatory subject for bargaining. See, City of Pasco, supra, where it was determined that the union lost its right to demand bargaining by failing to request bargaining after a timely notification by the employer.

The employer acknowledges here that the parties were having what it characterized as “... informal, frank and likely useful discussions about how the district might react” to a walkout by its teachers. It contends that PSE never requested bargaining, and that: “Rather, it was concerned about whether any [bargaining unit] employees would lose any pay or benefits, which did not happen”. As indicated above, the Examiner concludes that the parties were, in fact, engaged in bargaining concerning the “effects” of the work stoppage. The employer’s defense that it was waiting for a formal demand for bargaining exalts form over function. The parties were bargaining the anticipated effects of the strike, whether they realized it or not. There is no evidence that the employer ever gave PSE notice of the proposal to convert March 16 from an “inservice” day to a regular work day. There was, therefore, no waiver of bargaining rights by PSE.

Conclusions

The employer’s unilateral change in the calendar, by rescheduling March 16 as a work day for employees represented by PSE, was not justified by any prior or superior claim of bargaining rights by the organization representing the employer’s teachers. PSE had neither waived its right to bargain the “make up” day by contract or by inaction. The employer thus violated its duty to bargain the extra day of work it scheduled for its classified employees.

FINDINGS OF FACT

1.         Mukilteo School District 6 is a school district operated under Title 28A RCW, and is a “public employer” within the meaning of RCW 41.56.030(1).

2.         Mukilteo Association of Classified Employees, an affiliate of Public School Employees of Washington, is a “bargaining representative” within the meaning of RCW 41.56.030(3).

3.         The employer and union have an existing bargaining relationship under which the union is recognized as exclusive bargaining representative of classified employees of the Mukilteo School District, pursuant to Chapter 41.56 RCW.

4.         The bargaining unit represented by the union includes a variety of employee classifications who are scheduled to work either 180, 200, 220, 240 or 260 days each year. The work of 180-day employees is directly tied to the presence of students .

5.         On February 7, 1991, the employer notified the union that it had received notice from the Mukilteo Education Association, that the employer’s teachers intended to absent themselves from work on February 13, 1991. The employer was therefore notifying the 180-day classified employees that they should not report for work on February 13, 1990.

6.         The employer and the union discussed what the employer intended to do in reaction to the teachers’ “strike”, and what plans would be made to make up the time lost.

7.         The employer’s teachers absented themselves from work on February 13, 1990, and the employer’s schools were closed on that day. The 180-day classified employees represented by the union did not work on that day.

8.         Subsequently, the employer scheduled and implemented a “make up” day on March 16, 1991, without consultation with the union.

9.         As a result of the rescheduling of March 16, 1990 as a “make up” day, employees represented by PSE were unable to participate in previously scheduled inservice programs, and some employees lost tuition or prepaid expenses related to those programs. No classified employee lost wages or benefits.

CONCLUSIONS OF LAW

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

2.         The school calendar impacts the wages and hours of school district classified employees, and is, in general, a mandatory subject of collective bargaining under RCW 41.56.030(4).

3.         The one-day “strike” by its teachers on February 13, 1990 presented the employer with a compelling need to make a decision concerning school closure, so that the employer’s decision to close its schools made without bargaining did not violate RCW 41.56.140(4).

4.         The collective bargaining agreement between the employer and union does not regulate the rescheduling of work to make up time lost due to a strike by another organization, so that there has been no contractual waiver of the bargaining rights secured by RCW 41.56.030(4).

5.         The employer commenced discussions with the union that constituted bargaining on the effects of the one-day work stoppage by its teachers, but did not give notice to Public School Employees of Washington that it was considering the conversion of the “inservice” day previously scheduled for March 16, 1990 as a student attendance day, so that there has been no waiver by inaction of the bargaining rights secured by RCW 41.56.030(4).

6.         By unilaterally altering the school calendar to make March 16, 1990 a “make up” day, without giving notice to or providing opportunity for bargaining with Public School Employees of Washington as the exclusive bargaining representative of its non-striking classified employees, the Mukilteo School District refused to bargain in violation of RCW 41.56.140(4).

ORDERED

Pursuant to RCW 41.56.160 of the Public Employees’ Collective Bargaining Act, it is ordered that Mukilteo School District 6, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices and effectuate the purposes and policies of Chapter 41.56 RCW:

1.         CEASE AND DESIST from:

a.         Refusing to bargain with its employees concerning mandatory subjects of bargaining as guaranteed by Chapter 41.56 RCW.

b.         In any other manner interfering with, restraining or coercing its employees in the 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.         Make whole any classified employee required to work on March 16, 1991, for any documented amounts expended and not refunded for educational or inservice programs that otherwise would have been attended on that date.

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 Kirkland, Washington, on the  26th day of June, 1991.

Issued at Olympia, Washington, on the  28th day of June, 1991.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

WALTER M. STUTEVILLE, Examiner

This Order may be appealed

by filing a petition for

review with the Commission

pursuant to WAC 391-45-350.