Webster, Mrak & Blumberg, by James H. Webster. Attorney at Law, appeared on behalf of the union. Pamela J. Supanick, Attorney at Law, assisted on the brief.

Mark H. Sidran, City Attorney, by Gary E. Keese, Assistant City Attorney, and Marilyn F. Sherron, Assistant City Attorney, appeared on behalf of the employer.

This case comes before the Commission on a timely petition for review filed by the Seattle Police Management Association, seeking remedies in addition to those ordered by Examiner Mark S. Downing in a decision finding that the employer committed certain unfair labor practices under RCW 41.56.140.[1]

BACKGROUND

The Seattle Police Management Association is the exclusive bargaining representative for a unit of approximately 57 supervisory uniformed personnel of the Seattle Police Department. The employees in that bargaining unit hold the rank of lieutenant, captain or major; the chief, assistant chiefs and civilian personnel are excluded from the bargaining unit.

On December 7, 1990, the union filed the first of two unfair labor practice complaints consolidated here, alleging that the employer had unilaterally assigned bargaining work to non-bargaining unit personnel, without notice to the union or opportunity for bargaining.[2] The union's second complaint, filed on June 24, 1991, involved different work and employees, but also alleged that the employer had unilaterally assigned bargaining unit work to employees outside the bargaining unit.[3]

Both complaints were assigned to Examiner Mark S. Downing for further proceedings. A hearing was held on September 25 and October 21, 1991, and on the latter date the parties entered into certain factual stipulations that obviated the need for any further hearings on either complaint. After post-hearing briefs were filed by the parties, Examiner Downing issued his findings of fact, conclusions of law and order, concluding that the employer engaged in unfair labor practices by transferring bargaining unit work to employees who are not represented by the union. The Examiner ordered the employer to restore the disputed work to the bargaining unit, and make whole any eligible employees in the bargaining unit represented by the union, by payment to them of wages and benefits they lost as a result of the unilateral changes at issue in these proceedings. The Examiner considered, but rejected, the union's request for an extraordinary remedy.

We adopt the Examiner's recital of the "Background" facts,[4] and incorporate them as a part of this decision.

POSITIONS OF THE PARTIES

The union takes the position that the record establishes a repetitive pattern of illegal conduct by this employer, and that the employer's defenses to the unfair labor practice complaints were frivolous or meritless, so as to warrant imposition of the extraordinary remedy of attorney's fees and costs. Additionally, the union asks the Commission to "clarify" the Examiner's remedial order, so as to include the promotion of a sergeant in the "make whole" remedy, and to include a payment to the union for its loss of dues resulting from the city's failure to promote (i.e.. into the bargaining unit) one or more employees to perform the work in question.

The employer did not petition for review of the Examiner's decision. It takes the position that the Examiner applied the correct legal standard to the issue of an extraordinary remedy and that, based upon the record, the granting of attorney's fees and costs was not appropriate. The employer further argues that the "clarification" requested by the union is inappropriate, because facts justifying clarification of the "make whole" remedy as requested by the union were neither alleged nor proven at the hearing.

DISCUSSION

The Standard for Award of Attorney's Fees

The Commission revisted the subject of attorney's fees as a remedy in Public Utility District 1 of Clark County, Decision 3815-A (PECB, 1992). In awarding attorney's fees against the respondent in that case, we particularly relied upon Municipality of Metropolitan Seattle v. PERC, 118 Wn.2d 621 (1992), where the Supreme Court unanimously affirmed awards of attorney's fees by the Commission "where necessary to make its order effective".

Clark PUD, supra, involved a repetitive pattern of illegal conduct and willful acts, including dilatory tactics and delays by the employer, as well as an "ongoing resistance of [the] employer to bargain with the union". The employer's reliance on a "disclaimer" by the union, as a defense to a bargaining order, had been considered and rejected by the Commission in an earlier case involving the same parties. After noting that the employer "risked being held accountable for its actions if it did not prevail on its legal arguments",[5] the Commission offered the following admonition in the earlier proceeding:

We are putting the parties back to the bargaining table, with direction that they proceed as required by Chapter 41.56 RCW. We have elected to withhold issuance of an extraordinary remedy at this time.

Public Utility District 1 of Clark County. Decision 2045-B (PECB, 1989) at page 22. [Emphasis by bold supplied.]

Nevertheless, after filing an untimely petition for review and failing to obtain a stay, the employer raised the same defense in the later case, long after the court of appeals had affirmed the dismissal of its petition for review, and even after the Supreme Court denied review of that dismissal.

The Employer's Past History

The union bases its entitlement to an extraordinary remedy (i.e., attorney's fees and costs) in this case on two claims: (1) that the employer has a "history of a repetitive pattern of illegal conduct", and (2) that the employer's defenses to the complaints were frivolous or without merit. We thus review the labor relations history of the largest city in the state:

The Commission's docket records disclose that 303 cases involving employees of the City of Seattle have been opened since 1976. Among the 287 cases which have been closed, the 98 cases where the employer was accused of unfair labor practices were disposed of as follows:

            * 66 cases (67%) withdrawn or failed to state cause of action;

            * 15 cases (15%) where violations were found;

            * 17 cases (17%) dismissed "on the merits".

The union relies on City of Seattle. Decision 3593-A (PECB, 1991), where the Commission did impose an award of attorney's fees as an extraordinary remedy, but we are not persuaded that the cited case sets precedent for the imposition of an extraordinary remedy in the case now before us. The Commission concluded in Decision 3593-A that the employer had engaged in a repetitive pattern of Weinaarten violations, and[6] had intentionally disregarded well-defined obligations under Chapter 41.56 RCW. The Commission noted that three previous decisions, as well as the decision then on review, had found that City of Seattle management officials in the same department committed unfair labor practice violations on that narrow issue.[7] None of those decisions involved the Seattle Police Department or the SPMA bargaining unit. Further, there is no Weinqarten issue in the cases before us, which involve somewhat more complex issues of "skimming" unit work.

The SPMA cites City of Seattle. Decision 3329-B (PECB, 1990), where the employer was found guilty of a "refusal to bargain" violation, based on its failure to provide requested information relevant to processing of grievances. We also find that case inapposite. It did not involve any "skimming" of unit work, and did not involve either the Seattle Police Department or the bargaining unit represented by the SPMA.

Among the 13 other cases where the City of Seattle was found guilty of unfair labor practices over a period of more than 17 years, only two decisions involved the bargaining unit represented by the SPMA:

In City of Seattle. Decision 1667-A (PECB, 1984), the employer was found guilty of a violation in a "unilateral change / refusal to bargain" case involving a standby duty procedure. A "waiver by contract" argument made by the employer and rejected by the Commission in that case was similar to an argument raised before the Examiner in this case.

In City of Seattle. Decision 3051-A (PECB, 1989), the employer was found guilty of a violation in a "unilateral change / refusal to bargain" case involving the unilateral adoption of a city-wide policy on smoking. The SPMA was one of four unions which filed companion cases. Different from the cases now before us, however, the disposition of the "smoking" case involved interpretation of the unique "peculiar to the bargaining unit" language found in RCW 41.56.030(4).[8]

In addressing the union's argument that this employer has a history of deliberate and repeated violations, as well as its argument that the employer's defenses were frivolous and without merit, the Examiner wrote:

The cases cited by the union involve violations of collective bargaining laws by the employer over the eight-year period: 1984 to 1991. Viewed in totality, that record is not alarming. Only two of the cases involved the SPMA unit or the Seattle Police Department, and one of those was really a city-wide issue. The cases involving violations of employee representation rights involve a narrow point of law which is not involved in the case now before the Examiner. Although this Examiner would certainly not hold out the employer's history of unfair labor practice violations as a model for other public employers to emulate, the Examiner is mindful that the City of Seattle may very well have the largest public employee workforce subject to the provisions of Chapter 41.56 RCW. The employer has collective bargaining relationships with a large number of bargaining units, represented by various unions. Given all of these circumstances, the Examiner does not find the record sufficient to warrant a conclusion that the employer has engaged in a repetitive pattern of illegal conduct. Nor does the Examiner view the employer's defenses to the instant unfair labor practice complaints as being frivolous or meritless. While Commission precedents have consistently held that skimming and subcontracting of unit work is subject to the bargaining obligation, our Supreme Court emphasized ... "scope of bargaining" disputes must be adjudicated on a case-by-case basis utilizing the balancing approach.

Thus, the facts of every scope of bargaining dispute must be carefully weighed to determine whether employer or employee interests predominate .

Decision 4163, at pages 30-31. (citation omitted)

We agree totally with the Examiner's comments, and adopt them as our own.

In view of the long history of dilatory tactics in the face of repeated requests for bargaining, a clear distinction can be made between the facts of the most recent Clark PUD case and the facts of the case now before us. Unlike the ongoing resistance to bargaining noted in Clark PUD, the City of Seattle did not file any exceptions in the case now before us, and, in fact, notified the union and the Commission of its willingness to comply with the Examiner's order to bargain.[9]

We do not find the record persuasive that an extraordinary remedy is necessary to provide this employer with adequate incentive to obey the law. The Commission recognizes that a union incurs expense to challenge unlawful unilateral changes, but we do not find such routine and predictable expenses sufficient to justify the extraordinary remedy which the union seeks in this case. By way of comparison, an employer also incurs routine and predictable, but unreimbursed, expenses when successfully defending itself against unfair labor practice complaints which are eventually withdrawn or dismissed.

For the reasons set forth, we agree with the Examiner that the union was not entitled to attorney's fees and costs in this case.

Clarification of the Remedial Order

The hearing before the Examiner in this case primarily concerned the question of liability (i.e.. whether unlawful "skimming" of bargaining unit work had actually occurred, and related defenses) . The parties and the Examiner properly refrained from cluttering that record with evidence concerning remedy issues.

Having found that the employer unlawfully transferred work from the SPMA bargaining unit to other employees, Paragraph 2 of the Examiner's remedial order included the following:

a. Restore the status quo ante, by restoring to the bargaining unit represented by the Seattle Police Management Association all ongoing work that was the bargaining unit work of employees represented by the SPMA in the ISD and Personnel divisions of the Seattle Police Department prior to the unilateral changes at issue in these proceedings.

b. Give notice to and, upon request, bargain collectively in good faith with the Seattle Police Management Association, prior to implementing any changes in the wages, hours and working conditions of its employees represented by that union.

c. Make whole, with interest, any eligible employees in the bargaining unit represented by the Seattle Police Management Association, by payment to them of the wages and benefits lost as a result of the unilateral changes at issue in these proceedings. Such payments shall be computed in accordance with WAC 391-45-410.

Those are standard remedies for a case where an employer is found guilty of an unlawful "skimming" or "subcontracting" of bargaining unit work, and we see no need to clarify them.

In its petition for review, the union argued that the employer "would have promoted a sergeant to the position of lieutenant to do the bargaining work in question", if it had not removed lieutenants' work from the bargaining unit in this case. Based on that assumption, it urged that: (1) the employees "who would have been promoted to do lieutenants' work must be promoted and receive back pay and benefits from the date of the unilateral changes", and (2) those employees who would have been promoted would have been paying dues to the association from the time of their promotion, so that the union "must be made whole for the loss of dues which resulted from the employer's unlawful actions". We note that the employer's letter tendering compliance with the Examiner's order did not mention the "make whole" portion of the order. Such issues are properly dealt with in supplemental "compliance" proceedings.

On March 22, 1993, the union filed a "notice of violation and intent to seek civil enforcement", asserting that the employer has failed to comply with paragraphs 2.a. and 2.b. of the Examiner's order. No specifics were provided, and the Commission's Compliance Officer subsequently contacted the union's counsel by telephone, inviting the submission of detailed allegations. Nothing further has been heard or received from the SPMA on these cases. If the union comes forth with detailed claims, and the employer's responses to those claims frame disputed issues, those matters would also be properly dealt with in supplemental "compliance" proceedings.

NOW, THEREFORE, it is

ORDERED

1.         The findings of fact, conclusions of law and order issued by Examiner Mark S. Downing in the above-captioned matter are hereby affirmed and adopted as the findings of fact, conclusions of law and order of the Commission.

2.         The City of Seattle, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

a.                                 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 paragraph 2.c. of the order issued by the Examiner in these matters.

b.                                 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 paragraph 2.c. of the order issued by the Examiner in these matters.

Issued at Olympia, Washington, the 10th day of May, 1993.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JANET L. GAUNT, Chairperson

[SIGNED]

MARK C. ENDRESEN, Commissioner

[SINGED]

DUSTIN C. McCREARY, Commissioner