Julia Mallowney, Legal Counsel, appeared on behalf of the union.

Roy Wesley, Labor Consultant, appeared on behalf of the employer.

This case came before the Commission on a petition for review filed by the Washington State Council of County and City Employees, seeking to reopen a case previously withdrawn by the union.[1]

BACKGROUND

During 1993, Asotin County (employer) and the Washington State Council of County and City Employees, AFSCME, AFL-CIO (union) were engaged in negotiations for a successor contract covering employees of the Asotin County Sheriff's Department. The union filed a mediation request with the Commission on July 19, 1993.[2]

On August 26, 1993, the union filed two unfair labor practice complaints with the Commission. Case 10644-U-93-2478 was docketed for a complaint which alleged that the employer refused to bargain when it withdrew a proposal regarding longevity benefits during contract negotiations involving Sheriff's Department employees. Case 10645-U-93-2479 was docketed for a complaint which alleged that the employer refused to bargain when it contracted out bargaining unit work in the Public Works Department. Case 10645-U-93-2479 referred to a grievance in process.

During the autumn of 1993, the employer made a settlement offer for the Sheriff's Department bargaining unit. The offer included a 3% wage increase, retroactive to January 1, 1993. The union membership rejected the offer.[3] On December 3, 1993, the union representative sent a memo to the members of the bargaining unit, recommending that another vote be taken on the employer's offer,[4] and on December 14, 1993, the union ratified the offer. The union confirmed the ratification in a letter dated December 15, 1993.

In a letter dated December 16, 1993, the union notified the employer that it was withdrawing an unfair labor practice complaint concerning a "class action grievance settlement". On December 21, 1993, the union filed a letter (dated December 16, 1993) withdrawing Case 10644-U-93-2478, but did not identify the subject of the complaint being withdrawn. On December 22, 1993, the Executive Director closed Case 10644-U-93-2478.

Prior to the end of the last pay period in December of 1993 (but before the successor contract was signed), the employer paid the retroactive pay increase to employees within the bargaining unit.

On January 10, 1994, the union filed a request to reopen the Sheriff's Department matter (Case 10644-U-93-2478). It explained that it had inadvertently withdrawn the wrong case, and stated that it had intended to withdraw Case 10645-U-93-2479.

On March 16, 1994, the employer responded, asserting that it was not responsible for the error, and that the employer considered the issue of a sheriff's deputy longevity pay increase settled and moot. It cited the union's ratification of the employer's final offer which did not address longevity pay. The employer contended that it would be prejudiced by reinstatement of the case, since a number of labor relations decisions were made by the county during the relevant period and could not be retracted. The employer also stated that reinstatement of the case would exacerbate the negotiations concerning the pay for sheriff's deputies in which the parties were engaged. It argued that longevity pay could be introduced by the union as a subject of bargaining during the current negotiations. On August 3, 1994, the Executive Director denied the union's request to reopen the case.

On August 22, 1995, the union filed a petition for review, asserting that the denial of its motion to reopen was based upon factually incorrect statements made by the employer in its letter responding to the union's motion. On October 13, 1994, the Commission set aside the Executive Director's decision and remanded the case for further proceedings, noting:

There appear to be questions of fact concerning the existence of prejudice to the employer. The pleadings indicate that the contested withdrawal was mailed on December 21, 1993. That date was subsequent to the union's ratification of the collective bargaining agreement, and we have no facts from which to conclude that the employer was prejudiced by reliance on the unfair labor practice complaint withdrawal when agreeing to the contract. On January 10, 1994, the union clarified its intent as to the case it wished to withdraw. We have assertions, but no proof, that prior to that date the employer made labor relations decisions in reasonable reliance on an understanding that the unfair labor practice complaint regarding longevity pay had been withdrawn.

In order to provide the Commission with a record from which we can fairly judge the employer's claim of prejudice, we are reopening this case for a limited evidentiary hearing at which the employer and union can offer evidence which they feel supports (or rebuts) the employer's claim of prejudice. ...

On June 29, 1995, Hearing Officer Frederick J. Rosenberry held a hearing, limited to the question of whether the employer would be prejudiced by reopening this case. That hearing process has been completed, and the case is again before the Commission to determine the "prejudice" claim.

POSITIONS OF THE PARTIES

The union argues that a telephone call with Commission staff resulted in a case number mis-identification in the union's office, and in the union withdrawing the wrong case. It argues that its request to correct the error was timely under White Salmon Valley

School District, Decision 4323-A (PECB, 1993) . The union contends that a waiver is appropriate under WAC 391-45-330 and that the order closing Case 10644-U-93-2478 should be set aside, even though it is now beyond 20 days after its issuance. The union claims the employer has failed to prove it would be prejudiced by such a waiver. Even if the employer relied on the mistaken withdrawal of the complaint in making a retroactive payment to bargaining unit members (as it alleges), the union urges that this is not the type of prejudice that WAC 391-08-003 was intended to avoid, and it requests that a hearing on the merits be granted.

The employer contends that the written withdrawal and the contract ratification by the union (which occurred within a day or two of each other) led the employer to believe that certain adversarial matters had been resolved. It claims that those actions, as well as the union's withdrawal of another unfair labor practice charge, caused the employer to implement retroactive pay adjustments. The employer claims that an unexplained delay of 22 days passed from the union's withdrawal letter before notification of the error, and that the union requested correction only after the retroactive payments were made. The employer argues that it relied on closure of the case, and that the reopening of Case 10644-U-93-2478 would seriously prejudice its position under the meaning of WAC 391-08003. It asks that the case remain closed.

DISCUSSION

The Error in Case Number Identification

When multiple unfair labor practice complaints are filed by the same party on the same day, "Notice of Case Filing" forms issued by the Commission normally detail characteristics of a particular complaint, so that the parties are able to determine which case number applies to which complaint. In this case, the notices omitted distinguishing details, so that the "Notice of Case Filing" forms did not show on their face which case number applies to which unfair labor practice. The union asserts that when its representative received the forms, she was confused and called the Commission to determine which case number belonged to which case. The union claims that the Commission staff incorrectly identified Case 10644-U-93-2478 as belonging to the case involving the Public Works Department. The fact that the notices of case filings did omit detail about the cases, lends credence to the union's assertions.

There is nothing in the record to show the error on the part of the union occurred intentionally or in bad faith. It was only when the parties received the preliminary ruling letter finding a cause of action as to the Public Works Department case that either party could reasonably have discovered the error. The union acted immediately after receiving that letter, further demonstrating a lack of bad faith.

Existence of Prejudice

WAC 391-45-330 provides for the withdrawal of a decision in an unfair labor practice case upon discovery of a mistake, so long as the action is taken within 20 days following the issuance of the decision. The order closing Case 10644-U-93-2478 was issued December 22, 1993. The union filed its request to correct the withdrawal on January 10, 1994, which was within the 20 day time limit allowed by WAC 391-45-330.

The Executive Director could have vacated the order closing Case 10644-U-93-2478. White Salmon Valley School District, Decision 4323-A (PECB, 1993). The Executive Director declined to do so, however, citing the following reasons: (1) the employer did not waive its rights under Chapter 41.56 RCW, (2) the employer did not agree to the union's request for reconsideration, and (3) the employer and union executed a collective bargaining agreement based in part on the withdrawal of the unfair labor practice complaint. The union filed a timely petition for review. The issue before the Commission is whether the Executive Director should have withdrawn the order closing the case, based on the mistake.

The Commission has the discretion to reopen this case, and in exercising that discretion, we consider the standard set forth in WAC 391-08-003:

WAC 391-08-003 POLICY--CONSTRUCTION--WAIVER. The policy of the state being primarily to promote peace in labor relations, these rules and all other rules adopted by the agency shall be liberally construed to effectuate the purposes and provisions of the statutes administered by the agency, and nothing in any rule shall be construed to prevent the commission and its authorized agents from using their best efforts to adjust any labor dispute. The commission and its authorized agents may waive any requirement of the rules unless a party shows that it would be prejudiced by such a waiver.

[Emphasis by bold supplied.] See, Central Kitsap School District, Decision 3671-A (PECB, 1991) and Port of Tacoma, Decisions 4626-A and 4627-A (PECB, 1995) .

The employer could establish prejudice by showing that it relied to its detriment on the union's withdrawal.

The employer claims that it made labor relations decisions based on the withdrawal of the unfair labor practice case. Our first reason to doubt this assertion arises from evidence that the county's labor consultant/chief negotiator was never confused. The complaint charging unfair labor practices involving the sheriffs deputies clearly shows that no grievance was filed in regard to those issues. The complaint that the union filed in regard to the Public Works Department was based on a class action grievance. In its December 16, 1993 letter to the employer's consultant advising him of the withdrawal, the union referred to a "class action grievance settlement". Therefore, the employer was put on notice as of December 16, 1993 that the complaint which made reference to a grievance was the one being withdrawn.

When the union and employer received the Executive Director's January 5, 1995 preliminary ruling, which found a cause of action as to the public works unfair labor practice, the employer's labor consultant called the union's representative. According to the unrebutted testimony of the union's representative, the consultant referred to the preliminary ruling and said "[I]sn't this the unfair labor practice that was withdrawn?" The union's representative responded that it was.[5] It appears both parties' advocates were similarly confused when they received a preliminary ruling letter that referred to a case both advocates thought had been withdrawn. When the union made an inquiry to Commission staff, the union's mistake in case number identification was discovered.

Even if the county commissioners were confused as to which unfair labor practice had been withdrawn, the only action taken by the employer was the granting of a retroactive pay increase. One county commissioner testified that he would have been "less likely" to have approved a retroactive payment to the Sheriff's Department if he had known the unfair labor practice complaint was still active. Since he did not make a definite statement, we can infer he still may have approved the retroactive pay increase had he known the complaint was still active. That commissioner acknowledged that he is only one of three commissioners and could not be sure as to what the other commissioners would have done.

The provision of retroactive pay increases was common for this employer. They were provided to other bargaining units and, earlier in 1993, the employer had paid a retroactive wage increase to courthouse employees even before their collective bargaining agreement was signed. We therefore find unpersuasive the suggestion that this employer made the retroactive payments at issue herein simply because it believed the Sheriff's Department unfair labor practice complaint had been withdrawn.

A collective bargaining agreement for the bargaining unit had already been ratified by the union before the Sheriff's Department unfair labor practice was mistakenly withdrawn. The employer offer accepted by the union included the retroactive pay increase. It was the understanding of the union's representative that the retroactive payments would be made once the contract was signed. The collective bargaining agreement was just awaiting signature of the employer, when the employer decided on its own to provide the retroactive pay increase.

It would have been an unfair labor practice for the employer to have conditioned its settlement offer on withdrawal of the previous unfair labor practice charge.[6] It is only the "expedited" processing of the payment which could possibly have been induced by the withdrawal of the unfair labor practice complaint. It appears that the expedited payment of the retroactive pay resulted from good will on the part of the employer, after ratification of its contract offer by the union was an accomplished fact. The record is not persuasive that the timing of the retroactive pay increase was based on an employer assumption that the case was withdrawn, or that the employer was induced to act to its detriment.

Even if we were to find the employer made decisions based on the withdrawal, we would still need to find prejudice to rule in the employer's favor. The employer has not shown that the union's withdrawal of this unfair labor practice case caused it to change any settlement offer, or that the withdrawal caused it to do anything else to encourage the union's ratification of a contract. The employer's arguments supporting its contention that it was prejudiced by the withdrawal are not persuasive.

Based on the evidence presented at the hearing on remand, the Commission concludes that the Order closing Case 10644-U-93-2478 should have been vacated. The union's request to reopen the case will be granted, and the case will be remanded to an Examiner to take testimony and evidence on the merits of the unfair labor practice complaint.

NOW, THEREFORE, it is

ORDERED

1.       The request of the Washington State Council of County and City Employees to reopen the above-captioned case is GRANTED.

2.         The matter is hereby remanded to the Executive Director for further proceedings consistent with this decision.

ISSUED at Olympia, Washington, this 11th day of January 1996.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JANET L. GAUNT, Chairperson

[SIGNED]

SAM KINVILLE, Commissioner

[SIGNED]

JOSEPH W. DUFFY, Commissioner