Snohomish County, Decision 5578-A (PECB, 1996)

Davies, Roberts & Reid L.L.P., by Michael R. McCarthy and Michael P. Monaco, Attorneys at Law, represented the complainant.

Perkins Coie, by Thomas E. Platt and Shannon E. Phillips, Attorneys at Law, represented the respondent.

This case comes before the Commission on a petition for review filed by Teamsters Union, Local 763, seeking to overturn an order of dismissal issued by Executive Director Marvin L. Schurke.[1]

BACKGROUND

Snohomish County (employer) and Teamsters Union, Local 763 (union) are the parties to this dispute. The union is the exclusive bargaining representative for a bargaining unit of custody and corrections officers in the Snohomish Department of Corrections. The parties’ last collective bargaining agreement expired at the end of 1994.

The complaint alleges that the employer and union agreed to all terms of a new collective bargaining agreement, other than: (1) wages, (2) shift differential, and (3) pension contributions. Those issues were certified for interest arbitration in August of 1995, and an interest arbitration hearing was held.

The union further alleges that on or about January 18, 1996, and prior to an arbitration decision, it requested the employer to sign and implement a contract reflecting all the agreements reached in contract negotiations before commencement of the interest arbitration process. The employer refused to execute the agreement.

On February 1, 1996, the union filed a complaint charging unfair labor practices, alleging that, by failing to sign a contract, the employer refused to bargain in good faith in violation of RCW 41. 56 .140 (4), and that the employer interfered with employee rights in violation of RCW 41. 56.140(1).

Executive Director Marvin L. Schurke dismissed the unfair labor practice complaint in a preliminary ruling letter of June 25, 1996. The Executive Director noted that RCW 41.56.470 prohibits a party from changing existing wages, hours and other conditions of employment without the consent of the other party, during the pendency of interest arbitration proceedings. The Executive Director found no basis for an unfair labor practice violation, and stated that if the Legislature intended that tentative agreements reached prior to the decision rendered by the arbitration panel to be enforceable, it could have so stated in the statute itself.

On July 15, 1996, the union petitioned for review, thus bringing the case before the Commission.

POSITIONS OF THE PARTIES

The union argues that the terms it requested the employer to sign and implement are only those terms to which the parties have already agreed, and that it is only those issues certified for interest arbitration that must be maintained during the pendency of an interest arbitration proceeding. The union claims the dismissal of the unfair labor practice complaint is contrary to state statute, Commission precedent, federal labor law, and policies inherent in collective bargaining. It seeks reversal of the decision.

The employer contends that its duty to execute a written contract only exists with respect to a final, complete collective bargaining agreement. It asserts that it need not implement tentative agreements, and that the earliest time a final agreement would occur in this case is when an interest arbitration decision is issued. The employer requests the Commission to affirm the dismissal.

DISCUSSION

Oral Argument

The union requested oral argument before the Commission, but gave no reasons for its request. Under the Administrative Procedure Act, RCW 34.05.464(6), the Commission has discretion to allow oral argument. Neither Chapter 41.56 RCW nor Chapter 391-45 WAC makes oral argument a matter of right for any party. The Commission has generally allowed the request where the issues are unique, or where such method would help determine the dispute. Oral argument has been denied where specific facts or issues to be addressed were not identified, where it was deemed unnecessary, and where the record was already sufficient. See, Snohomish County, Decision 4995-B (PECB, 1996), and cases cited therein.

We are reviewing an order of dismissal made at the preliminary ruling stage. At that stage of the proceedings, all of the facts alleged in the complaint are assumed to be true and provable, and the question is only whether, as a matter of law, the complaint states a claim for relief. In this case, the law relating to the issues raised is clear. The parties have had an opportunity to argue their respective points of law through their briefs on the petition for review. The union did not identify any other specific issues it wanted to address through the requested procedure. We find that oral argument is unnecessary in this case.

The Legal Standards as Applied to this Case

Need for “An Agreement” -

The purpose of Chapter 41. 56 RCW is to promote the continued improvement of the relationship between public employers and unions. In keeping with that purpose, RCW 41.56.030(4) expressly provides for the development of one written agreement between a public employer and an exclusive bargaining representative. That provision reads as follows:

(4) “Collective bargaining” means the performance of the mutual obligations of the public employer and the exclusive bargaining representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to grievance procedures and collective negotiations on personnel matters, including wages, hours and working conditions, which may be peculiar to an appropriate bargaining unit of such public employer, except that by such obligation neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this chapter. In the case of the Washington state patrol, “collective bargaining” shall not include wages and wage-related matters.

[Emphasis by bold supplied.]

A policy which requires the signing of “an agreement” between a public employer and an exclusive bargaining representative only when all issues are resolved, conforms to the express provisions of Chapter 41.56 RCW.

Other provisions of the collective bargaining law refer to only one agreement between parties. RCW 41. 56. 440 provides for either party to declare an impasse if no “agreement” has been reached within a certain period of time. The same provision allows for the appointment of a mediator who takes steps to persuade the parties to resolve their differences and effect “an agreement”. It would appear the Legislature did not contemplate that parties would make agreements on a piecemeal basis.

No Changes During Interest Arbitration -

The interest arbitration process was developed as one method of resolving issues in dispute. When a final agreement results at the conclusion of the process, the Commission has required the contract to be signed. See, e. g., City of Olympia, Decision 2629 (PECB, 1987), affirmed, Decision 2629-A (PECB, 1988).

In this case, the Executive Director, in both the preliminary ruling letter and the order of dismissal, addressed the rights of parties during the pendency of interest arbitration that are provided in RCW 41.56.470 as follows:

During the pendency of the proceedings before the arbitration panel, existing wages, hours and other conditions of employment shall not be changed by action of either party without the consent of the other but a party may so consent without prejudice to his rights or position under *this 1973 amendatory act. [1973 c 131 S 6.]

[Emphasis by bold supplied.]

Parties could agree to separate implementation of some contract terms, but there are no allegations here that the parties had agreed to an effective date of the tentative agreements prior to the conclusion of interest arbitration. The union alleges the parties reached agreement on the substance of certain provisions to be included in the parties’ successor contract, but it does not allege that the parties reached agreement to implement those substantive changes separately. Without the full agreement of the parties, the Commission is powerless to order any changes in wages, hours, or other conditions of employment prior to the conclusion of interest arbitration.

Contract Bar Principles Do Not Apply -

The union misinterprets the cases it cites in support of its petition for review. In Kitsap County, Decision 4961 (PECB, 1995), the issue was whether a representation petition could be filed after the conclusion of interest arbitration proceedings and before the parties had signed a contract. Washington State Ferries, Decision 763 (MRNE, 1979), involved a decertification petition and a petition to change the bargaining representative, both of which were filed during the pendency of interest arbitration proceedings. Contract bar principles were applied to find the petitions were not timely filed in those cases, but neither case stands for the proposition that an agreement should be enforced once the interest arbitration procedure is invoked.

The contract bar period is specified in RCW 41.56.070 and states as follows:

No question concerning representation may be raised within one year of a certification or attempted certification. Where there is a valid collective bargaining agreement in effect, no question of representation may be raised except during the period not more than ninety nor less than sixty days prior to the expiration date of the agreement.

In Kitsap County and Washington State Ferries, the contract bar principles were applied only to the timing of the representation petitions. As the Commission said in Washington State Ferries:

Whether conducted in the midst of interest arbitration proceedings or in the middle of a contract term, unlimited access to representation proceedings tends to undermine the stability of collective bargaining relationships and is counter-productive to the statutory policy of sound labor relations.

The stability of bargaining relationships was the utmost consideration of the Commission in its decision in Washington State Ferries. In the case at issue, there was no representation petition. By suggesting the application of Kitsap County and Washington State Ferries, though, the union urges that we use the principles and policies behind the contract bar to force the signing of an agreement after the invocation of the interest arbitration process. We decline to do this, on the same basis on which Washington State Ferries was decided, that to do so in this instance would undermine the stability of the bargaining relationship. The statute did not contemplate piecemeal or partial agreements on various terms at various stages in the collective bargaining progress.

Lack of a Complete Agreement -

The union also urges consideration of Kiona-Benton School District, Decision 4312 (PECB, 1993), where an Examiner found the employer committed an unfair labor practice for refusing to execute a collective bargaining agreement. In that case, however, no issues had been certified for interest arbitration, and there was nothing legally to prevent the parties from signing a document reflecting terms agreed upon in negotiations. In that case, the terms of the entire contract had been ratified by both parties. In the case at hand, only part of the contract had been agreed upon. The remaining issues were awaiting an arbitrator’s judgment prior to becoming part of the contract.

Absent a complete agreement, it would be premature to order the execution of the contract. City of Mukilteo, Decision 1571 (PECB, 1983), affirmed in part, Decision 1571-B (PECB, 1983). The parties are required to sign a final written agreement if requested to do so, but they need not sign tentative or partial agreements. Shelton School District No. 309, Decision 579-B (EDUC, 1984).[2]

NOW, THEREFORE, it is

ORDERED

The dismissal of the unfair labor practice complaint filed in this matter is affirmed.

Issued at Olympia, Washington, the 17th day of September, 1996.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARILYN GLENN SAYAN, Chairperson

[SIGNED]

SAM KINVILLE, Commissioner

[SIGNED]

JOSEPH W. DUFFY, Commissioner