Perkins, Coie, Stone, Olsen & Williams, by Lawrence B. Hannah and Thomas E. Platt, Attorneys at Law, appeared on behalf of the complainant.

Symone B. Scales, Attorney at Law, appeared on behalf of the respondent.

This case is before the Commission for the second time. The history of this litigation is set out in detail in the Examiner’s decision (Decision 629-B EDUC, December 5, 1980).

The Seattle School District (“District”) would like us to determine in this case whether the school calendar is a mandatory or permissive subject of collective bargaining under RCW 41.59. In a companion case, the Seattle Teachers Association (“STA”) thwarted the District’s desire to litigate that scope of bargaining issue by withdrawing its refusal to bargain charges against the District, which the District was defending on grounds that the school calendar is not a mandatory subject of bargaining. The STA’s nonsuit left standing the District’s countercharge against the STA, an unfair labor practice complaint in which the District charged that the STA had refused to bargain a mandatory subject, to wit: the school calendar. In prosecuting the countercharge after the STA’s voluntary dismissal, the District attempted to advance, as its preferred theory, a claim that the school calendar is a permissive bargaining subject which the STA had pursued in an unlawful manner.

At the hearing before the Examiner on remand, the District presented evidence and made offers of proof regarding both of its theories of the case. The STA maintained that the bargainability of school calendar was not at issue, and stipulated to the legal theory advanced by the District in its complaint. Consistent with previous rulings of the Executive Director and the Commission, the Examiner refused to allow an amendment by the District to confirm the complaint to the evidence and offers of proof regarding the District’s permissive subject theory, and therefore did not consider the theory. The District, being apprehensive about being bound to its alternative legal theory (which is inconsistent with its preferred theory) made a request in its posthearing brief which the Examiner construed and acted upon, with the result that the Examiner did not reach the merits of the District’s refusal to bargain charge. The District has petitioned for review pursuant to WAC 391-45-350.

DISCUSSION:

The Permissive Subject Theory

In order to prevail on its permissive subject theory, the District must show that the STA insisted, while at impasse, on bargaining concerning the school calendar, and it must prevail on the legal conclusion that the school calendar is a permissive subject of bargaining. NLRB v. Wooster Division of Borg-Warner, 356 U.S. 342 (1958). The only witnesses who testified as to what happened in negotiations were Henderson, Howard and Donworth. The other witnesses testified as to the policy question of whether the school calendar should be a mandatory or permissive subject of bargaining.

Neither the testimony, exhibits, nor offers of proof presented at the hearing suggest that the STA engaged in the type of conduct upon which a violation could be found under the District’s permissive subject theory. Relatively early in the negotiations, the STA established and maintained a position that it would not discuss the school calendar until other issues were resolved. The only evidence pertaining to bargaining of the school calendar later in the negotiations is found in a letter from the District requesting, “for the record”, that the calendar be included in fact-finding proceedings. The STA protested inclusion of the calendar issues in the list of matters submitted to the factfinder (Exhibits 4 and 5). The District’s own witness stated that the calendar was only “nominally an issue” at fact-finding. By that time, the District had already made the unilateral announcement of the opening day of school which became the subject of the companion case filed by and then withdrawn by the STA. The record is less than ample as to what happened next, but a settlement was reached in an eleventh-hour mediation, and the school year began on the schedule imposed by the District. Thus, the only shred of evidence regarding the STA’s insistence on bargaining of the school calendar occurred months prior to the conclusion of factfinding, impasse, the eleventh-hour mediation or settlement.

Since the record, including the offers of proof, does not support a complaint concerning a permissive bargaining subject, the Examiner did not need to decide whether the legal theory supporting that charge was correct. Nor will we decide that issue on review. The Commission previously refused to decide the school calendar bargainability issue in the abstract when it declined to issue a declaratory ruling requested by the District. (Decision 629-A/698 EDUC, August 17, 1979). The issue is far too important to be decided without the benefit of a bona fide factual situation and a full opportunity for argument from contesting parties.

The preceding evaluation necessarily disposes of the District’s contention that the Examiner erred in not allowing an amendment of its pleading to conform to the proof, and therefore the Examiner should have considered all the evidence offered by the District. Even if the Examiner had considered all of the evidence set forth in the case, it was insufficient to show that the STA insisted on bargaining any calendar matters to impasse.

The Mandatory Subject Theory

The District contends that the Examiner misconstrued the District’s written instructions regarding the disposition of its refusal to bargain charge. At page 32 of its post-hearing brief to the Examiner, counsel for the District wrote:

“V.      THE DISTRICT’S MANDATORY-SUBJECT THEORIES SHOULD BE ADJUCATED IF AND ONLY IF (1) THE STATUS OF STUDENT CALENDAR IS FIRST DECIDED HEREIN, AND (2) STUDENT CALENDAR IS THEREBY FOUND TO BE A MANDATORY SUBJECT

A.        Conditional Maintenance of Mandatory-Subject Theories

1. District Position. The District does not seek a determination that student calendar is a mandatory subject of bargaining, nor will the District so stipulate in advancing its alternative (and secondary) mandatory subject theories. Thus the mandatory-subject theories are withdrawn by the District unless (a) the status of student calendar is first decided herein, and (b) student calendar thereby is found to be a mandatory subject.”

We have reviewed those instructions, and find that the Examiner properly disposed of the issue. The District is again attempting to seek a declaratory ruling. Given the unwillingness to continue to assert the validity of the only legal theory having an evidentiary base to support an unfair labor practice charge, we will not reverse the Examiner. We cannot condone the adjudication of a case that the complainant would like to lose.

The findings of fact, conclusions of law and order of the Examiner are affirmed.

Dated this 10th day of July, 1981.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JANE R. WILKINSON, Chairman

[SIGNED]

ROBERT J WILLIAMS, Commissioner

[SIGNED]

MARK C. ENDRESEN, Commissioner