Washington Public Power Supply System, Decision 6058 (PECB, 1997)

 

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFL-CIO, LOCAL I-369,
Complainant,	CASE 12920-U-97-3116
vs.	DECISION 6058 - PECB
WASHINGTON PUBLIC POWER SUPPLY SYSTEM,	FINDING OF FACT, CONCLUSIONS OF LAW, AND ORDER
Respondent.

Davies, Roberts & Reid, by Kenneth J. Pedersen, Attorney at Law, appeared on behalf of the complainant.

Melvin N. Hatcher, Attorney at Law, and Julie S. Marboe, Certified Legal Assistant, appeared on behalf of the respondent.

On January 14, 1997, Oil, Chemical, & Atomic Workers Union, Local I-369 (union) filed a complaint charging unfair labor practices with the Public Employment Relations Commission under Chapter 391-45 WAC, alleging that the Washington Public Power Supply System (employer) had violated RCW 41.56.140(4) by unilaterally modifying its tobacco use policy without fulfilling its statutory duty to bargain with the union. The employer answered the complaint. A hearing was held on April 9, 1997, before Examiner Walter M. Stuteville. The parties filed post-hearing briefs.

BACKGROUND

The employer is a joint operating agency and municipal corporation authorized under Chapter 43.52 RCW. It has a total of approximately 1147 employees in four business operations: (1) The Packwood lake Hydroelectric Project in Lewis County, Washington; (2) a partially-completed nuclear-powered electric generating station (WNP-1) at Hanford, Washington; (3) an operational nuclear-powered electric generating station (WNP-2) also located at Hanford; and (4) a partially-completed nuclear-powered electric generating station at Satsop, Washington. The vast majority (over 1100) of its employees work at WNP-2. The employer’s chief executive officer is J.V. Parrish. Throughout this controversy, the employer’s representative has been Arthur G. Miller, its program manager for labor relations.[1]

The union represents approximately 74 persons working at the employer’s Hanford and Satsop facilities in four classifications: (1) Nuclear security officers;[2] (2) emergency operations facility communications center operators; (3) watch persons; and (4) resource protection officers.[3] The union’s staff representative throughout the time periods pertinent to this case is William A. Cramer.[4]

The employer’s policy on smoking was originally contained in its Corporate Procedure Policies. In 1990, the employer replaced those policies with a General Information Handbook. After March 1, 1990, smoking was permitted under somewhat limited circumstances confined to designated “smoking areas”, private enclosed offices outside of the employer’s buildings, and work-shared areas by mutual agreement. Smoking was not allowed when the situation involved an enclosed room such as a classroom, or an area containing sensitive equipment or materials.

The employer appears to have made two changes of its smoking policy prior to the events giving rise to this controversy. A revision of its handbook on January 1, 1992 prohibited smoking in all of its buildings and enclosed areas, and limited smoking to: “... only outside enclosed areas on Supply System property”. A new policy was issued on November 30, 1993, did not make any discernable change in the actual scope of the policy.

A revision on April 18, 1996, prohibited smoking near entries, and on pathways. It established specific designed smoking areas. On the day previous to that third revision, April 17, 1996, Miller sent the following letter to the union:

The Supply System is reviewing its smoking in the work place policy, General Information Handbook (GIH) 4.2.4 (copy attached). A committee has been formed to assess the current situation and trends and to make recommendations. The committee is made up of representatives from all types of employees including bargaining unit employees.

On May 23, 1996, Parrish sent the following interoffice memorandum to “all Supply System Employees”:

Research indicates that the use of tobacco adversely impacts the health and well-being of smokers and non-smokers exposed to tobacco smoke, interferes with productivity, results in increased maintenance cost of facilities, and contributes to escalated health insurance premiums. Together, these concerns have prompted the Supply System to change its existing smoking policy.

The Supply System is committed to providing all employees with a comfortable and health work environment, free from the negative effects of tobacco use. In support of that commitment, effective June 3, 1996, smoking will be prohibited on Supply System property, with the exception of 10 locations designated as temporary smoking areas. A list of these areas is attached.

The designated smoking areas are to be used by employees, contractors, vendors, job applicants, and any other individuals on Supply System property. Smoking will no longer be permitted between buildings or in parking lots. The smoking areas will remain in effect until early 1997, when the Supply System will issue a revised policy mandating a total tobacco-free work environment. Full compliance with these changes will be expected of all employees, and any violation of the rules will be handled by individual supervisors.

Beginning June 3, and continuing until the tobacco-free work environment is mandated, the Supply System plans to organize and assist financially with smoking cessation programs for employees, spouses, and other individuals who may reside with employees. A brief survey on the need for smoking cessation programs will be distributed to all employees with this week’s edition of In Sync. Please take the time to complete the questions and return the survey.

Amidst all the other changes occurring at the Supply System, this one initiative will be very difficult for some employees. Please express your concerns on the survey form so

At a meeting held on November 19, 1996, the employer presented the union with a draft of proposed modifications to the General Information Handbook. Cramer memorialized his response to the employer’s announcement in a letter dated November 20, 1996:

The Supply System informed OCAW and its bargaining committee on November 19, 1996 that they were implementing a rule for a complete tobacco free workplace on all Supply System property starting January 1, 1997. OCAW ask the Supply System to delay the ban so the parties could meet and bargain on the issue. Local 1-369 said they would present the Supply System with a bargaining proposal by December 15, 1996. The Supply System refused to delay the ban and said they were going ahead with implementation even though this was just the second meeting on the ban and the first meeting where the Supply System took the “official” position on implementing the smoke free workplace rule. Again OCAW would ask for postponement of the ban until collective bargaining has been completed, please advise.

Additionally, OCAW is formally requesting all cost savings the Supply System will realize by his ban since the Supply System started there would be cost savings on Health cost, sick leave, and other lost time away from work. OCAW needs these costs before December 10, 1996 so the bargaining committee can evaluate all aspects of the tobacco free work place rule, and before we submit our proposal.

[Emphasis by underlining in original.]

Miller replied to the union’s requests in a letter dated December 4, 1996, as follows:

The Supply System will consider OCAW’s request to postpone implementation of the Tobacco Free Workplace policy. However, current plans are still for a January 1, 1977 effective date. that as we move toward a tobacco-free Supply System in 1997, we can provide the appropriate level of support for affected employees.

[Emphasis by italics and bold in original.]

A list of 12 “designated smoking areas” was printed on the reverse side of that memo.

Union Representative Cramer sent a letter to the employer on June 12, 1996, demanding to bargain any changes in its smoking policy. Miller replied on June 26, 1996, with indication that the employer was “... ready and willing to meet at reasonable times to discuss any item brought up by the Union.” Miller also made reference to the employer’s April 17 notice to the union concerning its plan to revise the policy on smoking.

On July 16, 1996, the employer invited representatives of the union and another labor organization which represents its employees to a meeting concerning its smoking policy.[5] At the meeting, Chris Hanson, the employer representative on the employer-created Smoking Committee, announced that the employer had decided to disregard the committee’s recommendation that it maintain outdoor smoking areas. He indicated that there was no management consensus, but that he wanted input from the various unions on alternative suggestions.

On August 22, 1996, the employer issued another revised policy which broadened the scope of the policy from smoking to all forms of tobacco use.

The Supply System is adapting the Tobacco Free Workplace policy in the overall best business interest of the Supply System.

As stated in the November 19 meeting, the Supply System does not contend that there are measurable or documentable direct cost savings to the Supply System. The statements made in the meeting were, that based on national data, there COULD be cost savings as an additional benefit of a tobacco free workplace.

[CAPITALIZATION as in original.]

On December 11, 1996, the union submitted its counter-proposals to the proposed revision of the tobacco free work place policy. It proposed that eight areas be designated as smoking areas, and that they be covered and furnished with benches or chairs so that they could be used as break areas. It also proposed that the employer fund non-smoking clinics, and that it pay for and supply employees with products that help people stop smoking. Furthermore, the union proposed that the employer establish a committee composed of three union-designated security officers and three employer representatives to work on additional programs to help security officers stop using tobacco products. Finally, the union “insisted” that the employer not unilaterally implement its proposed policy until negotiations were completed on all issues. The parties met on December 20, 1996, when the union again requested that the employer not implement its ban on smoking.

On December 23, 1996, the employer informed the union that it would proceed with the implementation of its proposed policy on January 1, 1997, as previously scheduled. On January 2, 1997, the employer sent the union a copy of the General Information Handbook pertaining to tobacco use or consumption in the workplace. The new policy, as had been previously indicated, established a tobacco free work place. It prohibited the use of tobacco products in the employer-owned or leased buildings and vehicles, and forbade tobacco use in any outdoor area on the employer’s premises. This policy ended the use of “designated smoking areas” which had been a part of previous policies. In addition, the new policy added a prohibition of tobacco use in an employee’s personal vehicle while located on the employer’s property. The union responded with the unfair labor practice charge now before the Examiner.

POSITIONS OF THE PARTIES

In its opening brief, the union argued that the employer failed to provide adequate notice of its planned changes in its smoking and tobacco use policy, and that it refused to bargain in good faith after it eventually notified the union of changes to that policy.

The employer defended its decision-making process on procedural grounds and on its merits. First, it contended that the bargaining unit represented by the union is not appropriately constituted, and therefore, it does not have standing to file unfair labor practice charges. Second, it argued that the union failed to file its complaint within six months of the time that the employer notified the union that it intended to change its tobacco use policy. Concerning the merits of this case, the employer defended that a balancing of entrepreneurial interests against bargaining unit interests should result in a conclusion that decisions on tobacco use are not a mandatory subject of bargaining. In addition, the employer asserted that tobacco use policies are not “peculiar” to this bargaining unit of employees. Furthering that line of reasoning, the employer pointed out that it has begun bargaining with the union on the effects of its policy. Finally, the employer argues that the union waived its bargaining rights by its conduct, and by the terms of the parties’ collective bargaining agreement.

The union responded to the procedural defenses in a rebuttal brief filed under arrangements agreed upon by the parties: It asserted that it has never agreed the bargaining unit is inappropriate; and it asserted that the complaint is timely as to the changes in January of 1997. The union also argued that policies on tobacco use are a mandatory subject of bargaining, and it cited Commission precedent to support its position. The union contended that the employer’s position on the “peculiar” language of the statute is incorrect, and that the language relied upon by the employer was not intended to limit collective bargaining to issues arising only within a particular bargaining unit. Finally, it asserted that there was no clear waiver in the parties’ collective bargaining agreement.

DISCUSSION

Inappropriate Bargaining Unit Defense

The employer cites RCW 41.56.030(4), which defines collective bargaining, in part, as:

... collective negotiations on personnel matters, including wages, hours and working conditions, which may be peculiar to an appropriate bargaining unit of such public employer, ...

[Emphasis by bold supplied.]

It asserts that the duty to bargain in good faith only “flows” to the exclusive bargaining representative of an appropriate bargaining unit, and it cites King County Fire District 39, Decision 2160 (PECB, 1985) and City of Mukilteo, Decision 1571-B (PECB, 1983), as holding that a union may not pursue a “refusal to bargain” claim in an inappropriate bargaining unit. The Examiner concurs with that much of the employer’s reasoning, but such concurrence does not resolve this case.

The employer next contends that, inasmuch as the current bargaining unit contains both security guards who are “uniformed personnel” within the meaning of RCW 41.56.030(7) and resource protection officers who do not have access to interest arbitration, that it has no duty to bargain concerning this bargaining unit. It cites City of Yakima, Decision 837 (PECB, 1980), as recognizing that “uniformed personnel” require a separate and distinct bargaining unit from employees who do not have access to interest arbitration. The issue is more complex than the current facts, and the employer does not come, bearing this argument, with clean hands.

The bargaining unit at issue here was created by a certification issued in 1985.[6]

In 1993, the Legislature amended the definition of “uniformed personnel” contained in RCW 41.56.030(7), to include “security forces established under RCW 43.52.520”. This meant that security forces responsible for a nuclear power plant now have access to interest arbitration as a dispute resolution mechanism in contract negotiations. Presumably as a result of this statutory change, on June 26, 1995, the employer filed a petition with the Commission for clarification of the union’s bargaining unit. It asserted then, as it does in the instant case, that the unit was inappropriate because it commingled uniformed and non-uniformed employees. However, on July 29, 1996, the employer withdrew its petition based upon a settlement agreement between the parties.[7] That settlement reads, in part:

(1)           The parties hereby agree that, at the time of the expiration of their current collective bargaining agreement (10/31/97), if WPPSS is still employing individuals in resource protection officer positions that are currently covered under the parties’ collective bargaining agreement (the “agreement”) , those individuals will not have a right to demand interest arbitration under State Law. The parties hereby agree that they believe all of the Local I-369 bargaining unit members who are currently employed by WPPSS at its Hanford facilities are entitled to interest arbitration under state law, and that both parties would take this position in any PERC hearing convened on that subject. This Agreement does not, however, restrict WPPSS from using resource protection officers at Hanford at some future date.

(2)           As a result of the agreement set forth in Paragraph (1) above, if WPPSS still employs individuals in resource protection officer positions that are currently covered under the parties’ successor collective bargaining agreement, then the parties hereby agree that they will conduct separate collective bargaining negotiations for the resource protection officers with the intention of entering into two separate collective bargaining agreements, one for each group of employees.

(3)           The parties also agree further that, at a time sufficiently far in advance of the beginning of the negotiations that are contemplated in Paragraph (2) above, they will enter into a joint unit clarification petition to PERC which will request PERC to: (a) issue an order determining that the Security Force positions at Satsop and Hanford that are currently staffed by individuals who are represented by Local I-369 shall be separated into two separate and appropriate bargaining units, as described herein, and (b) requesting PERC to certify Local I-359 as the bargaining agent of both such bargaining units.

. . .

Thus the parties had agreed to a process to resolve the unit composition issue and that the separation of the bargaining units should take place immediately prior to the renegotiation of their current collective bargaining agreement. Their agreement focuses on the critical time for dividing a mixed bargaining unit, the time when the agreement is renegotiated. The employer cannot now use as a defense to a refusal to bargain charge, the argument that the unit is inappropriate, when it initiated an agreement between the parties that provides a future time table for resolving the issue.

Had the union demanded interest arbitration concerning the employer’s policy on smoking and the use of smoking products and asserted that the presently constituted bargaining unit was appropriate for such a demand, then the employer’s argument would be directly on point. In this case however, the appropriateness of the bargaining unit can not be used by the employer to shield itself from liability for refusing to bargain in good faith.

Statute of Limitations Defense

The employer’s next defense is that the union failed to file its charge within the six months required by statute:

RCW 41.56.160 (1):

…The commission is empowered and directed to prevent any unfair labor practice and to issue appropriate remedial orders: PROVIDED, That a complaint shall not be processed for any unfair labor practice occurring more than six months before the filing of a complaint with the commission.…

[Emphasis by underlining supplied]

The complaint in this matter was filed on January 14, 1997. Therefore, the events complained of must have occurred after July 14, 1996. The respondent however, is arguing that the union had notice of the intent to change its smoking policy in May or June of 1996 and it particularly references its May 23, 1996 memo from its chief executive officer indicating a change in policy concerning the prohibition of tobacco on the worksite.

However, if the union had filed a charge of unfair labor practices based upon that memo, undoubtedly the employer would have defended itself by denying that the memo actually changed a condition of work. The memo clearly announces an intention to issue a revised policy mandating a total tobacco-free policy early in 1997. The sending of a notice of a pending policy change is certainly not an actionable offense. Indeed, such a notice is required if a party to a collective bargaining agreement is to act in good faith. As was stated in Lake Washington Technical College, Decision 4721 (PECB, 1994):

It is well established that an employer that is considering making changes that affect the wages, hours, or working conditions of its union-represented employees must give notice to the exclusive bargaining representative prior to making the final decision. This is an affirmative obligation. The notice must be directed to the organization, not just communicated through a member of the bargaining unit. See, Clover Park School District, Decision 3266 (PECB, 1989), and cases cited therein.

Furthermore, as was argued by the union in its responsive brief, it did not “sit on its rights”, but rather attempted to both bargain with the employer and to work through the employer established committee to obtain what it believed would be a more equitable policy on smoking. It was not until the implementation date of January 1, 1997, obviously well within the six month statute of limitations, that the union knew for certain that its efforts were to no avail and that the employer’s original course would not be altered. The complaint was filed in a timely manner by the union.

“Not Significant” Defense

In the respondent’s answer to the complaint in this matter, filed on February 21, 1997, it asserts that there had not been a significant enough change in it policy so as to trigger a duty to bargain. However, in examining the sequence of changes in the employer’s policies on tobacco use the Examiner reaches a different conclusion:

March 1, 1990 - smoking permitted except in an enclosed area such as a class room or in “sensitive” areas with particular equipment or in “public” areas such as stairwells or restrooms. It specifically states that: “It will not prohibit smoking on the premises but will restrict it to certain areas.”

January 1, 1992 - prohibition of smoking in all controlled structures, enclosed areas and employer vehicles.

April 18, 1996 - additional prohibition of smoking near entries and pathways.

August 22, 1996 - established and listed specific designated areas where smoking was allowed.

January 1, 1997 - prohibition of the use of tobacco products on all of the employer’s properties (including personal automobiles).

Thus, although the employer argues that the January 1 revision to its policy on smoking is not a “significant” change, in fact the new policy has three significant alterations to previous “graduated” policies: First, it totally forbids smoking on the employer’s properties; a drastic change from previous policies where smoking in designated areas was allowed; and Second, it extends the prohibition to the use of all smoking products and not to just smoking; and Third, it forbids smoking in private vehicles parked on the employer’s properties. These were not just alterations of previous policies as had been the case in earlier revisions, but they were in fact major changes in the employer’s policy.

Mandatory Subject Defense

Of major concern in the litany of the employer’s many defenses to this charge, is its assertion that its tobacco use policy is not a mandatory subject of bargaining. It argues that previous decisions of the Commission finding that smoking is a mandatory subject of bargaining are not applicable because the statutory scope of a subject of bargaining must be determined on a “case-by-case, fact-specific” balancing of “the relationship the subject bears to “wages, hours and working conditions” versus “the extent to which the subject lies at the core of entrepreneurial control or is a management prerogative.” International Association of Fire Fighters, Local Union 1052 v. Public Employment Relations Commission, 113 Wn.2d 197, (1989). It also cites City of Chehalis, Decision 2803 (PECB, 1987), as a case where an examiner found that the employer’s decision to ban smoke from the air was an inherent management right to control its facilities.

The Commission has a relatively long catalogue of cases involving an employer changing policies regarding smoking, or more recently, policies concerned with the general use of tobacco products at the worksite. In Mason County, Decision 3108 (PECB, 1989), an examiner reviewed decisions prior to 1989:

The commission deems the determination as to whether a particular subject is mandatory or non-mandatory to be a question of law and fact to be determined by the commission, and which is not subject to waiver by the parties by their action or inaction.

When deciding whether a particular subject is a mandatory subject of collective bargaining, the Commission begins by investigating whether the matter directly impacts wages, hours of work or conditions of work. Lower Snoqualmie Valley School District, Decision 1602 (PECB, 1983). If the subject matter in question does not directly involve wages or hours, a balance must be achieved between the employer’s need for management judgement and the interests of bargaining unit employees in their terms and conditions of employment. Edmonds School District, Decision 207 (EDUC, 1977).

Smoking restrictions imposed upon employees without bargaining have been the subject of a number of recent cases before the Commission. In Kitsap County Fire District No. 7, Decision 2872-A (PECB, 1988), the Commission affirmed the decision of its Examiner holding that sch smoking restrictions are a mandatory subject of collective bargaining.

[Emphasis by bold supplied]

In arguing the balancing test as a determination of whether an issue is a mandatory subject of bargaining, the employer asserts that as its facilities are “a highly regulated and visible nuclear utility”, and that it is necessary to “foster” a professional image particularly in relation to “vigilantly ensuring public health and safety.”

However, this conclusion is quite different from the “compelling need” found in City of Chehalis, supra, which the employer cited:

The employer’s claim that it has an inherent management right to control its buildings and vehicles has merit only in part. The question must be subdivided. An employer can decide, without input from its union, whether it will have lawn or gravel in front of the entrance; whether it will have an escalator or elevator between its floors; and whether the walls will be painted or paneled. An employer faced with a compelling need can unilaterally decide under its right to manage its facilities, whether or not there will be smoke in the air. Here, the employer was operating with an antiquated building having little or no ventilation and was using vehicles which had sensitive electronic equipment. There was a compelling need for the chief to ban smoking from the Chehalis police facilities.

No such compelling need was proven in the instant case. The employer asserts that it must implement a tobacco free work place because it must present a public image of vigilantly ensuring public health and safety. It would appear however, that arguments relating to the handling of radioactive materials and atomic waste products have spilled over into the issue of tobacco use. It was not argued that employee tobacco use presents a danger to the public or that designated smoking areas could not be kept away from public view. This employer manages facilities which include multiple buildings and state of the art equipment. It is difficult to believe that there are not some possible alternatives aside from a total ban, that would maintain an appropriate public image. The employer stresses the fact that the public does visit its sites and that the ban on smoking products extends to them as well as to employees. Nothing prevents the employer from establishing different rules on tobacco use for employees and for visitors.

As earlier policies had limited smoking to employer designated areas and away from pathways and entries and equipment sensitive areas, it would appear that the employer’s needs based upon the grounds of appearances and safety to personnel and equipment should have been already met. The employer’s arguments have not proven a compelling need to totally ban the use of tobacco products and are not sufficient to negate its obligation under the statute to bargain collectively on a mandatory subject of bargaining.

Kitsap Fire District No. 7, Decision 2872 (PECB, 1988), examined precedents from the private, public and federal sectors and clearly came to the conclusion that policies concerning tobacco use are a mandatory subject of bargaining or will require effects bargaining.

It should be clear from a review of the above-cited decisions that, in the absence of a compelling business need, an employer must bargain the establishment of any policy to restrict the use of tobacco among its existing employees.

The employer’s decision to ban smoking and tobacco products from its properties is a mandatory subject of bargaining and not an entrepreneurial policy sufficient to override its employee’s interest in bargaining with respect to conditions of employment.

“Peculiar” Statutory Requirement”

Another defense raised by the respondent is that 41.56 RCW only requires that the duty to bargain encompasses matters which are “peculiar” to a specific bargaining unit. RCW 41.46.030(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 to 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, …

[Emphasis by underlining supplied]

The employer argues: “It is suggested herein that the Washington Legislature intended to remove broad based policies having universal impact to employees and non-employees alike from the obligation to bargain.” However, it offers no evidence or citations to support this argument. In Bates Technical College, Decision 5140 (PECB, 1995), the “peculiar defense” was raised in a similar manner as in this case:

In addition to its rationalization that its obligation to bargain health insurance benefits was usurped by Chapter 41.05 RCW, the employer asserts that any bargaining obligation was nullified because the matter is not “peculiar” to the members of the bargaining unit, citing the use of that term in the definition of “collective bargaining” found at RCW 41.56.030(4).

The employer’s “peculiar” defense is not novel. Essentially the same theory has been advanced and rejected in past cases. City of Seattle, Decision 3051-A (PECB, 1989); City of Wenatchee, Decision 2194 (PECB, 1985), where it was held to mean that the union has bar-gaining rights only for the employees in its own bargaining unit.

In City of Pasco v. Public Employment Relations Commission, 119 WN.2d 504 (1992) the court accepted the employer’s assertion in Pasco that the word “peculiar” in RCW 41.56.030(4) rendered that section ambiguous, but it held that deference should be accorded to the Commission’s interpretation in the event of such an ambiguity. The Court wrote:

[U]nder the City’s analysis, the matters of (1) grievance procedures, (2) personnel matters, (3) wages, (4) hours and (5) working conditions would have to be peculiar to the bargaining unit before they were mandatory subjects of collective bargaining. Such a reading of the statute would reduce the mandatory subjects of collective bargaining to a very narrow and unpredictable segment of employer-employee relations. We do not perceive legislative intent to so narrowly restrict the right to collectively bargain.

…

From a broad perspective, little is “peculiar” or unique in most public employment relationships. Employment is an exchange of hours of labor performed under prescribed conditions for remuneration in the form of wages and benefits. The narrow interpretation of the statute promoted by the employer could be applied to virtually any term or condition of employment, so as to render an obligation to collectively bargaining only matters which may be “peculiar” virtually meaningless. The word “peculiar” is subjective to the extent that, arguably, it can be applied to support most any purpose or interest. The Supreme Court has determined that this was not the legislative intent. The employer’s interpretation of the statute is unduly restrictive, erroneous and contrary to law.

Likewise, in this case, the employer’s assertion that the legislature intended to exclude a broad range of subjects from collective bargaining must be rejected as unduly restrictive and contrary to law. The employer’s assertion that the public who visit the worksite: visitors, vendors, suppliers, and contractors; and the employees who are there week in and week out, all stand in the same position concerning the employer’s smoking products policy, is rejected. The employees in this bargaining unit have interests in the tobacco use protocols that are “peculiar” to them and those interests must be bargained in good faith.

Waiver by Contract

The employer, assuming arguendo, and correctly, that it might be determined that the modification of its tobacco use policy is a mandatory subject of bargaining, asserts that the union waived its right to demand bargaining in the parties’ collective bargaining agreement. Waiver by contract is an affirmative defense, and therefore, the employer has the burden of proof where it makes such a claim. Lakewood School District, Decision 755-A (PECB, 1980).

The employer relies on language in the management rights clause of the parties’ collective bargaining agreement to assert that the union has waived its right to demand bargaining on the use of tobacco on the employer’s premises.

Article 3.1. The Supply System retains the exclusive right to manage and operate its business, subject only to the express terms of this Agreement. All management functions, rights and responsibilities which the Supply System has not modified or restricted by this Agreement are retained and vested exclusively in the Supply System.

However, the City of Yakima, Decision 3564-A (PECB, 1991), clearly stands for the premiss that in order to find a waiver of bargaining rights in a management rights clause, the waiver must be clear and intentional. It is difficult to understand how the employer can argue that the clearly general terminology of the above-referenced contract clause can be interpreted as a specific waiver on the specific subject of tobacco use. In its brief it makes the following statement:

The Supply System has exercised unilateral control over the contents of the GIH [general information handbook] on a uniform and consistent basis. Indeed, OCAW [the union] had been informed on several occasions that the Supply System does not negotiate policy. OCAW acquiesced in this interpretation.

From this statement it would appear that the employer is asserting that by fiat, and the failure of the union to challenge its fiat, its general information handbook has become superior to the collective bargaining agreement. That assertion is incorrect. Neither the general language of the collective bargaining agreement nor the process of repeatedly revising the information handbook, constitutes a waiver of the employer’s statutory duty to bargain. City of Anacortes, Decision 5668 (PECB, 1996).

Duty to Bargain

Bates Technical College, Decision 5140 (PECB, 1995), reiterates a long-standing doctrine that an employer cannot implement “unilateral” changes on mandatory bargaining subjects unless it has provided the union with adequate notice of the contemplated change and a reasonable opportunity for bargaining regarding the matter. Where the exclusive bargaining representative makes a request for bargaining, the employer must bargain in good faith to either an agreement or an impasse. Lewis County, Decision 3418 (PECB, 1990; Pierce County, Decision 1710 (PECB, 1983). Although the employer had said in its June 26 correspondence that it was “…ready and willing to… discuss any item brought up by the union” and again in its December 4 letter; “The Supply System will consider OCWA’s request to postpone implementation of the Tobacco Free Workplace policy”; neither statement indicates a willingness to actually negotiate the tobacco policy. In fact, the employer’s intention, originally stated in its May 23, 1996 memo never changed. As was stated in Mason County, Decision 3706-A (PECB, 1991):

When one considers the totality of the employer’s conduct, the employer appears to have entered negotiations with a predetermination to prohibit smoking within county buildings.

Similarly, in this case the record is clear that from the time of its first notice to the union on May 23, 1996, the employer did not deviate from it decision to totally ban the use of tobacco products. This intent is particularly clear in the charade of instituting an employer-appointed committee to make recommendations concerning the use of tobacco and then summarily overruling the work of the committee. The employer cannot however, summarily overrule the duty to bargain with the certified bargaining representative on this issue. In doing so, it has committed an unfair labor practice.

FINDINGS OF FACT

1.         The Washington Public Power Supply System is a public employer within the meaning of RCW 41.56.030(1).

2.         The Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local I-369, a bargaining representative within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of approximately 74 employees holding the titles of nuclear security officer, emergency operations facility communications center operator, watch person, and resource protection officer.

3.         Some of the employees in the above-referenced bargaining unit are “uniformed personnel” within the meaning of RCW 41.56.030(7) (d) and therefore have the statutory right to access to interest arbitration as a resolution to impasses reached in collective bargaining pursuant to RCW 41.56.430 through .905.

4.         On June 27, 1995, the employer filed a petition for clarification of the bargaining unit in this case. The petition was withdrawn on July 29, 1996, with the parties agreeing that they would conduct separate negotiations with the intention of entering into two separate collective bargaining agreements separating employees who have access to statutory interest arbitration into one unit and employees who do not have that access into another unit.

5.         The employer has had a personnel policy on smoking since 1990. That policy generally permitted smoking, except in specific circumstances such as classrooms or rooms containing sensitive equipment. The policy was revised in 1992 when smoking was generally prohibited in all closed areas and allowed smoking only in designated, outside areas. The areas where smoking were further reduced by subsequent revisions to the policy on November 30, 1993, April 18, 1996, and August 22, 1996.

6.         On April 18, 1996, the employer informed the union in writing that it was forming a committee to recommend changes to the employer’s smoking policy. On May 23, 1996, the employer informed employees that as of June 3, 1996, smoking would be limited to ten designated areas and that early in 1997 the employer would issue a policy mandating a total tobacco-free work environment.

7.         On June 12, 1996, the union demanded to bargain any changes in the employer’s smoking policy. The parties, along with representatives of another bargaining unit, met on July 16, 1996, and were informed that the employer was going to disregard the recommendations of its committee to maintain outdoor smoking areas.

8.         On November 19, 1996, the employer presented the union with a draft of proposed modifications to the tobacco use policy to be implemented January 1, 1997. The union presented a counter-proposal on December 11, 1996, in which it proposed eight areas to be designated as smoking areas and that the employer fund smoking clinics and supply employees with products that would help them stop smoking.

9.         In spite of a union request on December 20 to delay implementation, on December 23, 1996, the union was informed that the policy would be implemented on schedule. On January 2, 1997, the union was sent a copy its new policy which forbid the use of tobacco products anywhere on the employer.

10.       Previous decision of the Commission have established that policies on smoking and the use of tobacco products may be mandatory subjects of bargaining unless the employer can establish an overriding entrepreneurial interest such as facilities limitations or personnel and equipment safety.

11.       The employer’s argument that it has an obligation to the public to “vigilantly ensure public health and safety with regard to the nuclear power plant” is more related to safety issues related to the use of atomic power and the disposal of atomic waste and has not been proven by the employer to be related to the use of tobacco products.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW.

2.         By filing a Petition For Unit Clarification with the Commission on June 27, 1996 and subsequently withdrawing that petition on July 29, 1996, based upon an agreement with the union to separate interest arbitration eligible employees and non-interest arbitration eligible employees into two bargaining units, the employer is foreclosed from asserting that the bargaining unit as constituted on January 14, 1997, when this charge of unfair labor practices was filed, is ineligible to file such a charge under RCW 41.56.030(4) as an inappropriately constituted unit.

3.         By filing this charge within several weeks after having received the employer’s final policy on tobacco use in the workplace, the union has complied with RCW 41.56.160 requiring that charges of unfair labor practices be filed within six months of the alleged unfair practice.

4.         The employer’s arguments that it must be able to unilaterally implement a tobacco free workplace because it must present a public image of vigilantly ensuring public health and safety is not sufficient to negate its obligation under 41.56 RCW to bargain collectively on a mandatory subject of bargaining.

5.         The statutory use of the word “peculiar” in RCW 41.56.030(4) does not excuse an employer from its bargaining obligation where an issue has specific application to a bargaining unit as well as application to the general employee population.

6.         General reference to management functions, rights and responsibilities which have not been restricted by collective bargaining are not sufficient to constitute a waiver of an employer’s obligation to bargain collectively on a mandatory subject of bargaining under RCW 41.56.030(4).

7.         By the events described in the foregoing Findings of Fact, the Washington Public Power Supply System has refused to bargain collectively under RCW 41.56.030(4) with the Oil, Chemical and Atomic Workers International Union, Local Union 1-369, and has committed an unfair labor practice in violation of RCW 41.56.150(4).

ORDER

The Washington Public Power Supply system, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

A.        CEASE AND DESIST from:

Refusing to bargain collectively with the Oil, Chemical and Atomic Workers International Union, Local Union 1 - 369, on the employer’s proposals concerning smoking and tobacco use on the employer’s premises.

B.         TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter 41.56 RCW:

(1)       Withdraw all proposals and policies presented to the union on the subject of smoking and/or tobacco use.

(2)       Meet with the Oil, Chemical and Atomic Workers International Union, Local Union 1-369, at mutually agreed-upon times and places to bargain collectively concerning smoking and tobacco use on the employer’s premises.

(3)       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.

(4)       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.

(5)       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.

Issued at Olympia, Washington, this 7th day of October, 1997

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

WALTER M. STUTEVILLE, Examiner

This order will be the final order of the agency unless appealed by filing a petition for review with the Commission pursuant to WAC 391-45-350.