King Fire District 4, Decision 10029 (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL ASSOCIATION OF )
FIREFIGHTERS, LOCAL 1760, )
)
Complainant, ) CASE 19976-U-05-5071
)
vs. ) DECISION 10029 - PECB
)
KING FIRE DISTRICT 4, )
) ORDER OF DISMISSAL
Respondent. )
___________________________________)
On November 30, 2005, the International Association of Firefighters,
Local 1760 (union) filed a complaint charging unfair labor practices
with the Commission against the King Fire District 4 (Shoreline)
(employer). The complaint was reviewed under WAC 391-45-110.(fn:1)
The Commission issued a preliminary ruling and deferral inquiry on
December 15, 2005, finding that the following allegations of the
complaint stated a cause of action:
____________________
fn:1 At this stage of the proceedings, all of the facts alleged in
the complaint are assumed to be true and provable. The question at
hand is whether, as a matter of law, the complaint states a claim
for relief available through unfair labor practice proceedings
before the Public Employment Relations Commission.
Employer refusal to bargain in violation of RCW 41.56.140(4),
[and if so, derivative "interference" in violation of RCW
41.56.140(1)], by its unilateral change in accrual and use of
compensatory time, without providing an opportunity for
bargaining.
On January 5, 2006, the employer filed an answer to the amended
complaint and requested deferral to arbitration. The Commission
deferred the amended complaint to arbitration on January 13, 2006.
On March 24, 2008, Arbitrator Janet Gaunt filed a copy of an
arbitration award that she issued on March 23, 2008. The award
found that the employer violated the parties' collective bargaining
agreement (Article 18.C) by "deducting scheduled compensatory time
from the accrual balance only once it was actually worked instead of
when it was scheduled." Under the award, the employer was ordered to:
1. Rescind its memorandum of August 23, 2005, regarding the
process for applying a compensatory time accrual limit.
2. Issue notice to members of the bargaining unit advising
them of the Arbitrator's ruling and the rescission of the
August 23, 2005, memorandum.
3. Give assurance that until such time as the employer
negotiates a change to Article 18.C of the collective
bargaining agreement, the employer will allow bargaining
unit members to stay within the comp time accrual limit by
the forward-scheduling of comp time when that can be done
the same calendar year in compliance with Standard
Operating Procedure 108 (Scheduling Optional Time-Off and
Trades).
Under the provisions of WAC 391-45-110, the unfair labor practice
complaint is dismissed.
DISCUSSION
Under WAC 391-45-110(3), the Commission defers contract
interpretation questions to an arbitrator while retaining
jurisdiction over the unfair labor practice complaint. The
Commission may defer unilateral change allegations to arbitration
under WAC 391-45-110(3)(a). After the arbitration award is issued,
the Commission reviews the award. If the arbitrator duly finds a
contract violation and awards a remedy, the Commission will dismiss
the unfair labor practice complaint. WAC 391-45-110(3) states:
WAC 391-45-110 Deficiency notice Preliminary ruling
Deferral to arbitration.
. . . .
(3) The agency may defer the processing of allegations
which state a cause of action under subsection (2) of this
section, pending the outcome of related contractual dispute
resolution procedures, but shall retain jurisdiction over those
allegations.
(a) Deferral to arbitration may be ordered where:
(i) Employer conduct alleged to constitute an unlawful
unilateral change of employee wages, hours or working
conditions is arguably protected or prohibited by a collective
bargaining agreement in effect between the parties at the time
of the alleged unilateral change;
. . . .
(b) Processing of the unfair labor practice allegation
under this chapter shall be resumed following issuance of an
arbitration award or resolution of the grievance, and the
contract interpretation made in the contractual proceedings
shall be considered binding, except where:
(i) The contractual procedures were not conducted in a
fair and orderly manner; or
(ii) The contractual procedures have reached a result
which is repugnant to the purposes and policies of the
applicable collective bargaining statute.
The January 13, 2006, deferral to arbitration letter stated:
4. The parties are to supply the Commission with a copy of
any arbitration award resulting from the arbitration
proceedings. The Commission reviews the arbitration award
to determine its effect, if any, on this unfair labor
practice case. The arbitrator draws his or her authority
from the collective bargaining agreement, and the question
before the arbitrator is the interpretation of the
contract. Assuming that the fairness standards for
acceptance of an award are otherwise met, the most likely
contract interpretations (and their effects on the unfair
labor practice case) will be as follows:
. . . .
b. If the arbitrator finds the employer's conduct was
prohibited by the collective bargaining agreement,
the arbitrator will need to remedy the contract
violation. The Commission does not assert
jurisdiction to remedy violations of collective
bargaining agreements through the unfair labor
practice provisions of the statute, and the union
should anticipate dismissal of the unfair labor
practice allegation on a subject that was bargained
by the parties and is merely a contract dispute.
The arbitration award was reviewed under WAC 391-45-110(3)(b). The
arbitration award meets the Commission's fairness standards for
acceptance of an award under WAC 391-45-110(3)(b). The arbitrator
found that the employer's conduct violated the parties' contract and
ordered remedies to affected employees.
NOW, THEREFORE, it is
ORDERED
The complaint charging unfair labor practices in Case
19976-U-05-5071 is DISMISSED.
ISSUED at Olympia, Washington, this 2nd day of April, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
DAVID I. GEDROSE, Unfair Labor Practice Manager
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.