Western Washington University, Decision 9309-A (PSRA, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
PUBLIC SCHOOL EMPLOYEES OF )
WASHINGTON, )
)
Complainant, ) CASE 18898-U-04-4804
)
vs. ) DECISION 9309-A - PSRA
)
WESTERN WASHINGTON UNIVERSITY, ) DECISION OF COMMISSION
)
Respondent. )
)
___________________________________)
Eric T. Nordlof, General Counsel, for the union.
Rob McKenna, Attorney General, by Morgan Damerow, Assistant
Attorney General, for the employer.
This case comes before the Commission on a timely appeal filed by
Western Washington University (employer), seeking review and
reversal of certain Findings of Fact, Conclusions of Law, and Order
issued by Examiner Carlos Carrion-Crespo finding the employer
committed unfair labor practices by refusing to bargain in good
faith and independently interfering with protected employee
rights.(fn:1) Public School Employees of Washington (union) filed a
timely cross-appeal seeking review and reversal of the Examiner's
decision denying the union's motion to amend its complaint and the
Examiner's decision declining the union's request for an
extraordinary remedy.
____________________
fn:1 Western Washington University, Decision 9309 (PSRA, 2006).
ISSUES PRESENTED
1. Does the totality of the evidence support the Examiner's
findings and conclusions that the employer failed to bargain in
good faith with the union regarding compensation and fringe
benefits through its insistence on compensation and fringe
benefit proposals, refusal to bargain the mandatory subject of
annual leave, and through statements made by the employer
regarding the union's behavior at the bargaining table?
2. Did the Examiner commit reversible error by denying the union's
motion to amend its complaint at the hearing because the
allegations were untimely?
3. Did the Examiner commit reversible error by denying the union's
request for extraordinary remedies?
For the reasons set forth below, we affirm the Examiner's findings
and conclusions that the totality of evidence demonstrates that the
employer failed to bargain in good faith and derivatively and
independently interfered with protected employee rights through its
statements and actions. We also affirm the Examiner's decision
declining the union's motion to amend its complaint. Finally, we
amend the Examiner's order to include an extraordinary remedy to
effectuate the purposes of the state's labor laws.
ANALYSIS
ISSUE 1 - Bargaining in Good Faith
In 2002, the Legislature enacted the Personnel System Reform Act of
2002 (PSRA) which substantially restructured both the collective
bargaining rights of most state employees and the administration of
the collective bargaining process. University of Washington,
Decision 9410 (PSRA, 2006). Codified in Chapter 41.80 RCW, the PSRA
granted state and higher education civil service employees "full
scope" collective bargaining rights. These new rights permitted
employees covered by the act the opportunity to select an exclusive
bargaining representative and collectively bargain directly with the
employer all matters affecting employee wages, hours, and working
conditions. RCW 41.80.010(3). Employee organizations representing
higher education classified staff negotiate with a delegation
selected by the governing board of the institution, unless the
institution elects to have the Governor's negotiating team bargain
on its behalf. RCW 41.80.010(4).
The October 1 Deadline
Although the PSRA represents a step toward a more traditional
collective bargaining process, the law still contains unique
features that distinguish it from other similar laws. Key
provisions of the PSRA that affect the collective bargaining process
include RCW 41.80.010(3)(a) and (b). This statute directs the
Governor to request from the Legislature funds necessary to
implement the compensation and fringe benefit provisions of any
negotiated collective bargaining agreement as part of his or her
budget request. RCW 41.80.010(3)(a). However, the Governor may
only make such a request for funds if the compensation and fringe
benefit provisions of the contract are submitted to the Office of
Financial Management (OFM) by October 1 prior to the legislative
session at which the requests will be considered, and certified by
OFM as financially feasible. If the funding request for the
collective bargaining agreement is submitted to the Legislature, the
Legislature is directed to approve or deny funding the compensation
and fringe benefit provisions as a whole.(fn:2) If the Legislature
rejects or fails to act upon the Governor's request for funds, then
the agreed upon contract may be reopened for further negotiations,
or the exclusive bargaining representative requests fact-finding
under RCW 41.80.090. If a higher education institution negotiates
with the exclusive bargaining representative of its employees, RCW
41.80.010(3)(a) and (b) still apply. The Governor then requests
funding for the negotiated agreements on behalf of the higher
education institutions as part of his or her budget.
____________________
fn:2 The Examiner states in his decision that the "Legislature also
reserves the right to approve or reject all agreements." This is
not an accurate statement of law. The Legislature may only approve
or reject the funding of the contracts.
Duty to Bargain in Good Faith
RCW 41.80.005(2) defines collective bargaining as "the performance
of the mutual obligation of the representatives of the employer and
the exclusive bargaining representative to meet at reasonable times
and to bargain in good faith in an effort to reach agreement with
respect to the subjects of bargaining specified under RCW
41.80.020." RCW 41.80.005(2) also states that the collective
bargaining obligation "does not compel either party to agree to a
proposal or to make a concession, except as otherwise provided in
this chapter."
RCW 41.80.020 generally defines the scope of bargaining under the
PSRA, and RCW 41.80.020(1) specifically notes that wages, hours, and
other terms and conditions of employment are subjects of bargaining.
Although not specifically defined as "mandatory subjects," the
phrase "wages, hours, and other terms and conditions of employment,"
as used within RCW 41.80.020(1), comports with long-standing
judicial and Commission precedent stating that "personnel matters,
including wages, hours, and working conditions" of bargaining unit
employees are characterized as the mandatory subjects of bargaining.
City of Richland, Decision 2448-B (PECB, 1987), remanded on other
grounds, IAFF, Local 1052 v. PERC, 113 Wn.2d 197 (1989); Federal Way
School District, Decision 232-A (EDUC, 1977), citing NLRB v.
Borg-Warner Corp., 356 U.S. 342 (1958).(fn:3) Determination as to
whether a particular subject is mandatory or nonmandatory is a
question of law and fact to be determined by this Commission, and
not the parties. WAC 391-45-550; see also Spokane International
Airport, Decision 7890-A (PECB, 2003). An employer or union that
fails or refuses to bargain in good faith on a mandatory subject of
bargaining commits an unfair labor practice. RCW 41.80.110(1)(e);
41.80.110(2)(d).
____________________
fn:3 Judicial and Commission precedents interpreting the Public
Employees' Collective Bargaining Act, Chapter 41.56 RCW, apply to
the PSRA unless legislative intent clearly directs otherwise. State
- Natural Resources, Decision 8458-B (PSRA, 2005).
A finding that a party has refused to bargain is predicated on a
finding of bad faith bargaining in regard to mandatory subjects of
bargaining. See Spokane School District, Decision 310-B (EDUC,
1978). The obligation to bargain in good faith encompasses a duty
to engage in full and frank discussions on disputed issues, and to
explore possible alternatives, if any, that may achieve a mutually
satisfactory accommodation of the interests of both the employer and
employees. While the parties' collective bargaining obligation
under RCW 41.80.010(2) does not compel them to agree to proposals or
make concessions, a party is not entitled to reduce collective
bargaining to an exercise in futility. Mason County, Decision
3706-A (PECB, 1991)(totality of the evidence demonstrated that
employer entered negotiations with a predetermined outcome); see
also Flight Attendants v. Horizon Air Industries, Inc., 976 F.2d 541
(9th Cir. 1992)(making contract proposals that employer knew were
consistently and predictably unpalatable to the union and failing
to exert every reasonable effort to reach agreement violated the
Railway Labor Act).
Differentiating between lawful "hard bargaining" and unlawful
"surface bargaining" can be difficult in close cases. This fine
line in differentiating the two reflects a natural tension between
the obligation to bargain in good faith and the statutory mandate
that there be no requirement that concessions be made or an
agreement be reached. Walla Walla County, Decision 2932-A (PECB,
1988). An adamant insistence on a bargaining position is not, by
itself, a refusal to bargain. Mansfield School District, Decision
4552-B (EDUC, 1995), citing Atlanta Hilton and Tower, 271 NLRB 1600
(1984). However, good faith is inconsistent with a predetermined
resolve not to budge from an initial position. NLRB v. Truitt Mfg.
Co., 351 U.S. 149 (1956).
In determining whether an unfair labor practice has occurred, the
totality of circumstances must be analyzed. Walla Walla County,
Decision 2932-A; City of Mercer Island, Decision 1457 (PECB, 1982).
The evidence must support the conclusion that the respondent's total
bargaining conduct demonstrates a failure or refusal to bargain in
good faith or an intention to frustrate or avoid an agreement. City
of Clarkston, Decision 3246 (PECB, 1989).
Application of Standard
The Examiner found that the totality of the employer's behavior
during the bargaining process evidenced a failure on the part of the
Board of Trustees and the University President to provide the
employer's bargaining team with the authority to bargain in good
faith with the union. The employer argues that the Examiner erred
in finding that the employer failed to grant its bargaining team
sufficient authority to negotiate with the union. The employer
claims that the institution's Board of Trustees and University
President set forth the parameters that its bargaining team was to
operate under, and that Commission precedent recognizes that an
employer may clearly communicate the parameters that it is limited
to when considering collective bargaining proposals. We agree with
the Examiner's conclusion that the employer's proposals and conduct
constitute a violation of the good faith bargaining obligation.
Failure to Bargain Employee Compensation
During negotiations regarding the compensation and fringe benefit
provisions of the collective bargaining agreement, the employer
informed the union that it wanted parity for all of its collective
bargaining agreements and also that the employer understood that the
compensation package given to state general government employees, a
3.2 percent cost-of-living adjustment (COLA) the first year of the
contract and a 1.6 percent COLA for the second, would be the limit
that the Legislature would approve. The employer also stated that
it would not use locally controlled funds to supplement the
compensation provisions of the contract.
We agree with the employer that the union cannot compel the employer
through bargaining to use local funds for the collective bargaining
agreement. In general, employer budgets are non-mandatory subjects
of bargaining. Spokane Education Association v. Barnes, 83 Wn.2d
366 (1974); Federal Way School District, Decision 232-A (EDUC,
1977).
We nevertheless find that the collective bargaining approach used by
the employer reduced bargaining with the union to an exercise of
futility. Under the PSRA, the parties' negotiated contract is
submitted to OFM for certification as financially feasible. RCW
41.80.010(b). Prior to bargaining, the higher education
institutions shall consult with OFM regarding budgetary and
financial obligations that may arise during the collective
bargaining process. This does not mean that a higher education
employer can simply rely upon figures provided to them by OFM as a
means to set aside its bargaining obligation. Different bargaining
units have different communities of interest, and unions must have
the ability to attempt to negotiate independent contracts for their
employees, and to not be constrained by a deal that was previously
negotiated with a different union.(fn:4) The good faith obligation
requires the employer to freely exchange proposals and ideas with
unions in an effort to reach an agreement, and upon reaching
agreement transmit the tentative agreement to OFM for certification.
Unions must be aware that even a realistic compensation package may
not be certified as being financially feasible for the state.
____________________
fn:4 Although this case does not concern the presence of a "parity"
clause contained within a different contract that is affecting
negotiations regarding an issue in this case, this Commission has
previously held that while parity clauses are not per se illegal,
this Commission will examine the totality of the circumstances to
determine whether the presence of a parity clause affects the good
faith obligation. Whatcom County, Decision 8512-A (PECB, 2005).
This principle applies equally to cases where employers desire
parity amongst all represented employees.
The employer argues that it fulfilled its good faith obligation. It
argues that it made certain concessions to the union separate and
apart from the COLA, including a salary survey that would
potentially raise employee wages using state funds. We disagree.
The evidence demonstrates that the employer was unwilling to move
off its initially stated position with respect to the COLA
adjustment for employees, and was unwilling to consider granting
employees a COLA that was different from the COLA accepted by other
unions representing other employees at the institution. For
example, the employer's Chief Human Resources Officer testified the
employer did not want to create "two classes" of employees by
offering the union a different compensation package, and at this
stage in negotiations essentially brought the bargaining process to
futility.(fn:5)
____________________
fn:5 Transcript, page 221, line 11 through page 222, line 22.
The employer's insistence on identical wage provisions among all of
its bargaining unit employees without giving serious consideration
to alternative non-wage related provisions proposed by the different
unions, taken with its conduct as a whole, is not demonstrative of
good faith bargaining. The employer's goal to obtain identical wage
packages, by itself, is not an unfair labor practice. However, it is
clear from the Chief Human Resources Officer's testimony that the
employer was taking its marching orders from OFM, and was not
independently negotiating an agreement with the union. This record
establishes that other bargaining representatives negotiated
economic packages different from the 3.2 percent/1.6 percent wage
package that the employer insisted was all that OFM would permit.
Finally, the record demonstrates that the employer's bargaining team
was either restrained from truly being able to explore alternatives
with the union regarding compensation proposals, or failed to engage
in meaningful negotiations by not offering counter proposals. The
employer's labor consultant testified that the employer considered
all of the union's proposals, but that it did not want to "punish"
those bargaining representatives that reached agreement first by
agreeing to a better compensation package for this union.(fn:6)
____________________
fn:6 Transcript, page 206, line 20 through page 207, line 21.
Employer Statements Also Demonstrate Lack of Good Faith Bargaining
The Examiner found that the employer's statements to the union that
no agreement would be reached because the University President did
not wish to "reward bad behavior" interfered with employee rights
because bargaining unit members could reasonably feel threatened by
those types of statements. The employer argues that these
statements were simply "bluster and banter," and that Commission
precedents recognize that bargaining unit employees who take part in
negotiations should expect such comments as part of the bargaining
process. We disagree with the employer, and find that these
statements reinforce a finding that the totality of the employer's
conduct during the course of bargaining demonstrated a lack of good
faith.
The employer's statements not only disparage the union, but they
also show an intent on the part of the employer to punish the union
for its conduct at the bargaining table. The employer expressed no
legitimate reason as to why an agreement could not be reached other
than the expressed reason of the University President that she did
not wish to reward the union for its behavior.
The statements made by the employer were not expressing realities of
the employer's budget status,(fn:7) rather they were a direct attack on
the union for its actions at the bargaining table.(fn:8) This
statement is even more troubling in light of the fact that the
parties had reached a tentative agreement. These types of comments,
taken together with the employer's overall course of conduct at the
bargaining table, demonstrate a pattern of bad faith bargaining on
the part of the employer.
____________________
fn:7 The Examiner correctly noted that the employer may not dictate
bargaining strategy to the union. If an employer believes that an
exclusive bargaining representative is not bargaining in good faith
by its course of conduct, it is free to allege so through an unfair
labor practice complaint.
fn:8 The testimony of the union's chapter president illustrates
other types of negative comments directed at bargaining unit
employees during the course of negotiations that, while not
necessarily indicating the employer bargained in bad faith, or even
an unfair labor practice, demonstrate a lack of respect between the
employer and the union's negotiating team. Specifically, the
union's chapter president testified that the employer stated to the
union's negotiating team that bargaining unit employees were
"valueless", had "nothing to trade for anything", of "no worth", and
that the employer "could hire a monkey off the street just like [the
employee]." Transcript, page 30, lines 4 through 11. It is these
types of unrefuted statements that reinforce our decision directing
the employer to attend agency conducted collective bargaining training.
Finally, we also find that the Examiner correctly held that the
University President's statements constituted an independent
interference violation.(fn:9) Those comments also demonstrate an
intent to undermine the union's authority. Thus, we also affirm the
Examiner's findings and conclusion that the employer independently
interfered with protected bargaining unit rights through its
comments.
____________________
fn:9 Employer communications to employees can be an interference
unfair labor practice if those statements tend to disparage,
discredit, ridicule, or undermine the union. Furthermore, it is not
necessary to show that the employer acted with intent or motivation
to interfere, nor is it necessary to show that the employee or
employees involved actually felt threatened or coerced. The
determination is based on whether a typical employee in the same
circumstances could reasonably see the employer's actions as
discouraging his or her union activities. Even if non-coercive in
tone, a communication may be unlawful if it has the effect of
undermining a union. City of Seattle, Decision 3566-A (PECB, 1991).
We recognize that collective bargaining does not occur in a vacuum,
and factors outside of the parties' control may influence proposals
and reasons for the rejection or acceptance of such proposals.
While these statements by themselves may not necessarily prove that
the employer bargained in bad faith, in this circumstance, the
totality of the evidence supports the finding that the employer
declined to genuinely consider the union's proposals and advance
alternatives, and through this course of conduct the employer failed
to bargain in good faith.
Failure to Bargain Holidays
In addition to his finding that the employer failed to bargain in
good faith with respect to employee compensation, the Examiner found
that the employer failed to bargain in good faith regarding holiday
scheduling and an additional day off. The employer argues that its
bargaining team did not believe that it had the authority to vary
the leave schedule because a particular administrative rule from WAC
251 was repealed and no replacement had been adopted at the time of
negotiations.
We begin by noting that RCW 41.80.020(6) provides that if any
"executive rule, administrative order, or agency policy" conflicts
with the terms of a collective bargaining agreement, the collective
bargaining agreement shall prevail. Second, this Commission
determines whether an issue of bargaining is permissive or
mandatory, and a party who refuses to bargain a mandatory subject
does so at its own peril.
The employer does not dispute that annual leave is a mandatory
subject. It merely argues that it reasonably believed that it was
not permitted to bargain annual leave and holidays without the
express authority of an administrative regulation. Here, the
employer's belief was not reasonable.
RCW 41.80.020(6) makes it patently clear that collective bargaining
provisions prevail over administrative rules unless the collective
bargaining provision conflicts with a statute. The employer
identified no statute to the union suggesting that it could not
bargain annual leave, and the Examiner correctly noted that RCW
1.16.050 permits collective bargaining over holidays.(fn:10) Because
the employer's assumption was in error, the employer refused to
bargain the mandatory subject of annual leave due to its erroneous
belief that it needed authority through an administrative rule to do
so.
____________________
fn:10 RCW 1.16.050 states, in part: "Nothing in this section shall
be construed to have the effect of adding or deleting the number of
paid holidays provided for in an agreement between employees and
employers of political subdivisions of the state . . . ."
ISSUE 2 - Union's Motion to Amend Complaint
Commission rules permit parties, in certain circumstances, to
"conform the pleadings to evidence received without objection, upon
motion made prior to the close of the evidentiary hearing." WAC
391-45-070(2)(c). WAC 391-45-070(1)(b) requires any motion to amend
a complaint to be timely.
During the hearing, the union introduced evidence without objection
that it claims demonstrates additional instances of employer
interference with protected employee rights, and moved to conform
its pleading to the evidence. The Examiner took the union's motion
under advisement, but ultimately denied the motion as being
untimely. We agree with the Examiner's ruling.
The later allegations are claims of circumvention separate and
distinct from the interference allegations stated in the union's
original complaint. The pertinent events occurred in late September
and early October of 2004. The union's motion occurred at the
hearing, well after the six-month statute of limitations had
expired. The union presented no compelling reason as to why it was
prohibited from filing a timely amended complaint regarding these
new allegations.
ISSUE 3 - The Examiner's Remedy
The Legislature empowered this Commission to prevent and remedy
unfair labor practices. RCW 41.56.160. The fashioning of remedies
is a discretionary action of the Commission. City of Seattle,
Decision 8313-B (PECB, 2004). When interpreting the Commission's
remedial authority under Chapter 41.56 RCW, the Supreme Court of the
State of Washington approved a liberal construction of the statute
to accomplish its purpose. METRO v. Public Employment Relations
Commission, 118 Wn.2d 621 (1992). With that purpose in mind, the
Supreme Court interpreted the statutory phrase "appropriate remedial
orders" as including those remedies necessary to effectuate the
purposes of the collective bargaining statute and to make the
Commission's lawful orders effective. METRO, 118 Wn.2d at 633. The
Commission's expertise in resolving labor-management disputes was
also recognized and accorded deference. METRO, 118 Wn.2d at 634
(citing Public Employment Relations Commission v. City of Kennewick,
99 Wn.2d 832 (1983)).
When reviewing an examiner's decision to grant or deny an
extraordinary remedy, this Commission will put itself in the same
position as a reviewing court.(fn:11) This Commission will not disturb
a discretionary award of an extraordinary remedy unless the
examiner's exercise of discretion was manifestly unreasonable or the
decision was based on untenable grounds. Pasco Housing Authority v.
Public Employment Relations Commission, 98 Wn. App. 809
(2000)(citations omitted).
____________________
fn:11 In cases such as this, where a party is found to have
violated its good faith bargaining obligation and interfered with
protected employee rights, the standard remedy is a cease and desist
order, as well as the posting of notices that the offending party
will not commit the offending action again, and a public reading of
the notice into the record at a formal meeting of the respondent's
governing body, and an order to return to bargaining upon the
complainant's request.
Application of Standard
The union argues that the Examiner erred by not granting the union
an extraordinary remedy of either attorney's fees or interest
arbitration. The Examiner denied the union's request for attorney's
fees based, in part, on the timing of the events in the instant
case, as well on the fact that another examiner had admonished the
employer in a prior unfair labor practice case alleging different
violations. The Examiner also denied the union's request for
interest arbitration based upon the parties' failure to utilize the
mediation and fact-finding services available to the parties under
the PSRA.
An examination of the historical collective bargaining relationship
between these parties demonstrates the following:
* In Western Washington University, Decision 8256 (PSRA, 2003),
the employer committed an unfair labor practice when it
unilaterally changed employee parking.
* In Western Washington University, Decision 9010 (PSRA, 2005),
the employer committed an unfair labor practice when it
unilaterally transferred work from the bargaining unit without
first notifying the union and providing an opportunity to
request bargaining.(fn:12)
____________________
fn:12 Although the employer was found to have not committed a
second unilateral change to employee parking in this case, that does
not overcome the fact that the employer still committed other
violations.
* In Western Washington University, Decision 9068 (PSRA, 2005),
the employer committed an unfair labor practice when it failed
to provide pertinent and necessary collective bargaining
information to the union.
Based upon the facts of this case, as well as the employer's
historical pattern of rejecting the basic principles of collective
bargaining, we find that an extraordinary remedy is warranted. The
question now becomes what remedy is appropriate based upon the facts
of this case as well as the history of the parties.
For the most part, awards of attorney's fees have been awarded as a
punitive remedy in response to egregious conduct or to frivolous
defenses asserted by a party. See Lewis County, 644-A (PECB, 1979)
aff'd, 31 Wn. App. 853 (1982)(attorney's fees awarded where it is
clear that history of underlying conduct evidenced patent disregard
for statutory mandate to engage in good faith negotiations); see
also Auburn School District, Decision 2710-A (1987)(motion for
attorney's fees on appeal denied where Commission found that
although employer's appeal had no merit, it was not frivolous).
Although attorney's fees have been awarded for repetitive conduct,
and the history of the parties' collective bargaining relationship
is troubling at best, we find that in this case, an award for
attorney's fees does not assist these parties in developing a good
collective bargaining relationship. In crafting extraordinary
remedies for cases such as this, our responsibility should focus not
only on ensuring that the employees' free exercise of collective
bargaining rights is protected, but also to educate the offending
party on how to comply with its statutory responsibility.
We find that effectuation of the act is best served by tailoring the
remedy towards ensuring that in the future the employer fully
complies with its obligation to collectively bargain in good faith.
Therefore, the employer shall comply with the following remedial order.
We first direct the employer to send its negotiating team, including
those individuals who are primarily responsible for administration
of the collective bargaining agreement, to labor relations training
to be conducted by agency staff. The Commission's Executive
Director is instructed to develop a curriculum that will best serve
this employer based upon the history of its violations. The
training will be conducted at the Commission's Olympia headquarters
at a date and time deemed convenient by the Executive Director. Once
training has been completed to the Executive Director's
satisfaction, she is directed to inform the union that the employer
has complied with this aspect of the remedial order. The employer
shall schedule and complete this training prior to the union's
demand to bargain the 2009-2011 contract.
Additionally, we place the following conditions on the actual
negotiations for the 2009-2011 collective bargaining agreement:
* At the same time the union makes a demand to the employer to
negotiate a successor agreement, the parties shall jointly
select an interest arbitrator from the membership panel
maintained by the Commission, or ask the Executive Director to
appoint an interest arbitrator from agency staff, to be
available for an interest arbitration hearing to be conducted
sometime between August 25 and August 29, 2008.
* Prior to the commencement of negotiations, the Executive
Director shall appoint an agency mediator to assist the parties
in negotiations regarding their next collective bargaining
agreement.
* If the parties are unable to reach agreement for a successor
collective bargaining agreement by August 15, 2008, the
Executive Director shall certify the outstanding mandatory
subjects of bargaining for binding interest arbitration under
standards similar to RCW 41.56.450 through RCW 41.56.470,
except as modified by this order. The interest arbitrator
shall issue his or her award prior to the October 1 deadline.
Finally, should interest arbitration be required, the employer shall
be responsible for the arbitrator's costs, unless the parties
jointly agree that an agency staff member will conduct the
arbitration.
NOW, THEREFORE, it is
ORDERED
The Findings of Fact and Conclusions of Law issued by Examiner
Carlos Carrion-Crespo are AFFIRMED and adopted as the Findings of
Fact and Conclusions of Law of the Commission.
The Order issued by Examiner Carlos Carrion-Crespo is AMENDED to
read as follows:
1. Western Washington University, its officers and agents, shall
immediately CEASE AND DESIST from:
a. Failing to bargain in good faith with Public School
Employees of Washington, as the exclusive bargaining
representative of the appropriate bargaining unit
described in paragraph 2 of the foregoing findings of fact.
b. In any other manner interfering with, restraining or
coercing its employees in the exercise of their collective
bargaining rights secured by the laws of the state of
Washington.
2. Western Washington University (University) shall immediately
TAKE THE FOLLOWING AFFIRMATIVE ACTION to remedy its unfair
labor practices and effectuate the purposes and policies of
Chapter 41.80 RCW:
a. Upon request, meet and bargain collectively in good faith
with Public School Employees of Washington, concerning
mandatory subjects of bargaining as described in Chapter
41.80 RCW for the members of Bargaining Unit "D".
b. Post, in conspicuous places on the employer's premises
where notices to all employees are usually posted, copies
of the notice attached hereto. Such notices shall be duly
signed by an authorized representative of the respondent,
and shall remain posted for 60 days. Reasonable steps
shall be taken by the respondent to ensure that such
notices are not removed, altered, defaced, or covered by
other material.
c. The University President shall read the notice attached to
this order into the record at a regular, public meeting of
the Governing Board of the University, and permanently
append a copy of the notice to the official minutes of the
meeting where the notice is read, as required by this
paragraph.
d. Notify the 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 complainant with a signed copy of the notice
attached to this order.
e. 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 the University
has taken to comply with this order, and at the same time
provide the Executive Director with a signed copy of the
notice attached to this order.
f. At least 30 days before negotiations with Public School
Employees of Washington for the 2009-2011 collective
bargaining agreement commence, the University shall
contact the Executive Director of the Public Employment
Relations Commission to arrange a convenient date and time
for the employer's negotiating team to attend collective
bargaining training consistent with this decision.
g. Upon receiving a request from Public School Employees of
Washington to commence negotiations for a successor
agreement, the University and Public School Employees of
Washington shall immediately and jointly select an
interest arbitrator to be available consistent with terms
set forth in this decision. The University and Public
School Employees of Washington shall also jointly request
appointment of a mediator from the Public Employment
Relations Commission to assist them with negotiations for
a successor agreement. If the University and Public
School Employees of Washington have not reached agreement
on the terms and conditions of employment for the
2009-2011 collective bargaining agreement by August 15,
2008, the parties shall engage in binding interest
arbitration consistent with the terms set forth in this
decision.
Issued at Olympia, Washington, the 3rd day of January, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
DOUGLAS G. MOONEY, Commissioner
Case 18898-U-04-4804
PUBLIC EMPLOYMENT RELATIONS COMMISSION
NOTICE
THE WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION CONDUCTED A LEGAL
PROCEEDING IN WHICH ALL PARTIES HAD THE OPPORTUNITY TO PRESENT EVIDENCE AND
ARGUMENT. THE COMMISSION RULED THAT WE COMMITTED UNFAIR LABOR PRACTICES IN
VIOLATION OF STATE COLLECTIVE BARGAINING LAWS, AND ORDERED US TO POST THIS
NOTICE TO EMPLOYEES:
WE UNLAWFULLY failed to bargain in good faith with Public School Employees
of Washington, representing the members of Bargaining Unit "D", concerning
mandatory subjects of bargaining.
WE UNLAWFULLY interfered with the members of Bargaining Unit "D" in the
exercise of their collective bargaining rights under state law.
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL meet and bargain collectively in good faith with Public School
Employees of Washington, concerning mandatory subjects of bargaining as
described in Chapter 41.80 RCW for the members of Bargaining Unit "D".
WE WILL NOT, in any manner, interfere with, restrain, or coerce our
employees in the exercise of their collective bargaining rights under the
laws of the State of Washington.
DATED: _________________ WESTERN WASHINGTON UNIVERSITY
BY: ______________________________
Authorized Representative
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
This notice must remain posted for 60 consecutive days, and must not be
altered or covered by any other material. Questions about this notice or
compliance with the Commission's order may be directed to the Public
Employment Relations Commission (PERC), 112 Henry Street NE, PO Box 40919,
Olympia, Washington 98504-0919. Telephone: (360) 570-7300. The full
decision will be published on PERC's web site, www.perc.wa.gov.