Kitsap County, Decision 9326-A (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
KITSAP COUNTY DEPUTY )
SHERIFFS GUILD, )
)
Complainant, ) CASE 19286-U-05-4897
)
vs. ) DECISION 9326-A - PECB
)
KITSAP COUNTY, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Merker Law Offices, by George E. Merker, Attorney at Law, for
the union.
Summit Law Group, by Bruce L. Schroeder, Attorney at Law, for
the employer.
On March 15, 2005, the Kitsap County Deputy Sheriff's Guild (union)
filed an unfair labor practice complaint with the Public Employment
Relations Commission under Chapter 391-45 WAC. The complaint
alleged that Kitsap County (employer) committed unfair labor
practices within the meaning of RCW 41.56. On March 30, 2005, a
preliminary ruling was issued, finding a cause of action to exist
for employer interference and discrimination, refusal to bargain,
and breach of good faith in violation of RCW 41.56.140(1) and (4).
The employer filed its answer on April 21, 2005. The Commission
assigned Examiner Lisa A. Hartrich to conduct further proceedings,
and the hearing took place on September 26-27, 2006, and February 1,
2007, in Port Orchard, Washington.(fn:1) Both parties submitted
post-hearing briefs on April 20, 2007.
____________________
fn:1 The hearing was originally set for November 8 and 9, 2005, and
was rescheduled a number of times in 2006 at the request of the
parties. During the months of March and April 2006, the parties
filed several pre-hearing motions, responses, declarations, and
replies, which required the Examiner to issue rulings. These
rulings are documented in Kitsap County, Decision 9326 (PECB, 2006).
ISSUES PRESENTED
1. Did the employer interfere with employee rights and refuse to
bargain by failing to provide relevant collective bargaining
information requested by the union?
2. Did the employer unilaterally change payment practices for
copies of requested documents without providing an opportunity
to bargain?
3. Did the employer breach its duty to bargain in good faith by:
* offering regressive proposals?
* providing false and misleading information?
* preconditioning the release of information on payment?
* charging a rate for information in excess of costs?
4. Did the employer discriminate against employees in
reprisal for protected union activities when it verbally
counseled the union president?
Based on all the arguments and evidence submitted by the parties on
these issues, the Examiner rules that the employer did not commit
unfair labor practices, and dismisses the complaint.
ISSUE 1: Duty to Provide Information
Legal Principles
The Public Employees Collective Bargaining Act (PECBA), Chapter
41.56 RCW, governs the collective bargaining relationship between
the union and the employer. RCW 41.56.030(4) defines "collective
bargaining" and requires the parties to negotiate in good faith for
wages, hours and working conditions. It is an unfair labor practice
for a public employer to refuse to engage in collective bargaining.
RCW 41.56.140(4).
Collective bargaining includes the duty to provide relevant
information to an opposite party for the purpose of performing its
collective bargaining responsibilities. That duty extends to
information related to interest arbitration, since that process is
an extension of collective bargaining.(fn:2) City of Bellevue,
Decision 3085-A (PECB, 1989), aff'd, 119 Wn.2d 373 (1992). Failure
to provide this information may constitute an unfair labor practice
violation under RCW 41.56.140(4).
____________________
fn:2 But the duty to provide information does not extend to unfair
labor practice cases or to outside litigation. Snohomish County,
Decison 9570 (PECB, 2007).
In order to prove a violation for failure to provide information,
the complaining party must prove: (1) that it requested information
relevant to the performance of its functions in collective
bargaining or contract administration; and (2) that the employer
failed or refused to provide that information. City of Bremerton,
Decision 6006-A (PECB, 1998).
When responding to an information request, an employer has an
obligation to make a reasonable good faith effort to locate that
information. Seattle School District, Decision 9628-A (PECB, 2008).
However, the duty to provide information does not compel either
party to create records that do not otherwise exist. City of
Anacortes, Decision 7768 (PECB, 2002).
Analysis
On July 21, 2004, the union sent a letter to the employer requesting
documents and information pursuant to the PECBA and the Washington
State Public Records Act (PRA), listing 22 items it wanted in
preparation for an upcoming interest arbitration.(fn:3) The employer
acknowledged receipt of the request, and stated that the documents
would be available for inspection by August 23, 2004. At a
September 13, 2004 meeting, the union identified and tagged the
specific documents it wanted to have copied. This request involved
some 1,138 pages. Upon receipt of the documents, the union noted
that two requested items were missing: The preliminary budget for
2005 (item #17), and revenue projections from 2002 to the present
(item #18). On October 4, 2004, the union notified the employer
that it was still waiting to obtain access to those items.
____________________
fn:3 PERC case number 17687-I-03-411.
On October 5, 2004, information related to revenue projections was
transmitted to the union, and the union indicated that the
information "appear[ed] responsive to our requests for revenue
projections."(fn:4) However, the union was not satisfied with the
response related to the preliminary budget request, because the
employer insisted that no drafts of the 2005 preliminary budget
existed.
____________________
fn:4 The document was referred to as the "General Fund Financial
Model containing revenue and expense projections through 2010."
On October 6, 2004, the union inquired again about a draft of the
preliminary budget. On October 7, the employer asked the union if
it wanted to inspect or have copies of departmental budget requests.
These were described at the hearing as "wish lists" from each
department, which were used to develop the preliminary budget. The
union declined, stating, "We are more concerned about the budget and
revenue project[ion]s by the budget office."
The interest arbitration hearing began on October 11, 2004. The
record indicates that no further documents exchanged hands prior to
the date of the hearing.
The union contends that the employer did not make a good faith
effort to provide the information relating to the preliminary budget
and revenue projections. The employer asserts that no such
preliminary budget document existed prior to the interest
arbitration hearing. It also thought that it had satisfied the
union's request for revenue projections.
According to Benjamin Holland, Director of Administrative Services,
the employer has the following time line for drafting the
preliminary budget: In July, the employer issues a "budget call,"
notifying elected and appointed officials as well as department
heads that their budget requests are due. The preliminary budget is
drafted sometime in late October or early November by relying on
that information. Once the preliminary budget is complete, the
employer holds a public hearing to receive input on the budget. Any
changes to the budget are made, and the final budget is adopted. In
this instance, the preliminary budget draft was finished on or
around November 10, 2004, approximately one month after the
arbitration hearing. The notice of public hearing on the budget was
first published on November 22, 2004, and the hearing was held on
December 6, 2004.
Senior Deputy Prosecuting Attorney Jacquelyn Aufderheide, counsel
for the employer, testified that she conveyed the union's request
for the preliminary budget to the employer and she was assured that
no such document existed. Because of the union's earlier indication
that the revenue projection data "appeared responsive," she also
believed that the union was satisfied with regard to those documents.
The employer provided ample and credible proof to show that it made
a good faith effort to satisfy the union's requests. It responded
promptly to the union's initial request by providing access to a
large amount of information, and by copying the chosen documents in
a timely manner. Later, when the union reiterated its requests for
information it deemed missing, the employer attempted to fill those
requests with the information it had available. For instance, the
employer offered to give access to departmental budget request
binders, an offer declined by the union.
The record shows that the employer used reasonable diligence in
conducting the search for the requested documents. There is no
evidence that the employer knowingly or purposefully withheld
information. Furthermore, the evidence suggests that some of the
information requested did not exist at the time of the request.(fn:5)
____________________
fn:5 See City of Wenatchee, Decision 8898-A (PECB, 2006). In that
case, the union alleged that the employer's failure to provide the
information prejudiced the presentation of the union's interest
arbitration case. The Commission concluded that the record did not
contain any evidence to suggest the information was purposefully
withheld by the employer. It argued that if the union later found
evidence to bolster its arbitration case, it could have requested
the arbitrator to reopen the hearing in order to consider that
evidence before issuing the decision.
During the course of the arbitration hearing, some documents were
produced that the union thought were included in its initial request
for documents. At that point, the union renewed its request, and
the employer provided copies of those documents for the union to
analyze. There is no credible evidence to suggest the employer
purposely attempted to conceal this information from the union.
Conclusion
The Examiner concludes that the employer did not interfere with
employee rights by refusing to provide relevant information to the
union prior to interest arbitration.
ISSUE 2: Unilateral Change
Legal Principles
An employer is prohibited from making unilateral changes in
mandatory subjects of bargaining until it notifies the union and,
upon the union's request, bargains in good faith over the change.
RCW 41.56.030(4). In order to prove a violation, the union must
establish that the employer had an established practice concerning
wages, hours or working conditions of bargaining unit employees, and
that the employer implemented a change in the practice without
sufficient notice to the union. Kitsap County, Decision 8292-B
(PECB, 2007).
A practice may be established where, in the course of the parties'
dealings, a custom or pattern is acknowledged by the parties over an
extended period of time, becoming so well understood that its
inclusion in a collective bargaining agreement is deemed
superfluous. Such a situation is commonly known as a "past
practice." Whatcom County, Decision 7288-A (PECB, 2002) citing City
of Pasco, Decision 4197-A (PECB, 1994). For a past practice to be
proven, the union must show that there was a prior course of conduct
and that such conduct was known and mutually accepted by the
parties. Kitsap County, Decision 8292-B.
The Commission does not assert jurisdiction to remedy alleged
violations of past practices where there is, in fact, no change of
practice. King County, Decision 4893-A (PECB, 1995); Kitsap County,
Decision 8292-B (PECB, 2007).
Analysis
The union's unilateral change complaint stems from the copying costs
for approximately 1,100 pages of documents the union requested from
the employer in preparation for the October 2004 interest
arbitration. The employer charged the union 15 cents per page as
allowed by the Public Records Act (PRA) in RCW 42.56.120,(fn:6) and
additionally provided for in the Kitsap County Code at
3.76.100(2)(b). The total cost was $175.42, which included the cost
for the copies and three CD-ROM discs.
____________________
fn:6 Formerly 42.17.300. Recodified, effective July 1, 2006.
On September 21, 2004, an e-mail exchange between the union and
employer discussed payment arrangements for the requested documents.
The union did not want to pay for the copies, and suggested that
the employer propose another option.
On September 23, 2004, union president Mike Rodrigue e-mailed the
employer to inquire if the copies were ready to be picked up. In
this note, Rodrigue did not object to paying for the copies, but
rather objected to having to pay for the copies prior to receiving
them. Nonetheless, Rodrigue wrote a personal check for $175.42,
which he presented to the employer in exchange for the copies.
The union argues that the employer unilaterally changed a past
practice when it charged for the copies. The union also claims that
the employer charged an illegal rate for the copies, and illegally
conditioned the production of documents upon payment for the copies.
The employer argues that it appropriately charged the union for the
copies because the union made the request under the PRA.
Furthermore, the employer contends there was no established past
practice between the parties.
The Commission does not have jurisdiction over the PRA, and
therefore cannot enforce payment practices under that act. See
Pasco School District, Decision 5384-A (PECB, 1996). Rather, in
this case, the Commission views the question under PECBA and its
case law, and looks to the evidence presented to determine whether
or not there was a past practice between the parties.
Evidence supplied at the hearing shows that the union's
representative had previously made requests for information under
both the PRA and PECBA, and was billed for copies as far back as
August 2000. There was also testimony to confirm that the employer
often did not charge for copies. Witnesses from both sides agreed
that this was a much larger request for documents than usual.
However, there did not appear to be a pattern whereby the employer
only charged for copies when a large request came in. Based on this
record, the Examiner finds no evidence of an established practice.
Finally, there is no evidence that the employer's actions
discouraged the union's exercise of its right to request relevant
collective bargaining information; nor was there anything to suggest
the employer applied the charges in a discriminatory manner. See
Snohomish County, Decision 9570 (PECB, 2007).(fn:7)
____________________
fn:7 Nothing in this decision precludes the employer from agreeing
to provide copies without charge whenever doing so makes practical sense.
Conclusion
The union did not meet its burden to show that a past practice
involving copying costs existed. Since there is no clear practice,
there cannot be a change in practice.(fn:8) Therefore, there is no
violation.
____________________
fn:8 Since there is no past practice, the Examiner does not need to
determine whether a mandatory subject of bargaining exists. For a
look at the Commission's past cases on that issue, see City of
Bremerton, Decision 4738 (PECB, 1994), where the Examiner concluded
that the issue of prepayment for copies made pursuant to a union's
request for information had only a remote and indirect impact on
employee working conditions. To constitute an unfair labor
practice, a change in the status quo must be meaningful. City of
Kalama, Decision 6773-A (PECB, 2000). The Examiner in Snohomish
County, Decision 9655 (PECB, 2007) found that the requirement to pay
for copying costs was not a meaningful change.
ISSUE 3: Breach of Good Faith
Legal Principles
In the context of collective bargaining relationships, the good
faith obligation calls for honest communication and an effort to
reach agreement above and beyond expectations in other business
relationships. In order to show a breach of good faith, the union
must show that the employer engaged in specific conduct or a course
of conduct designed to frustrate the collective bargaining process.
This might include tactics such as refusing to consider proposals
made by the union, altering a bargaining position in a way that is
designed to avoid agreement, or providing misleading proposals or
positions. In assessing good faith, the totality of conduct or
circumstances is considered. Kennewick General Hospital, Decision
4815-B (PECB, 1996).
The good faith bargaining obligation under RCW 41.56 extends to
cases involving bargaining units eligible for interest arbitration.
City of Wenatchee, Decision 8898-A, (PECB, 2006).
Analysis
The union claims that the employer breached its duty to bargain in
good faith by making a regressive wage proposal, providing false and
misleading information concerning the existence of budget records,
preconditioning the release of information on payment of a
unilaterally established rate, and charging a rate for information
in excess of reproduction costs. We will examine each of these
claims as follows:
Did the employer present a regressive bargaining proposal?
Bargaining proposals can be changed after interest arbitration has
been invoked, particularly when there is an apparent attempt to
narrow the parties' differences. However, regressive bargaining
occurs when one party in some manner attempts to make a proposal
less attractive than its previous offers. City of Wenatchee,
Decision 8898-A (PECB, 2006). In order for a party to bargain
regressively, a bad faith element must infect the collective
bargaining process. City of Redmond, Decision 8879-A (PECB, 2006).
It is not uncommon during the course of negotiations for parties to
exchange conditional, or "what if," proposals, while still
maintaining their protected positions. This practice does not fall
into the category of regressive bargaining. City of Redmond,
Decision 8879-A.
The union claims that the employer committed an unfair labor
practice by engaging in regressive bargaining during the course of
an interest arbitration for the 2003-2005 contract. The union
argues that the employer initially offered retroactive pay
increases, then subsequently withdrew them.
On October 9, 2002, the employer advanced a bargaining proposal that
included a wage adjustment for 2003, contingent upon union
ratification of the agreement. The proposal also included wage
adjustments for 2004 and 2005. The parties were unable to come to
an agreement, and filed a request for mediation with the Commission
in late October. Mediation meetings continued throughout early
2003, but were unsuccessful. In July 2003, the Commission certified
the parties for interest arbitration.
On December 10, 2003, the employer wrote a letter to the union
reiterating its position of "no retroactivity." In a December 29,
2003 letter to the employer, the union did not claim that there was
a change in the employer's position, but did object to the implied
suggestion that the union was somehow responsible for a delay in the
arbitration hearing. An arbitrator was finally chosen in the spring
of 2004. The arbitration hearing was set for October 2004.
On September 27, 2004, Prosecuting Attorney Aufderheide wrote a
letter to the arbitrator and the union outlining the employer's
proposal for the upcoming arbitration hearing. This proposal
included the language from the employer's last formal offer in
October 2002, which made the wage adjustments contingent upon union
ratification of the contract. The next day, on September 28, 2004,
Aufderheide sent a corrected letter to the same parties, indicating
that her letter of the previous day was in error, and emphasizing
that the proposal did not include retroactive payments for 2003,
2004, or 2005. The letter stated that the phrase "following Guild
ratification of this agreement" was part of the October 9, 2002
proposal because, at that time, it was expected that the parties
would ratify the agreement in 2002 or 2003.
Aufderheide's assertion that she made a mistake when she created the
arbitration proposal is credible. Aufderheide had not been involved
with negotiations prior to mid-2004, and was not familiar with the
history of negotiations between the parties. Additionally, she
promptly acted to correct the mistake, and made the reason for the
mistake clear to the union and the arbitrator.
The Examiner concludes that the employer did not make a regressive
proposal regarding wage adjustments. Even though the employer's
2002 proposal contemplated wage changes for 2003 through 2005, these
were proposed as future increases contingent upon agreement, not
retroactive pay raises. This finding is further bolstered by the
union's failure to object to the "no retroactivity" position in
December 2003.
Conclusion
The record shows that the employer maintained its position on
retroactivity in good faith throughout negotiations, and promptly
corrected any error in communicating that position.
Did the employer provide false and misleading information?
Carelessly or knowingly providing false information in response to
an information request violates the duty to bargain in good faith.
Seattle School District, Decision 9628-A (PECB, 2008).
The union claims the employer intentionally withheld information
prior to the interest arbitration in order to conceal its favorable
financial situation. The union further alleges that the employer
denied the existence of documents, provided misleading and "somewhat
pessimistic" documents, and lied to strengthen its claim that the
union's proposals were untenable. The Examiner is not convinced.
Contrary to what the union contends, the evidence shows that the
employer was very responsive to the union's information requests.
The employer was reasonably prompt in replying to those requests,
and conducted a reasonably diligent search for the documents. The
Examiner credits Aufderheide's testimony stating that she inquired
about the 2005 preliminary budget a number of times, but was
repeatedly told that it did not exist. The fact that Aufderheide
offered to provide departmental budget request information to the
union, which it declined, lends further weight to a conclusion that
the employer was responsive to the union's requests, and did not
intentionally withhold information.
Conclusion
The Examiner finds no evidence to show that the employer breached
its duty of good faith by providing false and misleading information
to the union.
Did the employer precondition the release of information on payment?
The union claims that the employer illegally demanded payment for
the copies as a precondition to receiving the documents.
In City of Bremerton, Decision 4738, the examiner determined that
the employer did not commit a violation when it required a payment
by the union for photocopying costs prior to a grievance
arbitration. The examiner in that case found that copying costs
could be reasonably borne by the union as part of the normal course
of representing its membership.
Even without City of Bremerton, there is no evidence to support the
union's claim that the employer conditioned the production of
documents on pre-payment. On September 23, 2004, union president
Rodrigue went to the front office of the public works building to
pick up the copies in question, and brought a check to pay for them.
According to the front office staff, Rodrigue became upset when the
copies were not ready, and when staff told him to leave the check.
However, when the employer's labor relations manager was called to
intervene, he promptly agreed that Rodrigue could pay for the
documents when he received them. Rodrigue himself testified that at
the time he went to pick up the documents, the employer indicated he
did not have to leave his check.
Conclusion
The union did not meet its burden of proof on this issue.
Did the employer breach its duty to bargain by charging a rate in
excess of a reasonable cost for making copies?
The Public Records Act (PRA) under RCW 42.56 and the Public
Employees Collective Bargaining Act establish a duty to provide
information. Both protect and promote an interest in an open
process and discourage the concealing of information. Both the
Washington State PRA and the Kitsap County version of the act allow
for "reasonable charges," including costs incident to providing
copies. Both provisions conclude that a "reasonable charge" for
paper copies is 15 cents per page.
The union argues that even if the employer has a right to recover
the costs for copying, the union should not have to pay anything
beyond the actual reproduction costs.(fn:9) It argues that the duty to
provide information under RCW 41.56 should be exempt from the costs
allowed by the PRA because the bargaining obligation requires more
expansive and unimpeded access to information.
____________________
fn:9 An e-mail from the employer to the union on November 3, 2005,
stated that the copy vender quoted the cost per page at 4.8 cents
per page.
While the union is correct in its assertion that the duty to provide
information for the purpose of collective bargaining is broader than
it is under the PRA, this does not necessarily release the union
from paying a reasonable amount above the actual cost of making the
copies. For instance, additional costs to consider might include
the cost of paper, toner, and machine maintenance.(fn:10)
____________________
fn:10 These factors are cited in Attorney General Opinion 1991 No.
6 as reasonable charges, in answer to the question, "Under what
circumstances would copying charges be deemed excessive?" [under
former RCW 42.17.300].
However, the Examiner is not in a position to speculate what a
reasonable charge for copies might be. The union's complaint only
seeks a finding that the act of charging 15 cents per page was
inherently a breach of good faith.
Conclusion
There is no evidence to suggest the employer breached its duty of
good faith by charging 15 cents per page. The action was not
designed to frustrate the collective bargaining process, but was
simply employed to recover some cost to the employer for the
production of documents. The Examiner finds no violation.
ISSUE 4: Discrimination Charge
Legal Principles
RCW 41.56.140(1) prohibits interference with employee rights, which
includes a prohibition of discrimination. The union has the burden
of proof in discrimination and interference claims. WAC
395-45-270(1)(a).
Discrimination and interference claims are interrelated in that both
require evidence of a protected activity. If a discrimination claim
and an interference claim are based on the same set of facts, an
independent interference claim will not be found. Seattle School
District, Decision 5237-B (EDUC, 1996); Brinnon School District,
Decision 7210-A (PECB, 2001).
A discrimination violation occurs when an employer actually takes
action against an employee in reprisal for union activity. The
standard for determining a discrimination violation was adopted by
the Commission in Educational Service District 114, Decision 4631-A
(PECB, 1994) and City of Federal Way, Decisions 4088-B and 4495-A
(PECB, 1994).(fn:11)
____________________
fn:11 Based on the decisions of the Supreme Court of the State of
Washington in Wilmot v. Kaiser Aluminum, 118 Wn.2d 46 (1991) and
Allison v. Seattle Housing Authority, 118 Wn.2d 79 (1991).
In order to prove a discrimination violation, the union must show
that one or more employees exercised protected union activity, or
communicated to the employer an intent to do so. Next, the union
must show that the employee was deprived of some right, status or
benefit, and that a connection exists between the protected union
activity and the action claimed to be discriminatory. City of
Yakima, Decision 9451-B (PECB, 2007).
If the union meets the test set out above, the employer must present
lawful reasons for its actions. If the employer presents such
reasons, the union bears the burden to show that the employer's
reasons were designed as pretexts, and/or that the protected
activity was a substantial motivating factor for the disputed
action. City of Yakima, Decision 9451-B.
Analysis
On September 23, 2004, Rob Gudmonson, labor relations manager for
the employer, responded to an e-mail from union president Rodrigue.
Rodrigue inquired about the total cost of the copies the union had
requested in preparation for an arbitration hearing. Later that
day, Rodrigue went to pick up the documents at the public works
building. He asked for the documents at the front desk and
presented a personal check for $175.42. However, the documents were
not ready or could not be found by the office staff. Rodrigue was
told that he could leave his check, and the documents would be sent
to him when they were ready. Rodrigue became upset because he did
not want to leave the check without receiving the documents.
Testimony by Marsha Richards, the front office staffperson, revealed
that she was taken aback by his behavior. She testified that he
started yelling, and that he got very loud and confrontational.
Rodrigue characterized his behavior as "stern." Richards called
Gudmonson, who came from a nearby office to explain to Rodrigue that
the person who was working on the copying project was not in the
office. Gudmonson said that he would call Rodrigue when the copies
were done, and offered to bring the documents to him.
As a result of this encounter, a rudeness complaint was filed
against Rodrigue by Richards' supervisor. Rodrigue was given a
supervisory review and received verbal counseling.
Rodrigue testified that he perceived the counseling as a threat of
reprisal associated with union activity. Additionally, the union's
vice president of negotiations, Roger Howerton, testified that he
believed verbal counseling was a prelude to discipline. Howerton
stated that it could be a precursor to any potential future rudeness
complaints.
Verbal counseling is not considered a form of discipline by the
parties' collective bargaining agreement. Testimony indicated that
a record of the investigation does not go into the personnel file,
but does go into the supervisory file. However, there is no
evidence that Rodrigue suffered any actual repercussions as a result
of the investigation.(fn:12)
____________________
fn:12 The employer could be subject to a future discrimination
claim if Rodrigue's verbal counseling regarding rudeness becomes the
basis for a disciplinary action.
Rodrigue was clearly engaged in a protected union activity when he
went to pick up the documents in preparation for interest
arbitration. However, the union failed to meet its burden to show
the employer denied a right, status or benefit to Rodrigue as a
result of that activity.
Conclusion
The Examiner concludes that the union did not meet its burden of
proof on the second element of the discrimination test. There is no
violation because there is no evidence that Rodrigue was deprived of
any rights protected by RCW 41.56.
FINDINGS OF FACT
1. Kitsap County is a public employer within the meaning of
RCW 41.56.030(1).
2. Kitsap County Deputy Sheriff's Guild, a bargaining
representative within the meaning of RCW 41.56.030(3), is the
exclusive bargaining representative of all Kitsap County
commissioned deputy sheriffs through the rank of sergeant.
3. The union and employer were parties to a collective bargaining
agreement dated January 1, 2000, through December 31, 2002.
The parties began negotiating a successor agreement in the
latter part of 2002.
4. In October 2002, the employer advanced a bargaining proposal
that included wage adjustments for 2003, contingent upon union
ratification. The proposal also included wage adjustments for
2004 and 2005. The parties were unable to come to an agreement
for a 2003-2005 contract, and proceeded to interest arbitration
in October 2004.
5. On July 21, 2004, the union made an information request for
documents in preparation for the upcoming interest arbitration.
The request was made under both the state collective
bargaining laws and the state Public Records Act.
6. On September 13, 2004, the employer made the requested
documents available for inspection, and the union identified
and tagged specific documents to be copied. In total, the
union requested 1,138 pages.
7. The employer informed the union that it intended to charge 15
cents per page. This amounted to $175.42, including the cost
of three compact discs. The union initially objected to the
charges, but made preparations to pay the amount.
8. The employer had no clear practice of charging or not charging
the union for copies. It had employed both methods in the past.
9. The action of charging 15 cents per page was not designed to
frustrate the collective bargaining process.
10. Union president Mike Rodrigue went to pick up the copies on
September 23, 2004. The person in charge of making the copies
was not available. Other office staff could not locate the
documents.
11. Office staff told Rodrigue to leave payment for the
copies, and he would be called when they were ready. This
upset Rodrigue, which startled the office staff.
12. Labor relations manager Rob Gudmonson was called to speak to
Rodrigue. He told Rodrigue that he would call him when the
documents were ready, and that Rodrigue could pay for them at
that time.
13. As a result of the interaction between Rodrigue and the office
staff, the incident was reported to a supervisor. An
investigation was conducted. Rodrigue received verbal
counseling for his behavior. Under the collective bargaining
agreement, verbal counseling is not considered discipline.
14. On September 27, 2004, in preparation for the interest
arbitration, Senior Deputy Prosecuting Attorney Jacquelyn
Aufderheide sent a letter to the union and the arbitrator and
attached language from the employer's October 2002 contract
proposal.
15. On September 28, 2004, Aufderheide sent a corrected letter,
stating that her September 27 letter was in error because the
October 2002 proposal contemplated wage adjustments based on
union ratification, but was not intended to include retroactive
pay.
16. Prior to the interest arbitration hearing, the union expressed
concern about the employer's failure to produce a preliminary
draft of the 2005 budget and communications regarding revenue
projections from 2002 to present.
17. The employer responded by stating that a preliminary draft
of the 2005 budget did not exist. The employer offered to
supply departmental budget requests, which are used to
develop the budget. The union declined.
18. The employer sent a document in response to the union's
request for revenue projections. The union indicated that
it was responsive to their request.
CONCLUSIONS OF LAW
1. The Public Employment Relations commission has jurisdiction in
this matter under Chapter 41.56 RCW and Chapter 391-45 WAC.
2. As described in Findings of Facts 5, 6, 16, 17, and 18,
the employer did not fail to provide relevant collective
bargaining information to the union in violation of RCW
41.56.140(1) or (4).
3. As described in Findings of Facts 7 and 8, the employer did not
unilaterally change payment practices for copies of requested
documents in violation of RCW 41.56.140(1) and (4).
4. As described in Findings of Facts 14 and 15, the employer did
not offer regressive contract proposals in violation of RCW
41.56.140(1) and (4).
5. As described in Findings of Facts 16, 17, and 18, the employer
did not provide false and misleading information in violation
of RCW 41.56.140(1) and (4) when it responded to the union's
request for information.
6. As described in Findings of Facts 10, 11, and 12, the employer
did not precondition the release of information on payment for
copies in violation of RCW 41.56.140(1) and (4).
7. As described in Findings of Facts 7, 8, and 9 the employer did
not breach its duty to bargain in good faith in violation of
RCW 41.56.140(1) and (4) by charging 15 cents per page.
8. As described in Findings of Fact 13, the employer did not
discriminate against employees in reprisal for union activity
in violation of RCW 41.56.140(1) and (4) when it verbally
counseled the union president.
ORDER
The complaints charging unfair labor practices filed in the
above-captioned matters are DISMISSED.
ISSUED at Olympia, Washington, this 7th day of April, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
LISA A. HARTRICH, Examiner
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.