CHAPTER 14

MEDIATION CASES

(Rules: Chapter 391-55 WAC)

The PERC Staff Manual was issued by the former Executive Director in October 2006 appointed by the Public Employment Relations Commission under RCW 41.58.015(2) and (3), to provide guidance and direction to PERC staff members. The staff manual is subject to constant revision and is to be regarded as a guide. Cases may be processed in a different manner and in the event of any conflict between this PERC Staff Manual and any statute, any Commission rule, or any Commission precedent, the statute, rule or precedent shall prevail.

CHAPTER 14 - MEDIATION

14.1   NATURE OF PROCEEDINGS

Mediation is an extension of the collective bargaining processes created by the various state laws administered by PERC.

♦      State government has both economic and policy interests in orderly resolution of labor-management disputes, and in the maintenance of labor peace within the state.

♦      Mediators work at state expense, without power of compulsion and without investment in the outcome, to assist parties in settling collective bargaining disputes.

Mediation cases constituted about half of the case intake in the early years of PERC’s history, and have been around 30% of the case intake in most succeeding years.

14.2   SOURCE OF AUTHORITY

Chapter 41.58 RCW created the Public Employment Relations Commission (PERC), and RCW 41.58.020 authorizes PERC to offer mediation on its own motion or to provide mediation on the request of any party. That section parallels the charter of the Federal Mediation and Conciliation Service (FMCS) in Section 203 of the Labor-Management Relations Act of 1947 (the Taft-Hartley Act).

The collective bargaining statutes administered by PERC also specifically authorize mediation of labor-management disputes, as follows:

♦      Chapter 28B.52 RCW (faculty of community colleges and technical colleges) - RCW 28B.52.060 authorizes PERC to provide mediation. The parties to a dispute can seek some other mediation or impasse procedure at their own expense, but the statute does not provide any impasse procedure beyond mediation.

♦      Chapter 41.56 RCW (local government, including port districts covered by Chapter 53.18 RCW and public utility districts covered by Chapter 54.04 RCW, as well as classified employees of school districts and some state government operations) - Authority for PERC to provide mediation has multiple sources:

        ►      Mediation is provided for all covered employees under Chapter 41.58 RCW and RCW 41.56.100.

        ►      Mediation is required under RCW 41.56.440 for “uniformed personnel” eligible for interest arbitration (fire fighters, paramedics, most law enforcement officers, some corrections personnel, some fire dispatch personnel, nuclear plant security personnel, and public passenger transportation system employees).

►      Chapter 41.59 RCW (certificated employees of school districts) - RCW 41.59.120 authorizes PERC to provide mediation as the first step in a statutory impasse resolution procedure. If one party resists mediation requested by the other party under RCW 41.59.120, PERC rules provide for mediation under RCW 41.58.020 to evaluate the need for mediation. If parties exhaust the statutory impasse procedure (mediation + fact-finding) without resolving their dispute, PERC can provide for further mediation under RCW 41.58.020. Parties can substitute their own impasse procedure at their own expense, but they seldom do so.

►      Chapter 41.76 RCW (faculty at state institutions of higher education awarding baccalaureate and higher degrees) - RCW 41.76.030 authorizes PERC to provide mediation. Parties can substitute some other mediation or impasse procedure at their own expense.

►      Chapter 41.80 RCW (state civil service employees) - RCW 41.80.090 authorizes PERC to provide mediation as the first step in a statutory impasse resolution procedure. If parties exhaust the statutory impasse procedure (mediation + fact-finding) without resolving their dispute, PERC can provide further mediation under RCW 41.58.020.

►      Chapter 49.08 RCW (private sector and “other” public employees) - Language calling for a visit to the location of a dispute, making inquiry, and advising parties as to what should be done to settle a dispute, along with use of the word “mediation” in RCW 49.08.010, was the source of authority for the Department of Labor and Industries to operate a “state mediation service” through 1975. Although the chapter is within an RCW title generally aimed at the private sector, the text does not limit its coverage to the private sector. PERC has thus used this statute as its base of authority to offer / provide mediation services to the Washington State Department of Printing and other public entities excluded from all of the public sector collective bargaining laws.

►      Chapter 53.18 RCW (port districts and their employees) - PERC mediates port district cases under Chapter 41.56 RCW, above, per RCW 53.18.015.

►      Chapter 54.04 RCW (public utility districts and their employees) - PERC mediates public utility district cases under Chapter 41.56 RCW, above, per a Supreme Court decision that implements federal rights through state procedures. PUD of Clark County, Decision 2125 (PECB, 1985), aff’d, 110 Wn.2d 114 (1988).

14.3   WORK STOPPAGES

The work stoppage is a traditional response to impasses in collective bargaining. It is a “strike” if the “no contract = no work” edict comes from a union; it is a “lockout” if the “no contract = no work” edict comes from the employer. Section 7 of the National Labor Relations Act (NLRA) protects the right of private sector employees to “engage in . . . concerted activities for mutual aid and protection” and Section 13 of the NLRA specifically states that nothing in the NLRA interferes with or diminishes the right to strike.

Any work stoppage involving public employees is inevitably of concern to the general public:

♦      The Supreme Court of the State of Washington applied common law “affront to the sovereign” principles in Port of Seattle v. International Longshoremen's and Warehousemen's Union, 52 Wn.2d 317 (1958), as the basis for holding that a strike by public employees was unlawful and enjoinable. The Port of Seattle decision is the last word on the subject from our Supreme Court. Most of the public sector statutes administered by PERC go beyond that decision:

        ►      Chapter 28B.52 RCW (faculty of community colleges and technical colleges) - The Legislature omitted the “concerted activities” clause from RCW 28B.52.025, and RCW 28B.52.078 specifically prohibits strikes.

        ►      Chapter 41.56 RCW (local government, including port districts covered by Chapter 53.18 RCW and classified employees of school districts, and some state government operations) - The Legislature omitted the “concerted activities” clause from RCW 41.56.040, and:

                •      RCW 41.56.120 withholds the right to strike for all covered employees.

                •      RCW 41.56.490 specifically prohibits strikes by uniformed personnel eligible for interest arbitration (fire fighters, paramedics, most law enforcement officers, some corrections personnel, some fire dispatch personnel, nuclear plant security personnel, and public passenger transportation system employees).

        ►      Chapter 41.59 RCW (certificated employees of school districts) - The Legislature omitted the “concerted activities” clause from RCW 41.59.060, and courts have consistently ruled that strikes are unlawful under Port of Seattle v. International Longshoremen's and Warehousemen's Union, 52 Wn.2d 317.

        ►      Chapter 41.76 RCW (faculty at state institutions of higher education awarding baccalaureate and higher degrees) - The Legislature omitted the “concerted activities” clause from RCW 41.76.085, and RCW 41.76.065 specifically prohibits strikes.

        ►      Chapter 41.80 RCW (state civil service employees) - The Legislature omitted the “concerted activities” clause from RCW 41.80.050, and RCW 41.80.060 specifically prohibits strikes.

        ►      Chapter 49.08 RCW (private sector and “other” public employees) - Nothing in the statute interferes with or diminishes the right to strike. Chapter 49.36 RCW both: (1) gives employees a right to organize themselves into unions; and (2) nullifies the judicial “unions are unlawful conspiracies” precedents that dated back to the Philadelphia Cordwainers case of 1803.

        ►      Chapter 53.18 RCW (port districts and their employees) - Chapter 41.56 RCW applies, plus RCW 53.18.020 specifically withholds the right to strike.

♦      Chapter 54.04 RCW (public utility districts) - RCW 54.04.170 and 54.04.180 give public utility districts and their employees the same rights as their counterparts in the private sector, which arguably includes the right to strike or lock out.

♦      Courts have sometimes ordered public employers to restore / resume their operations (particularly at the behest of parents suing to enforce the constitutional right of their children to public education), and Burke & Thomas, Inc. v. International Organization of Masters, Mates & Pilots, 91 Wn.2d 1022 (1979) held open the possibility of both a private lawsuit (and injunction) against an employer for unlawful conduct connected with collective bargaining and a lawsuit by the attorney general on behalf of the public.

14.4   TYPES OF MEDIATION

PERC provides mediation services in three general types of situations identified by the alphabetic codes in the case numbers assigned through the Public Employment Relations Commission Case Information System (PERCCINS):

♦      “M” Cases involve mediation of future interests of unions and employers in negotiations for new or successor collective bargaining agreements. These cases are regulated by Chapter 391-55 WAC, and requests for this service are filed under WAC 391-55-010. A PERC staff member (“Mediator”) meets with the parties, and seeks to effect communications leading to an agreement.

♦      “G” Cases involve mediation of rights disputes concerning interpretation or application of existing collective bargaining agreements in connection with grievances alleging violation of an existing contract. These cases are also regulated by Chapter 391-55 WAC, but requests for this service are filed under WAC 391-55-020. A PERC staff member (“Mediator”) meets with the parties, and seeks to effect communications leading to an agreement.

♦      “S” Cases involve mediation of negotiations between parties to resolve substantive issues arising in nonassociation or unfair labor practice proceedings. Requests for this service are made by the assigned Examiner under WAC 10-08-200(15), or by the parties under WAC 391-45–260.

        ►      A PERC staff member (“Mediator”) other than the assigned Examiner will be assigned to mediate the substantive issues. The assigned Examiner remains responsible for prehearing conferences to resolve procedural issues.

        ►      The activity is regulated by Chapter 391-55 WAC, and the Mediator can properly use mediation techniques to seek a settlement of the litigation.

        ►      The Mediator can take a proactive role and have ex parte contacts with the parties that would be inappropriate for the assigned Examiner.

        ►      The Mediator can inform the parties of applicable rules and precedents affecting the procedural, substantive, and/or evidentiary issues in the case.

        ►      The Mediator and the assigned Examiner must avoid any discussion of the mediation or the substantive issues in the case.

♦      PERC does NOT assign staff members to mediate substantive issues in “C” and “E” cases. The policy reasons for this are:

        ►      The rights affected belong to the employees themselves, rather than to the union and employer that would be doing the negotiations; and

        ►      The agreements of parties on unit matters are not binding on the Commission under City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).

14.5   LIAISON WITH THE FMCS

PERC has had a liaison agreement with the Federal Mediation and Conciliation Service (FMCS) since 1976, and it has resulted in good relations between the two agencies. It establishes the following principles:

1.     The FMCS recognizes the primary jurisdiction of PERC to provide mediation services to labor and management under statutes administered by PERC.

        ●      Public sector parties desiring FMCS mediation services must file a mediation request with PERC, together with a written joint request that the case be referred to the FMCS.

        ●      PERC will docket an “M” case, in order to keep track of the number of cases referred to the FMCS.

        ●      PERC can decline to make a referral, but PERC will generally approve referral requests if PERC’s caseload / backlog is high.

        ●      The Executive Director of PERC or a designee will contact the FMCS to make the referral.

        ●      The FMCS will not act on the request absent a referral from PERC, and the FMCS reserves authority to decline acceptance of a case referred by PERC.

2.     PERC is the agency designated to receive the state copy of notices under Section 8(d) of the Labor-Management Relations Act of 1947 (the Taft-Hartley Act), but does not aggressively seek private sector mediation work.

        ●      PERC does not contact parties in response to dispute notices filed under Section 8(d) of the Taft-Hartley Act.

        ●      PERC will provide mediation in the private sector, on request of one or both parties.

3.     PERC and the FMCS do not "co-mediate" cases or simultaneously assign staff members to the same dispute.

4.     PERC and the FMCS do not follow one another into situations. If the parties start with a PERC staff member, they must come back to PERC if they want further mediation after intervening fact-finding proceedings; if the parties start with an FMCS staff member, they must go back to the FMCS if they want further mediation after intervening fact-finding proceedings.

Our liaison relationship with the FMCS is a model for liaison arrangements elsewhere around the country. PERC is careful not to dump its work on the FMCS; the FMCS is careful not to intrude in PERC's jurisdiction. Any perceived violations of these principles, and any questions about federal / state liaison, should he taken up with the Executive Director.

14.6   WHERE MEDIATION IS RESISTED BY ONE OF THE PARTIES

The PERC staff must act in conformity with the applicable statute when one of the parties to a dispute resists a mediation request filed by the other party:

♦      Most of the statutes expressly or impliedly authorize PERC to provide mediation on the request of one party:

        ►      RCW 28B.52.060 now expressly authorizes mediation at the request of either party.

        ►      RCW 41.56.100 continues to call for submission of disputes to PERC. RCW 41.56.440 expressly authorizes mediation for “uniformed” personnel at the request of either party made after 60 days of bilateral negotiations.

        ►      RCW 41.76.030 expressly authorizes mediation at the request of either party.

        ►      RCW 41.80.090 expressly authorizes mediation at the request of either party.

        ►      RCW 49.08.010 expressly authorizes mediation at the request of either party.

♦      Chapter 41.59 RCW requires PERC to determine if its assistance is needed before starting a 10-day period of mediation. RCW 41.59.120 carried over the "declaration of impasse" terminology from the prior statute, and parties have sometimes resisted mediation requests. PERC policy is to de-emphasize the procedural aspects, and to remind disputants that a declaration by one party does not make it true. The Commission adopted the "investigation" process in WAC 391-55-032, to give the PERC staff a first look at situations before starting the 10-day period.

        ►      A PERC staff member is assigned to conduct the investigation / conciliation, which is just another name for mediation.

        ►      The activity is regulated by Chapter 391-55 WAC, and the assigned staff member can properly use mediation techniques to both assess the issues and seek a settlement of the dispute.

        ►      There is no limit on the duration of the investigation (mediation) under WAC 391-55-032, and some disputes have been settled under that procedure without ever starting the statutory time period for mediation.

        ►      A PERC staff member who conducts an investigation (mediation) under WAC 391-55-032 must make a report on the activity to the Executive Director. The Executive Director must then rule on whether to start the mediation clock.

If a party refuses to participate in mediation, report the situation to the Executive Director as soon as possible and make a Transaction Log entry on PERCCINS. Apart from any direct communications with the parties to the dispute, the Executive Director may report the situation to the Governor or other authorities.

14.7   WHERE NEITHER PARTY REQUESTS MEDIATION

PERC may find it necessary to offer mediation service to protect the public interest, where neither party to a dispute has requested mediation. Examples are:

♦      Where PERC becomes aware that a public sector strike or lockout is imminent, or already in existence, without a request for mediation.

♦      Where a public sector dispute is getting significant news media attention, but there has been no mediation request from either of the parties.

♦      Where a public sector dispute is called to PERC's attention by a citizen group, a member of the legislature, the Governor, etc.

Situations are evaluated individually, but the Executive Director routinely reports public sector work stoppages to the Governor. Where PERC elects to take action, it offers mediation service under the general authority conferred by RCW 41.58.020.

CAUTION: This is at the core of PERC’s mission, and can be aggressively pursued. Staff members who believe intervention may be appropriate should consult with the Executive Director or a Field Services Manager.

The letter sent to the parties concerning a strike by teachers in the Lake Stevens School District in 2003 provides a model to be adapted, as follows:

(Addressed jointly to the employer and union)

This state agency created by Chapter 41.58 RCW is responsible for the impartial administration of state collective bargaining laws, including the [title of statute] (Chapter [number] RCW). We have been monitoring news media reports concerning the collective bargaining negotiations between the [name of union] and the [name of employer] . Up to this time, neither party has requested mediation under RCW [section number] .

News reports today indicate that the [describe employer operation, such as “schools in Lake Stevens”] are closed due to a work stoppage, and [insert “I” or name of PERC staff member] offered mediation assistance in [insert “messages left for” or “conversations with”] representatives of both parties today. This is written to confirm that offer of mediation, which was made under the general authority conferred upon the agency by RCW 41.58.020, as follows:

RCW 41.58.020 POWERS AND DUTIES OF COMMISSION. (1) It shall be the duty of the commission, in order to prevent or minimize interruptions growing out of labor disputes, to assist employers and employees to settle such disputes through mediation and fact-finding.

(2) The commission, through the director, may proffer its services in any labor dispute arising under a collective bargaining statute administered by the commission, either upon its own motion or upon the request of one or more of the parties to the dispute, whenever in its judgment such dispute threatens to cause a substantial disruption to the public welfare.

(emphasis added). The news media reports indicating that more than [insert facts, such as “6,000 students”] are affected by the work stoppage provide basis for me to conclude that the dispute between the parties appears to be causing a substantial disruption to the public welfare.

If your organization is disposed to accept the Commission’s offer of mediation assistance, please contact [a named PERC staff member] at [the staff member’s telephone number] to arrange a meeting. If you encounter any difficulty in reaching [the named staff member] , please feel free to contact the undersigned directly at [author’s telephone number] .

If your organization continues to decline mediation services, please file and serve a written statement to that effect with the Commission, within seven days following the date of this letter.

Demanding a written statement will hopefully cause parties to think twice about rejecting PERC’s offer of mediation. PERC can release information to the news media about any rejection of mediation.

14.8   THE ROLE OF THE MEDIATOR, GENERALLY

Mediators are impartial persons who assist parties in their negotiations for an agreement.

♦      Mediation is an extension of the parties’ negotiations.

        ►      The Mediator has no independent authority to decide issues, and does not issue any written decision.

        ►      The Mediator does not have a power of compulsion, and cannot force parties to act.

        ►      The parties themselves decide whether / when to make concessions or settle.

♦      The Mediator should be an active proponent of settlement. “Impartial” is the descriptor preferred at PERC, because the “neutral” descriptor used elsewhere might connote a passive role for a person who should be proactive in the endeavor.

♦      The Mediator can help the parties to focus on the real issues, and to dispense with peripheral issues that need not be addressed.

♦      The Mediator can help the parties to analyze their actual needs / interests, as well as the needs / interests of the opposite party.

♦      The Mediator can deflate overly-ambitious assertions / desires which have little chance of being achieved, can promote more realistic expectations, and can estimate / communicate the consequences of failing to reach an agreement.

♦      The Mediator can offer suggestions for ways to resolve issues, and can serve as a resource for information that may be relevant to the negotiations.

♦      The Mediator can filter and communicate ideas that come from the parties themselves in a manner that will not lock a party into an idea that is unacceptable.

♦      The Mediator will preserve confidentiality. After an initial meeting customarily held with the parties jointly, the Mediator may shuttle back and forth between private meetings with the parties while attempting to move the parties closer together. This may help to develop a framework and sufficiently narrow issues so the parties can address them directly in face-to-face meetings.

♦      The Mediator may become the sole conduit for communications between parties that cannot or will not work face-to-face.

♦      The Mediator can neutralize animosities between the parties by letting them ventilate in private caucus, while keeping the overall focus on the substantive issues.

In many ways, a Mediator is both a coach and a chameleon. Mediators must sense when to take the initiative (aggressively challenging the parties’ impasse and interposing himself/herself), and when to hang back (while parties communicate directly).

14.9   PROFESSIONAL RESPONSIBILITY

The reputation and overall effectiveness of the Public Employment Relations Commission as an agency depends, in large part, on the acceptability of the mediation services it provides. In turn, the reputation of the agency depends, in large part, on the acceptability of the PERC staff members assigned to provide mediation.

PERC is a member agency of the Association of Labor Relations Agencies (ALRA), and it subscribes to the code of ethics adopted by ALRA, as follows:

CODE OF PROFESSIONAL CONDUCT FOR LABOR MEDIATORS

         PREAMBLE

The practice of mediation is a profession with ethical responsibilities and duties. Those who engage in the practice of mediation must be dedicated to the principles of free and responsible collective bargaining. They must be aware that their duties and obligations relate to the parties who engage in collective bargaining, to every other mediator, to the agencies which administer the practice of mediation, and to the general public.

Recognition is given to the varying statutory duties and responsibilities of the city, state and federal agencies. This Code, however, is not intended in any way to define or adjust any of these duties and responsibilities nor is it intended to define when and in what situations mediators from more than one agency should participate. It is, rather, a personal code relating to the conduct of the individual mediator.

This Code is intended to establish principles applicable to all professional mediators employed by city, state or federal agencies and to mediators privately retained by parties.

1.The Responsibility of Mediators Toward the Parties

The primary responsibility for the resolution of a labor dispute rests upon the parties themselves. Mediators at all times should recognize that the agreements reached in collective bargaining are voluntarily made by the parties. It is the mediator's responsibility to assist the parties in reaching a settlement.

It is desirable that agreement be reached by collective bargaining without mediation assistance. However, public policy and applicable statutes recognize that mediation is the appropriate form of governmental participation in cases where it is required. Whether and when mediators should intercede will normally be influenced by the desires of the parties. Intercession by mediators on their own motion should be limited to exceptional cases.

The mediators must not consider themselves limited to keeping peace at the bargaining table. Their role should be one of being a resource upon which the parties may draw and, when appropriate, they should be prepared to provide both procedural and substantive suggestions and alternatives which will assist the parties in successful negotiations.

Since mediation is essentially a voluntary process, the acceptability of the mediator by the parties as a person of integrity, objectivity, and fairness is absolutely essential to the effective performance of the duties of the mediator. The manner in which mediators carry out their professional duties and responsibilities will measure their usefulness as a mediator. The quality of their character as well as their intellectual, emotional, social and technical attributes will be revealed by the conduct of the mediators and their oral and written communications with the parties, other mediators, and the public.

         2.      The Responsibility of Mediators Toward Other Mediators

Mediators should not enter any dispute which is being mediated by another mediator or mediators without first conferring with the person or persons conducting such mediation. The mediator should not intercede in a dispute merely because another mediator may also be participating. Conversely, it should not be assumed that the lack of mediation participation by one mediator indicates a need for participation by another mediator.

In those situations where more than one mediator is participating in a particular case, each mediator has a responsibility to keep the others informed of developments essential to a cooperative effort and should extend every possible courtesy to fellow mediators.

The mediators should carefully avoid any appearance of disagreement with or criticism of their mediator colleagues. Discussions as to what positions and actions mediators should take in particular cases should be carried on solely between or among the mediators.

         3 .     The Responsibility of Mediators Toward Their Agency and Their Profession

Agencies responsible for providing mediation assistance to parties engaged in collective bargaining are a part of government. Mediators must recognize that, as such, they are part of government. Mediators should constantly bear in mind that they and their work are not judged solely on an individual basis but that they are also judged as representatives of their agency. Any improper conduct or professional shortcoming, therefore, reflects not only on the individual mediator but upon the employer and, as such, jeopardizes the effectiveness of the agency, other government agencies and the acceptability of the mediation process.

Mediators should not use their position for private gain or advantage, nor should they engage in any employment, activity, or enterprise which will conflict with their work as mediators, nor should they accept any money or thing of value for the performance of their duties - other than their regular salary - or incur obligations to any party which might interfere with the impartial performance of their duties.

         4.      The Responsibility of Mediators Toward the Public

Collective bargaining is in essence a private, voluntary process. The primary purpose of mediation is to assist the parties to achieve a settlement. Such assistance does not abrogate the rights of the parties to resort to economic and legal sanctions. However, the mediation process may include a responsibility to assert the interest of the public that a particular dispute be settled; that a work stoppage be ended; and that normal operations be resumed. It should be understood, however, that the mediators do not regulate or control any of the content of a collective bargaining agreement.

It is conceivable that mediators might find it necessary to withdraw from a negotiation, if it is patently clear that the parties intend to use their presence as implied governmental sanction for an agreement obviously contrary to public policy.

It is recognized that labor disputes are settled at the bargaining table; however, mediators may release appropriate information with due regard (1) to the desires of the parties, (2) to whether that information will assist or impede the settlement of the dispute and (3) to the needs of an informed public.

Publicity shall not be used by mediators to enhance their own position or that of their agency. Where two or more mediators are mediating a dispute, public information should be handled through a mutually agreeable procedure.

         5.      The Responsibility of Mediators Toward the Mediation Process

Collective bargaining is an established institution in our economic way of life. The practice of mediation requires the development of alternatives which the parties will voluntarily accept as a basis for settling their problems. Improper pressures which jeopardize voluntary action by the parties should not be a part of mediation.

Since the status, experience, and ability of mediators lend weight to their suggestions and recommendations, they should evaluate carefully the effect of their suggestions and recommendations and accept full responsibility for their honesty and merit.

Mediators have a continuing responsibility to study industrial relations and conflict resolution techniques to improve their skills and upgrade their abilities.

Suggestions by individual mediators or agencies to parties, which give the implication that transfer of a case from one mediation "forum" to another will produce better results, are unprofessional and are to be condemned.

Confidential information acquired by mediators should not be disclosed to others for any purpose or in a legal proceeding or be used directly or indirectly for the personal benefit or profit of the mediator.

Bargaining positions, proposals, or suggestions given to mediators in confidence during the course of bargaining for their sole information should not be disclosed to the other party without first securing permission from the party or person who gave it to them.

The ALRA code originated in 1971, before the emergence of the “alternative dispute resolution” (ADR) movement and also before the enactment of “uniform mediation act” provisions by the Washington State Legislature.

14.10   CLIENTELE MISCONDUCT

PERC staff members deal with both experienced and novice labor and management advocates in a wide variety of circumstances. Labor-management relations often include emotionally-charged situations, and parties sometimes exceed the bounds of civility when making statements to or about one another. While the responsibilities and ethics of the mediation role call upon a mediator to insulate the parties from one another, that does not require PERC staff members to ignore or tolerate clientele statements or actions which attack them personally, or are directed at their families or households, or at the agency. The Executive Director has issued a protocol concerning clientele misconduct, as follows:

POLICY

No member of the PERC staff is obligated to ignore or tolerate any threat of reprisal or force or promise of benefit made by agency clientele, when directed to them personally in connection with the performance of their duties as a member of the PERC staff:

●From an individual perspective, PERC employees are entitled to activate this protocol if they reasonably perceive a clientele statement or action as a threat of reprisal or force or promise of benefit associated with their work as a PERC staff member; and

●From an agency perspective, a clientele claim or perception of an ability to intimidate or influence PERC employees could be as damaging to the reputation of the agency as actual proof of misconduct by one or more PERC employees.

It is thus appropriate for the agency to both: (1) protect the safety and security of its staff; and (2) protect the continued impartiality and integrity of the agency as the impartial resolver of labor-management disputes under state law.

PERC STAFF RESPONSES TO PERCEIVED MISCONDUCT

Some clientele statements or actions may be clear, so the PERC staff member has no doubt as to the person’s intentions. A PERC staff member faced with any such misconduct is authorized to respond without giving the person a chance to recant, and is obligated to report the incident to the Executive Director.

Other clientele statements or actions may be ambiguous as to their intent (such as a person trying to be funny), so PERC staff members retain a range of discretion. Bearing in mind that anybody who fails to promptly recant a threat or bribe perceived by a Superior Court judge will likely find themselves held in contempt of court, a PERC staff member may choose to call an offensive statement/action to the attention of other officials of the same party, or give the person a chance to recant. A suggested formal response is:

Your [“comment” / “action”] can be interpreted as an attempt to intimidate me or influence the performance of my responsibilities as a member of the PERC staff. The Executive Director expects me to report any threats or actions directed at me personally (or at my family or household), so he can take appropriate steps to preserve the integrity of the agency as the impartial forum for peaceful resolution of labor-management disputes. On the chance that your intentions were innocent, and conditioned on there being no repetition of the conduct, I will permit you to [“withdraw your comment” / “apologize for your action”] at this time.

The PERC staff member could use less formal language, if the situation warrants. If the person recants, the PERC staff member should continue with the mediation or hearing.

STAFF ACTIONS FOLLOWING PERCEIVED CLIENTELE MISCONDUCT

1.A PERC staff member confronted with clientele misconduct (including a refusal to recant or a repetition of misconduct) is to proceed as follows:

         ●You are authorized to shut down a mediation session you are conducting.

●You are authorized to eject the person from a PERC office (including calling other staff and/or the police for assistance, if necessary).

●You are directed to report the situation to the Executive Director by telephone, as soon as possible.

●If the office is open but the Executive Director is unavailable, give the information to the Executive Assistant, the Operations Manager, or the telephone receptionist (in that order of preference).

                  ●        If the office is closed:

                             •        Leave a message on the main line voicemail and

•Try to contact (or leave a message for) the Executive Director at the residence number on the PERC confidential contact list; or

•If you believe the Executive Director would not receive the message in a timely manner, try to contact (or leave a message for) the Operations Manager at the residence number on the PERC confidential contact list.

●You are entitled (and encouraged) to discuss the matter with one of the supervisors. Your own supervisor is the most likely choice, but you can talk with one of the other supervisors if your own supervisor is unavailable or has a conflict (such as processing a related case).

●You are required to submit a written report to the Executive Director as soon as possible. That report shall include:

                   i.The name of the PERC staff member involved.

                   ii.The names of any other PERC staff member(s) present and/or involved.

                   iii.The name of the employer and case number(s) of the case(s) being processed.

                   iv.The date, time and place of the occurrence.

                   v.The name(s) of the clientele person(s) who engaged in the misconduct.

                   vi.The name(s) of other person(s) who were present and/or involved.

                   vii.Detailed facts describing the misconduct.

                   viii.Details of a response (if any) by the PERC staff member making the report.

                   ix.The signature of the PERC staff member and the date.

2.The Executive Director will notify (and enlist the help of) an appropriate supervisor to provide support and assistance to the staff member(s) involved.

The full text of this protocol (including the applicable legal standards) is published in the PERC policies and protocols notebook.

14.11   CONFIDENTIALITY OF MEDIATION

The labor mediation process has been conducted under a mantle of confidentiality for more than 100 years.

14.11.1  Statute/Rule Framework 

The Washington State Legislature adopted the Uniform Mediation Act in 2005, but it retained a provision of prior law, as follows:

RCW 5.60.072 Mediation by agency -- Privilege and confidentiality. Notwithstanding the provisions of RCW 5.60.070, when any party participates in mediation conducted by a state or federal agency under the provision of a collective bargaining law or similar statute, the agency’s rules govern questions of privilege and confidentiality.

As a state agency that provides mediation services for collective bargaining disputes, PERC has adopted rules protecting the confidentiality of mediation, as follows:

WAC 391-08-810 Agency records -- Confidentiality. The agency shall preserve the confidentiality of certain records, as follows:

. . . .

(2) In order to respect the confidential nature of mediation, the agency shall not permit the disclosure of notes and memoranda made by any member of the commission or its staff as a recording of communications made or received while acting in the capacity of a mediator between the parties to a labor dispute.

And:

WAC 391-55-090 Confidential nature of mediation. Mediation meetings shall not be open to the public. Confidential information acquired by a mediator shall not be disclosed to others outside of the mediation process for any purpose, and a mediator shall not give testimony about the mediation in any legal or administrative proceeding.

In turn, PERC asserts that RCW 5.60.072 and the PERC rules activate an “otherwise provided” exclusion from the state public disclosure law, at RCW 42.17.311.

14.11.2  Agency Files and Records

Materials concerning mediation cases fall into three categories, with differing levels of protection from disclosure.

♦      Some information is a matter of public record, and is subject to public disclosure requests under the state public records law, Chapter 42.17 RCW.

        ►      Mediation cases are filed under rules that require certain basic information (WAC 391-55-020 and 391-55-030).

        ►      PERC has promulgated forms for mediation requests (Form G-1 and Form M-1) to elicit the information required by those rules.

        ►      Mediation cases are docketed on the PERCCINS system, which includes a variety of information used for case processing and statistical purposes.

                •      Name / address / telephone information on the parties and representatives.

                •      Basic information about the size and nature of the bargaining unit involved.

                •      The transaction log showing the steps taken in the processing of the case.

        ►      Materials concerning the filing and docketing of cases are routinely scanned into PERC’s Correspondence Tracking System (CTS), including:

                •      The mediation request (usually a letter or a PERC form).

                •      Correspondence between parties about whether mediation is appropriate.

                •      The current collective bargaining agreement, if provided.

                •      Correspondence explaining termination of the mediation process (e.g., a disclaimer by the union, decertification of the union, withdrawal of the mediation request, etc.)

On the (relatively rare) occasions when PERC receives a public records request under Chapter 42.17 RCW (typically framed as a request for all documents concerning a case), PERC must release those materials to the requesting party.

♦      Some additional information about mediation cases can become a matter of public record. The following types of materials will ONLY be scanned into CTS if the assigned mediator so directs:

        ►      Correspondence about case processing issues that does not disclose confidential information about the substantive issues in the case.

        ►      Tentative agreement documents reached through mediation.

        ►      Copies of final contracts reached through mediation.

Once scanned, such information becomes a matter of public record subject to disclosure under Chapter 42.17 RCW.

♦      Other materials concerning mediation cases are to be kept confidential by PERC staff members in their private offices, separate from the agency case file.

        ►      Substantive materials filed with mediation requests (including separate lists of issues, contract copies modified to show proposals and/or tentative agreements, and/or proposals) are not scanned, but are forwarded to the Mediator as confidential submissions to assist the Mediator under WAC 391-55-050.

        ►      Notes made or received by the Mediator during mediation.

        ►      Proposals and justification materials received by the Mediator during mediation.

Such mediation materials should be destroyed (shredded) after three years. Such materials will not be disclosed in response to either a subpoena or a public records request made under Chapter 42.17 RCW.

CAUTION: If you receive a request for disclosure of confidential mediation materials, consult with the Operations Manager (who is the public records officer for the agency) or with the Executive Director. Such situations will necessarily be handled individually.

14.12   SCHEDULING MEDIATION SESSIONS

PERC places a high priority on the mediation of contract negotiations, in order to reduce or minimize the possibility of work stoppages. Mediation cases involving rights disputes (grievances and litigation) have a lower priority.

14.12.1  Mediator Availability

PERC staff members should respond to a request for mediation service within one to three office days after receiving the case assignment.

♦      Where PERC offers mediation under RCW 41.58.020, the assigned Mediator must change other plans / schedules to provide immediate assistance.

♦      Normal case processing requires PERC staff members to offer the earliest meeting date(s) that are consistent with proper performance of their other case assignments (including reserving time to write Yellow List and Red List decisions).

♦      Exercise professional discretion in scheduling mediation sessions, including considering the intensity of the negotiations and the risk of a work stoppage (which may not be known until the mediator makes contact with the parties).

        ►      The Mediator can properly accommodate parties to tense negotiations by changing previously-scheduled writing time or other matters.

        ►      The Mediator should discuss scheduling problems with his / her Field Services Manager.

♦      Assignment changes may be warranted based on information and / or scheduling problems discovered in making initial contact with the parties.

14.12.2  Consider the Parties’ Needs in Scheduling Mediation

The decision on whether or when to meet ultimately rests with the parties. A Mediator can attempt to persuade the parties, but does not have authority to compel parties to attend a mediation session. Some tricks of the trade:

♦      Meet when the parties should be able to do business.

        ►      Marathon mediation sessions are more for the news media and the union membership than for real progress in negotiations, but a Mediator can properly keep parties who are actually making progress in session for long times to avoid a loss of momentum.

        ►      Weekend and holiday mediation sessions are not normal, but a Mediator should consider meeting on a weekend or holiday to prevent or end a work stoppage.

        ►      If a party complains that the opposite party is refusing to meet at reasonable times, remind them their legal remedy is via an unfair labor practice complaint which might take years to decide.

        ►      Consider the parties’ work habits, as well as the parties’ and Mediator’s needs for meals and rest. For example: Because teachers may be accustomed to a period of tranquility right after the end of the school day, it may be more effective to tell them, “Arrive at 6:00 p.m., fed and ready to go into the evening.”

♦      Meet where the parties should be able to do business.

        ►      PERC usually travels to the parties’ location, because that uses less energy and resources than having two or more carloads of parties travel to PERC.

        ►      PERC has limited mediation facilities in Olympia and Kirkland, and PERC does not pay for other meeting rooms.

        ►      Meeting on “neutral turf” can be counter-productive, particularly if it deprives the employer of the comfort level that comes with having its own files, computer resources, and personnel available in making decisions.

        ►      Meeting in hotel sleeping rooms becomes counter-productive, if the parties’ negotiators spend too much time watching TV, etc.

        ►      If one party accuses the other of refusing to meet at reasonable places, remind them that their remedy is through an unfair labor practice complaint.

14.12.3  Scheduling Considerations for “Last Offer” Situations

Parties sometimes characterize a proposal as their “final” or as their “last and best” offer in the negotiations. These are fighting words in the private sector, where the legal consequence of an “impasse” are that: (1) either party can lawfully refuse to meet until one of the parties indicates it is prepared to change its position, and (2) the employer can lawfully implement changes of employee wages, hours, and working conditions.

There is no explicit statutory basis or procedure for finality labels in the public sector, but PERC rules and precedents do acknowledge the possibility of a lawful “impasse” in collective bargaining (meaning that neither party is willing to make further movement toward the other and neither has committed any unfair labor practice). However:

♦      RCW 41.56.123 and RCW 41.80.010(7) prohibit unilateral changes for one year after a collective bargaining agreement expires.

♦      RCW 41.56.470 prohibits any unilateral change for employees entitled to interest arbitration.

If a finality label is invoked, it is important for the Mediator to take appropriate steps:

♦      Get the parties face-to-face at the mediation session where the finality label is invoked, so they can give testimony about what was said and done.

♦      If a party that rejects a finality-labeled offer wants another mediation session to discuss the reasons for the rejection or other response to the offer, the Mediator can properly push for a meeting (and put the parties face-to-face during that meeting).

        ►      As a strategy to avoid the need for multiple contacts with parties whose patience may be wearing thin, get several meeting dates that are acceptable to the Mediator and the party requesting mediation, and relay them to the opposite party with a push for acceptance of one of them.

        ►      These “last bite” meetings give the Mediator another shot at the problem, so take advantage of the opportunity.

♦      If the opposite party resists scheduling another mediation session and/or resists meeting with the other party face-to-face, the Mediator can properly point out that any “refusal to bargain” violation found against that party would void its claim of a lawful impasse. See Federal Way School District, Decision 232-A (EDUC, 1977).

♦      If the opposite party refuses to participate in another mediation session, send a letter to both parties, to document that the Mediator was willing to hold a mediation session.

♦      If a “last bite” meeting does not resolve the dispute, either or both of the parties may resist holding further meetings. In that event:

        ►      The Mediator must keep the case open, and must contact the parties monthly to see if either has any movement or change.

        ►      The Mediator should schedule and hold further mediation sessions if the “impasse” is broken by either or both of the parties being willing to change.

        ►      The Mediator can properly cite “waste of taxpayer funds” as a basis to decline a meeting if both parties are unwilling to change, even if they are willing to meet.

        ►      The Mediator should use the “Procedural Defect” code to close the case (with appropriate comment in the transaction log) if the union disclaims the bargaining unit or is decertified, or if the union reports it has abandoned the negotiations.

♦      There is no fixed period for keeping a mediation case open after a shutdown without agreement, and the “No Agreement” closure code is disfavored by PERC, but:

        ►      The Mediator should review the situation with his / her Field Services Manager; and

        ►      The case can be closed (with concurrence of the Field Services Manager and notice to both parties) if it appears that further mediation efforts would be inappropriate.

Put explanatory comments in the PERCCINS Transaction Log for the case. The Mediator can have the same case reopened if the parties come back to life within a reasonable period.

14.13   OPENING THE MEDIATION

Mediators often begin the mediation process with the parties in a joint meeting. At a minimum, joint sessions give the Mediator a chance to assess the existence of animosities, and how the bargaining team members interact with one another. Some have said that holding initial meetings as joint sessions is beneficial, by reducing / avoiding mistrust.

Mediators often establish “process” expectations for the parties (particularly for bargaining team members who have never been in mediation). There is no fixed script or suggested opening patter, but opening comments by the Mediator normally include tidbits such as:

►      Mediation is a process of impartial intervention, to assist parties in resolving obstacles to settlement that they are faced with.

►      Mediation is an extension of the collective bargaining (or litigation) process. The parties themselves will decide whether to make concessions or settle the dispute.

►      The State of Washington provides (and funds) mediation services, because its citizens have economic and policy interests in the orderly resolution of disputes.

►      As the Mediator, I will work with the parties as a proponent for settlement. I am not an advocate for the union; I am not an advocate for the employer.

►      I may meet with the parties in private caucus sessions, to develop an understanding of the parties' respective needs and desires.

►      I will be assisting (and encouraging) the parties to developing approaches and alternatives that will be acceptable to both parties.

►      I may occasionally bring the parties’ chief spokespersons together for side-bar discussions.

►      Information the parties identify as confidential when they give it to me will not be shared, without authorization.

►      It is important for the parties to maintain a spirit of cooperative problem solving in working toward solutions to the issues which separate them.

►      Mediation meetings are private. What is stated in mediation should remain in mediation.

►      I keep personal notes to supplement my memory, but they are not an “official record” and are not available to anybody. The parties should keep their own notes.

►      I will ask the parties to identify the unresolved issues and explain your interests.

14.14   MEDIATORS PERFORM MULTIPLE FUNCTIONS

On occasion, mediators ask themselves to evaluate / define their role in the process. The following are extracted from presentations Executive Director Schurke made for clientele groups from time to time: