STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
MANSFIELD SCHOOL DISTRICT,
Complainant,	CASE 10762-U-93-2499
vs.	DECISION 4552-B - EDUC
MANSFIELD EDUCATION ASSOCIATION,
Respondent.	DECISION OF COMMISSION

Schwerdtfeger and Associates, by Robert D. Schwerdtfegrer, represented the employer.

Eric R. Hansen, Staff Attorney, Washington Education Association, represented the union.

This case comes before the Commission on a petition for review filed by Mansfield School District, seeking to overturn a decision issued by Examiner Walter M. Stuteville.[1]

BACKGROUND

The Mansfield School District (employer) is a small district with about 150 students, and approximately 12 or 13 faculty members. A collective bargaining agreement between the employer and the Mansfield Education Association (union) covering the teachers was to expire on August 31, 1993.

In January of 1993, the union notified the employer it was ready to begin negotiations for a successor agreement. The employer designated a bargaining team consisting of Superintendent Bill Thornton, and school board members Timothy Hicks and Doug Tanne-berg. Thornton served as chief spokesperson for the employer. The union's bargaining team consisted of Clarene Ricarte, Roy Huffman, and Diana Michaelson.

At the first bargaining session on March 30, 1993, the union presented a package of proposals to the employer.[2] The employer did not offer proposals at that meeting.

At the next bargaining session, on May 4, 1993, the employer expressed its particular interest and concern in clauses relating to issues that were not funded by state monies, extracurricular portions of the contract, and issues that would adversely affect its ability to manage the district. At that session, the employer presented a number of proposals to delete language from the collective bargaining agreement.[3] At the same bargaining session, the employer made a number of proposals to change clauses so that the effect would be more restrictive on employee rights than the previous contract,[4] it proposed to replace the management rights clause with more comprehensive and general language, and it rejected many of the proposals the union had made earlier.[5] The employer expressed an interest in bargaining teacher evaluation provisions at a later date. At that meeting, the parties reached tentative agreement on an employer proposal regarding the grievance procedure.[6]

The next bargaining session was held on June 8, 1993. The union presented a written response to the employer's previous proposals. The parties did agree to retain the language of their expiring agreement on issues where neither side had proposed changes.

At the next meeting on June 28, 1993, the parties tentatively agreed to a section concerning the school board's agenda, minutes, budget, and financial reports.[7]

Discussion relating to the proposals and responses continued at the next bargaining session, which was held on July 13, 1993.

At the parties' last bilateral bargaining session, held August 3, 1993, the employer took the position that certain clauses would limit its management rights, and that the package was a global one. The employer again rejected several union proposals.[8] The union told the employer the parties were at an impasse, and that it was interested in mediation.

Mediation took place on September 21, 1993 and October 11, 1993. The employer maintained that many, if not most, of the items on the table were "management's rights" that should not be included in the collective bargaining agreement. By the end of the second mediation meeting, the employer had changed position on only two issues: The reduction-in-force and legislative impact issues. The next mediation session was set for October 19, 1993, but the employer ended the process by filing for fact finding.

On November 3, 1993, the union filed a complaint charging unfair labor practices with the Public Employment Relations Commission, alleging that the employer had interfered with employee rights and refused to bargain. Since some allegations did not state a cause of action, the union submitted an amended complaint on November 24, 1993. The complaint consisted of allegations that the employer delayed negotiations, and proposed deletions of existing language which removed rights and benefits granted by the expired agreement. The union alleged the employer rejected union proposals without explanation, made proposals without explanation, and refused to bargain mandatory subjects of bargaining.[9]

Allegations found to state a cause of action were heard before Examiner Walter M. Stuteville on January 10, 1994. Examiner Stuteville concluded that the employer failed and refused to bargain in good faith in violation of RCW 41.59.020(2) and RCW 41.59.140(1) (e), by its totality of conduct in consistently refusing to entertain alternative proposals or compromises from its initial bargaining positions.[10] The employer subsequently filed its petition for review of the Examiner's decision, thus bringing the matter before the Commission.

POSITIONS OF THE PARTIES

The employer seeks review of paragraphs 6, 7, 8, and 9 of the Examiner's findings of fact. The employer argues that the law does not compel either party to make a concession or reach an agreement. It contends that the totality of conduct on which the Examiner based his decision should include a consideration of other actions of the employer, such as charges by the union that were dismissed in the preliminary ruling process. The employer argues that the Commission's practice of allowing amended complaints worked in this case to cure the union's defective claims of bad faith bargaining, that the practice is not good labor relations policy and that it has a dangerous impact. It is concerned that the Examiner in this case may have believed that his immediate supervisor had found a violation prior to any hearing, and that the Examiner may have been influenced in his decision. The employer asks the Commission to reverse the Examiner's decision.

The union argues that, contrary to the employer's view of the facts, the employer did not provide most of the initial rationale in written form, and that rationale was not provided for most of the employer's responses to the union's proposals. The union contends that the employer did not cooperate during mediation, citing that no movement was forthcoming on most issues. The union asserts that it is improper to look at one action and claim such an action is not evidence of bad-faith bargaining. It agrees with the Examiner's decision and would have the Commission affirm it.

DISCUSSION

The Legal Standard

The obligation of educational employees and school districts to "bargain in good faith" arises from the statutory framework of the Educational Employment Relations Act, Chapter 41.59 RCW:

RCW 41.59.020 DEFINITIONS. As used in this chapter:

…

(2) The term "collective bargaining" or "bargaining" means that performance of the mutual obligation of the representatives of the employer and the exclusive bargaining representative to meet at reasonable times in light of the time limitations of the budget-making process, and to bargain in good faith in an effort to reach agreement with respect to the wages, hours, and terms and conditions of employment: . . . The obligation to bargain does not compel either party to agree to a proposal or to make a concession.

[Emphasis by bold supplied.]

Under the law, a finding of a refusal to bargain is predicated on a finding of bad faith bargaining in regard to mandatory subjects of bargaining, i.e., issues concerning wages, hours, and terms and conditions of employment. See, Spokane School District, Decision 310-B (EDUC, 1978).

Differentiating between lawful "hard bargaining" and unlawful "surface bargaining" can be difficult in close cases. This fine line reflects a natural tension between the obligation to bargain in good faith and the statutory mandate that there is no require­ment that concessions be made or an agreement be reached. Walla Walla County, Decision 2932-A (PECB, 1988). A party is entitled to stand firm on a position, and an adamant insistence on a bargaining position is not, by itself, a refusal to bargain.[11] The obligation to bargain in good faith, however, 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. A party is not entitled to reduce collective bargaining to an exercise in futility. See, Mason County, Decision 3706-A (PECB, 1991), and cases cited therein. See, also, Flight Atten­dants v. Horizon Air Industries, Inc., 976 F.2d 541 (CA 9, 1992), where the court found the employer violated the law, in part, by making contract proposals which it knew were consistently and predictably unpalatable to the union and by failing to exert every reasonable effort to reach agreement.[12] 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 a party engaged in bad faith bargaining, the Commission cannot look at any one action or nonaction by the parties. The totality of conduct or circumstances surrounding the negotiations must be considered. See, Federal Way School District, Decision 232-A (EDUC, 1977); Shelton School District, Decision 579-B (EDUC, 1984); Mason County, Decision 3706-A (PECB, 1991); Walla Walla County, Decisions 2932-A, 2932-B (PECB, 1990); City of Snohomish, Decision 1661-A (PECB, 1984). A particular position taken on an issue in good faith may be perfectly lawful, while the same position would be considered part of an unlawful course of conduct if shown to be part of an overall plan to frustrate the progress of negotiations. A decision involving a failure to bargain in good faith reflects qualitative rather than a quantita­tive evaluation. See, Shelton School District, supra.

The Totality of Conduct

Pertinent facts are set forth in the Examiner's decision and are not substantially disputed. By the end of the bargaining, the parties had tentatively agreed to approximately 24 items. About 17 of those involved clauses unchanged from the collective bargaining agreement. Five of the clauses were the result of employer proposals, indicating some compromise on the part of the union.[13] The parties made no movement on the 11 clauses that the employer had proposed to delete. Nor did the parties make any movement on the 17 clauses the employer had proposed to change with more restrictive effect.

Each one of the clauses the employer had proposed to delete and those it proposed to change with more restrictive effect relates to wages, hours, or terms and conditions of employment and are mandatory subjects of bargaining. Had the parties agreed to the employer's proposals, employees would have realized substantial cutbacks in various benefits they had previously gained. An example of the "take-aways" is the employer's proposal to delete the provisions relating to the administration of the sick leave sharing bank. The purpose of the sick leave sharing bank is to provide employees the means to come to the aid of co-workers suffering extraordinary or severe illnesses, or conditions likely to cause that employee to take leave without pay or terminate employment. Another provision the employer wanted to delete was the provision on freedom from reprisal, which paralleled statutory rights in providing that individuals who participate as grievants, witnesses, representatives of the association, and the like, would not suffer restraint, interference, discrimination, coercion or reprisal on account of their participation in the process. The employer wanted a provision that required employees to make written requests for transfer or reassignment to be changed from within 15 days of notice of vacancies to 2 days. The employer wanted to remove a provision that allowed an employee to request more than 2 days of personal leave per year. The employer wanted to remove, from the work day, the 3 0 minutes before and 3 0 minutes after the student day, despite the state requirement that teachers and other certificated personnel be at school during those times.[14] These are just a few examples of the proposals which the employer brought forth at the second bargaining session, and on which the employer made no change in approach throughout the rest of the negotiations.

From the beginning of bargaining, the employer approached the negotiations with the attitude it was bargaining from "scratch", and that existing benefits had to be renegotiated. However, when a successor contract is being negotiated, as in this case, good faith bargaining is never from "scratch", but from the status quo. See, Shelton School District, Decision 579-B (EDUC, 1984), where the Commission found the employer failed to bargain in good faith when it proposed a longer school year, then from thereafter expected the union to count each day the employer shortened its proposed school year as a "concession".

In the case before us, the Examiner found the employer's overall position to have been one of "stripping" the agreement of negotiat­ed benefits and protections. During the course of the entire negotiation, the employer fostered, by word and deed, the impres­sion, inter alia, that the employees might lose more than they would gain. In Shelton, the Commission found that for an employer to foster such an apprehension in employees was in derogation of State policy, and we find that true here as well. Good faith bargaining requires full and frank discussions on disputed issues. There is no requirement that agreement be achieved on every issue, but an employer is expected to evidence some willingness to address a union's legitimate concerns. In rejecting union proposals the employer considered such matters as management rights, reduction-in-force, past practices, and supplemental contracts, to be the responsibility of management. The explanations the employer gave for its proposals provided the union no room to construct effective counter-proposals, and led the union to believe the employer was unwilling to compromise. It is not enough to repetitively invoke "management rights" without engaging in meaningful attempts to see if mutual accommodation is possible. In this case, we do not see that any efforts toward accommodation were made on the part of the employer.[15]

Some actions of the employer were found to have not been the basis for a cause of action.[16] Those actions, to the extent there is proof of them in the record, are part of the totality of the employer's conduct. However, our conclusions, as to whether good faith bargaining occurred, are based upon the employer's overall conduct.

The Challenged Preliminary Ruling Process

The employer asserts the Examiner misread a preliminary ruling made by the Executive Director under WAC 391-45-110. In sending the allegations to hearing, the Executive Director stated:

The Examiner who hears this matter will be entitled to take all of those allegation [sic] together, in evaluating whether a "refusal to bargain" has occurred by the totality of the employer's conduct, as well as by its individ­ual actions.

Mansfield School District, Decision 4551 (EDUC, 1993).

In his decision, the Examiner stated that the Executive Director's order found a "cause of action" to exist with respect to allega­tions that the employer:

Demonstrated bad faith by the totality of its conduct, which constituted a general "refusal to bargain".

Mansfield School District, Decision 4552-A (EDUC, 1994).

Finding a cause of action is not the same as making a final determination. Our Examiners are well aware of this. The preliminary ruling expressly noted that it was based on an assumption that all of the facts were true and provable. The Examiner was to decide the case on the actual facts proved at hearing. The statements to which the employer refers merely indicate that, in determining whether the employer demonstrated bad faith which would constitute a general "refusal to bargain" violation, the Examiner could consider the totality of its conduct. It is the circumstances at the bargaining table that determine whether or not good faith bargaining has taken place. See, Walla Walla County, Decision 2932-A (PECB, 1988).

The Challenged Amendment Procedures

The employer generally challenges the Commission rules allowing amended complaints, claiming that the practice allowed the union to cure its defective claims of bad faith bargaining in this case. WAC 391-45-070 states as follows:

WAC 391-45-070 AMENDMENT. Any complaint may be amended upon motion made by the complainant or the examiner prior to the transfer of the case to the commission.

[Emphasis by bold supplied.]

The employer's procedural argument is without merit. The amended complaint was made at the preliminary ruling stage of our proceed­ings, well before the hearing. The employer had clear notice of what was alleged.

As an administrative agency, our process for initial handling of unfair labor practice complaints does not involve the formal pleading requirements of court proceedings. The Executive Director serves in a screening capacity with respect to complaints filed, and endeavors to consider substance over form. See, Walla Walla County, Decision 2932-A (PECB, 1988). Preliminary ruling letters issued on insufficient complaints routinely provide an opportunity for the complainant to file an amended complaint, rather than going through the expense and delay of a dismissal order and appeal to cure what may be relatively minor defects. We fully support the Examiner's denial of the employer's motion to dismiss the amended charges in this case.

The Challenged Finding's of Fact

The employer argues that paragraphs 6, 7, 8, and 9 of the Examin­er's findings of fact were in error. It does not, however, point to any specific areas where those findings are incorrect as facts. Instead of arguing with the Examiner's findings as factual matters, it disagrees with the inferences made by the Examiner from the facts, and the use made of those inferences in his decision. The employer argues that these findings cannot lead one to conclude that it was guilty of anything except hard bargaining.

We conclude there is sufficient evidence in the record to support the Examiner's findings. By engaging in a course of conduct throughout negotiations which did not evidence a good faith effort to reach an agreement, and by failing to evidence any willingness to compromise on mandatory subjects of bargaining, the Mansfield School District failed and refused to bargain collectively and committed unfair labor practices in violation of Chapter 41.59.140 RCW.

NOW, THEREFORE, it is

ORDERED

1.        The Findings of Fact, Conclusions of Law and Order issued in this matter by Examiner Walter M. Stuteville are affirmed and adopted as the findings of fact, conclusions of law and order of the Commission.

2.        The Mansfield School District, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

a.        Post, in conspicuous places on the employer's premises where notices to all employees are usually posted, copies of the notice attached hereto and marked "Appendix". Such notices shall be duly signed by an authorized repre­sentative of the above-named respondent, and shall remain posted for 60 days. Reasonable steps shall be taken by the above-named respondent, and shall remain posted for 60 days. Reasonable steps shall be taken by the above-named respondent to ensure that such notices are not removed, altered, defaced or covered by other material.

b.         Notify the above-named complainant, in writing, within 3 0 days following the date of this order, as to what steps have been taken to comply with this order, and at the same time provide the above-named complainant with a signed copy of the notice required by the preceding paragraph.

c.        Notify the Executive Director of the Public Employment Relations Commission, in writing, within 3 0 days follow­ing the date of this order, as to what steps have been taken to comply with this order, and at the same time provide the Executive Director with a signed copy of the notice required by this order.

Issued at Olympia, Washington, the 28th day of March, 1995.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

JANET L. GAUNT, Chairperson

SAM KINVILLE, Commissione

r