I. NOTICE OF APPEAL. Pursuant to WAC , Shoreline Community College (College) appeals

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1 1 PUBLIC EMPLOYMENT RELATIONS COMMISSION STATE OF WASHINGTON T LOCAL 0, NO. -U-1 Complainant, SHORELINE COMMUNITY COLLEGE'S V. 1 ORELINE COMMUNITY COLLEGE, I. Pursuant to WAC 1--0, Shoreline Community College (College) appeals Decision -CCOL, issued by Examiner Erin Slone-Gomez (Examiner) on February, 0. A. Assignment of Errors in Examiner's Findings of Fact 1. Finding of Fact 1 At each stage of this Unfair Labor Practice (ULP) proceeding, the College asserted the affirmative defense of waiver by contract. The Examiner's Decision fails to mention or analyze the issue. Finding of Fact 1 quotes language in the new Collective Bargaining Agreement (CBA) for three different salary increases faculty received. However, the finding fails to specify which of the three salary increases is the actual contract provision in dispute. The finding needs to be modified to specify the actual provision that is in dispute, which is Appendix A, Article I, Section B. La. SHORELINE COMMUNITY COLLEGE'S 1 ATTORNEY GENERAL OF WASHINGTON 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0) -

2 . Finding of Fact The Commission should strike the last sentence in Finding of Fact 1 that says, "Zura did not inform Fader that neither she nor any other employee had yet to begin the compensation calculations."' This erroneous finding is not supported by substantial evidence and is directly refuted by Ms. Zura's quoted response in Finding of Fact 1, when "Zura promptly replied to all indicating," I'm not sure that I am the person to provide this final number for contract implementation use but would certainly be able to help determine it. My understanding is that you, Stuart [Trippel] and I will be meeting to go through the adjusted pay calculation together? I want to make sure I fully understand the updates to compensation in the contract to ensure any adjustments are accurately made. This statement from Ms. Zura in the Examiner's findings clearly informed the American Federation of Teachers, Local 0 (Union), that she had not yet started the calculations, nor was sure if she was the person who would prepare them, but that the parties were going to meet to discuss the issue.. Finding of Fact 1 The Commission should strike the last sentence in Finding of Fact 1 that says, "Zura still had not informed Fader that she had not begun the compensation calculations." Similar to Finding of Fact 1, this erroneous finding is not supported by substantial evidence and is directly refuted by Ms. Zura's quoted response in Finding of Fact 1 above and her quoted response in Finding of Fact 1 when Ms. Zura responded with the following: "Based on the clarifications I'm hoping to get at this meeting, I'd like to wait to make sure we are all on the same page." Thus, Ms. Zura again informed the Union that she was not planning to begin the compensation calculations until she received clarification at the upcoming meeting. As noted in 1 Decision at. z Decision at,. Decision at. a Decision at. SHORELINE COMMUNITY COLLEGE'S ATTORNEY GENERAL OF WASHINGTON 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0) -

3 I Finding of Fact 0, that meeting took place a week later, on June 1, 01. These communications along with actually scheduling and attending a meeting to discuss how the calculations would be made did effectively inform the Union that the College had not started the calculations yet.. Finding of Fact Finding of Fact selectively quotes the Union's August, 01 response to the College, and the finding is misleading and not supported by substantial evidence due to the selective omission of the central language in the . The finding quotes the entirety of three paragraphs in the , but omits the entirety of the key middle paragraph. The Commission should amend Finding of Fact by adding the omitted paragraph. Finding of Fact found that an from Ms. Zura said: 1 I'm just trying to present you with clean data. Given the immense amount of 1 individual adjustments that had to be calculated under a variety of categories, I am just checking my work to ensure its [sic] correct. There would be no efficiency 1 in having multiple people check the same work at the same time. If it's helpful, this is the same process followed for previous retro-active increases. 1 In the omitted middle paragraph of the in Finding of Fact, the Union president 1 concedes the past practice by saying, "I understand that this is how its always done Veronica," 1 and she acknowledges that the College offered the Union the choice to delay implementing the 1 salary increase so the Union could have more time to review the calculations. These selectively omitted undisputed facts make the finding misleading. The omitted language directly relates to 0 the three ULP findings and Conclusions of Law,, and. 1. Finding of Fact Finding of Fact is not supported by substantial evidence and contains several errors. The finding erroneously only refers to days of the week instead of using an actual date. Findings of Fact through all involve communications that occurred on August, 01, 'See Exhibit U-0, //1 send at : p.m. by Ms. Daniel. SHORELINE COMMUNITY COLLEGE'S ATTORNEY GENERAL OF WASHNGTON 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0) -

4 I including an requesting that Ms. Zura provide calculations. Findings of Fact through make no mention of the day of the week. However, the first sentence in Finding of Fact determined that Ms. Zura sent the calculations on "Thursday" and sent some corrections on "Friday." Thursday is August, 01, the very same day the Union requested the calculations in an August to Ms. Zura. Using the day of the week and omitting the date in this finding is misleading and suggests a multi-day delay in providing the calculations. Finding of Fact is also misleading because it says the Union found the calculations to differ from their expectations "upon receiving the information." The evidence showed their review of the calculations and their notice to the College of their concerns occurred at a later date.. Finding of Fact 1 Finding of Fact makes references to the "bargaining teams" and "bargaining groups" 1 meeting in September 01, which was four months after the CBA was signed. This erroneous 1 finding is misleading and suggests the parties were bargaining an issue. Not all members of the 1 bargaining teams were at these meetings, the purpose of the meeting was to resolve a contract 1 dispute, and Union testimony at hearing made clear that the Union was not seeking to bargain the 1 compensation dispute. This finding should be modified to state there was no request to re-open 1 the contract or bargain an issue. B. Assignment of Errors for Omitted Findings of Fact that Are Necessary Necessary Findings of Fact regarding the bargaining process are omitted a. A finding on how the parties reached agreement on bargaining issues is necessary The Examiner's Decision states the parties agreed not to keep bargaining notes. However, her decision fails to explain how the parties reached agreement on issues during bargaining. Such a finding is necessary to properly analyze the bargaining conduct of the parties. The testimony of both parties showed they agreed to interest-based bargaining process ground rules that required SHORELINE COMMUNITY COLLEGE'S ATTORNEY GENERAL OF WAS> m rgton 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0) -

5 decisions to be made by consensus (0 percent agreement), and they voted on issues by signifying a thumbs up or thumbs down. Such a finding should be added. b. A finding on whether the parties voted on the Union's interpretation of the salary increase methodology is necessary The method of calculating the salary increase in the new CBA is the primary issue in this ULP dispute. Since the Union is alleging the College agreed to their desired methodology in bargaining, a finding is necessary on whether the parties voted on the Union's desired methodology during bargaining. It is undisputed that the parties never voted on the Union's methodology. The Union treasurer testified he could not recall any vote ever being taken on the March 1 document that they claim was a proposal of their methodology. He testified that he merely felt it was "assumed" it was agreed to despite the 0 percent thumbs up voting protocol used in the bargaining.. Findings of Fact were omitted that are necessary to determine whether a delay in providing information to the Union was a ULP As further explained in section C() below, the Examiner erred by omitting Findings of Fact necessary to determine whether the College refused to provide relevant information request by the Union. The College had to create the requested information. Such necessary facts include the preparation required for a response, the impact of the delay to the party requesting the information, and whether the party responding to the request intended to delay or obstruct the process.. Findings of Fact were omitted that are necessary to determine whether the Union ever requested bargaining As further explained in section C()(b) below, the Examiner erred by omitting facts necessary to determine whether the Union ever requested bargaining. The Examiner determined that the College refused to bargain in good faith. Her decision ambiguously found that the College should have somehow engaged in bargaining after the new CBA became effective, when the College learned the Union wanted the new salary increase paid in a different manner. Her SHORELINE COMMUNITY COLLEGE'S ATTORNEY GENERAL of WASHINGTON 00 Fifth Avenue, Suite 000 Seattle, WA -t (0)-

6 I decision is silent on whether the Union ever requested to bargain the dispute. Union testimony at hearing repeatedly confirmed they did not want additional bargaining. Instead, they wanted the salary increase in the new CBA paid according to their contract interpretation.. Findings of Fact were omitted that are necessary to determine the relevant status quo As further explained in section C()(b) below, the Examiner erred by omitting facts necessary to determine the relevant status quo. Her decision does not say which CBA and relevant compensation provisions were in effect at that time the College allegedly engaged in a unilateral change. Although the evidence clearly showed the newly bargained CBA was in effect, the Examiner's findings and analysis fail to address this important issue, and additional findings are needed. 1. Findings of Fact were omitted that are necessary to determine if the 1 affirmative defense of Waiver by Contract applies to this case 1 The Examiner failed to mention or analyze the College's repeated assertions of a waiver 1 1 by contract affirmative defense. The omission of any analysis and supporting findings of fact on this issue was an error. 1 1 C. Assignment of Errors in Conclusions of Law The College assigns error to the following Conclusions of Law: 1. Conclusion of Law 1 that concluded "The Public Employment Relations Commission has jurisdiction in this matter under Chapter 1. RCW and 0 Chapter 1- WAC." 1 It has long been established that the Commission does not assert jurisdiction to hear and decide "violation of contract" claims through the ULP provisions of a ULP statute. Where the employer conduct at issue in a "unilateral change / refusal to bargain" ULP case is arguably protected or prohibited by an existing CBA, the Commission prefers to defer to grievance arbitration machinery established in the contract.? City of Walla Walla, Decision (PECB, ). Chelan Cty., Decision (PECB, ), citing City of Yakima, Decision -A (PECB, 1). SHORELINE COMMUNITY COLLEGE'S ATTORNEY GENERAL OF WASHNGTON 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0)-

7 1 At every stage of this ULP proceeding, the College asserted that the dispute should be decided by the grievance and arbitration process in the CBA, and the College asserted the affirmative defense of waiver by contract. The Examiner's Decision erred by failing to mention or analyze the affirmative defense of waiver by contract.. Conclusion of Law, concluding that, "By its actions described in findings of fact through 0, the employer refused to provide relevant information requested by the union in violation of RCW B..0(1)(d) and derivatively interfered in violation of RCW B..0(1)(a)." a. The Examiner failed to apply the correct legal standard and Findings of Fact were omitted that are necessary to determine whether a delay in providing information to the Union was unreasonable When deciding how quickly an employer must respond to a union request for information, the Commission looks to "several factors to determine whether a delay in providing 1 information was a ULP, including the preparation required for response, the impact of the delay 1 to the party requesting the information, and whether the party responding to the request intended 1 to delay or obstruct the process." The Examiner's Decision failed to include sufficient findings 1 of fact and properly apply the following three factors in the Clallum County decision: 1 (1) Preparation required 1 Missing in the Findings of Fact are the undisputed facts that the information requested 1 by the Union did not already exist at the time of the request, and the information had to be created by College staff. After an implementation meeting on June 1, 01, the College's creation of 0 the information required preparing separate multi-category salary increase calculations for more 1 than 00 faculty members. Ms. Zura, who prepared the calculations, was on vacation for two weeks during the summer, and the Union Treasurer who requested the information for his review was on vacation during the summer quarter. Analysis and added findings for these facts are necessary. The Examiner erred by failing to actually determine how quickly the College should have prepared separate new payroll calculations for over 00 employees. Providing the s Clallam Cty., Decisions 1, 1 (PECB, 01). SHORELINE COMMUNITY COLLEGE'S ATTORNEY GENERAL of WASHINGTON 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0) -

8 calculations to Mr. Fader, the Union Treasurer, at the end of summer on August, 01, was reasonable. Also, when asked if "the union did want the calculations before the college has determined the calculations were complete and correct," the Union president answered, "[Y]es, we did." Thus, the Examiner erred by not addressing what a reasonable time for preparing the calculations should have been, and she erred by not analyzing whether the Union should have been provided the calculations prior to the College being able to first determine the calculations are complete and correct. () Impact of the delay The Union Treasurer requested the information at the beginning of summer but was on vacation over the summer. Thus, he was not available to review calculations during the summer quarter. When the College provided the requested calculations at the end of summer, on August, 01, that same day, the College gave the Union the option of (1) paying the salary increases in the September, 01 paycheck and discussing any concerns after the payment, or () allowing more time for the Union to review the information and delaying the salary increases until the October, 01 paychecks. The Union expressly chose not to take more time to review the calculations, and they insisted the salary increases be paid in the September, 01 paychecks.l 1 It was an error for the Examiner to assess a ULP for failure to provide information to the Union without analyzing the impact of the delay in providing the calculations. () Whether the party responding to the request intended to delay or obstruct the process There were no findings of an intent by the College to delay or obstruct the process. The Union president acknowledged, "I understand that this is how its always done." 1 The College did what a good employer should do: It fulfilled the voluminous information request in a reasonable time and provided the Union with options to make sure they had time to review the Tr. :1-1. See Findings of Fact and. " See Findings of Fact and. 1 See assignment of error to Finding of Fact above that omits this fact. SHORELINE COMMUNITY COLLEGE'S ATTORNEY GENERAL of WASHINGTON 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0) -

9 information. The Union expressly declined the offer to delay the increases in the payroll and take additional time to review the calculations. The Examiner erred by not applying the legal standard in the Clallum County decision, and by omitting sufficient Findings of Fact to apply that legal standard. following:. Conclusion of Law, concluding that, "By its actions described in findings of fact through 0, the employer refused to bargain in good faith in violation of RCW B..0(1)(d) and derivatively interfered in violation of RCW B..0(1)(a)." Conclusion of Law is the result of several errors, including, but not limited to, the a. Failure to address waiver by contract affirmative defense. Again, the Examiner's Decision failed to mention or analyze the College's affirmative defense of waiver by contract. Union witnesses testified that their treasurer drafted the salary increase language in the new CBA, the Union agreed that CBA language is the subject of this dispute, and the Union agreed they could have filed a grievance on the issue but did not. The Union also agreed they were not seeking to bargain the dispute, but they did want the CBA compensation provision to be paid under their interpretation of the CBA. Once a contract is signed, the parties will have met their obligation to bargain as to the matters set forth in the contract, relieving the parties of their obligation to bargain for the life of the agreement. 1 No ULP will be found if a parry makes changes in a manner consistent with the contract. 1 The Examiner erred by failing to address whether waiver by contract applies to the ULP allegation involving failing to bargain the compensation issues. b. Failure to determine whether Union requested to bargain Without citing to legal authority, the Examiner found there was a duty on the College to use collective bargaining to resolve a dispute over a new salary increase in the new CBA. She " City of Kelso, Decision -A (PECB, 0). 1 Id.. SHORELINE COMMUNITY COLLEGE'S ATTORNEY GENERAL OF WASHINGTON 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0)-

10 held, "If the employer had disagreed or failed to understand the union's proposal, either during bargaining or after, it had a duty to follow-up with the union about its concerns."1 She did not cite to any authority for this legal theory that a disagreement over contract implementation must be bargained, and she did not analyze the grievance provisions of the CBA for resolving contract disputes. The Examiner went on to hold that only at "the end of the summer did it become obvious that the employer did not understand or did not agree with the union's methodology." 1 At that point in time, the new CBA was already in effect. The Examiner's Decision then admonishes the College for failing to bargain by saying, "It is impossible to have a full and fi ank discussion with the other parry if that other party does not ask to talk to you." 1 The Examiner incorrectly applied the WSU decision, which actually held that the duty to have a "full and frank discussion with the other parry" was squarely on the union. The WSU decision held: The three basic elements in testing whether an employer committed a refusal to bargain violation are: 1) the employee organization must be the exclusive representative of an appropriate bargaining unit; ) that employee organization must request to bargain with the employer concerning a mandatory subject of bar a ining; and then ) the employer must, conduct itself during bargaining in a manner that frustrates bargaining or avoids agreement." The decision explained that the union failed to have a full and frank discussion with the employer because the union never requested bargaining. In present case, similar to the WSU decision, it is undisputed that the Union never requested to bargain this compensation dispute. As shown by the following Union testimony, the Union simply wanted their interpretation of the new CBA to be applied: The Union president stated in her testimony that she is not alleging the total amount of funding "still needs to be bargained.,0 1 Decision at (emphasis added). i Decision at. Decision at, citing Washington State University (WSU), Decision 1-A (PSRA, 00). 1 WSU, Decision 1-A (PSRA, 00) (emphasis added). Id 1 Tr. 1:-1. SHORELINE COMMUNITY COLLEGE'S ATTORNEY GENERAL OF WASHNGTON 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0) -

11 following: The Union president agreed in her testimony that she does not "believe there is a methodology that still has to be bargained.,1 The Union president testified, "[W]e are not saying that what the contract says is not accurate. It was the way it was applied., The Union claimed the salary increase in the new CBA was paid incorrectly, and its president testified, "It is the union's position that they should have been paid correctly in the first place..." The Union president's own hearing testimony admitted that the Union wanted to check the College's implementation calculations "to determine whether or not the calculations were accurate and in line with the a gr eed-upon amount and methodology," which confirms the parties already bargained the amount and methodology in the CBA.. Conclusion of Law, concluding that, "By its actions described in findings of fact through 0, the employer unilaterally changed the status quo in violation of RCW B..0(1)(d) and derivatively interfered in violation of RCW B..0(1)(a)." Conclusion of Law is the result of several errors, including, but not limited to, the a. Failure to address Waiver by Contract affirmative defense Similar to the assignment of error for Conclusion of Law, the Examiner erred in determining Conclusion of Law without mentioning or analyzing the College's waiver by contract affirmative defense. The College's implementation of a new salary increase in a newly-bargained CBA is not a unilateral changes that requires bargaining. The salary increase was already bargained. Any disagreement over whether the College correctly paid the salary increase is a contract dispute that should be resolved under the grievance and arbitration process in the CBA. " Tr. 1:-1:. 1 Tr. :1-. Tr. 1:1-, 1:-. " Tr. :1-1 (emphasis added). SHORELINE COMMUNITY COLLEGE'S ATTORNEY GENERAL OF WASHNGTON 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0) -

12 I I b. Failure to determine correct relevant status quo The Examiner's Decision' only briefly addresses the issue of relevant status quo by providing the following two ambiguous sentences: Existence of a relevant status quo Prior to the time period involved in the instant case, members of the bargaining unit had been receiving a wage that did not include incremental step increases that would have otherwise occurred if a salary freeze had not existed. This rate of pay was different for each individual bargaining unit member and was paid to each individual at the end of each prior pay period. Regarding relevant status quo, the College does not understand what this statement means. This analysis provides no dates and fails to identify whether the compensation terms in the old CBA or the new CBA establish the relevant status quo. A complainant alleging a "unilateral change" must establish the relevant status quo. The Union's ULP Complaint and Post-Hearing Brief requested a return to status quo with a proviso that no faculty member would incur a reduction in salary. However, the Union's evidence and Post-Hearing Brief never specified or analyzed what the relevant status quo actually is. Thus, the College does not know what the Union or the Examiner's Decision considers to be the relevant status quo. The status quo ante must be maintained regarding all mandatory subjects of bargaining, except where changes are made in conformity with the collective bargaining obligation or the terms of a collective bargaining agreement.1 "No unfair labor practice will be found if a party makes changes in a manner consistent with" a CBA. The new compensation provision in the new CBA is the relevant status quo, and the College's implementation of that new compensation provision in the contract is not a unilateral change. At best, the parties have a contract dispute that should be resolved under the terms of s Decision at. Mun. of Metro. Seattle, Decision -B (PECB, ). Univ. of Wash., Decision -A (PSRA, 01). " Wash. State Univ., Decision 1 (PSRA, 01). SHORELINE COMMUNITY COLLEGE'S 1 ATTORNEY GENERAL OF WASHINGTON 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0)-

13 the CBA. The Examiner's Decision erred by failing to identify the relevant status quo, and by failing to determine that the Union met its burden of establishing a relevant status quo. D. Additional Assignments of Error By assigning error to Conclusions of Law 1 through, the College also assigns error to the order to cease and desist and order to take affirmative actions on pages and of the Examiner's Decision. All three ULP allegations should be dismissed. Notably, the Union's requested relief in their ULP Complaint included an order "to restore the status quo ante and to bargain in good faith with [the Union] concerning the calculation methodology." The Examiner's Decision does not order either of these remedies. Instead, the Examiner's Decision ordered the College to take the affirmative action to "Provide the [Union] with complete information concerning missed increment compensation." This erroneous remedy was not requested in the Union's ULP Complaint, at hearing, or in the Union's Post-Hearing Brief. Finding of Fact establishes that the College provided the compensation calculations to the Union on August, 01. There is no evidence that the Union's information request in the ULP Complaint remains unfulfilled. Appeal. The College will file a separate appeal brief on the matters set forth in this Notice of DATED this th day of February 0. Respectfully submitted, ROBERT W. FERGUSON Attorney General JOIN CLARK, WSBA No. A,~sistant Attorney General Attorneys for Respondent Shoreline Community College SHORELINE COMMUNITY COLLEGE'S 1 ATTORNEY GENERAL of WASHINGTON 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0)-

14 1 1 1 DECLARATION OF SERVICE I certify that a copy of the Respondent Shoreline Community College's Post Hearing Brief was served on all parties or their counsel of record on the date below as follows: US Mail Postage Prepaid via Consolidated Mail Service and Laura Ewan Schwerin Campbell, Barnard Iglitzin & Lavitt, LLP 1 West Mercer Street, Suite 00 Seattle, WA 1 ewan@workerlaw.com I certify under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. DATED this th day of February 0 at Seattle, Washington. AM Vj - UV-- Ian Yarington, Legal Assistant SHORELINE COMMUNITY COLLEGE'S 1 ATTORNEY GENERAL OF WASHINGTON 00 Fifth Avenue, Suite 000 Seattle, WA -1 (0) -