State - Individual Providers, Decision 10193 (PECB, 2008) STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION SEIU HEALTHCARE 775NW, ) ) Complainant, ) CASE 21917-U-08-5583 ) vs. ) ) DECISION 10193 - PECB ) WASHINGTON STATE ) INDIVIDUAL PROVIDERS, ) FINDINGS OF FACT, ) CONCLUSIONS OF LAW, Respondent. ) AND ORDER ) ___________________________________) Schwerin Campbell Barnard & Iglitzin, by Carson Glickman-Flora, Attorney at Law, for the union. Attorney General Robert M. McKenna, by Franklin Plaistowe, Assistant Attorney General, for the employer. On August 11, 2008, SEIU Healthcare 775NW (union) filed an unfair labor practice complaint against Washington State Individual Providers(fn:1) (employer). A preliminary ruling was issued on August 14, 2008, finding a cause of action for refusal to bargain by insisting to impasse on Article 17.11 Consumer Driven Training, an alleged non-mandatory subject of bargaining.(fn:2) ____________________ fn:1 This designation is for docketing purposes only. The Office of the Governor is the employer for the purpose of collective bargaining. fn:2 On August 4, 2008, the Executive Director certified twelve issues for interest arbitration between the parties in Case 21907-I-08-516. On August 15, 2008, a single issue (and subject of this case) was suspended from interest arbitration pending the outcome of this decision. WAC 391-55-265. The parties were scheduled to begin an interest arbitration hearing on August 18, 2008. Since the issue in this case, if found to be a mandatory subject of bargaining, would subsequently be decided by the arbitrator, the employer petitioned the Commission to expedite the resolution of this matter.(fn:3) The parties initially agreed to forego a hearing, and instead submitted cross motions for summary judgment on August 29, 2008. However, after review of the summary judgment arguments, both parties requested a short evidentiary hearing, and withdrew their motions for summary judgment. ____________________ fn:3 Requests for funds necessary to implement the 2009-2011 collective bargaining agreement must be complete prior to October 1, 2008. The requests are submitted to the Office of Financial Management by the Governor, then submitted to the Legislature for approval as part of the Governor's budget document. RCW 74.39A.300. Lisa A. Hartrich, the appointed Examiner, conducted a hearing on September 9, 2008, in Federal Way, Washington. Both parties filed post-hearing briefs on September 15, 2008. ISSUE PRESENTED Is the employer's Article 17.11 "Consumer Driven Training" proposal a mandatory subject of bargaining that may lawfully be advanced to interest arbitration? Based on the record as a whole, the Examiner finds that the employer's proposal for Consumer Driven Training is not a mandatory subject of bargaining, and insistence to impasse and interest arbitration constitutes an unfair labor practice under RCW 41.56.140(1) and (4). BACKGROUND The union is the exclusive representative for approximately 25,000 individual providers of in-home care services in the State of Washington. The individual providers are considered public employees under RCW 74.39A.270 solely for the purpose of collective bargaining.(fn:4) The "employer" is represented for bargaining purposes by the Governor and the Governor's designee.(fn:5) RCW 41.56.026; RCW 74.39A.270(1). ____________________ fn:4 The right to select, hire, supervise, and terminate an individual provider is retained by the consumer or prospective consumer. RCW 74.39A.270(4). fn:5 The Office of Financial Management. The Public Employees' Collective Bargaining Act (PECBA), Chapter 41.56 RCW, governs the collective bargaining relationship between the Governor and individual providers. Notably, the interest arbitration provisions of RCW 41.56.430 through 41.56.470 and 41.56.480, usually reserved only for uniformed personnel, apply to this bargaining unit. RCW 74.39A.270(2)(c). Beginning in April 2008, the union and employer began bargaining for their 2009-2011 contract. As part of that process, the parties created a joint subcommittee which was charged with bargaining specifically over training issues (Article 17). The subcommittee was to develop a joint proposal, or at least some kind of compromise, on language for the main agreement. The subcommittee met several times during June and July 2008. During subcommittee meetings, the parties discussed instructional costs and administrative costs based on the number of training hours the employer was required to offer. The union proposed a cost model for the employer's contribution to the newly-created "training partnership," established by the Legislature in 2007. The training partnership is a trust established and maintained jointly by the employer and the union.(fn:6) The partnership's sole purpose is to provide training, peer mentoring, educational and career development, and examinations for individual providers beginning January 1, 2010. RCW 74.39A.360.(fn:7) ____________________ fn:6 The partnership's board of trustees consists of three union trustees and three employer trustees. fn:7 Prior to the adoption of the new training requirements, the Legislature mandated that orientation, basic training, and continuing education be provided by the Department of Social and Health Services. See WAC 388-71-0500 through WAC 388-71-0560 and WAC 388-71-05665 through 388-71-05909. The subcommittee also discussed the concept of "consumer driven training."(fn:8) This concept originated with the employer as a priority item in Article 17.11. Consumer driven training is training conducted by consumers for individual providers, with the idea that the consumer may be the most qualified person to train the provider in the consumer's special needs. The subcommittee worked to develop language around consumer driven training, but impasse was declared at the main table before the language was finalized. ____________________ fn:8 Also referred to as "experiential" or "on-the-job" training. The parties went to mediation on July 31, 2008. They were unable to reach a complete agreement. Remaining disputed issues were advanced to interest arbitration. As part of its final offer submitted for interest arbitration, the employer included language for Article 17.11 Consumer Driven Training, as follows: The parties acknowledge that consumer involvement in the delivery of training to their individual provider may help create better health outcomes and higher quality care for the consumer. Upon the Partnership's approval, the following types of consumer driven training will be made available to individual providers for the purpose of meeting training requirements: 1) Consumer-led classroom training by a consumer who is a qualified instructor; 2) In-home, on-the-job training; 3) Joint training led by a consumer and involving his/her other health professional(s) and/or family members. Any consumer seeking to instruct their individual provider using any of the above methods shall apply to the Partnership for approval. The parties intend that minimal qualifications for approval shall encourage consumer participation in the delivery of training consistent with the improved health outcomes intended. Approved consumer-driven training hours may help fulfill any basic training, advanced training and continuing education requirements to the extent determined by the Partnership. All such consumer-driven training applied to basic training requirements must be relevant to the certification examination to be taken by the individual provider. Under no circumstances shall any consumer-driven training be applicable towards training requirements if it has not been previously approved by the Partnership. The union did not include any consumer driven training language in its final offer, and objected to including it in the contract. LEGAL PRINCIPLES Contract disputes that cannot be resolved through collective bargaining may proceed to mediation. If the dispute cannot be resolved after a reasonable period of mediation, the mediator will make a recommendation to the Executive Director as to which unresolved issues should be certified for interest arbitration. Any issues that were not previously mediated will be excluded. WAC 391-55-200. If one party claims that the opposing party is advancing a proposal that is not a mandatory subject of bargaining, and the opposing party does not subsequently amend its proposal, then the objecting party must file an unfair labor practice complaint under WAC 391-45. At that point, the Executive Director will suspend certification of the disputed issue until the unfair labor practice is resolved. WAC 391-55-265. Mandatory Subjects of Bargaining Parties to a collective bargaining relationship have an obligation to bargain in good faith over wages, hours, and working conditions. RCW 41.56.030(4). These topics are known as "mandatory" subjects of bargaining. It is an unfair labor practice for either party to refuse to bargain a mandatory subject. RCW 41.56.140(4); RCW 41.56.150(4). "Permissive" subjects of bargaining are considered remote from matters affecting wages, hours, and working conditions, and are regarded as prerogatives of employers or unions. Parties may negotiate permissive subjects, but are not obliged to do so. City of Pasco, 132 Wn.2d 450, 460 (1997). The main legal and practical difference between mandatory and permissive subjects of bargaining is that a party cannot insist to impasse on proposals that are permissive subjects. For bargaining units eligible for interest arbitration, the parties must drop their proposals on permissive subjects once they move to advance the disputed issues to arbitration. Pursuing a permissive subject to impasse, including submitting it to interest arbitration, is an unfair labor practice. Klauder v. San Juan County Deputy Sheriffs' Guild, 107 Wn.2d 338, 342 (1986). The Commission determines whether an issue of bargaining is mandatory or permissive on a case-by-case basis. In doing so, the Commission examines (1) the extent to which the proposal directly impacts wages, hours, and working conditions of employees (mandatory), and (2) the extent to which a proposal is "at the core of entrepreneurial control" or is a management prerogative (permissive). International Association of Fire Fighters, Local 1052 v. PERC (City of Richland), 113 Wn.2d 197 (1989). Therefore, it is the Commission, not the parties, that determines the mandatory or permissive status of a particular subject. While parties are encouraged to engage in free and open exchange of proposals on all matters, the act of talking about or discussing something at the table does not convert it into a mandatory subject. WAC 391-45-550. Because the Commission makes the mandatory/permissive determination on a case-by-case basis, an examiner cannot rely solely on Commission precedent when conducting the analysis. ANALYSIS Employer Contributions The union argues that the plain language of RCW 74.39A.270 defines the scope of bargaining regarding training. That statute requires the employer to engage in collective bargaining with the union over ". . . employer contributions to the training partnership for the costs of: (a) Meeting all training and peer mentoring required under this chapter; and (b) other training intended to promote the career development of individual providers." RCW 74.39A.270(7).(fn:9) ____________________ fn:9 The employer contributions to the partnership are to begin July 1, 2009. The partnership will become the training entity for individual providers beginning January 1, 2010. The union asserts that the Legislature limited bargaining over training to employer contributions only, and therefore the employer cannot insist to impasse over training methods or content. The union contends that the employer did not show how its proposal has an impact on employer contributions, nor did it include any language related to employer contributions in its proposed Article 17.11. The employer contends that the plain language of RCW 74.39A.270(7) makes the concept of consumer driven training a mandatory subject because, in order to bargain over contributions to the training partnership, it is necessary for the employer to be informed about the content of the training. The employer argues that consumer driven training could have a mitigating effect on costs associated with training due to a reduction of compensable hours.(fn:10) ____________________ fn:10 In the consumer driven training model, some of the hours designated as training hours would also be hours counted as direct care to consumers. There is no evidence to show that the employer advanced any proposals regarding specific cost mitigation or other budget considerations related to consumer driven training. Testimony confirmed that "consumer driven training" was presented to the subcommittee as a concept, and did not address potential ramifications on employer contributions. However, employer training contributions were specifically addressed in Article 17.4 Contributions. The Article 17.4 language was identical in both the union's and employer's July 2008 proposals: 17.4 Contributions: Effective July 1, 2009, the Employer shall contribute up to twenty-one and one-half cents ($0.215) to the Partnership per paid hour for all employees covered by this Agreement. It would seem then that Article 17.4 is the place the parties chose to address monetary considerations for training. Consumer Input The employer is required by RCW 74.39A.270(1) to consult with the Home Care Quality Authority (HCQA) during the collective bargaining process. The HCQA is a state agency governed by a nine-member board consisting primarily of former and/or current consumers of in-home care services. The employer argues that if a topic of importance to consumers is not a mandatory subject, it will not be able to carry out its statutory mission to bring consumer interests to the bargaining table. For example, when consulting with the HCQA in preparation for 2009-2011 bargaining, the employer found there was an interest in consumer driven training. From the employer's point of view, if the subject is permissive, the union then has the ability to stifle consumer interests by declining to discuss them. This argument is perplexing to the Examiner. Surely the input and interests of many origins are brought to every bargaining table. Both sides use this input to decide which issues to focus on at the table. In this case, the state law requires the employer to actively consult the consumers. However, that requirement does not change all topics of consumer interest into mandatory subjects of bargaining. Clearly, the Legislature has decided where the training decisions are to be made, and that is with the training partnership.(fn:11) ____________________ fn:11 Note that the employer appoints three of the six members on the partnership's board of trustees. Training as Permissive Subject of Bargaining As already stated, the Commission makes distinctions about mandatory versus permissive subjects of bargaining on a case-by-case basis. However, it is fair to look to past cases when weighing the question. In State Office of Financial Management, Decision 8761-A (PSRA, 2005), the Commission affirmed the Examiner's ruling, which held that a union proposal for supplemental training for home care workers was a permissive subject of bargaining. Likewise, in Spokane Fire District 9, Decision 3661-A (PECB, 1991), the Commission held that a decision to require particular training courses was a permissive subject. See also King County Fire District 16, Decision 3714 (PECB, 1991). In these cases, decisions relating to the type of training required of employees were determined to be within the managerial control of the employer, and therefore were permissive subjects. While these cases are instructive, in the present case the employer must act within the confines of the statute created by the Legislature. That statute clearly prescribes the type of training and allows bargaining only with respect to the employer's contributions to the costs of such training. CONCLUSION The employer's proposal for consumer driven training is a permissive subject of bargaining. Therefore, the employer has committed an unfair labor practice under RCW 41.56.140(1) and (4) by insisting to impasse and interest arbitration on that subject. FINDINGS OF FACT 1. The Governor of the State of Washington is the public employer within the meaning of RCW 74.39A.270(1) and RCW 41.56.030(1). 2. SEIU Healthcare 775NW is a bargaining representative under RCW 41.56.030(3). 3. The bargaining unit represented by the union is a statewide unit of all individual providers, as described in RCW 74.39A.270(2)(a). 4. The individual providers are considered public employees under RCW 41.56.030(2) solely for the purposes of collective bargaining. 5. The union and employer are party to a collective bargaining agreement dated July 1, 2007 through June 30, 2009. In April 2008, the parties began to negotiate a successor agreement for 2009-2011. 6. The parties could not come to an agreement, so they proceeded to mediation and then to interest arbitration. One issue, "consumer driven training," was suspended from arbitration because the union asserted in an unfair labor practice complaint that it was a permissive subject. 7. In 2007, the Legislature established a training partnership. The training partnership's purpose, as defined in RCW 74.39A.360, is to provide all training for individual providers beginning January 1, 2010. 8. RCW 74.39A.270(7) requires the employer to engage in collective bargaining with the union over employer contributions to the training partnership. The Legislature did not direct the parties to bargain over content of the training. 9. The employer's "consumer driven training" proposal did not address employer contributions to the training partnership. CONCLUSIONS OF LAW 1. The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW, WAC 391-45 and RCW 74.39A.270. 2. The employer's proposal of Article 17.11 Consumer Driven Training is a permissive subject of bargaining, and insistence to impasse and interest arbitration on a permissive subject is an unfair labor practice under RCW 41.56.140(1) and (4). ORDER The employer is ordered to withdraw its proposal on consumer driven training from the issues submitted for interest arbitration for the 2009-2011 collective bargaining agreement. ISSUED at Olympia, Washington, this 24th day of September, 2008. PUBLIC EMPLOYMENT RELATIONS COMMISSION LISA A. HARTRICH, Examiner This order will be the final order of the agency unless a notice of appeal is filed with the Commission under WAC 391-45-350.
Case 21917-U-08-5583 Decision 10193 - PECB PUBLIC EMPLOYMENT RELATIONS COMMISSION NOTICE TO EMPLOYEES THE WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION CONDUCTED A LEGAL PROCEEDING IN WHICH ALL PARTIES HAD THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT. THE COMMISSION RULED THAT THE STATE OF WASHINGTON COMMITTED UNFAIR LABOR PRACTICES IN VIOLATION OF STATE COLLECTIVE BARGAINING LAWS, AND ORDERED US TO POST THIS NOTICE TO EMPLOYEES: WE UNLAWFULLY insisted to impasse and interest arbitration on "Consumer Driven Training," a permissive subject of bargaining. TO REMEDY OUR UNFAIR LABOR PRACTICES: WE WILL notify the independent providers in the SEIU Healthcare 775NW bargaining unit, by electronic mail or otherwise, of this decision. WE WILL read this notice at the next board meeting of the Home Care Quality Authority and the next management meeting of the Office of Financial Management Labor Relations Office. WE WILL NOT, in any other manner, interfere with, restrain, or coerce our employees in the exercise of their collective bargaining rights under the laws of the State of Washington.