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.