Central Washington University, Decision 10413 (PSRA, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
PUBLIC SCHOOL EMPLOYEES )
OF WASHINGTON, )
Complainant, ) CASE 21781-U-08-05559
)
vs. ) DECISION 10413 - PSRA
)
CENTRAL WASHINGTON UNIVERSITY, ) FINDING OF FACT,
) CONCLUSION OF LAW,
Respondent. ) AND ORDER
___________________________________)
Eric T. Nordlof, General Counsel for the union.
Attorney General Rob McKenna, by Lawson Dumbeck, Assistant
Attorney General, for the employer.
On June 17, 2008, Public School Employees of Washington (union)
filed an unfair labor practice complaint against Central Washington
University (employer). The union represents a bargaining unit which
includes patient service representatives who work in the employer's
health and counseling center. The union alleged that the employer
had refused to bargain the effects of a unilateral change in its
staffing in violation of RCW 41.80.110(1)(a) and (e). A preliminary
ruling was issued on June 23, 2008. Examiner Emily Martin held an
evidentiary hearing on November 25, 2008.
ISSUE
Did the employer violate its bargaining obligation when it
unilaterally eliminated a position and effected a change in staffing
without giving the union notice and an opportunity to bargain the
effects of its decision?
The Examiner finds that the employer violated its bargaining
obligation when it failed to provide the union with notice and an
opportunity to bargaining the effects of a decision which eliminated
a position in the bargaining unit.
APPLICABLE LEGAL PRINCIPLES
The employer is governed by the Personnel System Reform Act,
Chapter 41.80 RCW, and therefore has a duty to bargain with the
exclusive bargaining representative of its employees. RCW
41.80.005(2). If the employer refuses to bargain, it commits an
unfair labor practice under RCW 41.80.110(1)(e). The topics which
are subject to bargaining, except as otherwise provided by the
statute, include wages, hours and other terms and conditions of
employment. RCW 41.80.020(1).
Wages, hours and working conditions are categorized as mandatory
subjects of bargaining. Federal Way School District, Decision 232-A
(EDUC, 1977) citing NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958).
Unless a union waives its statutory right to notice and the
opportunity to bargain, the employer is prohibited from making
unilateral changes to mandatory subjects and commits an unfair labor
practice if it fails to bargain a change concerning a mandatory
subject of bargaining. State - Social and Health Services, Decision
9551-A (PSRA, 2008). In general, an employer has an obligation to
refrain from unilaterally changing terms or conditions of employment
unless it: (1) give notice to the union; (2) provides an opportunity
for bargaining prior to making a final decision; (3) bargains in
good faith, upon request; and (4) bargains to agreement or impasse
concerning any mandatory subjects of bargaining. Skagit County,
Decision 8746-A (PECB, 2006). The employer's notice to the union
does not have to be in writing, but must be sufficiently clear to
afford the union with reasonable notice of the impending change.
See Washington Public Power Supply System, Decision 6058-A (PECB,
1998).
Under Chapter 41.80 RCW, the employer does not have the duty to
bargain over the size of its work force. The management rights
provision of the statute, RCW 41.80.040, states:
The employer shall not bargain over rights of management which,
in addition to all powers, duties, and rights established by
constitutional provision or statute, shall include but not be
limited to the following:
. . . .
(2) The employer's budget and the size of the agency workforce,
including determining the financial basis for layoffs;
However, even when a decision concerning the size of its workforce
does not have to be bargained, this employer still is required to
bargain the effects of a decision on terms and conditions of work.
See State - Social and Health Services, Decision 9551-A (PSRA,
2008).
ANALYSIS
Duty To Bargain
Both Marilyn Allred and Marcia Eckert worked in the employer's
Health and Counseling Center. Allred is a patient service
representative and Eckert was patient service lead. Both positions
involved registering patients, scheduling appointments, managing
charts, and other patient intake duties. Eckert had worked at the
patient intake area of the counseling service while Allred worked in
a similar capacity for the patient intake window of the medical
service. On May 1, 2008, Eckert retired.
When Eckert retired, the employer did not fill the position.
Instead, it distributed her duties to its remaining staff and
shifted a patient service representative from the health center to
Eckert's place at the counseling center. Before Eckert's
retirement, Allred had been one of two patient service
representatives at the health center's intake window. After Eckert
retired, Allred became the only patient service representative
primarily stationed at the medical service's patient intake window.
Eckert's retirement was not sudden. Eckert announced her May 1,
2008, retirement on January 25, 2008. In the months between the
announcement and the retirement, the employer cross-trained the
remaining employees to perform Eckert's duties. Meanwhile, the
health and counseling center was facing budget reductions.
According to Robert Trumpy, the Senior Director of Health and
Counseling Services, the employer initially decided to leave
Eckert's position vacant until the fall semester when more budget
and enrollment information was available. Eventually, Trumpy
decided that the staffing was working appropriately and the decision
to leave the position vacant was made for cost saving and budgetary
reasons.
The employer did not provide the union with notice of its decision
to leave Eckert's position vacant or how it was going to accommodate
the work without that position. The union found out about the
decision because several employees who worked at the health center
told their union president of the rumors that Eckert's position
would not be filed. The president then notified the union's field
representative and attorney of the staff rumors. As the union only
learned of the change through rumors circulating through the health
and counseling center's staff, the union was not provided with
notice of the change.
In reaction to the rumors, the union's attorney sent an e-mail to
the employer regarding the effects of the employer's decision not to
replace Eckert. The e-mail alleged that this was an unlawful change
in working conditions and therefore a violation of the employer's
bargaining obligation. The e-mail stated the union would file an
unfair labor practice charge against the employer unless the
employer filled the position with a temporary employee and scheduled
bargaining dates with the union. Even though the union had not been
provided with prior notice of the staffing change, the union was
essentially requesting the right to bargain the change.
Upon receiving the union's e-mail, the employer's Director of
Operations for Human Resources, Angela Beaudry, consulted with the
health center's managers. Beaudry determined that managers were
still evaluating what to do with Eckert's vacancy in the fall
quarter. Beaudry then called the union's field representative and
reached her voice mail. Beaudry did not offer bargaining dates or a
temporary replacement for Eckert. The union filed its unfair labor
practice charge on June 17, 2008.
During the summer of 2008, the employer ultimately determined that
it would leave Eckert's position vacant for an entire year.
Meanwhile, in mid-June, Beaudry left her employment with the
university. Her replacement began work in August. There is no
evidence in the record that anyone one at the university offered to
bargain the effects of its staffing decision until mid-October 2008,
months after the employer unilaterally decided not to replace Eckert
for an entire year.
In order to avoid committing an unfair labor practice violation,
this employer had an affirmative duty to provide the union with
notice and an opportunity to bargain the staffing decision which
affected working conditions for members of its bargaining unit. As
the employer failed to provide such notice, the union did not have a
meaningful opportunity to bargain the decision's effects. Before
the employer made its final decision to leave Eckert's position
vacant, it needed to have notified the union of this potential
decision and provide the union with an opportunity to begin
bargaining the effects on mandatory subjects.
The employer failed to provide the union with notice of its decision
to remove a position from the bargaining unit. Since the union was
not given notice, it was not given an opportunity to bargain the
effects of this change. Furthermore, even after the union contacted
the employer and essentially requested bargaining, the employer
again did not provide an opportunity to bargain until months after
its decision went into effect.
As the employer failed to provide notice or an opportunity to
bargain the effects of its staffing decision, the employer has
refused to bargain in good faith and has committed an unfair labor
practice.
FINDINGS OF FACT
1. Central Washington University is an institution of higher
education within the meaning of RCW 41.80.005(10) and is an
employer for the purposed of collective bargaining as is
permitted under RCW 41.80.010(4).
2. Public School Employees of Washington is the exclusive
bargaining representative of a bargaining unit which includes
patient service representatives employed by Central Washington
University.
3. Maria Eckert and Marilyn Allred were patient service
representatives in the bargaining unit represented by the
union.
4. When Eckert retired in May 2008, the employer shifted her
duties to other staff members including Allred.
5. The employer did not provide the union with notice of its
decision to change workload assignments. Through rumors among
it represented staff, the union learned of the employer plans
to leave Eckert's position vacant and shift her work to other
employees.
6. The union sent an e-mail to the employer in May of 2008
regarding the change in Allred's working conditions and
demanded bargaining. At the time of this e-mail, the employer
had already implemented its decision to keep Eckert's position
vacant. Eventually, the employer determined that the positions
would be vacant an entire year.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has
jurisdiction in this matter under Chapter 41.80 RCW and
Chapter 391.45 WAC.
2. The employer interfered with employee rights in violation
of RCW 41.80.110(1)(a) and refused to bargain in good
faith in violation of RCW 41.80.110(1)(e) in regard to the
effects of a staffing decision made in the context of
Marcia Eckert's retirement.
ORDER
Central Washington University, its officers and agents, shall
immediately take the following actions to remedy its unfair labor
practices:
1. CEASE AND DESIST from:
a. Refusing to bargain collectively with Public School
Employees of Washington.
b. In any other manner interfering with, restraining or
coercing its employees in the exercise of their collective
bargaining rights under by the laws of the state of
Washington.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the
purposes and policies of Chapter 41.80 RCW:
a. Restore the status quo ante by reinstating the wages,
hours and working conditions which existed for the
employees in the affected bargaining unit prior to the
unilateral change in staffing found unlawful in this order.
b. Give notice to and, upon request, negotiate in good faith
with Public School Employees of Washington before
significantly increasing the volume of work of its patient
service representative position.
c. Post copies of the notice provided by the Compliance
Officer of the Public Employment Relations Commission in
conspicuous places on the employer's premises where
notices to all bargaining unit members are usually posted.
These notices shall be duly signed by an authorized
representative of the respondent, and shall remain posted
for 60 consecutive days from the date of initial posting.
The respondent shall take reasonable steps to ensure that
such notices are not removed, altered, defaced, or covered
by other material.
d. Read the notice provided by the Compliance Officer into
the record at a regular public meeting of the Board of
Trustees of Central Washington University, and permanently
append a copy of the notice to the official minutes of the
meeting where the notice is read as required by this
paragraph.
e. Notify the complainant, in writing, within 20 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 complainant with a signed copy of the notice
provided by the Compliance Officer.
f. Notify the Compliance Officer of the Public Employment
Relations Commission, in writing, within 20 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 Compliance Officer with a signed copy of the notice
provided by the Compliance Officer.
ISSUED at Olympia, Washington, this 28th day of May, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
EMILY MARTIN, 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 217881-U-08-5559
DECISION 10413 - PSRA
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 CENTRAL WASHINGTON UNIVERSITY COMMITTED
UNFAIR LABOR PRACTICES IN VIOLATION OF STATE COLLECTIVE BARGAINING LAWS:
WE UNLAWFULLY refused to bargain under RCW 41.80.110(1)(a) by failing to
provide the union with notice and an opportunity to bargain our decision to
leave a patient service representative position vacant and to transfer the
work to other employees, thereby significantly affecting the working
conditions of a patient service representive.
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL restore the working conditions that existed before we made the
unilateral change
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.
DO NOT POST OR PUBLICLY READ THIS NOTICE.
AN OFFICIAL NOTICE FOR POSTING AND READING
WILL BE PROVIDED BY THE COMPLIANCE OFFICER.
The full decision is published on PERC's website, www.perc.wa.gov.