Did the employer interfere with
employee rights and refuse to bargain in violation of RCW 41.56.140(4) and (1) when
it reduced the number of work days in the work year for certain full- time
bargaining unit members?
Based upon the record as a whole, the
Examiner finds that furlough days are a mandatory subject of bargaining. Thus, the employer did violate RCW 41.56.140(4)
and (1) when it unilaterally reduced the work year from 260 days to 240 days,
by furloughing certain full-time employees for 20 days, without giving the
union an appropriate opportunity to bargain the decision and the effects.
APPLICABLE LEGAL STANDARDS
The Public
Employees' Collective Bargaining Act (the Act) requires public employers to
engage in collective bargaining with the exclusive bargaining representative of
their employees in matters concerning wages, hours, and other terms and
conditions of employment. RCW 41.56.030(4),
RCW 41.56.140(4).
The complaining party carries the
burden of proof by a preponderance of the evidence that an unfair labor
practice was committed. Whatcom County, Decision 7244-B (PECB,
2004); City of Tacoma, Decision
6793-A (PECB, 2000); WAC 391-45-270(1)(a).
Mandatory
Subjects of Bargaining
In
determining whether a particular matter is a mandatory, permissive, or illegal
subject of bargaining, the Commission evaluates each case on an individual
basis. The Supreme Court endorsed this
approach in International Association of
Fire Fighters, Local 1052 v. The Public Employment Relations Commission,
113 Wn.2d 197, 203 (1989), writing:
PERC's policy of
case-by-case adjudication of scope-of-bargaining issues permits application of
the balancing approach most courts and labor boards generally apply to such
issues. See, e.g., First Nat'l
Maintenance Corp. v. NLRB, [452 U.S. 666 (1981)] ... On one side of the
balance is the relationship the subject bears to "wages, hours and working
conditions." On the other side is
the extent to which the subject lies '''at the core of entrepreneurial
control'" or is a management prerogative.
Spokane Educ. Ass’n v. Barnes, 83
Wn.2d at 376 (quoting Fibreboard S Ct. 398, 6 A.L.R. 3d 1130 (1946)).
In Richland School District, Decision 7367 (PECB, 2001), the employer
was found to have refused to bargain in violation of RCW 41.56.140(4) by
unilaterally adopting a new schedule for elementary school lunch periods,
recess periods, and early release days to be effective in the 1999-2000 school
year. The employer did not give the
union notice that it was contemplating the decision, in order to allow for
bargaining, nor did it bargain about the impact of the schedule change on the
wages, hours of work, and working conditions of classified employees
represented by the complainant.
Conduct
Constituting Refusal to Bargain
Once
employees exercise their statutory right to designate an exclusive bargaining
representative through Commission procedures, their employer is prohibited from
taking unilateral action with respect to mandatory subjects of bargaining. Snohomish
County Fire District 3, Decision 4336-A (PECB, 1994). A public employer has an
obligation to notify a bargaining representative of its proposal regarding a
mandatory subject of bargaining, and to provide the union with an opportunity
to demand bargaining about it. City of Anacortes, Decision 9004-A
(PECB, 2007). The employer must also,
for a reasonable period following notice to the union, maintain the
"status quo" with respect to wages, hours and working conditions in
order to permit meaningful bargaining. North Franklin School District, Decision
5945-A (PECB, 1998).
Interference Standards
A “derivative” or automatic
interference violation will be found where an employer has been found guilty of
an unfair labor practice by domineering or assisting a union, discriminating
against an employee for engaging in union activity or where an employer refuses
to bargain in good faith. Washington State Patrol, Decision 4757-A
(PECB, 1995).
ANALYSIS
The union
represents a bargaining unit of classified employees working for Griffin School
District. The unit includes workers in
the classifications of mechanic, bus driver, custodian, secretary, food
services assistant, and school nurse, among others.
The union
and employer were parties to a collective bargaining agreement due to expire on
August 31, 2008. They began to negotiate
for a successor agreement in May 2008.
The union was represented by Local 252 President Gary Johnston and three
shop stewards. The employer was
represented by Superintendent Donald Brannam, two school board members, and the
office manager. The parties met five
times between May 15 and June 18, 2008. On
June 25, 2008, the parties jointly requested that the Commission appoint a
mediator to assist them. The parties
agreed to meet in mediation on August 5, 2008.
At the
scheduled mediation, Brannam handed the mediator and Johnston a letter
emphasizing the goals of the school district in the difficult economic climate
in which it was then operating. The
goals listed in Brannam's letter included:
• Make decisions and
agreements that are based on "What's in the best interest of kids".
We believe that our staff does this on a
daily basis. And, this should be
continued in the process of bargaining.
• Maintain the
sovereignty of Griffin School District. We value Griffin School as the
center of this community. We believe
that the sovereignty of Griffin School District is in the best interest [of] kids
and staff.
• With all of the cuts from
the state, economic concerns and high energy and food costs, the third goal is to
protect employee jobs during a time when financial resources continue to
grow scarce or vanish entirely.
[Emphasis
in original.]
The last
two pages of the letter charted information presented to the Griffin School Board
on Monday, July 28, 2008, during a public hearing and budget approval
process. The end of the chart listed
“School Closure – 240 day Operation.” Next to this, in the "Impact"
column was listed:
·
180 School Days, 10 Holidays & 50 Operation Days
·
240 Compensated Day Calendar
·
School Closure on non-student days September – June
(e.g. Winter Break, Spring Break & Contract Alignment days with Olympia)
·
Reduction to utility costs with facility being
closed – no access to building/facilities
The item
caught Johnston's attention because the employer had always previously operated
on a 260 calendar workday schedule for full-time employees. The majority of the bargaining unit is made
up of employees who only work the 180 days per year in which school is in
session, such as dispatchers, bus drivers, and library technicians. However, Johnston was concerned about the five
full-time employees and one half-time employee in the unit who work a 260 day
yearly schedule. These are one building
maintenance employee, one mechanic, three custodians, and a half-time custodian.
The employer's
disclosure at the mediation session of its plan to reduce its yearly calendar
from 260 days of operation to 240 days meant that the five and one-half
employees would be furloughed for 20 days during the 2008-2009 school year. Johnston testified that this amounted to
between a seven and eight percent reduction in yearly pay to the six unit members
working a full year schedule.
In response
to a question from Johnston during the mediation, Brannam told the bargaining
teams that the school board had already implemented the reduced schedule.
Brannam
testified that he had conceived of the idea to furlough full-time employees in
late June or early July 2008. This was during
the time that the employer was actively bargaining with the union. Brannam presented his proposal to furlough
full-time workers for 20 days in the upcoming school year to the school board
in a work session held the first Wednesday in July, 2008. The board later approved the proposal on July
28, 2008, when it adopted the 240 work day calendar for 2008-2009.
Brannam
admitted on cross examination that he did not advise the union of his proposal
before he presented the idea to the school board on July 28th . In addition, he acknowledged that he did not
notify the union of the school board's approval of the reduced work year
between July 28 and the August 5, 2008 mediation session.
Johnston
was surprised by the employer's unilateral decision to furlough members of the
bargaining unit for 20 workdays. He
requested additional information from Brannam about the furlough decisions. Brannam e-mailed him the day after mediation,
enclosing the 240 work day 2008-2009 Facilities Operations Calendar adopted by
the school board. In response, Johnston wrote
to Brannam demanding to bargain over the decision to furlough the employees
during the coming school year:
As I have previously
indicated, we were rather stunned to find out during the recent mediation
bargaining for a new Labor Agreement that the Griffin Board of Directors had
unilaterally decided to totally shut down all school operations for a total of
twenty calendar/working days, effectively making a substantial change in
working conditions for the full-time classified members we represent, as well
as other apparent, but unknown, reductions in hours economically affecting
several more members.
As such, kindly consider
this as written notification of the Union's demand to not only bargain over the
effects of this unilateral Board decision, but also a demand to bargain over
the decision itself.
In his
August 25th response, Brannam did not directly agree to Johnston's demand
to bargain:
Gary, I have considered the
demand to bargain that was contained in your email message of August 15, 2008. Although I am not certain as the extent to
which the district is obligated to negotiate with your bargaining unit
regarding the issues raised in your message to me, I would be very willing to
meet with you in order to discuss your stated concerns.
Brannam
proposed that the parties meet in early September 2008. The parties agreed to
meet on September 10, 2008, at the school district. At the meeting, Johnston first asked Brannam if
the employer would agree to bargain the decision to implement furlough days, as
well as the effects of that decision on the bargaining unit. Brannam refused, due to the financial
difficulties that the district was experiencing. Brannam testified that he "responded
that we couldn't change those days because we didn't have money."
Johnston believed
that the employer's refusal to bargain with respect to the employee furloughs
placed the union in a difficult position with respect to the needs of the
bargaining unit employees. The
employer’s unilaterally-imposed furloughs, although significant, affected only
a relatively small number of unit employees.
The previous collective bargaining agreement expired August 31, 2008,
and the new school year began on Tuesday, September 2, 2008. Rather than hold up the contract while engaged
in the lengthy process of pursuing an unfair labor practice charge, Johnston
made the decision to submit the contract as written to the unit for ratification
while pursuing an unfair labor practice charge over the furlough issue. Johnson testified that he did so because he
believed that when the employer contacted its legal counsel, it would rescind
the decision about the 20-day closure, and:
I thought it was more important
to - important to proceed through the mediation process to reach a new
agreement that was able to offer the protections of a new collective bargaining
agreement for all of the members I represent, recognizing that most of them are
non 12-month employees. I didn't want to hold that - that bargaining process up
if, in fact, we're going to reach an agreement, when, number one, the district
was not offering this as a new proposal, was - appeared to have been very firm
with regard to the decision had already been made. And recognizing the lengthy process that could
be holding up the new collective bargaining agreement.
The new
collective bargaining agreement covering the classified employees bargaining
unit was ratified. It was signed by the
union on November 24, 2008, and by the employer on December 17, 2008.
Furloughs
as a Mandatory Subject
In Long Island Daycare Services, Inc., 303
NLRB 112, 116 (1991), furloughs were found to be “terms and conditions of
employment and therefore a mandatory subject of bargaining." The National Labor Relations Board reasoned
that when the employer chose to furlough employees, it directly reduced
employee wages. The Board found that any
decision to reduce wages to save money during an economic downturn modifies
terms of employment. In the present
case, the employer’s reduction of the work year by implementing mandatory
furlough days during the school year similarly affects employees’ wages and
hours. Therefore, the decision and its
effects are both mandatory subjects of bargaining. The employer chose to impose 20 mandatory
furlough days on certain employees, causing a seven to eight percent reduction
in their wages. Thus, furloughs are a
mandatory subject of bargaining.
The
Employer Breached Its Obligation to Notify the Union
and to
Maintain the Status Quo Pending Bargaining
The employer
began to consider reductions in the work year from 260 to 240 days in late June
or early July 2008. The school board
approved the calendar, including the furlough days for members of the
bargaining unit, at its July 28, 2008 meeting. Throughout this period, the
employer was in on-going collective bargaining with the union. Nonetheless, Brannam
acknowledged that he failed to notify Johnston, or any other representative of
the union, until the August 5, 2008 mediation session, that the employer
intended to reduce the work year.
The employer
had several options to address the economic problem it faced. It may have, for example, sought to lay off
employees, eliminate certain functions, or consolidate operations. More importantly, by bargaining with the
union, more options could have been generated.
Providing
notice and an opportunity for the union to request bargaining cannot be excused
by a claimed financial emergency on the part of the employer. In City Of Centralia, Decision 1534 (PECB, 1982) the
employer reduced hours of bargaining unit employees based upon financial necessities arising out of the
over-expenditure of budgeted funds in the police department. In that
decision, the employer was found to have given proper notice to the union. The union did not avail itself of the
opportunity to seek a delay in the implementation of the reduction in hours,
did not offer any alternative solutions, or did not make any request to bargain
further regarding the effects of the employer’s actions. “The length of time necessary to resolve the
issue is directly related to the nature of the need for the alteration.
Thus, it may be appropriate to negotiate about a financial emergency ,
such as that existing in the instant case, in one or two meetings, whereas,
other provisions of the contract may take several meetings to reach agreement.”
In the instant case, the school year
began Tuesday, September 2, 2008. The first furlough day was not scheduled
until October 24, 2008. There was ample
time between July 2, 2008, when Superintendent Brannam first brought up the
matter of furloughs with the school board, and October 24, 2008, the first
furlough day, to permit notice to the union and an opportunity for meaningful
bargaining over the decision and its effects.
By failing
to notify the union of the proposal to reduce the work year by 20 days, prior
to the school board's unilateral approval of the calendar, the employer violated
the Act. Notice of an anticipated change
in a mandatory topic must be timely, giving sufficient time in advance of the
actual implementation of a change, to allow a reasonable opportunity for
bargaining between the parties. City of Vancouver, Decision 808 (PECB,
1980). Notice of the change must be
given in such a manner as to allow time for the union to “explore all the
possibilities, provide counter-arguments and offer alternative solutions or proposals
regarding the issue raised by the proposed change.” Clover
Park School District, Decision 3266 (PECB, 1989).
The employer's
continual refusal to negotiate either the decision to impose furlough days, or
the effects of that decision on members of the bargaining unit, was a further
breach of the Act. The duty to bargain
in good faith includes a duty to engage in full and frank discussions on
disputed issues. Both parties must be
willing to explore possible alternatives that may accommodate the interests of
both the employer and the employees. A
party is not entitled to reduce collective bargaining to an exercise in
futility. See Mansfield School District,
Decision 4552-B (EDUC, 1995).
Finally,
the employer's actions in implementing furloughs in the 2008-2009 school year violated
the Act by failing to maintain the status quo pending bargaining. See North Franklin School District, Decision
5945-A.
The
Employer's Affirmative Defenses Are Without Merit
The burden
to establish its affirmative defenses lies with the employer. WAC 391-45-270(1)(b).
The employer asserts that its actions
were lawful under the terms of the party's collective bargaining agreement;
thus, the union had committed a waiver by contract.
The employer
argues that the 20 furlough days it imposed are the equivalent of a lay off. Under the management rights clause of the
collective bargaining agreement, there are no limits upon the employer's
ability "to lay off employees because of lack of work or other legitimate
reasons."
In order to
prove waiver, the evidence must be clear and unmistakable. Skagit County, Decision 8746-A (PECB, 2006). The contract language
claimed to constitute waiver must be specific, or it must be shown that the
parties fully discussed the matter and that the party alleged to have waived
its rights consciously yielded its interest in the matter. Skagit County The record
does not support a finding that when the union agreed to this lay off reference
in the management’s rights article, that the union was also agreeing to include
furlough days.
Absent such
an understanding and agreement by the union, the employer's decision to shorten
the work year by 20 days can, in no sense, be considered a lay off. Roberts' Dictionary of Industrial Relations (BNA
4th Ed. 1994) defines "lay off” as:
A temporary or indefinite
separation from employment initiated by the employer without prejudice to the
worker for reasons such as lack of orders, model changeover, termination of
seasonal or temporary employment, inventory taking, introduction of
labor-saving devices, plant breakdown, or shortage of materials.
In a lay off,
then, the employee is formally separated from his or her employment.
"Furlough,"
on the other hand, does not involve a severance of the employment relationship.
Again from Roberts' Dictionary,
"furlough" means a temporary absence:
A leave of absence from work
or other duties usually initiated by an employee to meet some special problem.
It is temporary in nature since the employee plans to return as soon as the
furlough period is over. Also applied to situations where technological changes
necessitate curtailment of the workforce and employees who are laid off are
permitted the privilege of accepting either furlough or dismissal prior to
transfer to another plant of the company.
The workers
in the classified bargaining unit were not, therefore, laid off. Rather, they were sent home on a temporary
basis while retaining all of the earmarks of school district employment.
Because the employees were not laid off, the employer cannot contend that the union
waived its right to bargain about both the decision and effects of the
furloughs by agreeing to the language in the management rights clause.
The employer's
second and third affirmative defenses allege that it met its duty to bargain in
good faith either at the August 5, 2008 mediation session (when it informed the
union of the school board’s recently adopted 2008-2009 calendar for only 240
work days), or when Brannam met with Johnston on September 10, 2008.
Meeting
does not constitute bargaining. At the
mediation session, the employer presented the shortened work year to the
union. There is no evidence that the
employer engaged in any bargaining about the work year. When Johnston asked about the work year, the
employer told him the school board had already implemented the reduced
schedule. Johnston made a written demand
to bargain in his e-mail to the employer the next day.
At the
September meeting, the union asked if there was any room to bargain the reduced
work year. Brannam admittedly refused to
bargain about either the decision to impose furloughs, or the effects of that
decision on the bargaining unit. The
employer presented the furloughs as a fait accompli; thus it clearly did not
bargain the decision. Additionally, an
employer cannot discharge its obligation to negotiate in good faith about the
effects of its decision by merely spending time meeting with the union. The employer communicated to the union that
there was no room for any change in the imposition of the 20 furlough
days. Just meeting with the union does
not mean that an employer has met its statutory obligations, when it has
presented the union with an unalterable fait accompli.
Finally,
the employer claims that the complaint is barred by the doctrine of laches, for
alleged failure by the union "to make the Respondent aware until the
filing of this matter that its post-mediation demand to bargain remained
unresolved." Even assuming that the
equitable doctrine of laches were applicable in an administrative hearing
charging unfair labor practices, the employer has failed to establish
the necessary elements of that defense. As
noted In re Marriage of Hunter, 52 Wn.
App. 265, 270 (1988), the defendant who asserts laches bears the burden of proving
that:
(1) the plaintiff had knowledge
of the facts constituting a cause of action or a reasonable opportunity to
discover such facts; (2) there was an unreasonable delay in commencing the
action; and (3) damage to the defendant resulted from the delay. (Quoting In re Marriage of Watkins, 42 Wash. App.
371, 374).
Absent
unusual circumstances, the doctrine of laches should not be invoked to bar an
action filed within the applicable statute of limitations. Brost v. L.A.N.D., Inc., 37 Wn. App. 372, 275 (1984). More than unreasonable delay is required:
there must also be an intervening change of position on the part of the
defendant, making it inequitable to enforce the plaintiff’s claim. Arnold
v. Melani, 75 Wn.2d 143, 147-48 (1968).
The
employer claims that the parties reached a new multi-year collective bargaining
agreement in mediation on August 5th. Thereafter, it had no idea that the union
would pursue any action about the work year.
It is established, however, that Johnston e-mailed a demand to bargain
to the employer immediately after the mediation session. This was clear notice to the employer that
the union did not believe that the unilateral change issue was resolved.
The union
filed its unfair labor practice complaint well within the six month statute of
limitations set out in RCW 41.56.160(1). There was, accordingly, no "unreasonable
delay" on the part of the union. Further,
the employer presented no evidence that it suffered any damages resulting from
any alleged delay. It did not, in other
words, change its position in the matter in purported reliance upon the union's
actions. Rather, as Brannam admitted on
cross examination, the union never said or did anything that might lead the employer
to reasonably conclude that the union would not pursue an unfair labor practice
charge. In summary, there is no showing
that the employer detrimentally relied upon anything that the union said or did
that would support invocation of the equitable remedy of laches.
Communication
is key in collective bargaining. The
union twice asked the employer to bargain about the furloughs. The employer rebuffed the union each
time. Ratification of the collective
bargaining agreement is not fatal to the union’s prompt pursuit of its
statutory rights, given the employer’s pronouncement of the furloughs as a fait
accompli and the employer’s complete rejection of the union’s request to
bargain. The union need not penalize its
entire bargaining unit in order for it to exercise its legal right to insure
that the employer bargains correctly.
The employer cannot benefit from its illegal behavior to have the
ratification cut off the union’s statutory rights.
Conclusion
The
employer, Griffin School District, has committed an Unfair Labor Practice by unilaterally
shortening the school work year by 20 days and furloughing bargaining unit
members for 20 days; by refusing to restore the status quo upon request of the
union; and by refusing to bargain with respect to the decision and effects of
its unilateral actions. The failure to bargain automatically
results in a finding that there has been unlawful interference by the
employer. Skagit County, Decision 8746-A.
FINDINGS OF FACT
1. The Griffin School District is a public
employer within the meaning of RCW 41.56.030(1).
2. Teamsters Local 252 is a bargaining
representative within the meaning of RCW 41.56.030(3) and represents a
bargaining unit of classified employees at the Griffin School District. The bargaining unit includes five full-time
employees and one half-time employee who worked a 260 day yearly schedule.
PUBLIC
EMPLOYMENT RELATIONS COMMISSION