Lewis County, Decision 10571 (PECB,
2009)
STATE
OF WASHINGTON
BEFORE
THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
|
LEWIS COUNTY
CORRECTIONS GUILD,
Complainant,
vs.
LEWIS
COUNTY,
Respondent.
|
CASE 22324-U-09-5692
DECISION 10571 -
PECB
FINDINGS OF FACT,
CONCLUSIONS OF LAW,
AND ORDER
|
Garrettson,
Gallagher, Fenrich & Makler, by Daryl
S. Garrettson, Attorney at Law, for the union.
Lewis County Prosecuting Attorney Michael Golden, by J. David Fine, Civil Deputy Prosecuting Attorney, for the employer.
On March 9, 2009, the Lewis County Corrections Guild (guild)
filed an unfair labor practice complaint with the Public Employment Relations
Commission against Lewis County (employer), charging employer interference and
refusal to bargain in violation of RCW 41.56.140(1) and (4). A preliminary ruling was issued on March 12,
2009, and a timely answer was filed on March 30, 2009. Examiner Starr Knutson held a hearing on June
1, 2009, and the parties filed simultaneous briefs on July 13, 2009.
ISSUES
1.
Did the employer unilaterally change employee health
and dental benefits by a) its position on contributions to health and dental
insurance premiums and b) by designating the WCIP Value Plan as a medical and
dental insurer,
without providing an opportunity for bargaining?
2.
Did the employer circumvent the guild through direct
dealing with employees when it contacted bargaining unit members about the
Value Plan and enrolled 16 bargaining unit members in that plan without notice
or agreement by the guild?
Based on the record, I find the employer had a valid business
necessity defense for changing insurance plans when the change in exclusive
representative caused the termination of the bargaining unit members’ medical
insurance coverage. Under these circumstances, the employer was not required to
provide precisely the same benefit levels as those provided under the prior
insurance plan. The employer did not
make a unilateral change when it continued to pay its contribution in
accordance with the formula in the prior collective bargaining agreement.
The employer unilaterally decided to offer the Value PPO as an
additional medical plan option for bargaining unit members, but the guild never
demanded bargaining over that decision or its effects and therefore waived its
bargaining rights.
The employer dealt directly with bargaining unit members by
calling employees at home to discuss the Value Plan, extending the open
enrollment period and enrolling some of those employees in a medical plan not
chosen by the guild as an option.
APPLICABLE LEGAL STANDARDS
RCW 41.56.030(4) imposes a duty to bargain on public employers
and the employee organizations representing their employees. The duty to
bargain includes the duty of a party seeking changes to existing wages, hours,
and working conditions: (1) to give notice to the opposite party; (2) provide
an opportunity for bargaining prior to making a final decision; (3) upon
request, bargain in good faith; and (4) bargain to agreement or impasse
concerning mandatory subjects of bargaining.
City of Mukilteo, Decision
9452 (PECB, 2006) and the cases cited therein.
The duty to bargain is enforced through RCW 41.56.040(4) and
unfair labor practice proceedings under RCW 41.46.140 and Chapter 391-45
WAC. Where an unfair labor practice is
alleged, the complainant has the burden of proof. WAC 391-45-270(1)(a). The burden to establish affirmative defenses
lies with the party asserting the defense.
WAC 361-45-270(1)(b).
Unilateral Change
Once a new exclusive representative is certified, the parties’
collective bargaining obligations require that the status quo be maintained
regarding all mandatory subjects of bargaining, and employers are prohibited
from unilaterally changing mandatory subjects of bargaining except where such changes
are made in conformity with the collective bargaining obligation or the terms
of a collective bargaining agreement. Val Vue Sewer District, Decision 8963
(PECB, 2004).
A party to a collective bargaining relationship commits an unfair
labor practice if it unilaterally changes a mandatory subject of bargaining
without exhausting its obligation to bargain the change(s). City of
Pasco v. Public Employment Relations Commission, 119 Wn.2d 504 (1992). However, the bargaining obligation is a
mutual one. The other party must make a clear and unmistakable request to
bargain the subject of the change or it will have waived its right to bargain
that change and an unfair labor practice will not be found. Lake
Washington Technical College, Decision 4721-A (PECB, 1995).
A change in a mandatory subject of bargaining can only be
lawfully implemented in a “uniformed personnel” bargaining unit if: 1) the
employer and exclusive bargaining representative reach an agreement on the
matter; 2) a party waives its bargaining rights by inaction, after adequate
notice of the proposed change has been provided; or 3) the employer establishes
a “business necessity” to impose the change.
Cowlitz County, Decision 7007
(PECB, 2000), aff’d Cowlitz County 7007-A
(PECB, 2000), citing North Franklin
School District, Decision 3980-A (PECB, 1993) and City of Chehalis, Decision 2803 (PECB, 1987). Absent those circumstances any disagreement
regarding a mandatory subject of bargaining must proceed through bargaining,
mediation and interest arbitration in accordance with the provisions of RCW
41.56.450 et seq.
A waiver by inaction defense applies when a party gives notice of
a proposed change of a mandatory subject of bargaining, and the other party
does not make a timely request to bargain. When the union knows there is an
impending change in a mandatory subject of bargaining, it may do nothing and
accept the change. However, if it wants
to influence the outcome of the change, it has an affirmative obligation to
promptly notify the employer of its interest and desire to bargain the matter
with the employer. Lake Washington Technical College, Decision 4721-A.
The Commission has long recognized that health and welfare
benefits are mandatory subjects of bargaining.
City of Anacortes, Decision
9004-A (PECB, 2007).
Circumvention
The Commission prohibited circumvention of a union and direct dealing with employees when it stated:
Where employees have exercised their right to organize for the purposes of collective bargaining, their employer is obligated to deal only with the designated exclusive bargaining representative on matters of wages, hours and working conditions. RCW 41.56.100; RCW 41.56.030(4). Under such circumstances, an employer may not seek to circumvent the exclusive bargaining representative of its employees through direct communications with bargaining unit employees.
City of Seattle, Decision 3566-A (PECB, 1991)
The legal standard on circumvention holds that an employer that bypasses the exclusive bargaining representative of its employees and deals directly with the employees themselves on mandatory subjects of bargaining commits an unfair labor practice. City of Pasco, Decision 4197-A (PECB, 1994); Whatcom County, Decision 7244-A (PECB, 2003); City of Seattle, Decision 8916 (PECB, 2005).
ANALYSIS
Because the two issues involve the same information and concern
health insurance, I will analyze both issues together to avoid repetition.
Lewis County maintains and operates a detention facility which
employs corrections officers who were represented in collective bargaining
prior to 2009 by Teamsters Local 252. In
late 2008, the Lewis County Corrections Guild filed a question concerning
representation. On February 2, 2009, it
was certified as exclusive representative replacing the Teamsters.
Premium Cost
The Teamsters and the employer were parties to a collective
bargaining agreement (CBA) effective January 1, 2005 – December 31, 2009. Article 9.4 of that agreement addressed
health and welfare insurance as follows in relevant part:
9.4.1
Effective January 1, 2005, the Employer shall pay to the Washington
Teamsters Welfare Trust, care of Northwest Administrators, on behalf of each
employee who received compensation for
eighty (80) or more hours in the previous calendar month, under the same
plans and formula as contained in the previous collective bargaining agreement.
9.4.2
Effective June, 1, 2005, the Health and Welfare Plans will be changed to
the following plans and options as designated below:
|
Insurance Coverage
|
Premium
|
|
Medical – Plan A
Life and AD&D Plan C
Time Loss Plan C
Disability Waiver
LTD
|
$729.00
$
2.20
$ 11.00
$ 10.25
$
6.25
|
|
Dental – Plan A
|
$119.10
|
|
Vision - Extended
|
$ 11.35
|
9.4.3
Effective June, 2005, based upon May 2005 hours shall pay (sic) to the
Washington Teamsters Welfare Trust, . . . , on behalf of each employee who
received compensation for eighty (80) or more hours in the previous calendar
month for the plans outlined in 9.4.2.
9.4.4
Employees will be responsible for paying their five percent (5%) coinsurance
payment through a payroll deduction.
9.4.5
Maintenance of Benefits. The
trustees of the Washington Teamsters Welfare Trust may modify benefits or
eligibility of any plan for purpose of cost containment, cost management, or
changes in medical technology and treatment.
If premium increases are necessary to maintain the current benefits or
eligibility, or benefits or eligibility as modified by the trustees, In (sic)
the event premiums are increased, the
Employer’s contribution shall at all times be equal to ninety-five percent
(95%) paid by the Employer and five (5%) paid by the employees based upon
the plans outlined in Section 9.4.2.; furthermore, such premiums will be
reallocated by the agreement of the parties so that the dental and vision
insurance are fully paid through the Employer’s contribution.
(emphasis added).
The Washington Teamsters Trust charged one rate for every
employee no matter how many family members were insured. The premiums had increased such that the
employer’s 2009 contribution was calculated to be $969.21 per qualified
employee.
Participation in the Washington Teamsters Trust plans is
generally limited to employees represented by the Teamsters Union. Both parties anticipated that the trust would
drop coverage of the corrections employees following the certification of a new
representative because of a similar situation with the deputies’ bargaining
unit a year or two earlier.
On February 2, 2009, the guild’s attorney wrote a letter to Human
Resources Director Archie Smith. In that letter the guild asserted that the
status quo for this bargaining unit included two elements: the insurance plan
had to be equal to or better than the Teamsters plan and the employer was
obligated to pay a flat rate plus 95% of any increase in the cost of that plan.
The employer asserted the immediacy of the situation necessitated
a business need for new insurance within a short time frame and thus they had
to implement the WCIF plans March 1, 2009.
As to their obligation concerning premiums, the employer claimed the
status quo was the rate that was in place for its contribution to the Teamsters
Trust for January and February 2009 or $969.21 per month per qualified
employee.
I find the status quo ante for the employer’s share of the
premium cost was established on January 1, 2009, when the formula in Article
9.4 was applied to set the employer’s contribution for 2009, which in dollar
terms was $969.21. That was the amount
the employer paid per employee, who the Teamsters still represented,
as its January and February 2009 contributions for medical insurance to the
Washington Teamsters Trust under the terms of the expired agreement. The
parties were still obligated to bargain new health and welfare provisions,
including premium costs for both parties, during their negotiations for an
initial collective bargaining agreement between the guild and the
employer. Cowlitz County, Decision 7007-A.
The New Plan
On January 30, 2009,
Stan Langland, guild president, met with Julie Fitzpatrick, the employer’s
payroll benefits specialist, after being referred by Chandra Brady, jail
administrator. Fitzpatrick had worked
with the employer’s benefits for 34 years and was the main contact for the plan
administrators and employees. She
suggested the Washington Counties Insurance Fund (WCIF) plans to Langland and
also told him the employer would be glad to administer any other plan the guild
wanted for health insurance. She herself
was unfamiliar with plans other than the Teamsters Welfare Trust, WCIF and the
two plans other bargaining units had.
She told Langland whom to contact if he wanted to find out about those
other plans. She also told Langland that it was her understanding that the
employer’s contribution would be limited to the amount it had paid under the
old plan.
WCIF offers two medical insurance plans:
1) the WCIP PPO; and 2) Group Health Options.
Within those two WCIF has various benefit choice options. The WCIP PPO includes the Standard PPO, LEOFF
1 Standard Active, LEOFF 2 Standard Retirees, Budget PPO, LEOFF 1 Budget
Retirees, Value PPO, AfFOURable (sic) PPO, and High Deductible Health Plan. Group Health Options offers the $5 Copay,
Select $200 Deduct (sic), Select $500 Deduct (sic), Budget $10 Copay, LEOFF 1,
and LEOFF 1 Retirees.
Langland and the other guild officers
invited the WCIF representative to meet with bargaining unit members to go over
the benefits included in each plan option it offered. The meeting was held on February 12, 2009;
Fitzpatrick was not present. Langland and other union officers reviewed the
WCIF plans and decided the Standard PPO and Budget PPO were the most similar to
the coverage provided by the Teamsters Trust. Langland then contacted WCIF and
informed their representative that the guild was interested in offering the
Standard PPO and the Budget PPO to its members.
Langland filled out the paperwork necessary to set up the guild with
WCIF. Langland indicated that the guild
had chosen to offer the Standard and Budget PPO plans and listed the guild as
the employer. Subsequently, after realizing that Lewis County was the employer,
WCIF e-mailed Fitzpatrick and asked her to fill out a revised form and get the
necessary signatures on the Washington
counties insurance fund 2009 employer benefit choice form. Although Fitzpatrick testified she did
not fill out the form, I believe someone
in the auditor’s office filled out the form. Fitzpatrick took it to Steve
Walton, the chief of staff for the sheriff’s office, who signed it. The form
indicated all four medical plans offered to other county employees by WCIF,
including the Value PPO and the AfFOURdable PPO (sic) would be offered to
bargaining unit employees rather than just the two plans the guild had
chosen. Walton knew the guild had only
checked the boxes for two medical plans; however he did not question why the
two additional plan boxes had been checked on the form. Fitzpatrick denied making the decision to
offer the two other plans and explained she simply assumed that all the plans
would be offered. Fitzpatrick testified
she does not have the authority to make such a decision; her job was to fill
out the form and take it to Walton for signature. Because of the short time
frame
to enroll employees in new insurance plans, the employer set the cutoff date
for applications to be turned in to the employer as February 20, 2009.
The guild claims the employer was obligated to find an insurance comparable or better
than the one offered by the Teamsters Welfare Trust in order to maintain the
status quo. I disagree. The employer fulfilled its obligation when it
offered health insurance, the WCIF plans, to replace the coverage for which the
employees had previously been eligible. The guild presented no evidence
concerning the plan design for any of the WCIF plans or the Teamsters plan. Moreover, Langland did not tell the employer
he thought any of the plans currently offered by the employer were
inadequate. Thus the guild did not carry
its burden to show that the plans offered by the employer were not comparable
to the plan offered by the Washington Teamsters Welfare Trust. Furthermore, the guild did not request to
bargain the plan design or the plan choices the employer made available.
The employer defended its action as a
business necessity. It asserted it had
an obligation to ensure that employees were enrolled in a medical insurance
plan as of March 1, 2009, when the Teamsters Welfare Trust would cease
coverage. I agree. The employer met its obligation to offer
medical insurance to employees who would need it within less than a month. Even if the employer’s current plans were not
comparable to the Teamster plans, I believe the employer had insufficient time
to implement any plans it did not already have in place.
Waiver
The
employer argues on brief that the guild never demanded to bargain either the
plan or the cost. The guild argues that
it demanded to negotiate beginning with Langland’s contact with Jail
Administrator Brady in January and followed up by the letter from their
attorney on February 2, 2009. I disagree
with the guild. The record does not
contain evidence concerning the content of Langland’s alleged contact with
Brady. While the letter states the
guild’s position on both the plan design and the cost, it does not clearly
request to bargain. The guild was
attempting to set up negotiation dates for a first contract and the first dates
the employer’s team was available were in April 2009. The guild objected to the length of
time and wondered why the employer could not set a March date, however it did
not specifically request to bargain medical insurance before the implementation
deadline stated by the WCIF representative.
It did relate that “Right now the Guild does not have charitable
feelings toward the County.” The guild
also stated that it thought the employer was “stonewalling.” Neither statement makes an explicit request
to bargain. I believe that the employer
considered the February e-mails from the guild’s attorney to be about the
length of time it was taking to get a first meeting to begin initial bargaining
for a first contract. The guild did not request to bargain the medical
insurance issue nor did it make it clear to the employer that it was demanding
to bargain the medical insurance plan and/or cost before March 1.
The Contacts With
Employees
It is undisputed that during the last
week in February, two critical events occurred: 1) Brady sent an e-mail on
February 27 to all employees in the corrections bureau concerning the insurance
plans being offered to employees; and 2) Fitzpatrick called several bargaining
unit employees either at work or at home to talk with them about sending in
their enrollment form and/or the lower cost of the value plan.
The E-mails
Brady was not available to testify,
however it is apparent the message was in fact received by employees. Brady made it clear that she intended to
present information to address the questions she heard employees raise
concerning insurance coverage. She wrote in part of that message:
THE INTENT OF THIS E-MAIL IS SOLELY TO REPORT MY DISCOVERIES
TO YOU AND SHOULD NOT BE INTERPRETED AS AN INTENT TO UNDERMINE OR INFLUENCE ANY
GUILD/WORKGROUP EFFORTS OR OPINIONS.
Simply stated, assuring you have medical coverage a clear understand
(sic) of the coverage being offered to you is my intent. I will not attempt to influence your
satisfaction or dissatisfaction with what is being offered.
(all caps in
original).
Brady went on to outline the basic plan
design and employee cost of four plans: Teamsters Plan A, cost for family $51
per month; Value Plan, cost $0 per family; Budget Plan, cost for family $186
per month; and New Standard Plan, cost for family $303 per month. Brady also explained how the employer
calculated the dollar amount it would pay monthly towards the insurance plan
selected by the employee: 95% of 2009 Teamsters Plan A monthly cost ($1020.22)
= $969.21. She ended her message with
the phrase: “Any Guild questions will need to be directed toward your
representative, however, I continue to be available for contact/questions as
appropriate.”
The Phone Calls
About the same time, Fitzpatrick began to
telephone employees who had not submitted an enrollment form to remind them
they needed to fill out a form in order to have insurance on March 1. Although the employer set the cut-off date as
February 20, some employees had not submitted their enrollment forms by
February 24. She also called the
employees who chose the standard plan and had a spouse working for the county
to tell them about the zero out of pocket cost of the value plan if both
employees chose that plan. In
comparison, if both employee spouses enrolled in the standard plan the cost for
the family for that plan would be over $600 per month. Fitzpatrick said she was concerned that the
employees were unaware that there was a plan available that offered similar
coverage to the standard plan for which families would pay zero out of pocket
cost. One employee testified that she felt pressured by Fitzpatrick to change
her enrollment from the standard plan to the value plan. She finally told
Fitzpatrick that for “solidarity” reasons she wanted to stay with the standard
plan. Fitzpatrick terminated the phone call at that point.
Even though Fitzpatrick testified that
she did not know the guild had not chosen to offer that plan, the evidence
shows that Langland e-mailed her before she began contacting bargaining unit
members that the guild had chosen not to offer the value plan. Nevertheless, she called employees. She testified she talked with her supervisor
prior to making the calls and he agreed she should make the calls. She testified she did not mean to force
anyone into the value plan; she only wanted to be sure they were aware that it
was a lower cost option. Fitzpatrick
said she wanted to help employees; therefore she let some employees change
their enrollment forms after the cut-off date.
No bargaining unit member who switched to the value plan testified at
the hearing.
Although Fitzpatrick denied she was an
“agent of the employer,” her job was benefits coordinator. Part of that body of work was to be the
employer’s contact person for the insurance company and the employees,
especially during the open enrollment period.
She was clearly an employer agent.
HR Director Archie Smith, who represented
the county commissioners in negotiations, said his responsibility ended when he
found out Langland had been referred to Fitzpatrick and they had spoken. No employer witness admitted that s/he made
the decision to offer the Value PPO to the bargaining unit employees. However, this record shows the employer did
offer those plans to bargaining unit employees without notifying the guild that
it would do so. The employer’s
representatives did communicate directly with bargaining unit employees regarding
a mandatory subject of bargaining: health insurance. Their actions violated the statute.
FINDINGS OF FACT
1. Lewis County is a public employer within the meaning of RCW 41.56.030(1). The employer operates a corrections facility located in Chehalis, Washington.
2. The Lewis County Corrections Guild is a bargaining representative within the meaning of RCW 41.56.030(3). It was certified on February 8, 2009, as the exclusive bargaining representative of a bargaining unit of corrections employees performing a variety of work assignments related to the employer’s operation of a county jail.
3. Previously the bargaining unit had been represented by Teamsters Local 252. The parties had negotiated a collective bargaining agreement that provided health and welfare benefits to bargaining unit employees through the Washington Teamsters Welfare Trust.
4. In January 2009 the employer became aware that the
corrections employees were seeking a new representative. Because of a previous experience, the
employer knew the Teamsters Welfare Trust would terminate health and welfare
insurance, if the employees elected a non-Teamster representative.
5. The Washington Teamsters Welfare Trust terminated its health and welfare coverage of employees effective March 1, 2009.
6. The guild contacted the employer’s benefits coordinator and
asked about insurance coverage in late January.
The benefits coordinator provided information on the health and welfare
plans that other county employees had, including Washington Counties Insurance
Fund (WCIF), and told the guild president that it would administer whatever
plan the guild chose. The guild decided it wanted to offer its members two of
the plans offered by WCIF, the Standard Plan and the Budget Plan.
7. The employer continued to pay the same dollar amount per
employee for WCIF insurance as it had paid in 2009 to the Washington Teamster
Trust in accordance with the formula contained in the prior collective
bargaining agreement. In so doing, the
employer maintained the status quo on premium payments.
8. The employer had an obligation to continue to maintain a
similar level of benefits as provided by the previous insurance. The guild did not demand to bargain the
benefit levels or the premium amount and thus waived its right to bargain.
9. The employer called employees and offered the WCIF Value PPO
even though it knew the guild had not chosen to offer that plan to bargaining
unit members. Hereafter, the employer
extended the open enrollment period from the original date in order to allow
several bargaining unit members to change their selection of a medical
insurance plan.
10. The employer did not notify the guild of its decision to offer
the WCIF Value PPO or its extension of the open enrollment period.
CONCLUSIONS
OF LAW
1. The Public Employment Relations Commission has jurisdiction
over this matter pursuant to Chapter 41.56 RCW.
2. The employer maintained the status quo and did not
unilaterally change benefits by its actions described in paragraphs 7 and 8
above.
3. The employer dealt directly with bargaining unit members and
circumvented the exclusive representative by the actions described in paragraph
9 above and violated RCW 41.56.140(1) and (4).
ORDER
Lewis County, its officers and agents, shall immediately take the
following actions to remedy its unfair labor practices:
1.
CEASE AND DESIST from:
a. Dealing directly with bargaining unit members
concerning mandatory subjects of bargaining.
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 41.56 RCW:
a. 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.
b. Read the notice provided by the
Compliance Officer into the record at a regular public meeting of the Lewis County
Commission, 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.
c. 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 attached to this order.
d. 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 attached to this order.
ISSUED
at Olympia, Washington, this 15th
day of October, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
STARR KNUTSON, 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.
