State - Social and Health Services, Decision 9551-A (PSRA, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
WASHINGTON FEDERATION OF STATE )
EMPLOYEES, )
) CASE 20172-U-06-5140
Complainant, ) DECISION 9551-A - PSRA
)
vs. ) CASE 20188-U-06-5148
) DECISION 9552-A - PSRA
WASHINGTON STATE - SOCIAL AND )
HEALTH SERVICES, )
)
Respondent. ) DECISION OF COMMISSION
)
___________________________________)
Younglove Lyman & Coker, by Edward E. Younglove III, Attorney
at Law, for the union.
Attorney General Rob McKenna, by Donna J. Stambaugh, Assistant
Attorney General, for the employer.
This case comes before the Commission on a timely appeal filed by
the Washington Federation of State Employees (union) seeking to
overturn specific Findings of Fact, Conclusions of Law, and Order
issued by Examiner Karl E. Nagel dismissing its complaint.(fn:1) The
Washington State Department of Social and Health Services (employer)
supports the Examiner's decision.
____________________
fn:1 State - Social & Health Services, Decision 9551, 9552 (PSRA, 2007).
ISSUES PRESENTED
1. Did the employer have an obligation to bargain the transfer of
the cottage remodeling and PAT Center flooring projects to
contractors outside of the bargaining unit?
2. Did the union waive its right to bargain the contracting out of
the work?
For the reasons set forth below, we reverse the Examiner's findings
and conclusions and find that the cottage remodeling was bargaining
unit work, that the employer had an obligation to bargain, and that
the union did not waive its bargaining right. By contracting out
bargaining unit work without giving notice of its intent and
providing an opportunity for bargaining, the employer violated its
statutory bargaining obligation and interfered with the rights of
bargaining unit members. However, we affirm the Examiner's
conclusions that the PAT Center flooring project was not bargaining
unit work. We issue the appropriate remedial order.
FACTUAL OVERVIEW
This case presents a detailed fact pattern which we include to
provide a proper context for our decision.
The employer maintains two facilities at Medical Lake: Eastern State
Hospital and Lakeland Village. The employer has centralized its
trades and crafts employees who work at these facilities in a group
referred to as Consolidated Support Services (CSS). CSS employees
perform traditional skilled construction trades and craft work at
Eastern State Hospital and Lakeland Village, including repairing and
maintaining the physical plants, construction, and remodeling. The
size and makeup of the CSS staff allows it to perform large and
specialized construction and maintenance tasks.
The employer and union representing the employees at CSS had a
long-established practice of discussing projects at the Medical Lake
facilities, discussing the union's interest in doing the work, and
then deciding how to proceed with the projects. In some instances,
the union declined the work because it recognized a project needed
to be completed by a deadline that CSS employees could not meet with
existing resources or required expertise they did not have. In such
situations, the union agreed that the work should be contracted out.
If the employees wanted to do the work, the parties would discuss
more of the details of the project, including costs and time lines.
Work was not contracted out absent the above-described communication
between the union and the employer.
The particular work at issue in this case was remodeling four
residential cottages and replacing flooring in the PAT Center, both
at Lakeland Village.
Cottage Remodeling
In 1999 and 2000, CSS employees remodeled four residential cottages
at Lakeland Village. CSS employees did most of the work with
outside contractors doing some of the work. The employer and the
union agreed the 2000 remodeling "sets no precedent at CSS or
anywhere else within DSHS regarding how capitol (sic) projects are
accomplished."(fn:2)
____________________
fn:2 Exhibit 19.
In November of 2003, the employer began the design phase of
additional cottage remodels. In the spring of 2004, the union
learned that the employer planned to remodel the remaining four
cottages. The employer and the union discussed the project and the
union indicated that the CSS employees wanted to do the work. The
employer required a short time line for the work to be completed due
to the pending closure of another facility. The union informed the
employer that CSS employees could not do the whole project because
of the time deadline, but wanted to do the work on one of the
cottages while the agency contracted out the work on the others.(fn:3)
An employer representative emailed the union on August 24, 2004,
requesting that the union review if it still wanted to do the work
on one of the cottages. "If there is still the opinion from staff
they still want to do this project then the project will be delayed
till [sic] July 2005."(fn:4) The union confirmed its interest in
completing one of the cottages.
____________________
fn:3 We note, however, that the employer never enforced this
self-imposed deadline.
fn:4 Exhibit 35.
The project was delayed until after July of 2005. From the end of
August 2004 to September of 2005, the evidence shows the employer
had many internal discussions about this project and about how it
would communicate with the union about it. The record does not show
any communication about the project from the employer to the union
during this time. Some of the internal employer discussions are
detailed below under "employer's internal communications."
After July 1, 2005, the employer let bids for the remodeling of the
four cottages. On September 1 2005, the employer sent the
successful bidder an unsigned draft of the contract which was
ultimately signed on October 24, 2005.
Flooring Project
The Lakeland Village PAT Center flooring project involved the
replacement of the vinyl flooring and coving in an area of a
therapy building. The project included leveling the floor and
abating the old adhesive and asbestos. The specifications for the
job required the use of a particular leveling compound. Carpenters
in CSS had previously laid flooring but CSS employees had not done
asbestos abatement work nor were they certified to apply the
leveling compound. The union told the employer that the
installation of the flooring was bargaining unit work but
acknowledged that the asbestos abatement work was not. On September
21, 2005, the employer gave the union formal notice that the
flooring had been contracted out with work to begin on October 7,
2005.
Union's August 2005 Request to Bargain
On August 5, 2005, the union inquired in writing about negotiations
on the flooring and the cottage remodel. On August 17, 2005, the
employer responded that it was not going to bargain, citing various
reasons including: the requirements of the public works law and the
language of the new collective bargaining agreement. The letter
stated that the parties' previous practice was contrary to the law
and should have been discontinued previously.
By letters dated September 16 and 22, 2005, the union requested to
bargain the contracting out of the cottage remodeling and flooring
and directed that the employer cease and desist its contracting out
of the work. The union expressed concern about the employer ignoring
its cease and desist demands and, in its September 29, 2005 letter,
requested that the employer communicate with the union. In its
letter dated October 11, 2005, the employer's legal representative
responded that he had reviewed the capital project history which
showed that the employer had a long history of contracting with
outside vendors and that no current employee would be displaced by
contracting out the work in question. The letter directed that the
union identify the impacts to bargaining unit employees of the
contracting out and that the employer would meet its bargaining
obligations.(fn:5)
____________________
fn:5 Exhibit 31.
The union responded on October 25, 2005, as follows:
Quite frankly your request for clarification is confusing at
best and obtuse at worst. You acknowledge you have contracted
out the work our members perform and if that is not an impact
then provide us with your definition of an impact and your
source for said definition so we can better understand your
position. Since you have prepared a review please provide us
with a copy of the review Steve mentioned in his letter,
without it I cannot respond to your conclusions about this
project and the work of our members and it may shed some light
upon your idea of what constitutes an impact.(fn:6)
____________________
fn:6 Exhibit 32.
Employer's Internal Communications
The following represents some of the pertinent communication among
the management employees from the spring of 2004 through the summer
of 2005 concerning the projects at issue:
* An email dated May 12, 2004, from Kathleen Brockman to Robert
Hubenthal, Office of Capital Programs Chief, instructed him
that if he was going to CSS to meet with the union "to call and
cancel," leaving the rescheduling vague, i.e., "sometime in the
next 2-3 weeks." You can just tell them you have a newly
assigned priority assignment that precludes your travel and
that the discussion cannot move forward without you.(fn:7)
____________________
fn:7 Exhibit 34.
* An email dated May 12, 2004, from Bob Hubenthal to several
management employees, indicated that legal counsel advised
them:
to hold to the opinion that cottage remodel and renovation
work is not 'maintenance work' and is not the work
typically done by state employees, and to publicly bid all
four cottages. This position may be difficult to defend
because CSS has undertaken the remodel of four of the
eight cottages we have renovated at Lakeland Village. But
she though [sic] it was worth a shot and then see what
fall-out follows. She was also concerned about setting
precedence for future cottage renovation projects
scheduled in 2005-2011.(fn:8)
____________________
fn:8 Exhibit 34.
* An email dated November 16, 2004, from Terry LaFrance, CSS
Administrator, to management employees expressed concern about
the cottage remodel project being bid prior to July 1, 2005,
"while we still have an obligation to talk to the union. . ."
and the possibility of the union using the work "to claim that
all capitol [sic] work should be theirs and we will be right
back in the same fix we are now?"(fn:9)
____________________
fn:9 Exhibit 36.
* An email dated May 16, 2005, attached information on the past
practice of CSS bidding on capital projects and states it was
suggested that they meet "to develop a strategy as to how to
talk about this practice going away after July 1."(fn:10)
____________________
fn:10 Exhibit 38.
* An email dated May 20, 2005 reviews the background information
on the history of contracting out which the Human Resources
administrator had requested so that she could write an analysis
and concludes that the "eventual plan is to develop a
recommendation from the analysis and share with OFM's
Labor/Relations Board to get their buyoff and support. After
that we will develop a plan as to what to say to the union and
how to say it."(fn:11)
____________________
fn:11 Exhibit 39.
* An email dated July 20, 2005, from Chris Olsen, Director of the
employer's Lands and Buildings Division, to other management
employees stated: "Effective July 1st, the union will not
participate in these capital projects. We need to follow the
procedural process of soliciting bids. We have no need to
provide them information ahead of the advertising, in that they
would find out about the project as others would, via the
advertising."(fn:12)
____________________
fn:12 Exhibit 40.
STANDARD OF REVIEW
This Commission reviews conclusions and applications of law and
interpretations of statutes and contracts de novo. We review
findings of fact to determine if they are supported by substantial
evidence and, if so, whether those findings support the Examiner's
conclusions of law. C-Tran, Decision 7088-B (PECB, 2002).
Substantial evidence exists if the record contains a sufficient
quantity of evidence to persuade a fair-minded, rational person of
the truth of the matter. Renton Technical College, Decision 7441-A
(CCOL, 2002). The Commission attaches considerable weight to the
factual findings and inferences, including credibility
determinations, made by its examiners. Cowlitz County, Decision
7210-A (PECB, 2001).
ANALYSIS
ISSUE 1: Duty to Bargain
Washington State law requires public employers to engage in
collective bargaining with the exclusive bargaining representative
concerning wages, hours, and other terms and conditions of
employment. RCW 41.80.005(2), 41.80.020(1). Absent a union waiving
its statutory right to notice and opportunity to bargain, the
employer is prohibited from making unilateral changes in mandatory
subjects. An employer commits an unfair labor practice if it fails
to bargain concerning a mandatory subject of bargaining.
In determining whether a matter is a mandatory subject of
bargaining, the Commission analyzes whether it directly impacts the
wages, hours, or working conditions of bargaining unit employees.
Port of Seattle, Decision 7271-B (PECB, 2003). When a subject does
not directly affect wages, hours or working conditions, the
Commission uses a balancing test, analyzing the employer's need for
entrepreneurial judgment against the employees' interest in the
terms and conditions of employment.
Both the decision to transfer bargaining unit work to non-bargaining
unit employees of the employer or to contract out bargaining unit
work are mandatory subjects of bargaining. University of Washington,
Decision 9410 (PSRA, 2006).(fn:13) As such, prior to any change, an
employer must notify the union of the employer's intent and provide
an opportunity for the union to request bargaining over both the
decision and the effects of that decision. The Commission utilizes
a two step approach to determine whether an employer has violated
its bargaining obligations by contracting out work. The first step
is to determine whether the work is bargaining unit work. We define
bargaining unit work as work that bargaining unit employees have
historically performed. Once an employer assigns unit employees to
perform a certain body of work, that work attaches to the unit and
becomes bargaining unit work. Kitsap County Fire District 7,
Decision 7064-A (PECB, 2001).
____________________
fn:13 It is important to stress that this is not a case regarding
competitive contracting under the Personnel System Reform Act of
2002. RCW 41.06.142. Thus, an employer must still satisfy its
bargaining obligation prior to contracting out bargaining unit work.
Additionally, although Chapter 41.80 RCW specifically recognizes
that work traditionally performed by state civil service employees
may be contracted out under RCW 41.06.142, the Legislature
nevertheless reserved the right for unions to demand bargaining
before the employer implements such a change. RCW 41.80.020(7).
If the work in question attaches to the bargaining unit, this
Commission then considers the following five factors to determine
whether the employer had a duty to notify the union of the intended
change and provide an opportunity for bargaining:
1. The previously established operating practice as to the work in
question (i.e., had non-bargaining unit personnel performed the
work before?);
2. Whether the transfer of work involved significant detriment to
the bargaining unit members (i.e., by changing conditions of
employment or significantly impairing reasonably anticipated
work opportunities.);
3. Whether the employer's motivation was solely economic;
4. Whether there had been an opportunity to bargain generally
about the changes in existing practices; and
5. Whether the work was fundamentally different from regular
bargaining unit work in terms of the nature of the duties,
skills, or working conditions.
Skagit County, Decision 8746-A (PECB, 2006). In our analysis of
these factors, no one factor is determinative.
Application - Cottage Remodel Project
With respect to the first factor, whether the work in question is
bargaining unit work, CSS employees have historically performed
trades work, including repairing and maintaining facilities, laying
flooring, and remodeling cottages. Outside contractors have also
performed similar trades work, including remodeling cottages.
However, prior to contracting out trades work that CSS employees
would have otherwise performed at Eastern State Hospital or Lakeland
Village, the employer asked whether the bargaining unit employees
wanted to do the work. It is important to note that the employer
did not contract out such work without the union's consent, and the
parties negotiated each project on a case-by-case basis.
The Examiner found that the work in question was not solely
bargaining unit work because outside contractors performed the same
work. We disagree. The fact that the work was not performed
exclusively by bargaining unit employees in every instance is not
the starting point for the analysis in this case. The parties'
agreement to contract out certain projects or portions of projects
on a case-by-case basis did not cause the work to lose its
characterization as bargaining unit work.
Finding the cottage remodel project to be historical bargaining unit
work, we next apply the five factors to the cottage remodel project
to determine if the employer was required to bargain the change, as
follows:
Practice
As previously described, the employer and the union operated under a
long-established practice of discussing projects and giving the
union the opportunity to express whether bargaining unit employees
wanted to do the work. If the union decided not to undertake the
work, the project would be contracted out. If the union wanted to
do the work, the union would perform the work. This practice
occurred with smaller projects as well as larger projects, such as
cottage remodels.
In 1999 and 2000, CSS employees remodeled four cottages at Lakeland
Village. The minutes from the labor-management meeting held on July
26, 2000, stated that they were setting no precedent at CSS or
anywhere else within the employer's work sites regarding capital
projects.(fn:14) After that time and until the projects at issue in
this case, the parties continued to utilize the same practice of
negotiating on a case-by-case basis whether bargaining unit
employees would take on various projects.(fn:15) The employer's
actions with respect to the 2005 cottage remodel and flooring was
inconsistent with this long-established past practice.
____________________
fn:14 Exhibit 18.
fn:15 Examples of projects the union declined include Exhibits 45-50.
Significant Detriment
The Examiner correctly found that bargaining unit employees suffered
no significant detriment as a result of the employer contracting out
work in this case. The employer did not eliminate jobs or reduce
employee hours. The union argued that the bargaining unit suffered
a reduction in staffing over the years, but failed to establish a
causal connection between the employer's actions in this matter and
an erosion of bargaining unit work.
While the union may not have suffered job erosion in this particular
instance, this fact is not determinative to the outcome of this
case. In City of Kennewick, Decision 482-B (PECB, 1980), for
example, the employer contracted out two vacant custodial position.
Even though no employees were displaced and, in fact, the number of
bargaining unit positions increased, the Commission still found that
the employer failed to bargain over a mandatory subject of
bargaining. See also Skagit County, Decision 8746-A (PECB, 2006).
Motivation
This Commission's cases analyze the employer's motivation for
contracting out work and ask the question whether the decision was
motivated by economics or other factors, such as anti-union animus.
The Examiner found that the union did not demonstrate anti-union
animus or any other improper motivation for the employer's action.
With respect to the cottage remodel, we disagree.
The record in this case contains substantial evidence to support
finding that the employer made a strategic decision to contract out
the cottage remodel work to avoid dealing with the union. This
record demonstrates that although the employer was prepared to move
forward with the project by early April of 2005, the employer
delayed it until after July 1, 2005, because it thought such a delay
would enhance its ability to contract out the work with impunity.
As early as May of 2004, the employer developed excuses for not
meeting with the union to discuss the projects. Such avoidance
characterized the employer's approach for over one year.
The Examiner's decision cites the employer's justifications for its
action, including concern that the Association of General
Contractors might sue if the employer did not bid the remodeling as
a public works project, concern about setting a precedent with the
new collective bargaining agreement, and the interest in warranty
periods provided by outside contractors guaranteeing their work.
We recognize that an employer's interest in complying with public
works laws, avoiding lawsuits, and obtaining warranty periods is
legitimate and worthwhile. We also recognize that employers and
unions alike will engage in internal discussions and strategy
sessions to plan how they will approach a matter with the other
party. What raises concern in this case, however, is the employer's
avoidance of discussions with the union for over one year about
these projects as well as the incongruity between such avoidance and
the employer's position. The employer developed its strategy on how
it was going to approach the issue of contracting out. In several
emails, the employer strategized about how it would talk with the
union about the issue. Then the employer said nothing. The
employer let the months pass without discussion. Only after being
confronted by the union, and only after the work was nearly
contracted out did the employer share its position.
The way the employer chose to approach this causes this Commission
to question the employer's motives. If the employer's motives were
as it has asserted, why would it not openly share that with the union?
Opportunity to Bargain Generally
Although the parties discussed the subject of contracting out while
negotiating the collective bargaining agreement, they included no
language on the topic in the agreement. The Examiner found that
collective bargaining agreement language eliminated the parties'
past practices of discussing whether bargaining unit employees
wanted to do various projects. However, as discussed in more detail
below, the union did not agree to waive its right to bargain prior
to the employer making changes to matters that are mandatory
subjects of bargaining. The employer did not provide the union an
opportunity to bargain prior to contracting out the 2005 cottage
remodels.
Work Fundamentally Different
The cottage remodel work at issue is not fundamentally different
from regular bargaining unit work in terms of the nature of the
duties, skills, and working conditions. Rather, the work at issue
is the same as the employees' regular work. Even if the past
practice relating to the earlier cottage remodels were not
considered, the work involved in the remodeling continues to be the
same type of work that the CSS employees engage in on a regular and
ongoing basis, as defined in their job descriptions.(fn:16)
Furthermore, although the Examiner distinguished between capital
projects and non-capital projects, we find the source of the funds
used for the project to be irrelevant when determining whether the
employer satisfied its bargaining obligation. Bargaining unit work
issues have not been driven by the funding source.
____________________
fn:16 Exhibits 1 - 17.
Conclusion - Cottage Remodel Project
Balancing the previously detailed factors, we conclude that the
decision to contract out the cottage remodels was a mandatory
subject of bargaining and the employer failed to bargain with the
union.
This Commission has previously articulated that the bargaining
obligation is not onerous and does not mandate agreement. As we
said in Port of Seattle, Decision 7271-B (PECB, 2003):
The prohibition of "refusal to bargain" conduct as unfair labor
practices under RCW 41.56.140(4) and 41.56.150(4) is aimed at
protecting the process of communication between labor and
management, rather than at prescribing particular results.
There is no duty to agree, but the desired communications
cannot result in an agreement unless the process is given a
chance to operate.
In Port of Seattle, we also quoted the National Labor Relations
Board's (NLRB) decision in Awrey Bakeries, Inc., 217 NLRB 730
(1975), which is particularly apt here:
[A]n employer's obligation to bargain does not include the
obligation to agree, but solely to engage in a full and frank
discussion with the collective bargaining representative in
which a bona fide effort will be made to explore possible
alternatives, if any, that may achieve a mutually satisfactory
accommodation of the interests of both the employer and the
employees. If such efforts fail, the employer is wholly free
to make and effectuate his decision. Hence, to compel an
employer to bargain is not to deprive him of the freedom to
manage his business.
Application - PAT Center Flooring Project
When applying the Commission's two step approach to determine
whether the employer has violated its bargaining obligations by
contracting out the flooring project, we find no need to move to the
second step. CSS employees had historically performed work
involving the laying of flooring. They had not, however, removed
adhesive using the particular compound specifically called for in
the employer's specifications for the project. Additionally, they
had not performed asbestos abatement work. The uniqueness of that
work distinguishes it from the remodeling work.
Conclusion - Flooring Project
The PAT Center flooring project is not bargaining unit work and, as
a result, the employer does not have an obligation to bargain with
the union prior to contracting out this project.
ISSUE 2: Waiver
The employer raises the defense of waiver. The Examiner found that
the union waived by contract its right to negotiate the employer's
decision to contract out bargaining unit work. The Examiner also
found that the union waived by inaction its right to negotiate the
impacts of the employer's decision to contract out the work. We
disagree with both of the Examiner's findings.
Waiver by Contract
Through the collective bargaining process, parties make agreements
relating to mandatory subjects of bargaining, sometimes waiving or
altering their statutory bargaining rights. To effectively waive
statutory collective bargaining rights, the parties must consciously
agree to the waiver and the waiver must be clear and unmistakable;
it cannot be implicit. City of Wenatchee, Decision 8802-A (PECB,
2006). When parties agree to a knowing, specific and intentional
contractual waiver, the parties may lawfully make unilateral changes
as long as those changes conform to the contractual waiver. City of
Wenatchee, Decision 6517-A (PECB, 1999). The party alleging a waiver
bears the burden of proof. City of Wenatchee, Decision 8802-A.
Waiver by Inaction
A party may also waive its statutory bargaining rights by inaction.
Unions waive their right to bargain by inaction when they fail to
request bargaining in a timely manner after receiving adequate
notice of the proposed changes. However, an employer must provide
notice of the intended change sufficiently in advance of the actual
implementation of that change to allow a reasonable opportunity for
bargaining. Lake Washington Technical College, Decision 4721-A
(PECB, 1995). If an employer presents its decision to transfer
bargaining unit work as a final decision, or fait accompli, then the
union is excused from its obligation to request bargaining.
University of Washington, Decision 8878-A (PSRA, 2006).
Collective Bargaining Agreement
The parties negotiated "mandatory subject" and "entire agreement"
clauses in their collective bargaining agreement which took effect
on July 1, 2005. Section 38.1 of the mandatory subject clause states:
The Employer will satisfy its collective bargaining obligation
before making a change with respect to a matter that is a
mandatory subject. The Employer will notify the Executive
Director of the Union of these changes in writing, citing this
Article, and the Union may request negotiations on the impact
of these change on employee's working condition. In the event
the Union does not request negotiations within twenty-one (21)
calendar days of receipt of the notice, the Employer may
implement the changes without further negotiations. There may
be emergency or mandated conditions that are outside of the
Employer's control requiring immediate implementation in which
case the Employer will notify the Union as soon as possible.
Section 46.1 of the entire agreement clause states:
This Agreement constitutes the entire agreement and any past
practice or past agreement between the parties whether
written or oral is null and void, unless specifically
preserved in this Agreement.
Section 46.4 of the entire agreement clause states:
During the negotiations of the Agreement, each party had the
unlimited right and opportunity to make demands and proposals
with respect to any subject or matter appropriate for
collective bargaining. Therefore, each party voluntarily and
unqualifiedly waives the right and will not be obligated to
bargain collectively, during the term of this Agreement, with
respect to any subject or matter referred to or covered in this
Agreement. Nothing herein will be construed as a waiver of the
Union's collective bargaining rights with respect to matters
that are mandatory subjects/topics under the law.
Application of Collective Bargaining Agreement Language
The collective bargaining agreement language cited above clearly and
unequivocally states that the employer will satisfy its collective
bargaining obligation before making changes to mandatory subjects of
bargaining. The agreement also clearly and unequivocally states
that nothing in the agreement will be construed as a waiver of the
union's rights to bargaining concerning mandatory subjects.
The Examiner found that Section 46.1 of the bargaining agreement
eliminated written and oral past practices that are not included in
the agreement. Even if that conclusion is correct, the parties'
agreement did not eliminate or waive the employer's obligation to
notify the union of intended changes to mandatory subjects of
bargaining, such as contracting out bargaining unit work, and to
provide a reasonable opportunity for the union to request
bargaining. Furthermore, in Section 38.1 of the agreement, the
parties provided a process to use when the employer wished to make a
change to a mandatory subject of bargaining. In July of 2005, the
employer used the process to notify the union of its interest in
contracting out high voltage work. Although the employer
articulated its belief that contracting out the work would have no
impact on the bargaining unit employees, the employer followed the
process.(fn:17)
____________________
fn:17 Exhibit 27.
Fait Accompli
The Examiner's decision states that the employer asked the union to
identify what effects should be bargained and the union did not
respond. The Examiner's description leaves out significant details,
including the written communication between the parties and the
timing of that communication.
The record supports a finding that when the union learned of the
contracting out, it promptly requested bargaining. After several
attempts by the union to discuss the issues with the employer, the
employer responded by letter dated October 11, 2005, inviting
bargaining on union-identified impacts. The union responded to the
letter on October 25, 2007, identifying some confusion about the
employer's letter and position, asking for clarification of the
employer's stance and definition of impacts, and providing a general
statement about the impacts.
Although the contractor did not receive official notice to proceed
with the work on the cottages until November 2, 2005, the evidence
demonstrated that by the end of September issues between the
employer and the contractor were resolved and the contract was
signed on October 24, 2005. The contract was originally sent to the
contractor on September 1, 2005.
This record demonstrates that the union was presented with a fait
accompli, and we find that the employer contracted out bargaining
unit work without providing the union the opportunity to bargain. In
Washington Public Power Supply System, Decision 6058-A (PECB, 1998),
we concluded that the union had been presented with a fait accompli
because the employer approached the issue from the beginning as if
its policies were outside the collective bargaining process. That
description aptly describes the employer's approach in this matter.
Additionally, as we stated in Skagit County, Decision 6348-A (PECB,
1998):
In those instances where an employer contemplates a change and
takes action toward the goal of introducing the change without
allowing the union an opportunity for bargaining which could
influence the employer's planned course of action and the
employer's behavior seems inconsistent with a willingness to
bargain, a fait accompli could be found.
The employer's actions in this case demonstrated an unwillingness to
bargain with the union.
Conclusion
The union did not waive its right to bargain with the employer
concerning the contracting out of bargaining unit work. At the
point the employer finally expressed a willingness to negotiate the
impacts of its contracting out, it was too late. It presented the
union with a fait accompli. As a result, the employer violated its
duty to bargain by failing to give notice to the union and an
opportunity for bargaining with the union prior to transferring
bargaining unit work to persons outside the bargaining unit.
Remedy
In refusal to bargain cases such as this, the typical remedial order
directs the employer to cease and desist from failing and refusing
to bargain with the union, take affirmative action to rectify the
damage done, and to post notices to inform the employees of the
violation of state law that has occurred. With respect to the found
violations, those typical remedies are appropriate.
NOW, THEREFORE, it is
ORDERED
1. The Findings of Fact issued by Examiner Karl E. Nagel are
AFFIRMED and ADOPTED as the Findings of Fact of the Commission,
except paragraphs 14 and 16, which are amended to read as follows:
14. The agency and the union maintained a long history of
discussing whether CSS employees would complete particular
projects or whether the project would go out to bid. The
language the parties placed in the 2005-2007 master
agreement did not eliminate the employer's obligation to
bargain concerning mandatory subjects of bargaining,
including contracting out bargaining unit work.
16. The cottage remodel work contracted out by the employer
was bargaining unit work. The fact that the parties
agreed on a case-by-case basis to allow outside
contractors to perform the same types of work does not
change the characterization of the work.
2. The Conclusions of Law issued by Examiner Karl E. Nagel are
AFFIRMED and ADOPTED as the Conclusions of Law of the
Commission, except paragraphs 3 and 4, which are amended as
follows:
3. The employer failed to fulfill its obligation to bargain
the decision to contract out the cottage remodel work
under RCW 41.80.005(2) and 41.80.020. Consequently the
employer committed an unfair labor practice under RCW
41.80.110(1)(e).
4. The employer committed interference by contracting out
bargaining unit work without bargaining. Consequently the
employer committed an unfair labor practice under RCW
41.80.110(1)(a).
3. The Order issued by Examiner Karl E. Nagel is amended as follows:
1. CEASE AND DESIST from:
a. Refusing to bargain with the Washington Federation of
State Employees the decision to contract out
bargaining unit work, including cottage remodeling
work, at Lakeland Village.
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. Give notice to and, upon request, negotiate in good
faith with Washington Federation of State Employees,
before contract out bargaining unit work, including
cottage remodeling projects, at the Lakeland Village
facility.
b. Post copies of the notice attached to this order 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.
c. Read the notice attached to this order into the
record at a regular public meeting of the Washington
State Department of Social and Health Services, 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.
d. 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.
e. 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, the 25th day of April, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
DOUGLAS G. MOONEY, Commissioner
Cases 20172-U-06-5140 and 20188-U-06-5148
PUBLIC EMPLOYMENT RELATIONS COMMISSION
NOTICE
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 WE COMMITTED UNFAIR LABOR PRACTICES IN
VIOLATION OF STATE COLLECTIVE BARGAINING LAWS, AND ORDERED US TO POST THIS
NOTICE TO EMPLOYEES:
WE UNLAWFULLY contracted out remodeling work at the Lakeland Village
Facility without giving a timely notice to the Washington Federation of
State Employees to allow the union to request bargaining about the decision
and the effects of the decision to contract out that work.
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL give notice and, upon request, bargain with the Washington
Federation of State Employees regarding the decision and the effects of the
decision to contract out remodeling work.
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.
DATED: _________________ WASHINGTON STATE
DEPARTMENT OF SOCIAL AND HEALTH SERVICES
BY: ______________________________
Authorized Representative
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
This notice must remain posted for 60 consecutive days, and must not be
altered or covered by any other material. Questions about this notice or
compliance with the Commission's order may be directed to the Public
Employment Relations Commission (PERC), 112 Henry Street NE, Suite 300, PO
Box 40919, Olympia, Washington 98504-0919. Telephone: (360) 570-7300.
The full decision will be published on PERC's web site, www.perc.wa.gov.