Kitsap Transit, Decision 9667 (PECB, 2007)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
AMALGAMATED TRANSIT UNION, )
LOCAL 1384, )
)
Complainant, ) CASE 20250-U-06-5162
)
vs. ) DECISION 9667 - PECB
)
KITSAP TRANSIT, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW
Respondent. ) AND ORDER
)
___________________________________)
Rita C. DiIenno, President/Business Agent, for the union.
Summit Law Group, by Shannon E. Phillips, Attorney at Law, for
the employer.
On March 8, 2006, Amalgamated Transit Union, Local 1384 (union)
filed an unfair labor practice charge against Kitsap Transit
(employer) alleging that the employer had interfered with employee
rights and refused to bargain. The union represents two bargaining
units of bus drivers. One bargaining unit is comprised of routed
service drivers, drivers who drive fixed, regularly scheduled routes
(Routed Unit). The other bargaining unit is comprised of ACCESS
service drivers, drivers who drive "door-to-door or curb-to-curb"
services for elderly and disabled passengers (ACCESS Unit).
The union and the employer are parties to separate collective
bargaining agreements with the two bargaining units. The union's
complaint alleged the employer improperly skimmed the Port Orchard
Ferry Take Home (FTH) service work previously performed by Routed
Unit employees to employees in the Access Unit without providing an
opportunity for bargaining. The Public Employment Relations
Commission issued a preliminary ruling on April 27, 2006, finding a
cause of action existed for employer interference with employee
rights in violation of RCW 41.56.140(1) and refusal to bargain in
violation of RCW 41.56.140(4). Examiner Joel Greene held a hearing
on October 10, 2006, and November 14, 2006. The employer and union
filed post-hearing briefs on January 23, 2007.
ISSUES
1. Was the Port Orchard Ferry Take Home Route the work of the
Routed Unit?
2. If so, was the employer obligated to bargain before
transferring the work outside of the Routed Unit?
3. Did the union waive by contract the right to challenge the
employer's decision to transfer the Port Orchard Ferry Take
Home route to the ACCESS Unit?
On the basis of the record presented, the Examiner finds that the
Port Orchard FTH service route was previously assigned to Routed
Unit employees and that work had attached to the Routed Unit and
become that unit's work. The suspension of that work for a period
of time did not detach that work from the Routed Unit. When the
employer resumed the Port Orchard FTH route work, the employer was
obligated to bargain the decision and its effects before
transferring the work outside of the Routed Unit. The union did not
waive by contract the right to bargain the employer's decision to
transfer the Port Orchard FTH route to the ACCESS Unit.
ANALYSIS - APPLICABLE LEGAL STANDARDS
The Duty to Bargain
Under the Public Employees Collective Bargaining Act, Chapter 41.56
RCW, a public employer commits an unfair labor practice if it
refuses to engage in collective bargaining with the exclusive
bargaining representative of its employees. RCW 41.56.140(4). The
term "collective bargaining" is defined in RCW 41.56.030(4):
"Collective bargaining" means the performance of the mutual
obligations of the public employer and the exclusive bargaining
representative to meet at reasonable times, to confer and
negotiate in good faith, and to execute a written agreement
with respect to grievance procedures and collective
negotiations on personnel matters, including wages, hours and
working conditions . . . .
Matters affecting the wages, hours, and working conditions of
employees are referred to as mandatory subjects of bargaining.
Kitsap County Fire District 7, Decision 7064-A (PECB, 2001). The
bargaining obligation extends to situations when an employer seeks
to remove work from a bargaining unit. Kitsap County Fire District
7. At a minimum, the loss of work opportunities affects the work
hours of bargaining unit employees and changes in employee work
hours give rise to a bargaining obligation. Federal Way School
District, Decision 232-A (EDUC, 1977). When an employer transfers
bargaining unit work to non-unit employees without fulfilling its
bargaining obligation, an unfair labor practice violation will be
found for unlawful "skimming" of bargaining unit work. South Kitsap
School District, Decision 472 (PECB, 1978).
To fulfill its bargaining obligation, an employer must give notice
to the union and provide an opportunity for bargaining prior to
changing the wages, hours, or working conditions of bargaining unit
employees. An employer violates RCW 41.56.140(4) if it presents a
union with a fait accompli, or if it fails to bargain in good faith,
upon request. Federal Way School District.
Bargaining Unit Work
Bargaining unit work is defined as work that has historically been
performed by bargaining unit employees. A bargaining unit has a
legitimate interest in preserving the work it has historically
performed. Yakima County, Decision 6594-C (PECB, 1999); Spokane
Fire District 9, Decision 3482-A (PECB, 1991); South Kitsap School
District. When an employer assigns bargaining unit employees to
perform a certain body of work, that work can attach to the unit and
become bargaining unit work. Kitsap County Fire District 7,
Decision 7064-A (PECB, 2001).
The Commission uses the term "skimming" to describe bargaining unit
work that is transferred to employees of the same employer who are
outside of the existing bargaining unit. Both the decision to
transfer bargaining unit work and the effects of that decision on
bargaining unit employees may be mandatory subjects of bargaining.
Community Transit, Decision 3069 (PECB, 1988); Battle Ground School
District, Decision 2449-A (PECB, 1986); City of Kelso, Decision
2120-A (PECB, 1985). A public employer must bargain the transfer of
bargaining unit work to employees outside of the unit. South Kitsap
School District. "Skimming" has the same effect on a bargaining
unit, and invokes the same duty to bargain, as the "contracting out"
of bargaining unit work. See Fibreboard Paper Products Corp. v.
NLRB, 379 U.S. 203 (1964).
When an employer is dealing with two bargaining units within its
workforce, it is obligated to respect the separate work
jurisdictions of both bargaining units, absent a tri-party
agreement. Kitsap County Fire District 7. Further, an employer can
not use a characterization of its decision as "staffing" to avoid
being responsible for unlawful "skimming:"
An employer does not have to negotiate a decision to reduce or
curtail part of its operation. Wenatchee School District,
Decision 3240 (PECB, 1989). An employer does, however, have a
duty to bargain with the exclusive bargaining representative of
its employees concerning a decision to transfer work to
employees outside the bargaining unit (skimming of unit work),
as in South Kitsap School District, Decision 472 (PECB, 1978)
and City of Mercer Island, Decision 1026-A (PECB, 1981).
City of Tacoma, Decision 5634 (PECB, 1996)(emphasis added).
In Spokane Fire Protection District 9, Decision 3482-A (PECB, 1991),
citing Clover Park School District, Decision 2560-B (PECB, 1989),
the Commission used a two-step analysis to determine whether a
skimming violation has occurred:
Step 1: Is the work bargaining unit work?
Step 2: If so, is the employer obligated to bargain before
transferring the work outside of the bargaining unit?
When the answer to the first question is affirmative, the Commission
used a five-factor factual analysis to answer the second question:
Factor 1: Previous practice - had non-bargaining unit
personnel ever performed the work?
Factor 2: Does the transfer of the work involve a
significant detriment to the members of the
bargaining unit?
Factor 3: Was the employer's motivation solely economic?
Factor 4: Had there been an opportunity to bargain
generally about the changes in existing
practices? and
Factor 5: Was the work fundamentally different from
regular bargaining unit work?
Spokane Fire Protection District 9. Therefore, the Commission has
determined that an employer may be excused from its obligation to
bargain the transfer of bargaining unit work based on a balancing of
the employer's interests versus the impact on the bargaining unit as
determined by application of the five-factor factual analysis just
listed.
The fourth factor of the analysis is an inquiry into whether an
opportunity to bargain over the transfer of work had been provided,
or had taken place. A "yes" answer to this question is
determinative: if the employer offered to bargain and the union
declined, the union will be found to have waived its opportunity to
bargain over the issue. If the employer bargained to a lawful
impasse or to settlement, the employer would have met its duty to
bargain. Conversely, a "no" answer to this question is not
determinative. If the employer did not offer to bargain or no
actual bargaining occurred, the Examiner must evaluate the remaining
factors in questions one, two, three, and five to determine whether
the employer is excused from its normal obligation to bargain over
the transfer of the unit's work.
Factors one, two, three, and four require a balancing test. In
considering the weight to be accorded the factors, the obligation to
bargain does not require agreement and does not prevent an employer
from managing its employees:
[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.
Port of Seattle, Decision 7271-B (PECB, 2003)(emphasis added),
citing Awrey Bakeries, Inc., 217 NLRB 730 (1975); Stone & Thomas,
221 NLRB 567 (1975); Dixie Ohio Express Co., 167 NLRB 573 (1967).
The Examiner's evaluation of the factors must weigh the extent of
the employer's burden of bargaining (given that compelling "an
employer to bargain is not to deprive him of the freedom to manage
his business") against the burden of the effect of the transfer of
work on the affected employees.
In City of Seattle, Decision 8313-A (PECB, 2003), the Commission
noted that the bargaining obligation attaches to both the decision
and its effects: both the decision to transfer bargaining unit work
and the effects of that decision on bargaining unit employees may be
mandatory subjects of bargaining. City of Seattle, Decision 8313-A
(PECB, 2004), aff'd, Decision 8313-B (PECB, 2004).
APPLICATION OF THE TWO STEP AND FIVE FACTOR ANALYSIS FROM SPOKANE
FIRE DISTRICT 9
Among other services, Kitsap Transit provides fixed route transit
service and ACCESS service. Fixed route services are generally
defined as those routes that are regularly scheduled with fixed time
points and pre-determined, fixed routes and stops. These fixed
routes are assigned to Routed Unit employees represented by the
union.
ACCESS services are "door-to-door or curb-to-curb" services for the
elderly and disabled and are designed to meet Americans with
Disabilities Act requirements. ACCESS services are generally not
regularly scheduled nor do they generally have pre-determined stops.
Rather, users of the employer's ACCESS services call in advance and
reserve, or schedule, a pick-up. The driver goes to the caller's
location at a specific time and picks up the person and drives him
or her to the requested destination.
Prior 1999, the employer provided a transit service known as the
Port Orchard Ferry Take Home route. The Port Orchard FTH route was,
prior to 1999 and upon its return in 1995, what the parties term
"route deviation" service. The employer's brief defines "route
deviation" as:
any transit service where there are more limited time points than in
traditional routed service. Passengers can join the vehicle at these
points at specified times. In between getting to the scheduled time
points, the operator can "deviate" on either side of the route to drop
passengers off or to pick up passengers who have called to schedule a
pick up.
. . . .
"Ferry-take-home" is thus a route deviation service that starts at
the ferry terminal, and is intended to connect ferry passengers with
their homes or other destinations.
The employer's brief acknowledges that "route deviation" work has been
performed by employees of the Routed Unit and the ACCESS Unit. However, the
Port Orchard FTH route, prior to its discontinuation in 1999, was operated
by employees of the Routed Unit.
In 1999, Washington State voters approved Initiative 695 (I-695), which
replaced the motor vehicle excise tax (MVET) with a $30 vehicle license tab
fee. I-695 also required voter approval of all future tax and fee
increases.(fn:1) The MVET provided revenues for, among other things, public
transit. As a result of anticipated reductions in revenue, the employer
decided to discontinue the Port Orchard FTH route.
____________________
fn:1 On October 26, 2000, the Washington State Supreme Court declared
Initiative 695 unconstitutional.
Effective September 18, 2005, the employer decided to resume the Port
Orchard FTH route and assigned that work to the ACCESS Unit rather than the
Routed Unit. The employer's decision to resume the Port Orchard FTH route
and to assign the work to the ACCESS Unit, are the subject of this unfair
labor practice case.
ISSUE 1: Was the Port Orchard FTH Route the work of the Routed Unit? and,
ISSUE 2: If so, was the employer obligated to bargain before transferring
the work outside of the Routed Unit?
To decide these issues, the Examiner must apply the two-step analysis
adopted by the Commission in Spokane Fire Protection District 9:
Step 1: Is the work bargaining unit work?
The answer to this question is yes. Bargaining unit work is defined as work
that has historically been performed by bargaining unit employees. When an
employer assigns bargaining unit employees to perform a "certain body of
work," that work can attach to the unit and become bargaining unit work.
Kitsap County Fire District 7. The issue in this case is not the broad
issue of whether ferry take home service work as a general "type" of work
is, or is not, the work of the Routed Unit. The "certain body of work" at
issue here is the specific, narrow body of work comprised of the Port
Orchard FTH route. As to that work, the record is clear that prior to the
reinstatement of the Port Orchard FTH route in 2005, Routed Unit employees
had exclusively performed the work. The employer's brief acknowledges that
"[p]rior to the passage of I-695 in 1999, an 8 p.m. ferry-take-home service
from the Port Orchard ferry was provided by Routed operations."
In the present case, the "certain body of work" at issue is the Port Orchard
FTH route. Both parties agree that, prior to this dispute, that body of
work had been exclusively performed by employees of the Routed Unit.
Therefore, the Port Orchard FTH route attached to the Routed Unit and became
that bargaining unit's work. The employer does not cite any precedent
holding that an employer may "detach" this body of work from the Routed Unit
simply because a period of time elapsed when the work was not being
performed by the Routed Unit.
A finding that the passage of time detaches work from a bargaining unit
would allow the employer to temporarily suspend a certain body of work, for
either valid or invalid reasons, and then assign it to a bargaining unit (or
to unrepresented employees) of its choice. This would allow the employer to
circumvent its bargaining obligations concerning the transfer of bargaining
unit work. As the Commission held in Port of Seattle, Decision 7271-B
(PECB, 2003)(citing Ozark Trailers, Inc., 161 NLRB 561 (1966)), "The
authority, duties, and prerogatives of a bargaining representative are
dictated by the statute and they are not subject to diminution or
modification because of any employer's good faith or economic necessity."
The Port Orchard FTH route body of work was the work of the Routed Unit
prior to the employer's decision to discontinue the service in 1999. The
Examiner holds that the Port Orchard FTH Route body of work remained the
work of the Routed Unit upon its resumption in September 2005.
Step 2: Since the work is bargaining unit work, is the employer obligated
to bargain before transferring the work outside of the bargaining unit?
Because the answer to the first question is affirmative, the Examiner must
next analyze the five factors in Spokane Fire Protection District 9, and
determine whether the employer was obligated to bargain before transferring
the work outside the bargaining unit.
Factor 1: Previous practice - had non-bargaining unit personnel ever
performed the work?
Both the union and the employer provided testimony that the Port Orchard FTH
route had previously been performed by the Routed Unit. The employer, in its
brief, agreed that "[p]rior to the passage of I-695 in 1999, an 8 p.m.
ferry-take-home service from the Port Orchard ferry was provided by Routed
operations." No testimony or evidence was presented that prior to September
2005 the Port Orchard FTH work had ever been performed by any employee
outside of the Routed Unit.
The employer asserts that employees outside of the Routed Unit presently, or
have in the past, performed a similar "type" of work. However, the issue in
this case does not concern the broad issue of whether ferry take home route
work in general belongs to the Routed Unit. The issue in this case concerns
whether a certain body of work, the Port Orchard FTH route, belongs to the
Routed Unit. An analysis of the "type" of work might be required if the
controversy at issue concerned all ferry take home routes or a new ferry
take home route that had never existed and had never been attached to a
bargaining unit.
This is not the case here. "Commission precedents consistently hold that we
will not rule upon the parties' hypothetical scenarios." Kitsap County,
Decision 8292-B (PECB, 2007). In the present case, the parties are not
starting with a clean slate. The parties have a bargaining history
concerning the Port Orchard FTH route that cannot be ignored due to a hiatus
of that work. The issue presented in this case involves a "certain body of
work" not a "type" of work, and the issue of whether ferry take home routes
as a "type" of work are properly in one unit or another need not be addressed.
The parties agree, and the record supports, that prior to this dispute, only
Routed Unit employees had ever performed the specific work in question,
i.e., the Port Orchard FTH route. The Examiner holds that the Port Orchard
FTH route work was, prior to its discontinuation in 1999, exclusively Routed
Unit work and continued to be Routed Unit work upon its resumption in
September 2005.
Factor 2: Does the transfer of the work involve a significant detriment to
the members of the bargaining unit?
Any loss of work opportunities inevitably affects the work hours of
bargaining unit employees. Newport School District, Decision 2153 (PECB,
1985). If employers could transfer or contract out bargaining unit work
without fulfilling their bargaining obligations, the resulting uncertainty
about whether there would be any jobs to fill would be exceedingly
detrimental to the statutory purpose of peaceful labor-management relations.
Under these circumstances, the interests of employees clearly predominate
over the employer's interests. Port of Seattle, Decision 7271-B (PECB,
2003). The loss of work hours available to the Routed Unit due to the
transfer of the Port Orchard FTH routed to the ACCESS Unit is a significant
detriment to the employees of the Routed Unit.
The employer asserts that because the work was not being done immediately
prior to the time that it was reinstated, there were no Routed Unit
employees who lost any work. This argument misses the point: the employer
did not take away currently existing work when it brought back the work and
gave it to another bargaining unit. However, once the work was brought back
and transferred to the ACCESS Unit, the Routed Unit employees lost the
transferred work.
The employer also asserts that it would not have resumed the work if it
would have been required to assign it to Routed Unit employees. The
employer argues that the Routed Unit employees did not lose work because,
given a choice between giving the work to Routed Unit drivers or not
resuming the work, the employer would have decided not to resume the work.
This argument also fails. The employer did resume the work. An employer
cannot defend an improper action that it has already taken based on an
assertion that it might, hypothetically, have acted differently. The
employer decided to return the Port Orchard FTH route; the employer decided
to transfer that work to to the ACCESS Unit. This decision and action
resulted in a significant detriment to the members of the Routed Unit.
In this case, the Routed Unit employees lost the opportunity to work, and
get paid for, the hours that were given to the ACCESS Unit. This loss is a
significant detriment to the members of the Routed Unit.
Factor 3: Was the employer's motivation solely economic?
The intent of this question is to determine whether the employer's action
was based solely on economic motives and not on, or combined with, some
other improper motive. Examples of improper motives include decisions based
on union animus or made with an intent to punish the union or its
employees.(fn:2) An employer's decision to transfer bargaining unit work based
solely on a cost savings analysis that considers only a unit's bargained for
wages would also be improper. An employer may not circumvent its
contractual agreement on wages for a particular unit by transferring that
unit's work to another bargaining unit or to an unrepresented group.
____________________
fn:2 The listing of these non-economic motivations is not exclusive. Each
case must be analyzed on its own set of facts.
In this case, an ACCESS Unit driver's rate of pay is lower than a similarly
situated Routed Unit driver's rate of pay. The union asserts that the
employer's decision was motivated by a desire to save money by assigning the
Port Orchard FTH route to the lower paid ACCESS Unit drivers rather than the
Routed Unit drivers. The employer asserts its decision was based on its
practice of using "service selection criteria" or "service standards," which
include broader issues of cost containment such as ridership levels, cost of
bus operation, and the concept of "shared service," i.e., using one vehicle
to meet general public and ACCESS needs.
The employer made the decision to transfer the Port Orchard FTH route to the
ACCESS Unit drivers for economic reasons. The employer's brief indicates
the employer used "service selection criteria" which focused "more broadly
on cost effectiveness, as well as other considerations" that incorporated
"more than simply the wage of the operator." The employer's decision to
transfer the work from the Routed Unit to the ACCESS Unit was based on
several economic factors, not solely on the narrow economic issue of the
driver's rate of pay.
Based on the above, the Examiner finds that the employer took a number of
economic factors into account in making its decision. The Examiner finds no
evidence supports the conclusion that the employer's motivation was improper
or made with a motivation other than a solely economic one.
Factor 4: Had there been an opportunity to bargain generally about the
changes in existing practices?
Effective September 18, 2005, the employer resumed the Port Orchard FTH
route utilizing employees from the ACCESS Unit to perform the work. On
October 14, 2005, the union wrote the employer and demanded that the
employer return the Port Orchard FTH route work to the Routed Unit. In an
October 26, 2005, letter the employer responded that it would not return the
work to the Routed Unit.
The union's October 14, 2005, letter demanded that the employer return the
transferred work to the Routed Unit. The union did not present evidence
showing the union demanded to bargain the issue. However, it is well
settled that a union does not waive its right to bargain by failing to
request bargaining when faced with a fait accompli, as it was here. A fait
accompli describes an unannounced, unilateral change involving a mandatory
subject of bargaining. North Franklin School District, Decision 3980 (PECB,
1992). Bargaining after a fait accompli has been implemented would
predictably be futile and would inherently be prejudiced by a decision
already made without the union's input or influence. Seattle School
District, Decision 5733-A (PECB, 1997), citing Spokane County, Decision
2167-A (PECB, 1985). When an employer does not provide adequate notice and
offer to engage in meaningful bargaining, the union's failure to request
bargaining is not a waiver by inaction. Skagit County, Decision 8886 (PECB,
2005).
In its brief, the employer acknowledges that it did not offer to bargain its
decision to assign the Port Orchard FTH route to the ACCESS Unit rather than
the Routed Unit. The record indicates that the parties did not bargain
this issue.
Factor 5: Was the work fundamentally different from Routed Unit work?
Employees of both bargaining units at issue here are employed to drive
transit busses and generally have skills and working conditions of the same
nature or type. While differences exist between the duties of the two
groups, the main thrust of their duties is to drive busses, pick up, and
drop off passengers. While the Port Orchard FTH route work could probably
be performed by employees of either bargaining unit, the record indicates
that the work at issue was neither fundamentally different from Routed Unit
work and was historically and exclusively performed by Routed Unit employees.
CONCLUSION
The employer in this case made a decision based on "service selection
criteria" to resume the Port Orchard FTH route. However, the decision also
included a unit work decision. Along with deciding to resume the Port
Orchard FTH route, the employer decided that the work historically performed
by employees of the Routed Unit would be transferred to employees of the
ACCESS Unit. While the employer had the right to make the decision, based
on "service selection criteria," when it discontinued, and later resumed,
the Port Orchard FTH route, its action went further and transferred the
historical work of the Routed Unit to the ACCESS Unit without providing an
opportunity to bargain the transfer of work.
The Examiner finds that the Port Orchard FTH route had historically and
exclusively been performed by Routed Unit employees. The employer in this
case assigned this certain body of work to the Routed Unit and therefore
that work attached to the unit and became Routed Unit work. The fact that
the work at issue was, for a time, not being performed does not operate to
detatch that body of work from the Routed Unit. An employer does not have
to negotiate a decision to reduce or curtail part of its operation.
Wenatchee School District, Decision 3240 (PECB, 1989). An employer does,
however, have a duty to bargain with the exclusive bargaining representative
of its employees concerning a decision to transfer work to employees outside
the bargaining unit (skimming of unit work). City of Mercer Island,
Decision 1026-A (PECB, 1981). The employer had the right to make the
"entrepreneurial decision" to discontinue, and then later to resume, the
Port Orchard FTH route. However, the employer's action here went further
than an "entrepreneurial decision" when it also decided to transfer the
historical work of the Routed Unit to the ACCESS Unit.
Having analyzed the five factors discussed above, the Examiner holds that
the employer had an obligation to bargain the decision and the effects of
transferring the Port Orchard FTH route from the regular bargaining unit.
The transferring of the Port Orchard Ferry Take Home route body of work from
the Routed Unit to the ACCESS Unit without bargaining was an impermissible
skimming of bargaining unit work and constitutes an unfair labor practice.
ISSUE 3: Did the union waive by contract the right to challenge the
employer's decision to transfer the Port Orchard FTH route to the ACCESS Unit?
The Commission has consistently applied a "clear and unmistakable" standard
to evaluate waiver by contract claims. The contract language relied upon
must be specific, or it must be shown that parties fully discussed the
matter and that the party alleged to have waived its rights consciously
yielded its interest in the matter. See Whatcom County, Decision 7244-B
(PECB, 2004).
The employer relies upon a provision in the Routed Unit's contract as well
as provisions in the ACCESS Unit's contract. However, the Routed Unit
brought this case; the Routed Unit, not the ACCESS Unit, is asserting its
rights. The employer alleges the Routed Unit waived those rights by
contract.
The ACCESS Unit's contract cannot waive the Routed Unit's rights. Only the
parties to a contract are bound by its terms. The Routed Unit is not a party
to the ACCESS Unit's contract and is therefore not bound by its terms. The
Examiner does not rely on the terms of the ACCESS Unit's contract in making
a decision as to a waiver by contract in this case.
The Routed Unit's contract states that:
The Employer maintains the right to make changes to regular routed
service, as commonly practiced at run cutting and bidding times,
including adjusting routes, schedules, runs, or other changes normally
reserved to the Employer's discretion.
In this case, the employer did not simply "make changes to regular routed
service, as commonly practiced at run cutting and bidding times, including
adjusting routes, schedules, runs . . . ." The employer transferred
bargaining unit work out of the unit. This was not a "change" to the
"regular routed service" nor was it simply "adjusting" of "routes,
schedules, [or] runs." The employer's action was to completely transfer the
work out of the unit.
Further, a waiver of the right to bargain over the transfer of bargaining
unit work cannot be found under the "other changes normally reserved to the
Employer's discretion" language. This language does not meet the "clear and
unmistakable" standard set by the Commission for a finding of a waiver by
contract. See Whatcom County, Decision 7244-B (PECB, 2004).
The Examiner rules that there was no waiver by contract concerning the issue
of transferring the Port Orchard FTH route from the Routed Unit to the
ACCESS Unit. While the employer had the right to discontinue the route in
1999 and to return the route in 2005, it did not have the right to transfer
the work from the Routed Unit without first bargaining with the Routed Unit
concerning the decision and the effects of its decision to transfer the work.
REMEDY
The conventional remedy for a unilateral change violation is to order the
restoration of the status quo ante. Back pay can be awarded to make the
affected employees whole for losses they suffered as a result of the
unlawful action. City of Seattle, Decision 8313-B (PECB, 2004).
In its brief (and also in its complaint) the union requested, among other
remedies, the following:
Provide to those Access Employees who performed the FTH service the
difference in pay between what they were paid and what would have been
paid as Routed service (same step on the routed wage scale) . . . .
However, as cited above, the goal of remedial awards such as back pay is "to
make the affected employees whole for losses they suffered as a result of
the unlawful action." In this case it is the Routed Unit employees who have
suffered losses, not ACCESS Unit employees. As discussed above, the harm to
the Routed Unit from the employer's action was the lost opportunity to work,
and be paid for, the hours that were given to the ACCESS Unit. The ACCESS
Unit employees have suffered no "harm" to be remedied. Regardless of the
employer's decision, ACCESS Unit employees who performed the work would have
been paid the rate of pay that their contract defined. They would never
have been entitled to the pay rate contained in the Routed Unit's contract.
The harm in this case was the work hours that the Routed Unit drivers would
have worked but for the employer's transfer of the unit's work to another
bargaining unit. The remedy therefore must make the affected employees
whole for losses they suffered. The remedy to make those employees whole is
back pay. The record does not reflect the name of a specific individual who
actually suffered a work reduction as a result of the employer's actions.
The record supports a finding that a Routed Unit employee, or employees,
lost work hours and the employee(s) can readily be identified.
Therefore the back pay portion of the remedy in this case is that the
employer must determine which Routed Unit employee(s) would have driven the
Port Orchard Ferry Route beginning at the resumption of the route on
September 18, 2005. The employer must pay that employee, or those
employees, at the rate of pay called for in the contract for the hours that
they would have worked had the employer not transferred the Port Orchard FTH
route work to the ACCESS Unit. Additionally, the employer's decision to
assign the Port Orchard FTH route work to ACCESS Unit employees, and to pay
them for that work, was made solely by the employer. As such, the employer
may not seek reimbursement for wages previously paid to the ACCESS employees
for work they were directed to, and did, perform. Neither may the employer
take "credit" for the amount it paid employees of the ACCESS Unit employees
and deduct that amount from the back pay it is directed to pay the affected
Routed Unit employees.
FINDINGS OF FACT
1. Kitsap Transit is a "public employer" within the meaning of RCW
41.56.030(1).
2. Amalgamated Transit Union, Local 1384 is a bargaining representative
within the meaning of RCW 41.56.030(3) and is the exclusive bargaining
representative of a unit of employees employed by Kitsap Transit
Authority known as the Routed Unit.
3. The employer operates "Ferry-take-home" services which are route
deviation services that start at a ferry terminal and are intended to
connect ferry passengers with their homes or other destinations.
4. The Port Orchard FTH route is a "ferry-take-home" route.
5. Prior to 1995, the Port Orchard FTH route body of work was performed by
members of the Routed Unit.
6. In 1995, the Port Orchard FTH route was discontinued by Kitsap Transit
based on service selection criteria and the effects of Initiative 695.
7. Effective September 18, 2005, Kitsap Transit resumed the Port Orchard
FTH route body of work and assigned that work to the ACCESS Unit.
8. Prior to making and implementing its decision, the employer did not
notify the union of its decision to transfer the Port Orchard FTH route
work from the Routed Unit to the ACCESS Unit.
9. On October 14, 2005, the union wrote the employer and demanded that the
employer return the Port Orchard FTH route work to the Routed Unit.
10. On October 26, 2005, the employer responded by letter to the union's
October 14, 2005, demand and stated that it would not return the work
to the Routed Unit.
11. Prior to September 18, 2005, the Port Orchard FTH route work was
historically performed by the Routed Unit and non-Routed Unit personnel
had never performed the Port Orchard FTH route work.
12. Removing the work from the unit caused a loss of work opportunities to
the employees of the Routed Unit.
13. The employer's motivation was solely economic, based on multiple cost
analysis factors, and was not based on any improper motive.
14. The union did not have an opportunity to bargain the transfer of the
Port Orchard FTH route work prior to the employer's decision to
transfer the work or the employer's implementation of that decision.
15. The Port Orchard FTH work is not fundamentally different from other
work performed by the Routed Unit.
16. The parties' collective bargaining agreement does not contain language
that contractually waives the union's right to bargain the transfer of
the bargaining unit work.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this
matter pursuant to Chapter 41.56 RCW.
2. By the events described in the above Findings of Fact, Kitsap Transit
interfered with employee rights in violation of RCW 41.56.140(1) and
refused to bargain in violation of RCW 41.56.140(4), by skimming of the
Port Orchard Ferry Take Home service body of work previously performed
by Routed Unit employees without providing an opportunity for bargaining.
ORDER
Kitsap Transit, its officers and agents, shall immediately take the
following actions to remedy its unfair labor practices:
1. CEASE AND DESIST from:
a. Refusing to bargain collectively with Amalgamated Transit Union,
Local 1384, as the exclusive bargaining representative of the
employees in the appropriate bargaining unit described in
paragraph 2 of the above findings of fact.
b. Skimming work from bargaining unit positions without first giving
notice to, and upon request bargaining with, the exclusive
bargaining representative of its employees concerning both the
decision and effects of the employer's decision.
c. In any other manner interfering with, restraining, or coercing
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. Restore the status quo ante by reinstating the wages, hours, and
working conditions which existed for the employees in the affected
bargaining unit prior to the unilateral change in transferring
bargaining unit work outside the bargaining unit found unlawful in
this order.
b. Determine which Routed Unit employee(s) would have worked the Port
Orchard Ferry Take Home Route beginning at the resumption of the
route on September 18, 2005, and pay those employee(s) identified
for the number of hours they would have worked, at the rate of pay
that they would have earned, had we not transferred the Port
Orchard FTH route work from the Routed Unit to the ACCESS Unit.
c. Give notice to Amalgamated Transit Union, Local 1384, prior to
transferring any bargaining unit work to persons outside of the
Routed Unit bargaining unit.
d. Bargain collectively, upon request, with Amalgamated Transit
Union, Local 1384, as an exclusive representative of an
appropriate bargaining unit, with respect to the transfer of
bargaining unit work, wages, hours, and working conditions.
e. Post copies of the notice attached to this order in conspicuous
places on our premises where notices to all bargaining unit
members are usually posted. These notices shall be duly signed by
an authorized representative of Kitsap Transit, and shall remain
posted for 60 consecutive days from the date of initial posting.
We shall take reasonable steps to ensure these notices are not
removed, altered, defaced, or covered by other material.
f. Read the notice attached to this order into the record at a
regular public meeting of the Kitsap Transit Authority Board, and
permanently append a copy of the notice to the official minutes of
the meeting when the notice is read as required by this paragraph.
g. Notify the Amalgamated Transit Union, Local 1384, in writing,
within 20 days following the date of this order, as to what steps
we have taken to comply with this order, and at the same time
provide the union with a signed copy of the notice attached to
this order.
h. 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 we have 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 7th day of May, 2007.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
JOEL GREENE, Examiner
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.
Case 20250-U-06-05162
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 skimmed the Port Orchard Ferry Take Home service
work previously performed by Routed Unit employees and transferred
that work to employees in the ACCESS Unit without providing an
opportunity for bargaining in violation of RCW 41.56.140(1) and
RCW 41.56.140(4).
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL restore the status quo ante by reinstating the wages,
hours, and working conditions which existed for the employees in
the affected bargaining unit prior to the unilateral change in
transferring bargaining unit work outside the bargaining unit
found unlawful in this order.
WE WILL determine which Routed Unit employee(s) would have worked
the Port Orchard Ferry Take Home Route beginning at the resumption
of the route on September 18, 2005, and pay those employee(s)
identified for the number of hours they would have worked, at the
rate of pay that they would have earned, had we not transferred
the Port Orchard FTH route work from the Routed Unit to the ACCESS
Unit.
WE WILL give notice to Amalgamated Transit Union, Local 1384,
prior to transferring any bargaining unit work to persons outside
of the Routed Unit bargaining unit.
WE WILL, upon request, bargain collectively with Amalgamated
Transit Union, Local 1384, as an exclusive representative of an
appropriate bargaining unit, with respect to the transfer of
bargaining unit work, wages, hours, and working conditions.
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: _________________ KITSAP TRANSIT
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.