State - Social and Health Services, Decision 9690 (PSRA, 2007)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
WASHINGTON FEDERATION )
OF STATE EMPLOYEES, )
)
Complainant, ) CASE 19966-U-05-5068
)
vs. ) DECISION 9690 - PSRA
)
WASHINGTON STATE - SOCIAL ) FINDINGS OF FACT,
AND HEALTH SERVICES, ) CONCLUSIONS OF LAW,
) AND ORDER
Respondent. )
___________________________________)
Younglove, Lyman & Coker, by Christopher J. Coker, Attorney at
Law, for the union.
Attorney General Rob McKenna, by Janetta E. Sheehan, Assistant
Attorney General, for the employer.
The Washington State Department of Social and Health Services
(employer) has a bargaining relationship with the Washington
Federation of State Employees (union) which covers, among other
groups, employees working in the State Operated Living Alternative
program in King County. The union filed an unfair labor practice
complaint on November 28, 2005, alleging that hours of work and
working conditions had been unilaterally changed by the employer
without notice to the union. Examiner Sally B. Carpenter held a
hearing on June 27, 2006. The parties filed post-hearing briefs to
complete the record.
ISSUES PRESENTED
1. Did the union waive its right to bargain the employer's
decision to make changes in hours of work and working
conditions by operation of Articles 6.1, 6.3, and 35 of the
collective bargaining agreement?
2. Did the employer have an obligation to give pre-change notice
to the union and bargain, if requested, the effects of its
decision to reorganize days of work, work hours, and work
locations for its Region 4 State Operated Living Alternative
positions?
3. Did the employer deal directly with employees in circumvention
of its obligation to negotiate with their exclusive bargaining
representative?
The Examiner decides (1) that the union waived its right to bargain
regarding the employer's decision to change work hours and working
conditions; (2) the employer had a duty to provide
pre-implementation notice and an opportunity to bargain concerning
the effects of its decision to reorganize; and (3) the employer did
not circumvent the union and bargain directly with employees
represented by the union.
APPLICABLE LAW
Mandatory Subjects of Bargaining
The union contends that the employer refused to bargain by
implementing a reorganization which changed hours and working
conditions, without providing notice to the union and an opportunity
to bargain. The employer contends that the collective bargaining
agreement contains a complete waiver of the union's right to bargain
the challenged reorganization.
RCW 41.80.110 enumerates unfair labor practices by a public employer:
(1) It is an unfair labor practice for an employer:
(a) To interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed by this chapter;
. . . .
(e) To refuse to bargain collectively with the
representatives of its employees.
RCW 41.80.020(1) defines the scope of required bargaining:
Except as otherwise provided in this chapter, the matters
subject to bargaining include wages, hours, and other terms and
conditions of employment, and the negotiation of any question
arising under a collective bargaining agreement.
Under RCW 41.80.020(1), "wages, hours, and other terms and
conditions of employment" are mandatory subjects of bargaining.
Absent a waiver by the union of its statutory right to notice and
opportunity to bargain, the employer is prohibited from making
unilateral changes in mandatory subjects. Through collective
bargaining negotiations, parties make agreements on mandatory
subjects of bargaining. Those agreements are set forth in a labor
contract or collective bargaining agreement. The parties' agreement
may contain waivers of statutory bargaining rights. This case turns
on the exact wording of the collective bargaining agreement.
Duty to Bargain - Waiver by Contract
In Seattle School District, Decision 5755-A (PECB, 1998), the
Commission explained the effect of a contractual waiver:
The object of the collective bargaining process is for the
parties to conclude a written and signed contract to govern
their affairs for a period of up to three years. RCW
41.56.030(4); RCW 41.56.070; State ex rel. Bain v. Clallam
County, 77 Wn.2d 542 (1970).
Where agreements on a negotiated subject are set forth in a
collective bargaining agreement, a "waiver by contract" will exist
as to that subject for the life of the agreement. A party who
asserts a waiver by contract has the burden of proof to show a clear
and unmistakable waiver of its bargaining duty. Yakima County,
Decision 6594-C (PECB, 1999).
In City of Wenatchee, Decision 8802-A (PECB, 2006), the Commission
applied the traditional criteria for contract waiver:
When a knowing, specific and intentional contractual waiver
exists, an employer may lawfully make unilateral changes as
long as those changes conform with the contractual waiver.
City of Wenatchee, Decision 6517-A (PECB, 1999). A waiver of
statutory collective bargaining rights must be consciously
made, must be clear, and must be unmistakable. City of Yakima,
Decision 3564 (PECB, 1990). The burden of proving the
existence of the waiver is on the party seeking enforcement of
the waiver. Lakewood School District, Decision 755-A (PECB,
1980). We have long held the general management rights clauses
often asserted by employers as waivers of union bargaining
rights are generally found inadequate under the high standards
for finding a waiver. See Chelan County, Decision 5469-A
(PECB, 1996).
The first step of the analysis is to look to the exact wording of
the contract:
Contract provisions are not ambiguous merely because the
parties disagree about their particular meaning. When the
contract terms themselves evidence a meeting of the minds, we
need go no further to determine what was intended.
The issue in City of Wenatchee was whether the employer could
unilaterally reduce the minimum staffing on a firefighting shift.
The management rights clause stated in part that the employer could
"determine the number of personnel assigned to duty at any time".
The Commission ruled that the management rights clause was a
specific waiver of the union's right to bargain minimum staffing
levels of the ladder truck:
Management rights clauses can contain a list of clear and
unmistakable waivers, can contain a list of unclear and
confusing non-waivers or could have a mix of both. Here, we
have specific waivers of certain subjects of bargaining and a
more general waiver existing within the same contract. The
language used demonstrates that the parties intended those
specifically itemized subjects to be within the employer
prerogative to change without bargaining. Had the employer
been relying upon the more general "and all other functions not
expressly limited" language found at the end of the provision,
our conclusion would be different.(fn:1) In this case, we find
that language in the contract unequivocally grants the employer
the right "to determine the number of personnel assigned to
duty at any time" and in this case, a contractual waiver exists
regarding shift staffing.
____________________
fn:1 See, e.g., City of Kelso, 2633-A (PECB, 1988), where the
management rights clause stating "all powers, authorities, functions
and rights not specifically and expressly restricted by this
agreement are subject to exclusive management control" was found too
broad to constitute a contractual waiver.
Employer Direct Dealing/Circumvention
The union contends that communications from the employer directly to
the employees constituted negotiations with the employees on wages,
hours and other terms and conditions of employment that should have
been negotiated with the exclusive bargaining representative.
The prohibition against circumvention of a union and direct dealing
with employees has been spelled out by the Commission in City of
Seattle, Decision 3566-A (PECB, 1991):
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.
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 Seattle, Decision 8916 (PECB, 2005).
An employer must give notice of a proposed change in a mandatory
subject of bargaining to the exclusive bargaining representative.
"A union that is recognized or certified as exclusive bargaining
representative holds a unique statutory status, and an employer is
required to take the initiative in giving such an organization
notice of contemplated changes affecting the employees it
represents." Lake Washington Technical College, Decision 4721 (PECB,
1994), aff'd, Decision 4721-A (PECB, 1995). If notice is required,
it must be given to the union, not just to members of the bargaining
unit.
ANALYSIS
Duty to Bargain - Waiver by Contract
The employer and union entered into a collective bargaining
agreement effective July 1, 2005, through June 30, 2007. The
agreement contains general and specific waivers of the union's right
to bargain changes, similar to the facts in City of Wenatchee,
Decision 8802-A.
The Department of Social and Health Services (DSHS), Division of
Developmental Disabilities (DDS), Region 4, owns and operates 13
group homes in King County under the State Operated Living
Alternative (SOLA) program. In the summer of 2005, the employer
decided to effect savings of about $30,000 (out of a budget
shortfall of approximately $195,000 for the 2005-2007 biennium) by
reorganizing staffing at its 13 group homes in King County.
The employer's reorganization modified the workweek and the daily
work shift, changed hours of work and days off, and transferred and
reassigned employees. The employer did not notify the union prior to
the reorganization. The employer relied on Articles 6 and 35 of the
parties' collective bargaining agreement ("contract"), in
determining its process for the reorganization:
ARTICLE 6
HOURS OF WORK
. . . .
6.3 Overtime-Eligible Employees . . . .
A. Regular Work Schedules
. . . The Employer may adjust the regular work
schedule with prior written notice to the employee.
B. Alternate Work Schedules
Workweeks and work shifts of different numbers of
hours may be established for overtime-eligible
employees by the Employer in order to meet business
and customer service needs, as long as the alternate
work schedules meet federal and state laws. The
Employer will consider employees' personal and family
needs.
. . . .
E. Permanent Schedule Changes
Overtime-eligible employees' workweeks and work
schedules may be permanently changed with prior
notice from the Employer. Overtime-eligible shift
employees will receive seven (7) calendar days'
written notice of a permanent schedule change. The
day notification is given is considered the first day
of notice. Adjustments in the hours of work of daily
work shifts during a workweek do not constitute a
permanent schedule change.
. . . .
ARTICLE 35
MANAGEMENT RIGHTS
Except as modified by this Agreement, the Employer retains all
rights of management, which, in addition to all powers, duties
and rights established by constitutional provision or statutes,
will include but not be limited to, the right to:
. . . .
H. Establish or modify the workweek, daily work shift,
hours of work and days off;
. . . .
K. Select, hire, assign, reassign, evaluate, retain,
promote, demote, transfer, and temporarily or
permanently lay off employees;
(emphasis added). The 13 group homes are staffed by 77 Assistant
Counselor 2 (AC2) positions, 24 hours a day, 7 days a week. The
homes serve 50 residents. There are three work shifts: day, swing
and graveyard. The graveyard shift consists of four days on,
10-hour shifts (4/10s), with 3 days off each week. Day and swing
shifts work five days on, eight-hour shifts (5/8s), with two days
off each week. All AC2 employees are required to attend occasional
day-time training, which falls within the customary sleep hours of
the graveyard shift employees.
The reorganization reduced the number of graveyard employees from 26
to 20, moving some to day or swing shifts. The remaining graveyard
employees were changed to a work schedule of five days on,
eight-hour shifts (5/8s), with two days off each week. The
employees were also redistributed, so that an employee might work
some nights at one home, and other nights at another location. The
reorganization of work hours eliminated cross-over time between
shifts, preventing verbal communication between shifts. By having
three days off, graveyard shift employees were more capable of
attending training without disrupting their ability to maintain
adequate sleep.
The union objects to the employer's reorganization, relying on
Articles 38 and 46 of the agreement:
ARTICLE 38
MANDATORY SUBJECTS
38.1 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 changes on employee's working conditions. 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. . . .
. . . .
ARTICLE 46
ENTIRE AGREEMENT
. . . .
46.4 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.
(emphasis added).
On August 23, 2005, the employer issued the seven-day notice of
reassignment letters directly to affected employees as required by
Article 6.3(E) of the agreement. On the same date, a no-agenda,
informal labor-management meeting was held between members of the
local union and the employer. The employer mentioned the
reorganization as a news item to the employees and shop steward
present at the meeting.
The employer's answer to the complaint denies that it has any duty
to give notice to the union, and further argues that the information
given at the labor-management meeting on August 23 constituted
notice to the union. The employer's actions did not comply with
either Article 38 of the contract, or with Commission precedent
requiring an employer to take the initiative in notifying the
exclusive bargaining representative of a proposed change in a
mandatory subject.
The employer and union agree that Commission precedent defines any
change in hours of work as a mandatory subject of bargaining. The
employer asserts that the parties' collective bargaining agreement
contains a complete waiver of the union's right to notice and
bargaining. The union agrees that the contract has extensive
provisions related to job assignments and work schedules. However,
the union argues that there was no waiver of its right to notice
from the employer and its right to demand effects or impacts
bargaining.
Article 46, "Entire Agreement," of the contract recites in part,
"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." Article 46 must be read
together with Article 38, "Mandatory Subjects." Article 38 provides
that the employer will notify the union's executive director in
writing of "a change with respect to a matter that is a mandatory
subject," and that "the Union may request negotiations on the impact
of these changes on employee's working conditions."
Thus, Article 35, "Management Rights," of the contract permits the
employer to make changes in "the workweek, daily work shift, hours
of work and days off." What the contract gives in Article 35 is
modified in Article 38, which requires the employer to give notice
and, if requested, bargain the effects with the union prior to
making a change.
The exact terms of a collective bargaining agreement have greater
weight than general language in the agreement. The exact terms of
Articles 6 and 35 of the agreement permit the employer to change
hours and work locations, but the exact terms of Articles 38 and 46
require the employer to give pre-change notice to the union and
provide an opportunity to bargain the effects of the change.
Conclusion - Duty to Bargain - Waiver by Contract
The union waived its right to bargain the employer's reorganization
decisions taken in conformance with Articles 6 and 35 of the
agreement. The employer has a duty to give pre-change notice to the
union of an intended change in a mandatory subject of bargaining in
conformance with Articles 38 and 46. After notice, the union may
demand bargaining with respect to the impacts of the planned change.
Employer Direct Dealing/Circumvention
The employer sent a letter to each affected employee seven days
before their change in hours of work, work location(s), and days
off. The employer then discussed the changes with employees and
made some limited adjustments.
An employer must bargain with the union over proposed changes in
wages, hours, and other terms and conditions of employment. An
employer may not negotiate directly with union-represented
employees. However, the parties' contract has specifically
addressed the issue of permanent changes in employee work hours.
Article 6.3(B) and (E) require the employer to give seven calendar
days' written notice directly to individual employees of a permanent
change in employees' workweeks and work schedule. Under Article
6.3(B), the employer is required to consider employees' personal and
family needs.
The contract must be interpreted as a whole, giving meaning and
effect to all of its provisions. Direct communications with
employees can be harmonized with the duty of the employer to bargain
effects of the reorganization with the union. The union can bargain
with the employer over effects of the change, leaving direct
communications between the employer and employees to the seven-day
notice and consideration of personal and family needs.
Conclusion - Employer Direct Dealing/Circumvention
The employer's direct communications with employees in this case was
required by the terms of Article 6.3 of the contract.
FINDINGS OF FACT
1. The Washington State Department of Social and Health Services
(employer) is a public employer within the meaning of RCW
41.80.005(8).
2. The Washington Federation of State Employees (union) is an
employee organization within the meaning of RCW 41.80.005(7).
3. The employer and union are parties to a collective bargaining
agreement effective July 1, 2005, through June 30, 2007,
covering a bargaining unit which includes employees of the
employer's State Operated Living Alternative program.
4. Under the parties' agreement, the union waived its right to
bargain the employer's reorganization decision affecting
employees' workweek, daily work shift, hours of work and days off.
5. The agreement requires the employer to notify the executive
director of the union regarding a proposed change in a
mandatory subject of bargaining. After notice, the union may
request negotiations on the effects or impacts of the change.
6. The employer did not notify the union's executive director of
its planned reorganization, and did not provide the union with
an opportunity to request negotiations concerning the effects
of the reorganization.
7. The employer's notice to affected employees about changes in
hours of work, work location(s), and days off was required by
terms of the agreement.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.80 RCW and Chapter 391-45 WAC.
2. By its actions, as described in Finding of Fact 6, the employer
refused to bargain in violation of RCW 41.80.110(1)(e) and (a).
3. By its actions, as described in Finding of Fact 7, the employer
did not circumvent the union through direct dealing with
employees represented by the union, or violate RCW
41.80.110(1)(e) and (a).
ORDER
The Washington State Department of Social and Health Services, 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 in good faith concerning mandatory
subjects of bargaining when requested to do so by the
exclusive bargaining representative of its employees;
b. Refusing to bargain in good faith with the union
concerning the effects of a decision to change a mandatory
subject, when requested to do so by the union; and
c. In any other manner interfering with, restraining or
coercing its employees in the exercise of their collective
bargaining rights under 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 the Washington Federation of State Employees before
making a change in wages, hours, and other terms and
conditions of employment.
b. Give notice to the executive director of the
Washington Federation of State Employees concerning
the 2005 reorganization changes in the employer's
State Operated Living Alternative program in King
County and, upon request, negotiate in good faith
with the union concerning the effects of the
reorganization changes.
c. 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.
d. Mail a copy of the notice attached to this order to all
employees affected by the 2005 reorganization changes in
the employer's State Operated Living Alternative program
in King County.
e. Notify the complainant, in writing, within 20 days
following the date of this order, as to what steps have
been taken to comply with this order, including the names
of employees who received mail to their residence, and at
the same time provide the complainant with a signed copy
of the notice attached to this order.
f. Notify the Compliance Officer of the Public Employment
Relations Commission, in writing, within 20 days following
the date of this order, as to what steps have been taken
to comply with this order, and at the same time provide
the Compliance Officer with a signed copy of the notice
attached to this order.
ISSUED at Olympia, Washington, this 25th day of May, 2007.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
SALLY B. CARPENTER, 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 19966-U-05-5068
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 changed the workweek, daily work shift, hours of work and days
off for employees in the State Operated Living Alternative (SOLA) program in
King County during the 2005 reorganization, without giving notice to the
Executive Director of the Washington Federation of State Employees. We did
not provide the union with an opportunity to request negotiations concerning
the effects of the reorganization.
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL give notice to the executive director of the union concerning the
2005 reorganization changes in the SOLA program in King County and, upon
request, negotiate in good faith with the union concerning the effects of
the reorganization changes.
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.