Lake Stevens School District, Decision 9840 (PECB, 2007)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
PUBLIC SCHOOL EMPLOYEES OF )
WASHINGTON, )
)
Complainant, ) CASE 20085-U-06-5111
)
vs. ) DECISION 9840 - PECB
)
LAKE STEVENS SCHOOL DISTRICT, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Public School Employees of Washington, by Eric T. Nordlof,
Attorney at Law, for the union.
Victor Four Labor Relations, by Jerry Gates, Labor Relations
Consultant, for the employer.
On January 17, 2006, Public School Employees of Washington (union)
filed a complaint charging unfair labor practices with the Public
Employment Relations Commission, naming Lake Stevens School District
(employer) as respondent. The union is the exclusive bargaining
representative of a bargaining unit made up of several types of
classified school employees, including maintenance workers.
A preliminary ruling was issued on March 9, 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). The employer answered on March 30, 2006.
Examiner J. Martin Smith held a hearing on February 8, 2007. The
parties filed post-hearing briefs.
ISSUES PRESENTED
1. Did the employer fail to bargain a mandatory subject of
bargaining when it announced a change of its policy on use of
employer vehicles for commuting between an employee's home and
assigned work site?
2. Did the union fail to request to bargain the employer's policy
change on the use of employer vehicles for commuting between an
employee's home and assigned work site and thereby waive by
inaction its right to bargain over the change?
The Examiner finds that the policy on the use of employer vehicles
for commuting between an employee's home and assigned work site was
a past practice and a mandatory subject of bargaining. The employer
made a unilateral change to a policy which is a mandatory subject of
bargaining. The Examiner finds that the union received actual,
timely notice of the change, that an opportunity for meaningful
bargaining existed and that the employer did not present the union
with a fait accompli. The union failed to request to bargain the
employer's policy change and thereby waived by inaction its right to
bargain over the change. 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) are not found and the complaint is dismissed.
APPLICABLE STANDARDS
Collective Bargaining Obligations
The parties in this case bargain collectively pursuant to the Public
Employees' Collective Bargaining Act, Chapter 41.56 RCW. Their duty
to bargain is defined in RCW 41.56.030(4), as follows:
"Collective bargaining" means . . . 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.
That duty is enforced through RCW 41.56.140(4) and unfair labor
practice proceedings under RCW 41.56.160 and Chapter 391-45 WAC.
Where an unfair labor practice is alleged, the complainant has the
burden of proof. WAC 391-45-270(1)(a). The burden to establish
affirmative defenses lies with the party asserting the defense. WAC
391-45-270(1)(b). The parties' collective bargaining obligations
require that the status quo be maintained regarding all mandatory
subjects of bargaining, and employers are prohibited from
unilaterally changing mandatory subjects of bargaining except where
such changes are made in conformity with the collective bargaining
obligation or the terms of a collective bargaining agreement. City
of Yakima, Decision 3501-A (PECB, 1998), aff'd, 117 Wn.2d 655
(1991); Spokane County Fire District 8, Decision 3661-A (PECB,
1991); City of Tacoma, Decision 4539-A (PECB, 1994).
A complainant alleging a "unilateral change" must establish the
relevant status quo. Municipality of Metropolitan Seattle, Decision
2746-B (PECB, 1989). The bargaining obligation allows for changes
to be made, but only after first giving notice to the exclusive
bargaining representative and providing that organization with a
meaningful opportunity to bargain the subject. South Kitsap School
District, Decision 472 (PECB, 1978) (citing Fibreboard Paper
Products Corp. v. NLRB, 379 U.S. 203 (1964)). This notice must be
timely, giving sufficient time in advance of the actual
implementation of a change to allow a reasonable opportunity for
bargaining between the parties. City of Vancouver, Decision 808
(PECB, 1980). Such a requirement affords the union the opportunity
to explore all the possibilities, provide counter-arguments and
offer alternative solutions or proposals regarding the issue raised
by the proposed change. Spokane County, Decision 2377 (PECB, 1986).
The respondent has the burden of proving that actual notice was
given within a time period in which the exclusive bargaining
representative could take effective action on behalf of the affected
employees. City of Tukwila, Decision 2434-A (PECB, 1987).
Waiver by Inaction
A union may waive, through inaction, a unilateral change in a
mandatory subject of bargaining implemented by an employer, if the
union was afforded notice and an opportunity to bargain upon the
matter. Lake Washington Technical College, Decision 4721-A (PECB,
1995). A specific and timely request for bargaining will generally
support a finding that there has been no waiver by inaction, but
union silence will generally support finding a waiver by inaction.
Seattle School District, Decision 5755-A (PECB, 1998). Where,
however, an employer presents the union with a fait accompli, no
waiver by inaction will be found. City of Tukwila, Decision 2434-A
(PECB, 1987).
Fait Accompli
In determining whether a fait accompli exists, that is, whether an
already completed action has occurred, the Commission's focus is on
the circumstances as a whole, and on whether an opportunity for
meaningful bargaining existed. Seattle School District, Decision
5733-B (PECB, 1998). In Lake Washington Technical College, Decision
4721-A (PECB, 1995), the Commission held that:
If the union is adequately notified of a contemplated change at
a time when there is still an opportunity for bargaining which
could influence the employer's planned course of action, and
the employer's behavior does not seem inconsistent with a
willingness to bargain if requested, then a fait accompli
should not be found.
If notice is provided in too short a time before implementation of
the proposed change, a reasonable opportunity for bargaining between
the parties does not exist.
A fait accompli may also be found where the decision to make a
change had already been determined when the employees were notified
of the change. City of Moses Lake, Decision 6328 (PECB, 1998).
However, where a fait accompli is based on an employer having made a
decision to make a change, the "decision" must be more than a
contemplated change. The circumstances as a whole must indicate to
the union that a final decision had been made and that no
opportunity for meaningful bargaining existed. See Seattle School
District, Decision 5733-B (PECB, 1998).
APPLICATION OF THE STANDARDS
Issue 1: Unilateral Change
As discussed above, a complainant alleging a unilateral change must
establish (1) the existence of a relevant status quo or past
practice; (2) that the relevant status quo or past practice was a
mandatory subject of bargaining; (3) that notice and an opportunity
to bargain the proposed change was not given or that notice was
given, but an opportunity to bargain was not afforded and/or the
change was a fait accompli; and (4) that there was a change to that
status quo or past practice. A respondent charged with making a
unilateral change may establish a waiver by inaction if the union
was afforded notice and an opportunity to bargain upon the matter.
Element 1: The employer's policy concerning the use of employer
vehicles for commuting between an employee's home and assigned
work site was a past practice.
A past practice may occur where, in a course of the parties'
dealings, a practice is acknowledged by the parties over an extended
period of time, becoming so well understood that its inclusion in a
collective bargaining agreement is deemed superfluous. Kitsap
County, Decision 8893-A (PECB, 2007). Lake Stevens is a rural
school district with several schools along one major highway (US 2).
Because the school district has several facilities along this
general route, it was convenient and efficient for maintenance
employees not to have to drive first to the high school to pick up
their vehicles. The union testified, and the employer did not
dispute, that the practice of using employer vehicles for commuting
between an employee's home and assigned work site had been in
existence for at least 14 years. The employer's policy concerning
the use of employer vehicles for commuting between an employee's
home and assigned work site is thus determined to be a past practice.
Element 2: The relevant past practice was a mandatory subject
of bargaining.
Mandatory subjects of bargaining include matters that directly
impact the wages, hours or working conditions of bargaining unit
employees. City of Pasco, Decision 4695-A (PECB, 1994). The
Commission has held that a past practice of allowing employees to
use employer owned vehicles to commute to and from their home/work
site is a mandatory subject of bargaining. See City of Brier,
Decision 5089-A (PECB, 1995). In this case, the past practice of
allowing the use of employer vehicles for commuting between an
employee's home and assigned work site is a mandatory subject of
bargaining.
Element 3: Notice and an opportunity to bargain was afforded to
the union.
On December 6, 2005, a memo was issued to all maintenance employees
which stated in relevant part that "[e]ffective February 1, 2006,
the maintenance vans will no longer be assigned to a staff member on
a 24-hour basis. They will be parked and locked in the secured
maintenance parking lot each day after work."
The union asserts that the employer did not provide direct notice to
the union concerning the change in use of employer vehicles for
commuting between an employee's home and assigned work site because
"the union was not given notice of the employer's decision before it
was communicated to the employees." The Commission has recently
addressed a similar adequate notice situation in City of Edmonds,
Decision 8798-A (PECB, 2005). In that case the union argued that
two notices of a change were ineffective because they were not
addressed directly to the union. The Commission disagreed, holding
that:
Formal notice is not required. In the absence of formal
notice, however, it must be shown that the union had actual,
timely knowledge of the contemplated change. The Commission's
focus should be on the circumstances as a whole, and on whether
an opportunity for meaningful bargaining existed.
City of Edmonds, Decision 8798-A (PECB, 2005)(citations omitted).
Where notice is not formally given to a union, however, the
responding employer has the burden of proving that actual notice was
given within a time frame in which the exclusive bargaining
representative could take effective action on behalf of the affected
employees. City of Tukwila, Decision 2434-A (PECB, 1987). In the
present case, the bargaining unit's union representative, Ed Wolf,
testified that he received a copy of the employer's December 6,
2005, memo to the maintenance employees "shortly after the December
6th date." In any case, the union was certainly on notice when it
filed this unfair labor practice complaint on January 17, 2006. The
employer's memo stated that they intended to change the vehicle
policy on February 1, 2006. While a date certain cannot be
ascertained from the union's testimony that it received the memo
"shortly after the December 6th date," it is clear that the union
had actual notice of the contemplated change with sufficient time to
have demanded bargaining. The union could have taken effective
action on behalf of the impacted bargaining unit employees.
The union also asserts that the "employer made a unilateral decision
and implemented it before the union had the opportunity to assert
its bargaining rights." The union's assertion is that the notice
was presented as a fait accompli because the December 6, 2005 memo
announced a decision that had already been made and included an
effective date of February 1, 2006. The union is correct that a
fait accompli may be found where the decision to make a change had
already been determined when the employees were notified of the
change. City of Moses Lake, Decision 6328 (PECB, 1998). However,
where a fait accompli is based on an employer having made a decision
to make a change, the "decision" must be more than a contemplated
change. The circumstances as a whole must indicate to the union
that a final decision had been made and that no opportunity for
meaningful bargaining exists. See Seattle School District, Decision
5733-B (PECB, 1998). A notice that contains an effective or
"activation" date does not, standing alone, indicate that a final
decision has been made nor that an employer is unwilling to bargain.
In order for an employer to give a union notice of a contemplated
change, it must have come to some sort of a "decision" as to when it
intends to make the change. The employer's December 6, 2006, memo
did not indicate that the effective date was not to be bargained nor
that the employer was unwilling to bargain over the decision and/or
its effects upon request. The union received actual notice of the
employer's intended change with ample time for the union to request,
and to accomplish, bargaining over the issue.
In summation, the Examiner finds that the union received actual,
timely notice of the contemplated change in use of employer vehicles
for commuting between an employee's home and assigned work site and
that an opportunity for meaningful bargaining over the issue
existed. The employer did not present the union with a fait accompli.
Element 4: There was a unilateral change to the past practice.
Effective February 1, 2006, the employer's policy concerning the use
of employer vehicles for commuting between an employee's home and
assigned work site was changed. This was a unilateral change to a
past practice concerning a mandatory subject of bargaining.
Conclusion On Issue 1
The union has established that the employer's policy concerning the
use of employer vehicles for commuting between an employee's home
and assigned work site was (1) a past practice; (2) a mandatory
subject of bargaining and (3) that the employer made a unilateral
change to this mandatory subject of bargaining. However the union
did not establish that notice and an opportunity to bargain the
proposed change was not given or that notice was given but an
opportunity to bargain was not afforded and/or the change was a fait
accompli. The bargaining obligation allows for changes to be made,
but only after first giving notice to the exclusive bargaining
representative and providing that organization with a meaningful
opportunity to bargain the subject. South Kitsap School District,
Decision 472 (PECB, 1978) (citing Fibreboard Paper Products Corp. v.
NLRB, 379 U.S. 203 (1964)). The Examiner finds that the union
received actual, timely notice of the contemplated change and that
an opportunity for meaningful bargaining existed. The employer did
not, under these facts, present the union with a fait accompli.
Issue 2: Waiver by Inaction
A union may waive, through inaction, a unilateral change in a
mandatory subject of bargaining implemented by an employer if the
union was afforded notice and an opportunity to bargain upon the
matter. Lake Washington Technical College, Decision 4721-A (PECB,
1995). As discussed above, the union received actual, timely notice
of the contemplated change and an opportunity for meaningful
bargaining concerning the employer's intended change existed. Union
representative Wolf was asked at the hearing whether, after
receiving or becoming aware of the memo concerning this change, he
had contacted "anyone at district administration or any district
representatives with a demand to bargain?" Wolf responded "No." No
evidence was presented that, after becoming aware of the employer's
intended change to the vehicle policy, the union took any action
concerning the employer's intended change other than the filing of
this unfair labor practice complaint.
The Commission has held that a "specific and timely request for
bargaining will generally support a finding that there has been no
waiver by inaction, while union silence will generally support
finding a waiver by inaction." Seattle School District, Decision
5755-A (PECB, 1998). In this case, the union never demanded to
bargain. The union did not claim that the employer ever refused to
bargain or that the employer indicated in any way an unwillingness
to do so upon request. Instead of demanding to bargain once it had
received notice of the employer's contemplated change, the union
filed this unfair labor practice. As in City of Edmonds, Decision
8798-A (PECB, 2005), "the union assumed it had been presented with
an illegal fait accompli, and filed the unfair labor practice
complaint now before us. As to this assertion, the union slept on
its rights at its own peril."
Conclusion on Issue 2
The union was afforded notice and an opportunity to bargain upon the
matter but failed to make a specific and timely request to do so.
The union waived, through inaction, its right to bargain over the
employer's change to the policy on the use of employer vehicles for
commuting between an employee's home and assigned work site.
FINDINGS OF FACT
1. Lake Stevens School District is a public employer within the
meaning of RCW 41.56.030(1).
2. Public School Employees of Washington, a bargaining
representative within the meaning of RCW 41.56.030(3), is the
exclusive bargaining representative of all classified employees
in the following general job classification: Maintenance, Food
Service, Technology and Paraeducators.
3. For at least 14 years prior to the filing of this complaint,
the employer had a vehicle policy that allowed maintenance
employees to use employer vehicles for commuting between an
employee's home and their assigned work site.
4. On December 6, 2005, the employer sent a memo to all
maintenance employees stating that effective February 1, 2006,
the vehicle policy would be discontinued.
5. "Shortly after" December 6, 2005, but before January 17, 2006,
the union had actual notice of the December 6, 2005, vehicle
policy memo.
6. The union never demanded to bargain over the employer's
announced change to the vehicle policy.
7. The employer did not refuse, nor indicate an unwillingness, to
bargain over the change to the vehicle policy.
8. On February 1, 2007, the employer discontinued the vehicle
policy that allowed maintenance employees to use employer
vehicles for commuting between an employee's home and their
assigned work site.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter pursuant to Chapter 41.56 RCW.
2. The employer's vehicle policy was a past practice under the
duty to bargain in RCW 41.56.030(4).
3. The employer's vehicle policy was a mandatory subject of
bargaining under the duty to bargain in RCW 41.56.030(4).
4. By not exercising its bargaining rights under RCW 41.56.030(4)
the union waived by inaction its right to bargain over the
change to the employer's vehicle policy.
5. The employer did not interfere with employee rights in
violation of RCW 41.56.140(1) nor refuse to bargain in
violation of RCW 41.56.140(4).
ORDER
Based upon the foregoing and the record as a whole, it is ordered
that the complaints of unfair labor practices, as charged in the
above entitled action, are hereby DISMISSED.
Issued at Olympia, Washington, on the 24th day of August, 2007.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
J. MARTIN SMITH, 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.