City of Snoqualmie, Decision 9892 (PECB, 2007)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL ASSOCIATION )
OF FIRE FIGHTERS, LOCAL 4028, )
)
Complainant, ) CASE 20529-U-06-5229
)
vs. ) DECISION 9892 - PECB
)
CITY OF SNOQUALMIE, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent, ) AND ORDER
___________________________________)
Emmal Skalbania & Vinnedge, by Alex J. Skalbania, Attorney at
Law, for the union.
Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, by Lewis
L. Ellsworth, Attorney at Law, for the employer.
Reid, Pedersen, McCarthy & Ballew, by Todd A. Lyon and Michael
R. McCarthy, Attorneys at Law, for the intervenor.
On July 18, 2006, the International Association of Fire Fighters,
Local 4028 (union) filed a complaint charging unfair labor practices
against the City of Snoqualmie (employer). The complaint alleged
that the employer interfered with employee rights and refused to
bargain in violation of RCW 41.56.140(4) by unilaterally reassigning
Class B building inspection work performed by the employer's fire
fighters to another bargaining unit. On March 14, 2007, Teamsters
Union Local 763 (intervenor) filed a motion to intervene. The
intervenor represents building inspectors employed by the employer.
On March 15, 2007, the undersigned Examiner granted the motion for
intervention. A hearing in this matter was held on May 10, 2007,
and the parties filed post-hearing briefs on July 27, 2007, to
complete the record.
ISSUE
Did the employer refuse to bargain when it unilaterally assigned its
building department employees to perform Class B building
inspections that had previously been done by the employer's fire
department employees?
The Examiner finds that the employer only temporarily assigned the
Class B inspections to its fire fighters and its failure to bargain
its decision to reassign the Class B inspections back to its
building department does not constitute not an unfair labor practice.
APPLICABLE LEGAL PRINCIPLES
The Public Employees' Collective Bargaining Act, Chapter 41.56 RCW,
requires a public employer to engage in collective bargaining with
the exclusive bargaining representative of its employees. RCW
41.56.030(4). That section establishes that the employer and the
bargaining representative of its employees have the "mutual
obligation . . . to meet at reasonable times . . . to confer and
negotiate in good faith, and to execute a written agreement with
respect to . . . wages, hours and working conditions . . . ." The
preservation of bargaining unit work has repeatedly been found to be
a mandatory subject of bargaining as it has the potential to have an
impact on both the wages and hours of bargaining unit employees.
Furthermore, the term "working conditions" can include the
preservation of the scope of work historically performed by the
employees in a bargaining unit, and the bargaining obligation would
thus apply where an employer seeks to remove work from a bargaining
unit. City of Tacoma, Decision 6601 (PECB, 1999).
The Commission has uniformly held since 1978 that skimming, a
transfer of bargaining unit work away from the unit without
prior bargaining, is an unfair labor practice. South Kitsap
School District, Decision 472 (PECB, 1978). The complainants
right to the disputed work is the first factor that must be
established to prevail on a skimming allegation. King County
Fire Protection District 36, Decision 5352 (PECB, 1995).
Kitsap County Fire District 7, Decision 7064-A (PECB, 2001)
Skimming of bargaining unit work occurs when the work is transferred
to other employees of the same employer outside of an existing
bargaining unit. Contracting out occurs when the work is
transferred to employees of another employer. City of Seattle,
Decision 4163 (PECB, 1992). Either skimming or contracting out can
be an unfair labor practice if an employer fails to provide notice
and an opportunity to bargain before it unilaterally transfers
bargaining unit work to non-bargaining unit employees.
As referenced in Kitsap County Fire District 7, Decision 7064-A, one
of the key elements of proof in a skimming case is whether the work
at issue is bargaining unit work. Bargaining unit work is defined
as the work historically performed by bargaining unit employees.
Where an employer assigns bargaining unit employees to perform a
certain body of work, that work attaches to the unit and becomes
bargaining unit work. The complainant in a skimming cases has the
burden of proving that the work had attached to the bargaining unit
and that it was removed from the bargaining unit without bargaining
in good faith.
In addition to this first inquiry, the Commission has also
considered five factors when determining whether a duty to bargain
exists concerning the transfer of bargaining unit work:
1. The previously established operating practice as to the
work in question (i.e., had non-bargaining unit personnel
performed such work before?);
2. Whether the transfer of work involved a significant
detriment to bargaining unit members (e.g., by changing
conditions of employment or significantly impairing
reasonably anticipated work opportunities);
3. Whether the employer's motivation was solely economic;
4. Whether there 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.
Clover Park School District, Decision 2560-B (PECB, 1988); Port of
Seattle, Decision 7271-B (PECB, 2003); and Skagit County, Decision
8746-A (PECB, 2006).
ANALYSIS
In the summer of 2002, the employer began assigning to the fire
fighters represented by the union, some Class B building inspection
work. Prior to this time all class B inspection work had been done
by employees in the building department who are represented by the
intervenor. Class B inspection work involves annual inspections of
businesses with less than a 50 person occupancy to determine if the
City's building codes are being followed.
This Class B inspection work can be contrasted with "pre-fire"
inspections which the fire department has done continuously and
which was not impacted by the addition of the Class B inspection
work. At the time of the transfer of some of the Class B
inspections in 2002 to the fire fighters, the building department
employees continued to do all other building inspections.(fn:1) In
addition, the fire fighters were not doing all Class B inspections.
Business that had repeatedly failed previous inspections and
inspections of government buildings were retained by building
department employees. Testimony from city officials explained that
the staff of the building department was not able to keep up with
inspection of new construction because of the growth of Snoqualmie
Ridge, an area adjacent to the City. The Snoqualmie Ridge
development included 1,500 homes to be built between 2000 and 2010.
But the building rate was actually increased and the final
completion date was 2005.
____________________
fn:1 Other inspections done buy the building department include
assembly occupancies (churches, or other facilities that serve
food), E occupancies (educational); F occupancies (factories), H
occupancies (hazardous facilities such as manufacturing dynamite), I
occupancies (institutional), M occupancies (retail), R occupancies
(residential), S occupancies (storage) and U occupancies (radio
towers and all other constructions not listed above).
On January 12, 2006, the employer notified the fire fighters that it
was transferring the Class B inspection work back to the building
department employees. By 2006 the employer had hired two additional
building inspectors and the new construction at Snoqualmie Ridge was
completed or nearing completion. On February 24, 2006, the union
wrote the employer telling them that if it unilaterally removed the
Class B inspection work from the fire fighters, such removal would
be challenged as an unfair labor practice. The union requested to
bargain the decision to transfer the Class B work. On March 1,
2006, the employer replied and offered to bargain any impacts
connected with the removal of the work. The union replied on March
13, 2006, stating that the offer to bargain impacts was
insufficient. This charge of unfair labor practices was filed by
the union on July 18, 2006.
Bargaining Unit Work
As discussed above, one of the elements of proof required in a
skimming case is for the complainant to establish that the work in
question is bargaining unit work. In this case, the union did not
fulfill this initial burden of proof. Three factual elements
establish that the inspection work did not become the permanent work
of the fire fighters, and was never intended to become such.
First, Class B inspection work was not work that the fire department
had historically done, except for the three years between the summer
of 2002 and January of 2005. Prior to 2002, the fire department had
consistently done what is termed "pre-fire" inspections, but had
never done the types of fire or building inspections that had
historically been done by the building department.
Second, according to the testimony of Thomas Swasey, a building
inspector with the employer since 2000, he was the person who
decided which Class B inspections would be done by the fire fighters
and which he would do himself. Swasey testified that in addition to
preparing the schedule for the fire fighter Class B inspections, he
did inspections of Class B government buildings and Class B code
violators as those inspections were more complex. Given this
partial delegation of the Class B work, if some Class B inspections
were to become a permanent part of fire fighter bargaining unit work
while some Class B work remained as a permanent part of building
inspector unit work, this could result in a continuous source of
conflict between the two bargaining units. Swasey also trained the
fire fighters in the Class B inspection work. During the three and
one-half years that the fire fighters did the Class B inspections,
he served as a resource for questions from the fire fighters. Thus,
the Class B inspection work was clearly under the supervision of the
building department.
Third and finally, testimony from employer officials established
that the union was notified from the inception that the transfer of
the Class B inspection work was temporary. At the time of the
transfer of the work, Bob Rowe, the Deputy Fire Chief testified that
he met with the Building Official to "formulate a plan to have fire
fighters assist the building inspectors with certain small fire
inspections, referred to as 'Class B' inspections." Rowe testified
that he remembered subsequently telling the fire fighters that the
assignment of Class B work was temporary until the building
department could increase its staff or until the construction slowed
down and the building department could handle all of the
inspections. He specifically remembered that the vice president of
the union was present when the temporary nature of the inspections
was discussed.
This evidence of the temporary nature of the transfer of Class B
work was in concert with the circumstances of the initial decision
to transfer work between city employees that was made by the
employer. Uncontested evidence was presented that the community
experienced an enormous increase in new buildings, including
residences and commercial buildings, in a matter of several years.
Furthermore, the original plan to complete the building at
Snoqualmie Ridge was speeded up from its original completion date of
2010 to 2005, thus putting even more pressure on the building
department to complete new building inspections. The fact that the
new building projects did have a completion date and that in the
meantime, the employer had hired two new building inspectors, also
supports the intended duration of the work transfer.
The Five Factor Test
Examining the five factors recited in the Commission's decision in
Port of Seattle, Decision 7271-B, also proves that the union's claim
of skimming of bargaining unit work must fail.
First Factor - Previous History
It is clear from the record that the building department previously
did the Class B inspections along with all the other inspections
done by the employer. Furthermore, during the three and one-half
year period that the fire fighters did the Class B inspections, the
building department continued to do some of those inspections and
did all of the inspection enforcement.
Second Factor - Detriment to the Fire Fighters
The record is clear that the impact on the fire fighters bargaining
unit is not significant. According to the testimony of Lt. Steve
Reno, president of the union, when the Class B inspections were
usually completed by May of each year and the loss of the
inspections did not result in any loss of pay, hours of work, or a
decrease in the size of the bargaining unit or any significant
impact on conditions of work. Reno further testified that each of
the three fire fighter shifts works 8,000 hours each year.
Approximately 24 hours of that time was spent doing the Class B
inspection work. In fact, Reno stated that the major loss to the
bargaining unit was that the employer's decision was detrimental to
moral.
Third Factor - Employer Motivation
It is also clear from the testimony presented that the employer's
motive in its decision to initially transfer the Class B inspections
was the dramatic increase in the work load for the building
department. Although the union provided testimony that contained
some supposition that the decision to transfer the Class B
inspection work back to the building department was economically
motivated, the evidence did not confirm this allegation. The fact
of the employer's having, in the interim, hired two additional
building inspectors, also undercuts an economic motivation for the
decision. The employer had a legitimate business motivation for
transferring the work.
Forth Factor - Opportunity to Bargain
After the employer decided to transfer the Class B inspection work,
the union demanded to bargain. The employer declined to bargain the
decision to transfer the work, but gave the union an opportunity to
bargain the effects of its decision. The union refused.
Fifth Factor - Fundamentally Different Work
The analysis of this final factor results in a draw. The Class B
inspection work was formerly done by the building department, was
managed by the building department when it was done by the fire
fighters, and is absolutely consistent with the other inspection
work done by that department. On the other hand, the Class B work
was also not entirely different from the pre-fire inspection work
that has always been done by fire fighters. Thus this fifth factor
provides no additional persuasive evidence in this matter and the
cumulative evidence of the five factors test is that the employer
did not commit and unfair labor practice.
CONCLUSION
The union failed to prove that the Class B inspection work was ever
intended to become the permanent work of the fire fighter bargaining
unit. Class B inspection work was not ever entirely the work of the
fire fighter bargaining unit. The employer had a legitimate
business reason for transferring the work. The union did not
establish that its bargaining unit work was skimmed to another
bargaining unit. Under the five factor test, the employer did not
have a duty to bargain its decision reassign Class B inspection work
to it building inspectors. In making that reassignment, the
employer did not fail to bargain in good faith nor did it interfere
with the rights of its employees as protected by statute.
FINDINGS OF FACT
1. The City of Snoqualmie is a public employer within the meaning
of RCW 41.56.030(1).
2. The International Association of Fire Fighters, Local 4028, a
bargaining representative within the meaning of RCW
41.56.030(3), is the exclusive bargaining representative of all
non-supervisory fire fighters employed by the employer.
3. Teamsters Union Local 763, a bargaining representative within
the meaning of RCW 41.56.030(3), is the exclusive bargaining
representative of all non-supervisory employees in the
employer's building department.
4. The Snoqualmie Ridge development was scheduled to build 1,500
homes between 2000 and 2010. The original building completion
schedule was accelerated and completed in 2005.
5. A part of the work traditionally done by the fire fighters is
pre-fire inspections. In 2002, in response to the heavy
workload placed upon the building department because of the
Snoqualmie Ridge development, the employer temporally assigned
some Class B inspections, previously done by the building
department, to the fire fighters' inspection work.
6. In January 2006, because the Snoqualmie Ridge development was
complete and the building department had added two additional
building inspectors, the employer notified the fire fighters
that it was transferring the Class B inspection work back to
the building department.
7. In February 2006 the union requested to bargain the employer's
decision to return the Class B inspection work to the building
department. The employer declined to do so but offered to
bargain the effects of its decision. The union declined that
offer.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter pursuant to Chapter 41.56 RCW and Chapter 391-45 WAC.
2. By transferring work temporarily assigned to the employer's
fire fighters back to employees of its building department as
described in Finding of Fact 6, the employer did not refuse to
bargain in violation of RCW 41.56.140(4).
3. By transferring work temporarily assigned to the employer's
fire fighters back to employees of its building department as
described in Finding of Fact 6, the employer did not interfere
with employee rights in violation of RCW 41.56.140(1).
ISSUED at Olympia, Washington, this 16th day of November, 2007.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
WALTER M. STUTEVILLE, 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.