City of Seattle, Decision 9938-A (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL BROTHERHOOD OF )
ELECTRICAL WORKERS, LOCAL 77, ) CASE 20776-U-06-5289
) DECISION 9938-A - PECB
Complainant, )
) CASE 20894-U-07-5328
vs. ) DECISION 9939-A - PECB
)
CITY OF SEATTLE, )
)
Respondent. ) DECISION OF COMMISSION
___________________________________)
Robblee Brennan & Detwiler, by Kristina Detwiler, Attorney at
Law, for the union.
City Attorney Thomas A. Carr, by Paul A. Olsen, Assistant City
Attorney, for the employer.
This case comes before the Commission on a timely appeal filed by
the City of Seattle (employer) and a timely cross-appeal filed by
the International Brotherhood of Electrical Workers, Local 77
(union), each seeking review and reversal of certain Conclusions of
Law and Order issued by Examiner Karyl Elinski.(fn:1)
____________________
fn:1 City of Seattle, Decision 9938 (PECB, 2007). The parties do
not appeal the Examiner's conclusion that the employer committed an
unfair labor practice when it unilaterally created a new position
with a different work schedule without providing the union notice
and an opportunity to bargain.
ISSUES PRESENTED
1. Did the employer fail to maintain the dynamic status quo in
violation of RCW 41.56.140(1) or (4) when it did not grant the
bargaining unit employees an ordinance-based wage increase
applicable to unrepresented employees?
2. Did the employer discriminate against or interfere with
bargaining unit employees in violation of RCW 41.56.140(1) or
(3) when it did not grant the employees an ordinance-based wage
increase applicable to unrepresented employees?
3. Did the employer refuse to bargain in violation of RCW
41.56.140(4) when it declined the union's request to bargain the
decision and the effects of the decision to discharge Doug
Knorr, a bargaining unit employee.
For the reasons set forth below, we affirm the Examiner's
conclusions that the employer did not commit any unfair labor
practices when it did not grant bargaining unit employees the
ordinance-based wage increase applicable to unrepresented employees.
We reverse the Examiner's conclusion that the employer refused to
bargain in violation of RCW 41.56.140(4) by declining the union's
request to bargain the decision and the effects of the decision to
discharge Doug Knorr.
STANDARD OF REVIEW
This Commission reviews conclusions of law, applications of law, and
interpretations of statutes de novo. We review findings of fact to
determine whether they support the Examiner's conclusions of law.(fn:2)
C-TRAN (Amalgamated Transit Union, Local 757), Decision 7087-B
(PECB, 2002).
____________________
fn:2 The union filed two separate unfair labor practice complaints
which were consolidated for hearing. The parties determined there
were no material disputed facts and filed stipulated facts in lieu
of holding a hearing. The Examiner incorporated the stipulated
facts into her decision as the Findings of Fact.
ANALYSIS
Applicable Legal Standards
Once a union has filed a representation petition, the employer must
maintain the status quo and must not take unilateral action
regarding wages, hours, or working conditions. Snohomish County
Fire District 3, Decision 4336-A (PECB, 1994); WAC 391-25-140(2).
If the Commission certifies the union as the exclusive bargaining
representative, the obligation to maintain the status quo regarding
all mandatory subjects of bargaining continues until the parties
bargain a change to the status quo. We determine the status quo as
of the date the union filed the representation petition.
In addition to the above "general status quo" obligation, Commission
precedent also requires employers to maintain the "dynamic status
quo." This "dynamic status quo" concept recognizes that
occasionally the status quo is not static and the employer needs to
take action to follow through with changes that were set in motion
prior to the union filing a representation petition. King County,
Decision 6063-A (PECB, 1998). The Commission in King County explained:
If expected by the employees, changes which are part of a
"dynamic status quo" do not disrupt a bargaining relationship or
undermine support for a union. NLRB v. Katz, 369 U.S. 736
(1962). See also Spokane County, Decision 2377 (PECB, 1986).
Thus, where wage or benefit increases are previously scheduled,
it would be unlawful to withhold them just because a
representation petition is filed. See Emergency Dispatch
Center, Decision 3255-B (PECB, 1990). Conversely, if changes the
employees may view as negative merely carry out a "dynamic
status quo" (i.e., actions consistent with previously-existing
policies and practices), no violation will be found.
Operation of the dynamic status quo ensures that petitions do not
block routine, non-discretionary changes to employee working
conditions.
This Commission enforces the duty of employers and unions to bargain
about mandatory subjects through RCW 41.56.140(4) and 41.56.150(4),
and processes unfair labor practices under RCW 41.56.160 and Chapter
391-45 WAC. Parties asserting unfair labor practices bear the
burden of proof. WAC 391-45-270. Where a complainant alleges a
party committed a unilateral change of a mandatory subject of
bargaining, the complainant must establish the existence of a status
quo and a change in the wages, hours, or working conditions. METRO
(Amalgamated Transit Union, Local 587), Decision 2746-B (PECB, 1990).
ISSUES ONE AND TWO: ORDINANCE-BASED WAGE INCREASE
The International Union of Operating Engineers (IUOE) formerly
represented the employer's Construction and Maintenance Equipment
Operators (CMEO). The CMEOs decertified the IUOE in April 2005. On
March 29 and April 28, 2006, the union filed petitions for
representation with the Commission to represent the CMEOs. On July
5, 2006, the Commission certified the union as the exclusive
bargaining representative.
In August of 2005, almost one year before the Commission certified
the union as the exclusive bargaining representative, Seattle Mayor
Greg Nickels signed Ordinance No. 121887 establishing cost-of-living
wage increases for unrepresented employees retroactively to
December of 2004 and prospectively for December of 2005 and December
of 2006. In December of 2004, IUOE had represented CMEOs and the
employees did not receive the ordinance-based retroactive wage
increase. In December of 2005, the CMEOs were unrepresented and
received the ordinance-based wage increase.
In December of 2006, the union represented the CMEOs and the parties
had not completed negotiations for a bargaining agreement. The
employer did not grant the employees the ordinance-based wage
increase. Prior to December of 2006 and before commencing
bargaining, the employer offered to enter into an agreement to allow
for negotiations of retroactive wages.(fn:3)
____________________
fn:3 The employer's offer was consistent with Christie v. Port of
Olympia, 27 Wn.2d 534 (1947).
Application of Legal Standards
The union argues that the employer cannot withhold the
ordinance-based wage increase from the bargaining unit employees
because it is part of the dynamic status quo. The union also
asserts that restricting the increase to non-represented employees
is discriminatory and coercive, alleging that "Employees are
essentially informed by the mere maintenance of the ordinance that
if they choose to be represented by a labor organization, they will
lose certain benefits." In support of its position, the union cites
National Labor Relations Board (NLRB) cases.(fn:4) The union's
arguments find no support in the facts of this case, Commission
precedent, or NLRB precedent. The ordinance is neither part of a
dynamic status quo nor is it discriminatory or coercive.
____________________
fn:4 This Commission may rely upon National Labor Relations Act
precedence where the state collective bargaining laws that this
Commission administers are similar. In re WAC 391-95-010, Decision
9079 (2005) citing Nucleonics Alliance v. WPPSS, 101 Wn.2d 24
(1984).
Status Quo
With respect to scheduled pay increases, when an employer creates an
expectation that employees will receive future increases, the
increases may become part of a dynamic status quo that the employer
must maintain until it and the union negotiate a change. In this
case, the employer did not create an expectation that represented
employees would receive the ordinance-based increase. On its face,
the ordinance applies only to employees who are not represented by
unions. Over the course of the life of the ordinance, the employees
only received the ordinance-based wage increase in December of 2005,
when they were not represented.
The employer maintains discretion to set wages for unrepresented
employees and, in this situation, chose to exercise its discretion
by adopting a cost-of-living increase effective for three years.
The ordinance effectively distinguishes between represented and
unrepresented employees and preserves the union's right to negotiate
pay increases through the collective bargaining process. Although
the ordinance addressing unrepresented employees does not
specifically state that represented employees negotiate their
increases, the ordinance did not need to be so explicit. This
ordinance is restrictive in its application and, as such, cannot
become part of a dynamic quo for represented employees.
In Snohomish County Fire District 3, Decision 4336-A, the union
argued that a cost-of-living increase was a key element in the
employees' ongoing compensation package. The Commission disagreed,
ruling that the employer would have committed an unfair labor
practice had it granted the cost-of-living pay increase outside of
the bargaining process. As the Examiner in King County Library
System, Decision 9039 (PECB, 2005), stated:
Insofar as general wage increases are concerned, once the
status quo obligation commences, employees must look to
negotiations between their union and employer for such wage
increases, not to any further unilateral action by the employer.
In this case, the employer maintained the status quo by only
applying the terms of the ordinance to unrepresented employees and
by allowing represented employees to negotiate pay increases through
the collective bargaining process.
Conclusion
The Examiner correctly concluded that the employer did not refuse to
bargain or otherwise violate RCW 41.56.140(1) or (4) when it did not
grant the ordinance-based wage increase to represented employees.
Discrimination, Interference, Coercion
The Examiner's decision accurately details Commission precedent on
discrimination and interference and we will not repeat the overview
of the law here. The findings of fact present no support for the
union's assertion that the employer's ordinance is discriminatory,
coercive, or interferes with the protected rights of employees or
the union.
With respect to the claim of discrimination, the union cannot
establish that the employer discriminatorily deprived bargaining
unit employees of a right or benefit. The employees lost nothing as
a result of the employer's application of the ordinance, an
ordinance which the employer passed almost one year prior to the
union's certification. The union maintained the right to negotiate
wage increases for employees comparable to, or higher than, the wage
increase set by ordinance for unrepresented employees.
With respect to the interference claim, the record contains no
evidence that employees could reasonably perceive the employer's
actions as a threat of reprisal or force associated with union
activity. In Lynden School District, Decision 6391 (PECB, 1998),
the employer gave unrepresented employees holiday and vacation
benefits at a time when a bargaining representative was organizing a
unit of unrepresented part-time employees who were advocating for
such benefits. The union alleged that the extension of vacation and
holiday benefits to unrepresented employees constituted unlawful
interference with the union's organizing campaign. The Examiner
found no basis for the union's allegations and dismissed the
complaint, noting that there was no legal impediment to the employer
taking unilateral personnel actions regarding its unrepresented
employees.
In this case, the employer did not violate RCW 41.56.140(1) or (3)
by giving unrepresented employees the ordinance-based wage increase
and allowing represented employees to negotiate their wage increases
through the collective bargaining process. Had the employer done
otherwise, it would have committed an unfair labor practice.
Conclusion
The Examiner correctly concluded that the employer did not
discriminate against or interfere with employee rights by not
granting the ordinance-based wage increase to represented employees.
ISSUE THREE: DISCHARGE OF DOUG KNORR
The employer terminated Doug Knorr's employment effective October
22, 2006. The employer took the action pursuant to the Seattle
Municipal Code and City Personnel Rules. At the time of the
employer's actions, the union had been certified as the exclusive
bargaining representative but the parties had not negotiated a
bargaining agreement. The employer did not provide the union notice
or an opportunity to bargain the discharge decision or the effects
of the decision. The union requested to bargain the decision and
the effects and the employer refused. The Examiner concluded that
the employer's actions constituted a refusal to bargain in violation
of RCW 41.56.140(1) and (4). We disagree.
Application of Legal Standards
The union alleges that the employer failed to provide the union with
notice and an opportunity to bargain before it changed the status
quo by discharging Knorr. The union argues that Knorr's employment
was part of the status quo and that the employer was not allowed to
change an individual's employment status without providing advance
notice to the union and an opportunity to bargain. Furthermore, the
union asserts that the employer committed an unfair labor practice
by refusing the union's requests to bargain the discharge decision
and the effects of the decision.
Maintenance of Status Quo
Employee discipline is a mandatory subject of bargaining. As a
result, an employer cannot revise existing, or adopt new,
disciplinary standards without providing the union notice of the
proposed changes and an opportunity to bargain. City of Yakima,
Decision 3503-A (PECB, 1990), aff'd 117 Wn.2d 655 (1991).
Under Commission precedent, however, individual disciplinary
determinations are not mandatory subjects of bargaining. City of
Auburn, Decision 4896 (PECB, 1994). An individual's employment
status is not part of the status quo that employers must maintain
from the time the union files a representation petition until the
parties complete contract negotiations. In City of Auburn, Decision
4896, the union alleged the employer committed an unfair labor
practice when it refused to bargain before unilaterally suspending
an officer for two days without pay during a "hiatus" between
bargaining agreements. In his dismissal of the complaint, the
Executive Director stated that the fact that the general topic of
discipline is a mandatory subject of bargaining:
does not transform the contemplated discipline of a single
bargaining unit member into a mandatory subject of bargaining.
No authority has been cited or found for the proposition that a
public employer subject to Chapter 41.56 RCW is required to
negotiate with the exclusive bargaining representative of its
employee before imposing discipline on him or her.
While individual disciplinary actions are not mandatory subjects of
bargaining, we continue to hold that an employer must maintain the
discipline standards and appeal processes existing at the time a
union files a petition for representation until the parties
negotiate standards and processes through collective bargaining.
The existing standards and processes represent the status quo and
the parties must negotiate any changes to the status quo.
The union points to NLRB cases in support of its position that the
employer must negotiate individual disciplinary action. As
previously noted, this Commission may apply NLRB case precedent in
some situations when we construe Washington's collective bargaining
laws, there are cases where we draw policy distinctions and elect
not to apply NLRB precedent. This is such a case.
NLRB cases address private sector employment relationships where
employers often provide limited, if any, standards for disciplinary
actions or appeal procedures, absent negotiated bargaining
agreements. Often, private sector employers exercise wide
discretion in disciplinary matters and offer employees no procedural
protections from arbitrary employer actions. For example, in
Monterey Newspaper Inc., 2003 WL 259023 (N.L.R.B. Div. of Judges,
2003), an employer unilaterally disciplined employees. The union
objected to the discipline, demanded bargaining over the decision to
discipline the employees, and filed an unfair labor practice
complaint with the NLRB. An administrative law judge held that NLRA
case precedent does not suggest that the NLRB intended to encumber
an employer's day-to-day operations by subjecting the managerial
minutiae or individual discipline to pre-imposition union scrutiny,
and employers are generally afforded considerable discretion in
imposing discipline. However, the ALJ noted that there may be an
obligation for an employer to confer with the union after discipline
is implemented regarding discipline of the employees.
In contrast, most of Washington's public sector employers generally
provide non-represented employees some safeguards from arbitrary
employer actions, including procedural and substantive due process
rights. Although the safeguards and employee protections may not be
as extensive as those the parties eventually negotiate in their
collective bargaining agreements, the safeguards and protections do
represent a different "status quo" for Washington's public sector
employees that we find warrants the Commission taking a path
different from the NLRB.(fn:5)
____________________
fn:5 We are unable to locate any case precedent from the other
state labor relations agencies ruling upon this issue.
In this case, at the time the union filed its petition, section
4.04.260 of the Seattle Municipal Code applied to all regular
employees, including the CMEOs, who had been aggrieved.(fn:6) The
employer maintained the status quo by applying the just cause
standard and appeal process from the Seattle Municipal Code when it
discharged Knorr. The parties stipulated that Knorr was terminated
pursuant to the Seattle Municipal Code and the City Personnel rules
and the union presented no evidence that the employer changed the
standards for discipline or otherwise unilaterally changed any step
of the discipline or appeal process. The Examiner stated:
____________________
fn:6 Under 4.04.260(c), the only time an employee cannot pursue an
appeal to the civil service commission is when that employee agrees
to submit the same grievance to binding arbitration under the terms
of a collective bargaining agreement. Exhibit A.
It is undisputed that the disciplinary action taken against
Knorr was consistent with the employer's discipline practices
as they existed prior to the certification of this bargaining
unit. There is no allegation that the employer made unilateral
changes in its disciplinary practices or that its exercise of
discretion was motivated by anti-union animus.
Despite this, the Examiner articulated a variety of concerns with
the existing discipline process. For example, the Examiner
erroneously concluded that "notably absent from the civil service
rules is the right to have union representation at any stage of the
disciplinary proceedings."(fn:7) The Examiner expressed another
concern that the union had no input into the just cause standard.
It is not clear how these concerns relate to the Examiner's ultimate
conclusion that the employer unlawfully refused to bargain the
discharge decision and its effects. Regardless, these concerns lack
relevance to the issue before the Commission.
____________________
fn:7 The Seattle Municipal Code provides the opportunity for
employees to be represented at hearings by a person of their choosing.
The union's briefing cites to our decision in Asotin County,
Decision 9549-A (PECB, 2007), as support for its position that the
employer unilaterally changed the status quo without bargaining. In
Asotin County, the union alleged the employer unilaterally changed
the just cause standard applicable to employee discipline when it
discharged an employee. In that case, we stated:
During contract negotiations, substantial changes to the terms
and working conditions of employees without first bargaining to
a lawful impasse has a detrimental effect on the terms and
conditions of employment. This is true even where isolated
instances of change occur because alterations of the status quo
tend to create confusion and uncertainty regarding the floor
for bargaining. Furthermore, a unilateral change in the status
quo that results in an employee's termination has a substantial
impact on employees, and isolated instances will be closely
scrutinized.
The case before us does not involve a change in applicable standards
resulting in an employee's termination as was alleged in Asotin
County. Again, in this case, the employer applied the existing
disciplinary standards and appeal process; the employer made no
change to the status quo.
Refusal to Bargain
Upon learning of Knorr's discharge, the union submitted a letter to
the employer requesting to bargain "both the employer's decision and
the impact of said decision to terminate the employment of Doug
Knorr...." The employer responded in writing, refusing to bargain.
The employer noted that because a bargaining agreement had not yet
been negotiated, "the remedy available to Mr. Knorr regarding his
termination is the same remedy that was available to him prior to
the certification of Local 77. The Personnel Rules of the City are
available to Mr. Knorr to appeal his termination."
The union responded by letter arguing that discharge decisions fall
within the bargaining obligation and reiterating its request to
bargain both the decision and the impacts. In response, the
employer reiterated its prior positions, referenced the commencement
of the parties' bargaining, and stated: "I would expect that at the
conclusion of contract negotiations there will be an agreed-upon
grievance procedure in place that will be available for use by Local
77 and its members to address future disciplinary matters."
The Examiner ruled that the employer had an obligation to bargain
both the employer's decision to discharge Knorr and the effects of
the decision. We disagree. As detailed above, we hold that
individual disciplinary decisions are not mandatory subjects of
bargaining. The employer's refusal to bargain its decision to
discharge Knorr was not an unfair labor practice. Additionally, we
hold that under these circumstances, the employer was not required
to bargain the effects of the discharge decision. Knorr maintained
the right to appeal the discharge decision through the existing
Seattle Municipal Code. Through that appeal process, the Seattle
Civil Service Commission may affirm, reverse or modify any personnel
decision, including Knorr's discharge, and any appeal issued by the
Seattle Civil Service Commission may be appealed to superior court.
Exhibit B. That system represented the status quo. Although it
would not have constituted an unfair labor practice for the employer
to bargain with the union in response to the union's request, it was
not required to do so.
The Examiner stated that "termination of Knorr without bargaining
effectively rendered the union impotent in its relationship with the
employer in disciplinary matters." This is inaccurate. The
employer must negotiate with the union, per the union's request,
concerning discipline standards and an appeal or grievance process
for the collective bargaining agreement. Depending upon the
language the parties negotiate, the union may play a significant
role on behalf of employees in future disciplinary actions. During
the period of time before the parties develop their bargaining
agreement, the status quo prevails. The role the union may play in
such situations depends upon the circumstances in each case. Based
upon the record in this case, the Seattle Municipal Code allows
employees to be represented at hearings by a person of their
choosing.
Conclusion
The employer had no duty to bargain its decision to discharge Knorr
or the effects of its decision. As a result, the employer did not
refuse to bargain in violation of RCW 41.56.140(4).
NOW, THEREFORE, it is
ORDERED
1. The Findings of Fact issued by the Examiner are AFFIRMED and
adopted as the Findings of Fact of the Commission.
2. The Conclusions of Law issued by the Examiner are AFFIRMED
except for Conclusion of Law 5(fn:8) which is amended to read as
follows:
____________________
fn:8 The Examiner's decision inadvertently included two
"Conclusions of Law 4"; the existing paragraph four remains
unamended, and we have renumbered the second paragraph number four
as paragraph number five.
5. The City of Seattle had no duty to bargain its
decision to discharge Knorr or the effects of its
decision. As a result, it did not commit a refusal to
bargain violation when it took action as described in
Findings of Fact 10, and 12 through 16.
3. The remedial order issued by the Examiner is AFFIRMED and
adopted by the Commission, except parts 1(b) and 2(c) of the
order which are eliminated.(fn:9)
____________________
fn:9 Pursuant to a recently adopted procedure, the Commission's
compliance officer will provide the employer with the proper Notice
as part of the compliance process.
Issued at Olympia, Washington, the 19th day of February, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
THOMAS W. McLANE, Commissioner
BRADBURN, COMMISSIONER (Concurring in Part, Dissenting in Part): I
concur with the majority's analysis and conclusions on Issues 1 and
2. For reasons of public policy and my view of the law, I must
respectfully dissent from the majority's analysis and conclusion on
issue 3. I think our precedent, the policies served by our
statutes, and relevant National Labor Relations Act precedent
required the employer in this case, upon the union's demand, to
negotiate the effects of bargaining unit member Doug Knorr's
termination.
The majority opinion fully sets out the facts of this case. In
considering Issue 3 I wish to focus on the following:
1. The union was certified on July 5, 2006 by this agency as
representative of the bargaining unit.
2. Knorr's employment was terminated October 20, 2006.
3. The employer rejected the union's November 8, 2006 demand to
bargain the decision and effects of Knorr's termination.
4. The first bargaining session was held November 17, 2006.
Commission Precedent and Public Policy
This case presents an issue of first impression for this agency. I
find some guidance in the Commission's existing precedent directing
public employers and unions representing public employees to
communicate openly and fully with each other, as required by statute
and public policy. See, e.g., Snohomish County, Decision 9834-B
(PECB, 2008); City of Redmond, Decision 8879-A (PECB, 2006).
The Legislature enacted Chapter 41.56 RCW in order to "promote the
continued improvement of the relationship between public employers
and their employees," RCW 41.56.010, by establishing the possibility
of relationships that require joint discussion and agreement on
wages, hours, and working conditions. The fundamental assumption
underlying the statute is that issues are better and more completely
resolved if all interests are represented in the discussions and
decisions.
Therefore, once public employees choose to be represented by a
union, their employer is obliged to deal with that union on
mandatory subjects of bargaining. The fact that a party can
legitimately refuse to agree to a proposal does not entitle that
party to flatly refuse to discuss the proposal and the issue the
proposal addresses. A party must explain the reasons for its
reluctance so that the proposing party can modify its proposal to
accommodate those concerns. We have explained this obligation
numerous times. See, e.g., Snohomish County, Decision 9834-B. Many
of the cases that come before us would likely never have been filed
if the parties had chosen to talk to each other about the issues
bothering one or the other.
I am concerned that the majority's decision on Issue 3 creates an
incentive for public employers to delay bargaining on an initial
contract for as long as possible so they can postpone having to deal
with the union, and maintain unfettered discretion, as long as
possible.(fn:10) Representation in a disciplinary situation is one of
the primary reasons employees seek a union. The majority's decision
places termination, the harshest level of discipline, out of bounds
for union representation until an initial contract is negotiated. A
public employer resistant to having to deal with a union will be
able to discipline as many individuals as desired so long as
negotiations are continuing. And Chapter 41.56 RCW imposes no
deadlines for parties to reach agreement on a contract.(fn:11) How
many employees can be disciplined in such a situation before the
majority is willing to find an employer has violated the law?
____________________
fn:10 My focus is on employers in this case since they have the
authority to terminate bargaining unit members.
fn:11 An unfair labor practice complaint arguing the employer is
bargaining in bad faith takes time to be processed, can be appealed
by right to the Court of Appeals, and the remedy usually is an order
to return to the table.
I am also uncomfortable that the majority is allowing the employer
to undermine the union by refusing to deal with it on an issue where
most employees would expect to be represented. Members of a newly
certified bargaining unit are naturally focused on the progress of
negotiations and expect to see their new union vigorously
representing them. In this case the employees saw a fellow employee
terminated more than three months after certification and the
union's attempt to represent him flatly rebuffed by the employer.
I accept, for the purposes of this case only, the majority decision
that disciplining a single bargaining unit member is not a mandatory
subject of bargaining.(fn:12) However, we have frequently held that,
if the effects of a decision on a non-mandatory subject have
sufficient impact on bargaining unit members, those effects must be
bargained upon request by the union. King County, Decision 9495-A
(PECB, 2008), citing Grays Harbor County, Decision 8043-A (PECB,
2004). I conclude the effects of being terminated are sufficiently
important to the employee that the employer must negotiate them with
a union so demanding.(fn:13)
____________________
fn:12 I note the majority relies on an Executive Director decision
here, not a Commission decision.
fn:13 Matters which could be negotiated include lesser discipline,
the wording of references, handling of available leave, inclusion of
the employee's response in the personnel file, apologies, and so forth.
In reaching its decision, the majority has relied on the fact that
Knorr did not use the civil service appeal process.(fn:14) I think the
terminated employee's decision not to use the civil service appeal
process is irrelevant to the third issue. This case is not about
the rights of a bargaining unit member in the hiatus between
certification and agreement on a new contract.(fn:15) This case is
about the rights and obligations of certified unions and public
employers. Knorr's failure to use the existing civil service appeal
process cannot limit the rights of the union that represents him.
____________________
fn:14 The parties to this case stipulated that "[t]he City of
Seattle maintains a civil service system that applies to its
unrepresented employees." Stipulated Fact V. We have been provided
with part of the Seattle Municipal Code and part of the Civil
Service Rules; nothing in either of these exhibits casts doubts on
the parties' stipulation. Civil service review is by operation of
law available to bargaining unit members as part of the status quo
when the petition was filed.
fn:15 I note my concern that the majority decision may encourage
parties to delay agreement on a new contract in order to exercise
discretion in ways that might not be permitted once a contract is signed.
Sister Agency Precedent
Agency staff asked sister agencies in the United States and Canada
whether they had decided the issue in this case, and received no
positive responses.
National Labor Relations Board Precedent
When the statute we are construing is similar to the National Labor
Relations Act, we are directed to consider the approach of the
National Labor Relations Board. International Association of Fire
Fighters, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978).
Both Chapter 41.56 RCW and the NLRA are established to protect and
enforce employee free choice about whether or not to be represented
by a union. Once employees in an appropriate bargaining unit choose
a union, both this Commission and the Board require their employer
to negotiate with the representative over wages, hours, and working
conditions. RCW 41.56.100; see also Federal Way School District,
Decision 232-A (EDUC, 1977). Both this Commission and the NLRB
require an employer to maintain the status quo existing at the time
of the election until different provisions are negotiated by the
employer and certified union. WAC 391-25-140; Whatcom County,
Decision 8245-A (PECB, 2004).
The issue in this case has been discussed in a 2003 decision by NLRB
Administrative Law Judge Lana Parke which was not appealed. In
Monterey Newspapers. Inc., 2003 WL 259023 (N.L.R.B. Div. of Judges,
2003), a successor employer recognized the incumbent union and
lawfully established initial terms and conditions of employment.
These did not include a just cause requirement for discipline or an
independent review of the employer's disciplinary decisions. The
union demanded an opportunity to bargain over the fact, and type, of
discipline before it was imposed. The employer rejected the union's
contention and continued to exercise total discretion in imposing
discipline on bargaining unit employees.
The NLRB General Counsel and the union argued to ALJ Lana Parke that
the broad discretion exercised by the employer obligated it to
negotiate on demand before disciplining a bargaining unit member.
The employer contended it was only exercising its disciplinary
rules.
Ms. Parke found no "conclusive direction" in Board precedent on the
General Counsel's contention. Monterey Newspapers, citing Oneita
Knitting Mills, 205 NLRB 500 (1973). Ms. Parke differentiated
continuation of an existing program from implementation of an
existing program in a manner determined by employer discretion. In
that case, the employer had a merit increase program before the
employees chose to be represented. After certification, the
employer gave merit increases and exercised total discretion in
their amount and timing. The Board held the employer violated
section 8(a)(5) because the union was entitled to negotiate over
such merit increases.
Ms. Parke concluded in Monterey Newspapers that the employer was not
obligated to inform the union and negotiate the fact and amount of
proposed discipline before it was imposed. She noted that the
employer had regularly accepted "its post-implementation obligation
to confer with the Union, upon request, concerning the discharges,
discipline, or reinstatement of its employees." This is the same
request made in this case by the union and rejected by the employer.
Adoption and Application of Legal Standard
I find it appropriate in this case of first impression to follow
what little NLRB precedent exists. Under both statutes,
certification of a union triggers a set of rights and obligations
for both parties. The union has the right and obligation to
represent the bargaining unit. The employer has the obligation to
negotiate with the union issues which are mandatory subjects of
bargaining. An employer risks being found to have acted unlawfully
when it flatly rejects a union's demand for bargaining because it
denies the union exercise of its statutory rights and it unlawfully
creates and emphasizes the perception of union ineffectiveness and
weakness, and the perception of the employer as all powerful and
without limits on its actions.
The extent of employer discretion is an important element in the
NLRB's consideration of whether an employer violates the law by
acting unilaterally before an initial contract is negotiated. In
the present case, the employer's exercise of disciplinary discretion
is limited by the review available from the Civil Service
Commission, an independent body that possesses the authority to
reverse the termination. This limitation is another reason I
conclude only the effects of the employer's termination of Knorr
must be negotiated with the union.
In addition, I find in the present case that the employer has
refused to negotiate with the union after the termination, contrary
to the behavior of the newspaper owner in the private sector case
discussed above. Here, the employer denied the union its statutory
rights, and resisted the union's exercise of its obligations toward
its bargaining unit members, by flatly rejecting the union's demand
to bargain the effects of Knorr's termination. I respectfully
dissent from the majority's analysis and conclusion on this issue.
PAMELA G. BRADBURN, Commissioner