City of Seattle, Decision 9938 (PECB, 2007)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL BROTHERHOOD OF )
ELECTRICAL WORKERS, LOCAL 77, ) CASE 20776-U-06-5289
) DECISION 9938 - PECB
Complainant, )
) CASE 20894-U-07-5328
vs. ) DECISION 9939 - PECB
)
CITY OF SEATTLE, ) CONSOLIDATED
) FINDINGS OF FACT,
Respondent. ) CONCLUSIONS OF LAW,
) AND ORDER
___________________________________)
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.
On November 27, 2006, the International Brotherhood of Electrical
Workers, Local 77 (union) filed a complaint charging unfair labor
practices with the Public Employment Relations Commission, naming
the City of Seattle (employer) as respondent. The union was
certified by the Commission on July 5, 2006, as the exclusive
bargaining representative of construction and maintenance equipment
operators and senior equipment operators in the employer's Public
Utilities, Parks, and Transportation departments. A preliminary
ruling was issued finding that the complaint stated causes of action
for employer interference with employee rights and refusal to
bargain, by breach of its good faith bargaining obligations in
failing to respond to a bargaining demand concerning the termination
of Doug Knorr, and by its unilateral change in employee work
schedules without providing an opportunity for bargaining.
On January 30, 2007, the union filed an additional complaint
charging unfair labor practices naming the employer as respondent.
A preliminary ruling was issued finding that the complaint stated
causes of action for employer interference with employee rights,
discrimination in reprisal for protected union activities, by breach
of its good faith bargaining obligations in failing to maintain the
dynamic status quo of granting annual cost-of-living wage increases
after the union was certified as exclusive bargaining
representative. The complaints were consolidated for hearing before
Examiner Karyl Elinski. The parties determined that there were no
material facts in dispute and filed stipulated facts in lieu of a
hearing. The parties submitted post-hearing briefs.
ISSUES PRESENTED
1. Did the employer unilaterally change the dynamic status
quo when it failed to pay a general wage increase to
employees in a newly-formed bargaining unit?
2. Did the employer discriminate and/or interfere with the
union's rights when it failed to pay a general wage
increase to employees in a newly-formed bargaining unit?
3. Did the employer unilaterally change the status quo when
it placed Joe Primacio in a five-day, eight-hour shift
position?
4. Did the employer refuse to bargain its decision, and the
effects of its decision, to terminate Doug Knorr?
During the pendency of its representation petition and after the
union was certified as the exclusive bargaining representative, the
employer was prohibited from unilaterally changing the terms and
conditions of employment without first providing notice to the union
and an opportunity to bargain. The Examiner dismisses the union's
complaint with regard to the 2006 general wage increase, as the
increase was not part of the dynamic status quo, and the employer
did not have a duty to pay the increase. The Examiner rules that
the employer committed an unfair labor practice when it created a
five-day, eight-hour shift position for one bargaining unit employee
in contravention of the unit's existing practice of four-day,
ten-hour shift schedules. The Examiner further rules that the
employer committed an unfair labor practice by failing to bargain
its decision, and the effects of its decision, to terminate Doug Knorr.
APPLICABLE LEGAL STANDARDS
A. The Parties' Collective Bargaining Obligations
The parties 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 the performance of the mutual
obligations of the public employer and the exclusive bargaining
representative to meet at reasonable times, to confer and
negotiate in good faith, and to execute a written agreement
with respect to grievance procedures and collective
negotiations on personnel matters, including wages, hours and
working conditions . . . .
A public employer's duty to bargain is enforced through RCW
41.56.140(4) and unfair labor practice proceedings under RCW
41.56.160 and Chapter 391-45 WAC. The complainant alleging an
unfair labor practice has the burden of proof. WAC
391-45-270(1)(a).
1. The General Status Quo
Once a union is certified as the exclusive bargaining representative
of an appropriate bargaining unit, the parties' collective
bargaining obligations require the employer and union to maintain
the status quo regarding all mandatory subjects of bargaining. This
is referred to as the "general status quo" obligation. 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. Where a new bargaining unit is concerned, the
relevant status quo is determined as of the date the union filed its
petition for investigation of a question concerning representation.
City of Yakima, Decision 3503-A (PECB, 1990), aff'd, 117 Wn.2d 655
(1991); Spokane County Fire District 9, 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.
METRO (Amalgamated Transit Union, Local 587), Decision 2746-B
(PECB, 1990).
WAC 391-25-140(2) provides:
Changes of the status quo concerning wages, hours or other
terms and conditions of employment of employees in the
bargaining unit are prohibited during the period that a
petition is pending before the commission under this chapter.
This rule applies from the date a representation petition is filed
up to the point that either the representation petition is dismissed
or a union is certified as the exclusive bargaining representative.
After a certification is issued by the Commission, the obligation to
maintain the status quo continues uninterrupted, by means of the
parties' collective bargaining obligations, as discussed above.
2. Dynamic Status Quo
In addition to the "general status quo" obligation there is also a
"dynamic status quo" obligation. Both terms embody the idea that
unilateral action to change a term of the employer-employee
relationship regarding wages, hours, and working conditions is
prohibited. The "dynamic status quo" rule recognizes occasional
circumstances when the status quo may not be static. City of
Anacortes, Decision 9009-A (PECB, 2007). The requirement to
maintain the dynamic status quo ensures that questions concerning
representation and/or bargaining obligations do not block the
occurrence of routine, non-discretionary changes to employees'
working conditions. Clark County, Decision 5373 (PECB, 1995),
aff'd, Decision 5373-A (PECB, 1996); King County Library System,
Decision 9039 (PECB, 2005). A dynamic status quo may exist where
actions are taken to follow through with changes that were set in
motion prior to the filing of the representation petition. King
County, Decision 6063-A (PECB, 1998).
Changes of working conditions announced prior to the filing of the
representation petition "are part of the 'dynamic status quo,' along
with previously scheduled wage and benefits increases . . . ."
Emergency Dispatch Center, Decision 3255-B (PECB, 1990). Dynamic
status quo includes both currently existing terms and conditions of
employment as well as previously scheduled changes. 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. Snohomish County Fire District 3, Decision
4336-A (PECB, 1994); Val Vue Sewer District, Decision 8963 (PECB,
2005); King County Library System, Decision 9039.
B. Mandatory Subjects of Bargaining
The employer's duty to maintain the status quo once a union has been
certified as the exclusive bargaining representative, extends to all
mandatory subjects of bargaining. It is well-settled that wages are
a mandatory subject of bargaining. Federal Way School District,
Decision 232-A (EDUC, 1977). Shift scheduling is also a mandatory
subject of bargaining. City of Yakima, Decision 767-A (PECB, 1980).
Discipline and discharge are mandatory subjects of bargaining. City
of Yakima, Decision 3503-A (PECB, 1990), aff'd, 117 Wn.2d 655
(1991); Asotin County, Decision 9549-A (PECB, 2007).
C. Discrimination and Interference
In Clark County, Decision 9127-A (PECB, 2007), the Commission set
forth its standards for deciding a discrimination claim:
A discrimination violation occurs when an employer takes
action which is substantially motivated as a reprisal against
the exercise of rights protected by Chapter 41.56 RCW. See
Educational Service District 114, Decision 4361-A (PECB, 1994),
where the Commission embraced the standard established by the
Supreme Court of the State of Washington in Wilmot v. Kaiser
Aluminum, 118 Wn.2d 46 (1991); Allison v. Seattle Housing
Authority, 118 Wn.2d 79 (1991).
The Prima Facie Case
When a union or employee claims discrimination, establishing a
prima facie case of discrimination is the first part of a
three-part test. Brinnon School District, Decision 7210-A
(PECB, 2001) citing Wilmot v. Kaiser Aluminum, 118 Wn.2d 46;
Allison v. Seattle Housing Authority, 118 Wn.2d 79. A
complainant accomplishes this by showing that: (1) the employee
has participated in protected activity or communicated to the
employer an intent to do so; (2) the employee has been
discriminatorily deprived of some ascertainable right, benefit,
or status; and (3) there is a causal connection between those
events, i.e., that the employer's motivation for the
discrimination was the employee's exercise of, or intent to
exercise, statutory rights. Brinnon School Distict, Decision
7210-A (PECB, 2001) citing Wilmot v. Kaiser Aluminum, 118 Wn.2d
46; Allison v. Seattle Housing Authority, 118 Wn.2d 79. The
prima facie case may ordinarily be shown by circumstantial
evidence, because employers are not apt to announce
discrimination as their motive. If a prima facie case is
established, a rebuttable presumption of discrimination is
created. Educational Service District 114, Decision 4631-A.
Where a complainant establishes a prima facie case of
discrimination, the employer need only articulate
non-discriminatory reasons for its actions. It does not have
the burden of proof to establish those matters. Port of Tacoma,
Decision 4626-A (PECB, 1995). The burden remains on the
complainant to prove, by a preponderance of the evidence, that
the disputed action was in retaliation for the employee's
exercise of statutory rights. That may be done by showing that
the reasons given by the employer were pretextual, or by
showing that union animus was nevertheless a substantial
motivating factor behind the employer's actions. Port of
Tacoma, Decision 4626-A.
The Commission in Community College District 13 (Lower Columbia),
Decision 9171-A (PSRA, 2007) recently stated its standards for
assessing interference claims as follows:
Chapter 41.56 RCW prohibits employer interference with, or
discrimination against, the exercise of collective bargaining
rights. RCW 41.56.040 provides in part:
[N]o public employer, or other person, shall directly or
indirectly, interfere with, restrain, coerce, or
discriminate against any public employee or group of
public employees in the free exercise of their right to
organize and designate representatives of their own
choosing for the purpose of collective bargaining, or in
the free exercise of any other right under this chapter.
RCW 41.56.140(1) enforces those statutory rights by
establishing that an employer who interferes with, restrains,
or coerces public employees in the exercise of their collective
bargaining rights commits an unfair labor practice.
The burden of proving unlawful interference with the exercise
of rights protected by Chapter 41.56 RCW rests with the
complaining party. An interference violation exists when an
employee could reasonably perceive the employer's actions as a
threat of reprisal or force or promise of benefit associated
with the union activity of that employee or of other employees.
Kennewick School District, Decision 5632-A (PECB, 1996). The
employee is not required to show an intention or motivation to
interfere on the part of the employer to demonstrate an
interference with collective bargaining rights. See City of
Tacoma, Decision 6793-A (PECB, 2000). Nor is it necessary to
show that the employee was actually coerced or that the
employer had a union animus for an interference charge to
prevail. City of Tacoma, Decision 6793-A.
APPLICATION OF THE STANDARDS
ISSUE 1: Did the employer unilaterally change the dynamic status
quo when it failed to pay a general wage increase to
employees in a newly-formed bargaining unit?
On July 5, 2006, the Commission certified the union as the exclusive
bargaining representative of a unit of construction and maintenance
equipment operators ("CMEOs") employed by several City departments.
The union asserts that the employer committed an unfair labor
practice by failing to honor the dynamic status quo in granting an
automatic cost-of-living adjustment in December 2006. On August 17,
2005, Seattle Mayor Greg Nickels signed Ordinance No. 121887, which
established December cost-of-living pay increases for unrepresented
employees for three consecutive years: 2004, 2005, and 2006. On its
face, the ordinance applies only to unrepresented employees.
Pursuant to the ordinance, the employer provided a cost-of-living
wage increase to its unrepresented employees on December 29, 2004.
At that time, CMEOs were represented by International Union of
Operating Engineers, Local 302, and did not receive the wage
increase under the ordinance. Instead, their pay increase was
dictated by the collective bargaining agreement between the employer
and Local 302. The employer's unrepresented employees also received
a cost-of-living wage increase on December 28, 2005, pursuant to the
ordinance. Because the CMEOs were not represented by any union at
this time, they were covered by the ordinance and received the wage
increase.
Although the ordinance was adopted long before the union became the
exclusive bargaining representative for employees of this unit, the
terms of the ordinance did not become part of the dynamic status quo
for represented employees. The CMEOs now represented by the union
received increases under the ordinance only when they were in an
unrepresented status. The employees had no reasonable expectation
that they would receive the increase pursuant to the ordinance after
they became represented. They did not receive an increase pursuant
to the ordinance in 2004 when they were represented by another
union. They did receive the increase in 2005 when they were
unrepresented. As soon as the union filed its representation
petition, the employer's obligation to the CMEOs under the ordinance
ceased.
The union argues that granting a benefit to employees based on their
unrepresented status constitutes an unfair labor practice. Its
argument fails to withstand scrutiny. The employer has wide
discretion to set wages for unrepresented employees. It is common
for an employer to set unrepresented employees' wages by ordinance
or resolution. King County (Public Safety Employees Local 519,
SEIU), Decision 4236 (PECB, 1992). The ordinance here does not, by
its terms, apply to employees participating in the collective
bargaining process. It is inappropriate to apply the ordinance in
the context of represented employees.
The ordinance sets wages for unrepresented employees, but does not
alleviate the employer's obligation to bargain wages in the
collective bargaining context. The employer cannot be forced to
grant increases to all employees, regardless of union status, merely
because it wishes to grant increases to unrepresented employees. To
require the employer to do so would thwart meaningful bargaining on
the topic of wages. The employer has not refused to bargain with
the union over wage increases.(fn:1)
____________________
fn:1 In fact, the employer attempted to enter into an agreement
allowing retroactive pay increases to bargaining unit members
pursuant to Christie v. Port of Olympia, 27 Wn.2d 534 (1947).
ISSUE 2: Did the employer discriminate and/or interfere with the
union's rights when it failed to pay a general wage
increase to employees in a newly-formed bargaining unit?
For the reasons stated above, the union failed to meet its burden of
proving that the employer discriminated against or interfered with
the union. The ordinance in question does not preclude the union
from bargaining for wage increases. It merely sets wage increases
for its unrepresented employees. In addition, the ordinance was
passed before this union filed its petition for representation. It
is impossible to conclude, based on the stipulated evidence, that
the employer passed its ordinance in retaliation for, or was in any
way motivated by, union activity.
ISSUE 3: Did the employer unilaterally change the status quo when
it placed Joe Primacio in a five-day, eight-hour shift
position?
At the time the union was certified as exclusive bargaining
representative for the unit, all CMEOs were assigned to a four-day
per week, ten-hour per day shift (four/ten shift). The employer
created a new CMEO position in July 2006. Without prior bargaining
or notice to the union, the employer posted the new position for
shift bidding as a five-day per week eight-hour per day shift
(five/eight shift). After bidding in accordance with established
bidding procedures, Joe Primacio was awarded the new CMEO position
with the five/eight shift on or about July 24, 2006. Primacio
continued to work the traditional four/ten shift until November
2006, when the employer assigned him to the five/eight shift. The
union did not object to the creation of the five/eight shift
position until shortly before filing its unfair labor practice
complaint in November 2006.
An employer's duty to bargain includes a duty to give notice to the
union, and provide an opportunity for bargaining, prior to changing
a mandatory subject of bargaining. As noted above, shift scheduling
is a mandatory subject of bargaining. It has long been established
that an employer commits an unfair labor practice if it fails to
give timely, adequate notice of a change affecting a mandatory
subject of bargaining and a reasonable opportunity to bargain that
subject. Lake Washington Technical College, Decision 4721-A (PECB,
1995); Yakima County, Decision 6594-C (PECB, 1999). Notice to an
individual bargaining unit employee does not satisfy this
requirement. Royal School District, Decision 1419-A (PECB, 1982).
The employer failed to notify the union of the new shift position at
any time prior to posting it. The employer suggests that the union
failed to assert its rights in a timely fashion, and thus waived its
right to bargain. Once the new shift position was posted and bid
upon, however, it was a fait accompli. The union was not obligated
to request bargaining prior to filing its unfair labor practice
complaint. Clover Park School District, Decision 3266 (PECB, 1989).
The employer committed an unfair labor practice when it
unilaterally created a new shift position without notice or bargaining.
ISSUE 4: Did the employer refuse to bargain its decision, and the
effects of its decision, to terminate Doug Knorr?
Doug Knorr was employed by the employer as a CMEO. He was a
bargaining unit member until October 20, 2006, when the employer
terminated his employment pursuant to the Seattle Municipal Code and
the City Personnel Rules (civil service rules). The employer did
not provide notice to the union of its decision to terminate Knorr.
The employer refused two written requests, dated November 6, 2006,
and November 3, 2006, from the union to bargain over the decision
and effects of Knorr's termination. In denying the union's demand
to bargain, the employer noted that because a new collective
bargaining agreement had not yet been negotiated, Knorr's recourse
was "the same remedy that was available to him prior to the
certification of Local 77" (i.e., the civil service rules). The
employer stated that it had accorded Knorr his Cleveland Board of
Education v. Loudermill, 470 U.S. 532 (1985) and due process
rights.(fn:2) The employer asserted that it maintained the status quo
by referring Knorr to the civil service commission.
____________________
fn:2 In Loudermill, the United States Supreme Court held that
public employees are entitled to both a notice of the charges
against them and a public hearing before a public employer can fire
or punish them for misconduct.
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.
The only issues in dispute concerning Knorr's termination are
whether the employer was obliged to notify the union and give it an
opportunity to bargain the termination and its effects. Termination
of employment is a mandatory subject of bargaining. The Commission
will closely scrutinize unilateral changes in status quo that result
in an employee's termination due to its substantial impact on
employees. Asotin County, Decision 9549-A.
Violation of the duty to bargain can arise from a unilateral change
that affects only a small number of employees, but the change must
be one which represents a departure from established practice. King
County, Decision 4258-A (PECB, 1994) and King County, Decision
4893-A (PECB, 1995). In Asotin County, Decision 9549-A, the
Commission determined that an employer failed to maintain the status
quo where it failed to apply a "just cause" discipline standard.
Although the civil service rules in this case establish a "just
cause" standard, notably absent from the civil service rules is the
right to have union representation at any stage of the disciplinary
proceeding. Moreover, there is no evidence that termination
pursuant to the civil service rules had ever been relied upon with
this unit in the past. The union did not have any input in to the
"just cause" standard as it was applied here: no right to determine
the employer's past interpretation of the standard vis-a-vis the
members of this bargaining unit. Thus, termination of Knorr without
bargaining effectively rendered the union impotent in its
relationship with the employer in disciplinary matters. There is no
way to determine, under the civil service rules, whether the
appropriate status quo was applied. The matter has been further
compounded by the employer's refusal to bargain the effects of its
decision to terminate Knorr. The employer committed an unfair labor
practice by failing to bargain its decision, and the effects of its
decision, to terminate Knorr.
FINDINGS OF FACT
The parties stipulated to the following findings of fact:
1. The City of Seattle is a public employer within the meaning of
RCW 41.56.030(1). Seattle Public Utilities (SPU) is a
department of the City of Seattle.
2. International Brotherhood of Electrical Workers, Local 77, a
bargaining representative within the meaning of RCW
41.56.030(3), is the exclusive bargaining representative of
certain full-time and regular part-time employees of the City
of Seattle.
3. On March 29 and April 28, 2006, International Brotherhood of
Electrical Workers, Local 77 ("Local 77") filed petitions for
representation with the Public Employment Relations Commission.
Through these petitions, Local 77 sought to represent a unit of
construction and maintenance equipment operators ("CMEOs")
employed by several City departments.
4. On July 5, 2006, Local 77 was certified as the exclusive
bargaining representative for the CMEOs.
5. The CMEOs were formerly represented by the International
Union of Operating Engineers, Local 302. The CMEOs
decertified from Operating Engineers Local 302 in April 2005.
6. The City of Seattle maintains a civil service system that
applies to its unrepresented employees. Pursuant to the
civil service system, no covered employee may be terminated
except for cause.
7. An employee may challenge his or her termination through
the appeals process outlined in SMC 4.04.260.
8. Pursuant to the Rules of Practice and Procedure of the
Civil Service Commission, a terminated employee may obtain
a hearing that includes an opportunity to present evidence
and testimony, cross-examine witnesses, and make arguments
to a Presiding Officer. The Presiding Officer's recommended
decision is subject to review by the Civil Service Commission.
9. Members of the Civil Service Commission are appointed as
follows: City employees elect one member, the mayor
appoints one member, and the city council appoints one
member. Appointed commission members typically are not
employees of the City.
10. Doug Knorr was employed by SPU as a CMEO. Knorr was
terminated by SPU on October 20, 2006.
11. Knorr was terminated pursuant to the Seattle Municipal Code
and the City Personnel Rules.
12. SPU did not give Local 77 notice or an opportunity to
bargain the decision to terminate Knorr before it was
implemented on October 20, 2006.
13. In a November 6, 2006, letter to Labor Negotiator Joan
Matheson, Local 77 demanded to bargain the decision and
effects of Knorr's termination.
14. In a November 8, 2006, letter from Labor Negotiator Mary K.
Doherty, the City refused to bargain with Local 77
regarding Knorr's termination.
15. Local 77 sent a second request to the Labor Relations
Division, demanding to bargain the decision and effects of
the termination on November 13, 2006.
16. In a November 17, 2006, letter from Ms. Matheson, the City
refused to bargain with Local 77 regarding Knorr's
termination.
17. Some CMEOs work out of the North Transfer Station in
the Fremont/Wallingford area and the South Transfer Station
near the First Avenue South Bridge. For the past several
years, SPU has employed six CMEOs to staff the transfer
stations.
18. The transfer station CMEOs have historically worked a
four-day, ten-hour shift ("four/ten").
19. The four/ten schedules resulted in some difficulties in
obtaining coverage for CMEOs who might be absent for
illness, vacation, light-duty assignments, or other reasons.
20. Through the City's budget process, SPU's Solid Waste
Operations Division received approval in July 2006 for an
additional CMEO position to serve the transfer stations.
21. SPU determined that the best way to meet its workload needs
was to use the new position as a floater between the
transfer stations. That is, the new position would work at
both transfer stations each day, with the exact hours at
each station determined by business needs. SPU decided that
the floater position would be a five-day a week, eight-hour
shift ("five/eight").
22. SPU's long-established practice was to allow CMEOs at the
two transfer stations to select their shifts according to
seniority. SPU offered "shift picks" when vacancies
occurred due to CMEO resignations, retirements, workplace
injuries, or similar events.
23. On or about July 24, 2006, the CMEOs picked shifts. The
CMEOs were given a choice between the six existing four/ten
shifts and the new five/eight floater shift. This was the
first time that a five/eight shift had been included as an
available shift. Joe Primacio selected the five/eight shift.
24. The seventh CMEO position was filled on a permanent basis
on August 15, 2006, when SPU hired Josh Nelson.
25. Between August 1 and early November 2006, there was
flexibility in the CMEO shifts due to lengthy absences.
Primacio was thus frequently able to fill a more senior
CMEOs shift, working four ten-hour days without weekends.
26. In mid-November 2006, all seven transfer station CMEOs were
available to work. SPU therefore returned Mr. Primacio to
the five/eight shift he had chosen in July 2006.
27. SPU did not give notice or an opportunity to bargain to
Local 77 about the newly created floater position, the
five/eight schedule, or the historical shift-pick process.
28. SPU followed its past practice in July 2006, by allowing
the employees in the CMEO title to select among shifts by
seniority.
29. Local 77 demanded to bargain through a November 15, 2006,
letter to Joan Matheson, a labor negotiator in the City's
Personnel Department.
30. The City did not immediately respond to the November 15,
2006, letter.
31. Local 77 filed its Complaint regarding SPU's unilateral
change to employee working hours on November 27, 2006.
32. On August 17, 2005, Seattle Mayor Greg Nickles signed
Ordinance No.121887, which established December pay
increases for non-represented employees for three
consecutive years: 2004, 2005, and 2006.
33. Pursuant to the Ordinance, the City provided a
cost-of-living wage increase to its non-represented
employees on December 29, 2004. At this time, the CMEOs
were represented by Local 302, and as such, the CMEOs did
not receive the wage increase under the Ordinance.
Instead, their pay increase was dictated by the collective
bargaining agreement with Local 302.
34. The City's non-represented employees also received a
cost-of-living wage increase on December 28, 2005, pursuant
to Ordinance 121887. Because the CMEOs were not
represented by any union at this time, they were covered by
the Ordinance and therefore received the wage increase.
35. PERC certified Local 77 as the CMEOs' representative on
July 5, 2006.
36. On November 17, 2006, Ms. Matheson and Local 77
representatives attended the first bargaining session
regarding the new collective bargaining agreement. Ms.
Matheson presented Local 77 with a Christie Agreement ready
for signature. Local 77 representatives did not sign the
agreement at the session, instead taking a copy of the
agreement with them.
37. On December 27, 2006, non-represented City employees
received a cost-of-living wage increase pursuant to
Ordinance 121887. At this time, the CMEOs were represented
by Local 77 and as such, they did not receive the wage
increase.
38. Local 77 did not request bargaining over the application of
Ordinance 121887 to the employees it represents.
39. If the CMEOs had not chosen to be represented by a labor
organization, they would have received the December 27,
2006 cost-of-living wage increase.
40. On January 25, 2007, Local 77 brought a revised draft of a
Christie Agreement and presented to Ms. Matheson. Ms.
Matheson took the agreement from the meeting for review.
41. Between the January 25, 2007, negotiation session and the
February 1, 2007, session, Ms. Matheson revised the draft
Christie Agreement. She presented it to Local 77 on
February 1. The parties signed the Christie Agreement on
that date.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.56 RCW and Chapter 391-45 WAC.
2. By not granting the 2006 wage increase as described in Finding
of Fact 37, the City of Seattle did not refuse to bargain or
violate RCW 41.56.140(4) or (1).
3. By not granting the 2006 wage increase as described in Finding
of Fact 37, the City of Seattle did not discriminate against or
interfere with employee rights in violation of RCW 41.56.10(1)
or (4).
4. By creating a new five-day, eight-hour CMEO shift position and
assigning Joe Primacio to the position as described in Findings
of Fact 21 and 23, the City of Seattle failed to give notice to
the International Brotherhood of Electrical Workers, Local 77
and provide an opportunity for bargaining in violation of RCW
41.56.140(4) and (1).
4. By failing to bargain its decision, and the effects of its
decision, to terminate Doug Knorr as described in Findings
of Fact 10, and 12 through 16, the City of Seattle refused
to bargain in violation of RCW 41.56.140(4) and (1).
ORDER
Case 20894-U-07-5328
The complaint charging unfair labor practices filed in Case
20894-U-07-5328 is DISMISSED.
Case 20776-U-06-5289
The City of Seattle, its officers and agents, shall immediately take
the following actions to remedy its unfair labor practices in Case
20776-U-06-5289:
1. CEASE AND DESIST from:
a. Creating new shift positions and assigning employees to
those positions without prior notification to the
International Brotherhood of Electrical Workers, Local 77,
and providing an opportunity for bargaining.
b. Failing to bargain a decision, and the effects of the
decision, to terminate an employee in the bargaining unit
represented by the International Brotherhood of Electrical
Workers, Local 77.
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 41.56 RCW:
a. Restore the status quo ante by reinstating the shift
positions which existed for the employees in the
bargaining unit prior to the unilateral change in shift
scheduling found unlawful in this order.
b. Give notice to and, upon request, negotiate in good faith
with International Brotherhood of Electrical Workers,
Local 77, before creating new shift positions and
assigning employees to those positions.
c. Offer Doug Knorr immediate and full reinstatement to his
former position or a substantially equivalent position,
and make him whole by payment of back pay and benefits in
the amounts he would have earned or received from the date
of the unlawful termination to the effective date of the
unconditional offer of reinstatement made pursuant to this
order. Back pay shall be computed in conformity with WAC
391-45-410.
d. 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.
e. Read the notice attached to this order into the record at
a regular public meeting of the City Council of the City
of Seattle, and permanently append a copy of the notice to
the official minutes of the meeting where the notice is
read as required by this paragraph.
f. 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, and at the same time
provide the complainant with a signed copy of the notice
attached to this order.
g. 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 21st day of December, 2007.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
KARYL ELINSKI, 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.
Cases 20776-U-06-5289 and 20894-U-07-5328
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 failed to notify the International Brotherhood of Electrical
Workers (IBEW), Local 77, and provide an opportunity for bargaining with the
union concerning the creation of a new five-day per week, eight-hour CMEO
position and the assignment of Joe Primacio to the position.
WE UNLAWFULLY failed to bargain our decision, and the effects of our
decision, to terminate Doug Knorr.
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and
policies of Chapter 41.56 RCW:
a. Restore the status quo ante by reinstating the shift
schedules which existed for the employees in the IBEW
bargaining unit prior to the unilateral change in shift
schedules found unlawful in this order.
b. Give notice to and, upon request, negotiate in good faith
with IBEW Local 77, before instituting a new shift
schedule.
c. Offer Doug Knorr immediate and full reinstatement to his
former position or a substantially equivalent position, and
make him whole by payment of back pay and benefits in the
amounts he would have earned or received from the date of
the unlawful discharge to the effective date of the
unconditional offer of reinstatement made pursuant to this
order. Back pay shall be computed in conformity with WAC
391-45-410.
d. Post copies of the notice attached to this order in
conspicuous places on our premises where notices to all
IBEW bargaining unit members are usually posted. These
notices shall be duly signed by our authorized
representative, and shall remain posted for 60 consecutive
days from the date of initial posting. We will take
reasonable steps to ensure that such notices are not
removed, altered, defaced, or covered by other material.
e. Read the notice attached to this order into the record at a
regular public meeting of the City Council, and permanently
append a copy of the notice to the official minutes of the
meeting where the notice is read.
f. Notify IBEW, Local 77, 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 IBEW,
Local 77 with a signed copy of the notice attached to this
order.
g. 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.
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: _________________ City of Seattle
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.