City of Seattle, Decision 9956 (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
SEATTLE POLICE DISPATCHERS GUILD, )
)
Complainant, ) CASE 20542-U-06-5231
)
vs. ) DECISION 9956 - PECB
)
CITY OF SEATTLE, ) ORDER OF DISMISSAL
)
Respondent. )
)
___________________________________)
Cline & Associates, by Aaron D. Jeide, Attorney at Law, for the
union.
City Attorney Thomas A. Carr, by Kathleen O'Hanlon, Assistant
City Attorney, for the employer.
On July 26, 2006, the Seattle Police Dispatchers Guild (union) filed
an unfair labor practice complaint with the Public Employment
Relations Commission (Commission) against the City of Seattle
(employer). On October 9, 2006, the Commission issued a preliminary
ruling finding a cause of action to exist for employer interference
with employee rights and refusal to bargain, by the employer's
unilateral change in layout and configuration of work stations
within the communications center without providing an opportunity
for bargaining. Examiner Paul T. Schwendiman conducted a hearing on
April 3 and 4, 2007. The parties filed post-hearing briefs to
complete the record.
ISSUES PRESENTED
1. Was the employer's decision to change the layout and
configuration of the employee work stations a mandatory subject
of bargaining?
2. Did the employer provide notice to the union of the employer's
reconfiguration decision?
3. Did the union waive, through inaction, its right to bargain any
effects of the reconfiguration decision?
Under the Commission's balancing test, the employer's
reconfiguration decision was a permissive subject of bargaining.
The employer provided notice to the union of the employer's
decision. Through inaction, the union waived its right to bargain
any effects of the decision. The Examiner dismisses the complaint.
Issue 1
Was the employer's decision to change the layout and configuration
of the employee work stations a mandatory subject of bargaining?
Applicable Legal Standard
Parties to a collective bargaining relationship under Chapter 41.56
RCW have a duty to bargain over wages, hours, and working conditions
of bargaining unit employees. RCW 41.56.030(4). The potential
subjects for bargaining between employers and unions are commonly
divided into "mandatory," "permissive," and "illegal" categories.
Matters affecting wages, hours, and working conditions are mandatory
subjects of bargaining, while matters considered remote from "terms
and conditions of employment" or that are regarded as prerogatives
of employers or of unions, are permissive subjects. Illegal
subjects of bargaining are matters which neither the employer nor
the union have the authority to negotiate, because their
implementation of an agreement on the subject matter would
contravene applicable statutes or court decisions.
Whether a particular subject is a mandatory subject of bargaining is
a question of law and fact for the Commission to decide. WAC
391-45-550. In determining whether a subject is a mandatory subject
of bargaining, the Commission balances (1) the relationship of the
subject to wages, hours, and working conditions, and (2) the extent
to which the subject lies "'at the core of entrepreneurial control'"
or is a management prerogative. City of Richland, 113 Wn.2d 197
(1989). For a permissive subject of bargaining, an employer still
has a duty to bargain effects of the its permissive decision on
mandatory subjects. City of Richland, Decision 2448-B (PECB, 1987),
remanded, 113 Wn.2d 197 (1989). The critical consideration in
determining whether an employer has a duty to bargain concerning the
effects of a permissive decision, is the nature of the impact on the
bargaining unit. Spokane County Fire District 9, Decision 3661-A
(PECB, 1991).
Analysis
In applying the balancing test, the Examiner considered several
factors. First, whether the floor plan reconfiguration is a
management prerogative. Second, how the reconfiguration relates to
employee working conditions, including health and safety,
interpersonal relationships, and risk of discipline.
a. Management Prerogative
When the employer changed the layout and configuration of the
employee work stations in the communications center, work stations
were moved closer together to accommodate the addition of four work
stations. Under the new arrangement, most employees are now seated
back-to-back in pods of two, as opposed to having aisle space
between the back of work stations. While the reconfiguration
affected working conditions, it provided the employer with benefits.
The employer advanced the following reasons for adding the work
stations: establishing increased accountability and accessability of
the telephone reporting unit officers and their supervisors by
placing them in the same room; freeing up the officers' work space
to be used as a training area or conference room; equipping the new
work stations with Positron capability allowing for increased
staffing of dispatchers at peak times; and demonstrating employee
equality. The ability of the employer to supervise its employees
could have a direct impact on the employer's goals of maximizing
productivity and increasing efficiency.
The new configuration allowed the employer to increase the number of
work stations on the floor for use in emergency response during peak
call times. The telephone reporting unit officers and the
dispatchers are supervised by the same sergeant. The employer moved
four telephone reporting unit officers, who were previously in a
separate room from their supervisor, into the same room with the
dispatchers. The reconfiguration is a management prerogative
because the employer has the right to decide how rooms are arranged,
the amount of equipment in the room, and how to manage or supervise
employees.
b. Health and Safety
The union argues the reconfiguration is a mandatory subject of
bargaining because the reconfiguration affects employee health and
safety; specifically, the ambient noise level is a health and safety
concern. The union cites Armour Oil Co., 253 NLRB 1104 (1981), in
which the National Labor Relations Board (NLRB) found the
replacement of trucks impacted working conditions because the
replacement trucks were rougher to drive, more difficult to handle,
lacked newer safety equipment, and were noisier. The decision was
not based solely on the noise level of the replacement trucks;
rather, the replacement trucks were an unsafe working condition.
In this case, the evidence does not show that the noise level after
the reconfiguration causes an increased risk to the employees'
health and safety. The union presented no evidence that the
communications center was noisier after the four work stations were
added. Nor did the union introduce evidence showing that the noise
level adversely affected employee health, by say, causing increased
hearing loss. The union argued that there was increased germ
transfer due to the closer proximity of the dispatchers. Fred
Treadwell, director of human resources for the police department,
testified that a comparison of sick leave used during 2005-2006 and
2006-2007 showed individual sick leave usage declined. The number
of sick days used by the employees is not conclusive as to whether
or not germs were being transferred more readily because of the
closer proximity between the workers.
Brian Osterreicher, a chief dispatcher, testified that there were
only two doors of entry into the communications center, but the
windows could be used as another means of escape. Lieutenant Mark
Kuehn testified that an anonymous tip was placed to the Washington
State Department of Labor and Industries, which conducted a surprise
inspection. The inspection yielded no violations of Labor and
Industry standards. If Labor and Industries had found that the work
area was unsafe due to a lack of evacuation and access points, the
union's argument that the reconfiguration jeopardizes the safety of
the employees would have been more persuasive. However, from the
testimony presented, the floor configuration does not pose a safety
risk.
In addition to arguing that the reconfiguration affected employee
health and safety, the union argues that the reconfiguration
impacted the health and safety of the public. Union president Scott
Best testified that the proximity of the dispatchers to each other
makes it more difficult to hear the caller. The union cites the
increased risk of error and inability to hear callers resulting from
background noise as a safety risk to the public. It is squarely
within the employer's entrepreneurial control to determine how it
conducts business and provides service to the public. If the
employer decides the potential risk of error or the risk of a caller
overhearing another call is an acceptable risk, then the employer
has the prerogative to conduct business in such a manner.
Matters affecting employee health and safety may be a mandatory
subject of bargaining. Simply stating that the reconfiguration
impacts employee safety does not mean employee safety is impacted.
In order to rise to the level of a mandatory subject, the effect on
health and safety must impact employees directly. The union did not
show that the reconfiguration impacted employee health and safety.
c. Employee Relations
As a result of the reconfiguration, the interpersonal relationships
of the dispatchers has changed. Particularly, employees can now
more acutely smell their co-workers, who smoke or have body odor,
because they are now seated closer together. The interpersonal
relationships of the dispatchers are issues that need to be resolved
among the employees. The reconfiguration is not the main reason
employees can smell each other. Rather, the fact that one employee
can smell another employee is a direct result of personal behavior
or ability to smell.
d. Increased risk of discipline
There is the potential for an employee to be disciplined if the
employee does not hear what the caller says. The calls are taped,
which is how the employer could prove an employee did not hear what
a caller said. Union president Best could only give his opinion as
to what the potential effect of discipline could be as a result of
the closer proximity of dispatchers.
Osterreicher testified that performance evaluations include such
areas as the amount of time spent on a call and the accuracy of the
dispatcher. A poor performance evaluation results in an employee
signing a document stating that the employee received the poor
performance evaluation. An employee could be given remedial
training. If poor performance continued, the employee could be
disciplined, demoted, or have duties reduced.
The union has not shown that the potential for discipline increased.
Numerous things prevent dispatchers from hearing what the caller
says, including events out of the control of the employer or the
dispatcher. Any negative impact of the reconfiguration on
discipline has not been proven.
e. Conclusion
Weighing the management prerogative to reconfigure the floor plan in
order to better supervise employees and maximize productivity and
efficiency, against the impacts of the reconfiguration on the
employees' working conditions, the interests of management out weigh
the interests of the employees. The employer's reconfiguration is a
permissive subject of bargaining.
Issue 2
Did the employer provide notice to the union of the employer's
reconfiguration decision?
Applicable Law
An employer's duty to bargain includes a duty to give notice and
provide opportunity for bargaining prior to changing employee wages,
hours, or working conditions. Washington Public Power Supply
System, Decision 6058-A (PECB, 1998). A party to a bargaining
relationship commits an unfair labor practice if it fails to give
notice of a change affecting a mandatory subject of bargaining, or
fails to bargain in good faith upon request. Federal Way School
District, Decision 232-A (EDUC, 1977).
The decision by the employer to change the reconfiguration of
employee work stations is a permissive subject of bargaining. An
employer has no duty to bargain its decision to change a permissive
subject. However, an employer is required to bargain the effects of
a permissive decision on employee wages, hours, or working
conditions. Seattle School District, Decision 5755-A (PECB, 1998).
Notice by an employer of a permissive decision provides a union with
an opportunity to request bargaining on the effects of the decision.
If the effects of a permissive decision are sufficiently
foreseeable, the bargaining obligation attaches before the decision
is implemented. Spokane County Fire District 9, Decision 3661-A.
Analysis
On July 13, 2005, the employer sent union president Best a letter
informing the union of the employer's decison to move the four
telephone reporting unit officers, who were previously in a separate
room, onto the communications center floor with the dispatchers in
the fourth quarter of 2005. Following this letter, the union did
not request to bargain the effects of the reconfiguration. In
response to the letter the union raised one question: what would
happen to the round reference table in the middle of the
communications center. The union had the opportunity to inquire
about how the reconfiguration would look, but failed to do so.
An employer does not have a duty to notify a union what the impacts
of a permissive decision will be on bargaining unit employees. The
union is in the best position to know what the impacts of a change
will be on employee wages, hours, or working conditions. The union
would have the Examiner believe that the union could not fathom the
desks being moved closer together to accommodate the addition of
four employees to the communications center floor. Such
consequences should have been obvious to the union.
Issue 3
Did the union waive, through inaction, its right to bargain any
effects of the reconfiguration decision?
Applicable Law
After receiving notice of a change in a permissive subject of
bargaining, a union must make a timely request to bargain the
impacts of the change on wages, hours, or working conditions of
employees. If the union fails to request bargaining, a waiver by
inaction defense asserted by an employer may be sustained. Lake
Washington Technical College, Decision 4721-A (PECB, 1995). Silence
will support a finding of waiver by inaction. City of Burlington,
Decision 5841-A (PECB, 1997). A specific and timely request that
the employer bargain a matter will, generally, support a finding
that the union has not waived bargaining by inaction. Seattle
School District, Decision 5755-A. The party claiming waiver has the
burden of proof.
Analysis
The employer first informed the union of its reconfiguration
decision on July 13, 2005. At that time, the union did not request
to bargain the floor reconfiguration. The reconfiguration did not
proceed as scheduled. On April 3, 2006, the employer informed
employees by a memo that the move would begin on April 10, 2006. A
copy of this memo was not sent to the union. By a May 1, 2006
letter, the union requested to bargain both the reconfiguration
decision and the effects of the decision.
In July 2005, the union had notice that the employer planned to
relocate four telephone reporting unit officers from their work area
to the communications center floor in the fourth quarter of 2005.
At that time, the union did not request to bargain the
reconfiguration. By failing to request bargaining at the time the
employer notified the union of its reconfiguration decision, the
union waived its right to bargain any effects of the decision on
employees.
FINDINGS OF FACT
1. The City of Seattle is a public employer within the meaning of
RCW 41.56.030(1).
2. The Seattle Police Dispatchers Guild (union) is a bargaining
representative within the meaning of RCW 41.56.030(3).
3. Scott Best is the president of the union.
4. On July 13, 2005, the employer sent a letter to union president
Best, informing the union of the employer's decision to move
four telephone reporting unit officers onto the communications
center floor in the fourth quarter of 2005. Following this
letter, the union did not request to bargain the effects of the
employer's decision.
5. The reconfiguration did not proceed as scheduled. On April 3,
2006, the employer informed employees by a memo that the move
would begin on April 10, 2006. The employer moved the work
stations closer together. Four work stations were added to the
communications center floor.
6. A copy of the April 3, 2006 memo was not sent to the union.
7. On May 1, 2006, the union requested to bargain both the
reconfiguration decision and the effects of the decision.
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. As described in Finding of Fact 4 and 5, the layout and
reconfiguration of employee work stations in the communications
center is a permissive subject of bargaining under RCW
41.56.030(4).
3. As described in Finding of Fact 4, the City of Seattle provided
notice to the Seattle Police Dispatchers Guild of the
employer's reconfiguration decision.
4. As described in Finding of Fact 4, the Seattle Police
Dispatchers Guild waived through inaction its right to bargain
any effects of the employer's reconfiguration decision.
5. By its reconfiguration decision, as described in Finding of
Fact 4 and 5, the City of Seattle did not refuse to bargain or
violate RCW 41.56.140(4) or (1).
ORDER
The complaint charging unfair labor practices filed in the
above-captioned matter is DISMISSED.
ISSUED at Olympia, Washington, this 1st day of February, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
PAUL T. SCHWENDIMAN, 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.