Skagit Regional Health, Decision 12616 (PECB, 2016)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
|
Washington State Nurses Association,
Complainant,
vs.
SKAGIT REGIONAL HEALTH (Skagit Public Hospital District 1),
Respondent.
|
CASE 127550-U-15
DECISION 12616 - PECB
FINDINGS OF FACT,
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Terrance Costello, Attorney at Law, Schwerin Campbell Barnard Iglitzin & Lavitt, LLP, for the Washington State Nurses Association.
Michael Brunet, Attorney at Law, Garvey Schubert Barer, for Skagit Regional Health (Skagit Public Hospital District 1).
On August 20, 2015, the Washington State Nurses Association (union) filed an unfair labor practice complaint against Skagit Regional Health (employer). On September 2, 2015, the union amended its complaint. The union alleged the employer refused to bargain since July 7, 2015, by an employer representative circumventing the union through direct dealing with employees before presenting proposals to the union. On September 8, 2015, the Unfair Labor Practice Manager issued a preliminary ruling stating a cause of action existed. Examiner Emily Whitney held a hearing on May 10, 2016. On July 1, 2016, the parties submitted post-hearing briefs to complete the record.
ISSUE
As framed by the preliminary ruling, the issue presented by the union is as follows:
Did the employer circumvent the union in violation of RCW 41.56.140(4) and (1) when it presented proposals to change nurses’ work hours and full-time equivalent (FTE) assignments directly to the employees in the oncology clinic and solicited employee agreement before presenting these proposals to the union?
The employer circumvented the union when it negotiated directly with employees regarding a possible change in hours of work without providing notice to the union. The union is the bargaining representative of the employees in the oncology clinic. The employer presented information directly to employees regarding a proposed change in how the oncology clinic was run. The change involved the employees’ hours of work. Hours of work are a mandatory subject of bargaining. The employer did not notify the union of the potential change, nor did it notify the employees that it intended to notify the union. The employer provided the employees with the information and asked for their feedback. The employer made changes to its initial proposal based on the employees’ feedback. Thus, the employer was negotiating with employees on a mandatory subject of bargaining.
BACKGROUND
The employer operates a cancer care center, known as the oncology clinic, in Mount Vernon, Washington. The union represents the nurses who work in the oncology clinic. The employer and union are parties to a collective bargaining agreement effective from September 13, 2014, through May 31, 2017.
The Director of Oncology holds regular monthly nurses’ meetings, which are attended by nurses, medical assistants, the clinical supervisor, and the director. The regular monthly meetings are not mandatory, but attendance is taken at those meetings. At times, the director also holds informal meetings or “huddles” where attendance is not taken. There is dispute over the dates and number of meetings the parties held in July and August 2015. Three or four meetings are relevant to the present case. Similar events occurred at each of the meetings.
During the initial meeting in the beginning of July 2015, the director talked with the nurses regarding the need to offer more support to meet patients’ needs. The director identified the issue as a staffing issue. The structure of the oncology clinic was to have everyone titled as a “staff nurse.” All staff nurses completed a range of various tasks, and the employer believed this limited the number of patients each nurse could assist. The employer testified that the industry best practice is to employ nurses in two separate roles: triage nurses and staff nurses. By the employer utilizing two separate roles, the employees would have specific tasks to complete based on their respective roles, and because they would have focused tasks, they could accomplish meeting the needs of more patients.
While describing the employer’s needs, the director handed out a document which included the assignments for the provider clinic and the treatment room in the oncology clinic. The treatment room assignment chart was the focus in this case.
The treatment room assignment chart had three columns. The first column showed the budgeted FTE (or hours of work) for each of the nurse positions in the treatment room. The second column reflected the actual scheduled or worked FTE for each nurse. The third column, titled “Proposed,” presented the employer’s suggested changes, which included increasing the FTEs for some positions and decreasing the FTEs for other positions. The employer did not notify the union of the proposed changes or that it was presenting this information to the employees during a staff meeting. The director did not notify the employees that she planned to take this information to the union after their discussions. The director testified that she explained what each of the columns meant and asked the employees to provide feedback and input on the employer’s suggestions. She did not ask the employees to vote or poll the employees and did not ask for agreement from the employees. The meeting ended with the director suggesting that she and the employees get together another time to talk about more ideas.
About a week after the first meeting, the director had a second informal meeting in “huddle” format. Attendance was not taken at this meeting. The director discussed other ideas of how to distribute the workload in the treatment room with the employees. There was not enough time to completely discuss the issue, so everyone left with the intention of meeting again to continue the discussion.
During the second July meeting and between meetings, a few employees discussed with the director their concerns about reducing the hours of some of the positions. The union’s witness notified the director that she did not have an interest in a reduction of her position’s FTE. A second employee stated she was interested in lowering her FTE, so the union’s witness could stay at her FTE.
On August 4, 2015, the director met with the employees again and continued the discussion of the changes to the treatment room employees’ FTEs. The union’s sole witness was not present at this meeting. The director credibly testified that during this meeting, she provided an additional document.
This document was in the same format as the one that was distributed during the initial July meeting, but it had changes to the FTEs for individual nurse positions. On this document the FTE for the first nurse position at the top of the treatment room assignment chart had been changed. The changes were in the column titled “Proposed August 2015” with an increase from .8 FTE to .9 FTE. The FTE for the second nurse position on the chart had been decreased from .8 FTE to .7 FTE. The union’s witness testified that the first position on the chart was her position. The director took the information she had received from discussions in previous meetings and from the requests made by the union’s witness and another employee. The director made the changes to what the employer had proposed in July based on the employees’ input and stated she was attempting to meet everyone’s interests. She stated there was still no solid plan to move forward. The employer did not ask the employees to vote or poll the employees during this meeting.
While one employer witness testified that she did not remember an additional meeting, the union’s witness credibly testified that a few days after the August 4, 2015, meeting, a brief meeting took place where the FTE change was again discussed. There was no decision to move forward, and the meeting ended with an intent to continue discussions.
In September 2015 during a monthly nurses meeting, the director explained to the employees that the discussion regarding the changes in FTEs would need to be tabled because this unfair labor practice complaint had been filed regarding the matter. No changes have been made to the staffing or FTEs of the nurses in the oncology clinic.
ANALYSIS
Applicable Legal Standard
Under the Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, a public employer has a duty to bargain with the exclusive bargaining representative of its employees. RCW 41.56.030(4). “[N]either party shall be compelled to agree to a proposal or be required to make a concession . . . .” Id.; King County, Decision 12451-A (PECB, 2016). “[P]ersonnel matters, including wages, hours, and working conditions” of bargaining unit employees are characterized as mandatory subjects of bargaining. Yakima Valley Community College, Decision 11326-A (PECB, 2013); City of Richland, Decision 2448-B (PECB, 1987), remanded, International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission, 113 Wn.2d 197 (1989) (City of Richland); Federal Way School District, Decision 232-A (EDUC, 1977), citing National Labor Relations Board v. Wooster Division of Borg-Warner Corp., 356 U.S. 342 (1958). Permissive subjects of bargaining are management and union prerogatives, along with the procedures for bargaining mandatory subjects, over which the parties may negotiate. Pasco Police Officers’ Association v. City of Pasco, 132 Wn.2d 450, 460 (1997).
The Commission applies a balancing test on a case-by-case basis to determine whether an issue is a mandatory subject of bargaining. In deciding whether a duty to bargain exists, there are two principal considerations: (1) the extent to which managerial action impacts the wages, hours, or working conditions of employees and (2) the extent to which managerial action is deemed to be an essential management prerogative. City of Richland, 113 Wn.2d at 200. The inquiry focuses on which characteristic predominates. Id. The Supreme Court in City of Richland held that “[t]he scope of mandatory bargaining thus is limited to matters of direct concern to employees” and that “[m]anagerial decisions that only remotely affect ‘personnel matters,’ and decisions that are predominately ‘managerial prerogatives,’ are classified as nonmandatory subjects.” Id.
It is an unfair labor practice for an employer to circumvent its employees’ exclusive bargaining representative and negotiate directly with bargaining unit employees over mandatory subjects of bargaining. Central Washington University, Decision 12305-A (PSRA, 2016);[1] Royal School District, Decision 1419-A (PECB, 1982). In order for a circumvention violation to be found, the complainant must establish that it is the exclusive bargaining representative of the employees and that the employer engaged in direct negotiations with one or more employees concerning a mandatory subject of bargaining. City of Seattle, Decision 3566-A (PECB, 1991).
Where an employer’s workforce is organized for purposes of collective bargaining, Chapter 41.56 RCW does not preclude direct communications between employers and their union-represented employees. Employers retain the right to communicate directly with employees who are represented, provided that the communication does not amount to bargaining or other unlawful activity. See Kitsap Transit, Decision 11098-A (PECB, 2012), aff’d on other grounds, Decision 11098-B (PECB, 2013) (employer memorandum to employees announcing a unilateral change was not circumvention); Vancouver School District, Decision 10561 (EDUC, 2009), aff’d, Decision 10561-A (EDUC, 2011) (employer communication of the employer’s bargaining proposal to bargaining unit employees was not circumvention or direct dealing); University of Washington, Decision 10490-C (PSRA, 2011) (employer did not circumvent the union when it met with bargaining unit employees and listened to their concerns).
Application of Standard
There is no dispute between the parties that the union is the exclusive bargaining representative of the employees. It is also undisputed that the employer did not notify the union about the hours of work issue. The only issue that remains is whether the employer engaged in direct negotiations with one or more employees concerning a mandatory subject of bargaining.
The director presented the issue of changing some employees’ FTEs in the oncology clinic. FTEs in this case were the employees’ workload or hours of work. An employee’s workload or the amount of time an employee works is by definition hours of work, which is a mandatory subject of bargaining. Richland School District, Decision 6269 (PECB, 1998); see City of Richland, 113 Wn.2d 197. Thus, the present issue is a mandatory subject of bargaining. The employer described the issue as a staffing issue. While the overall issue might have begun as a staffing issue, the documents presented to the employees focused specifically on the FTEs of the employees. The very first solution presented to the employees at the initial meeting was a document that included a chart proposing changes in the FTEs of some of the employees.
The director communicated directly with the employees during three or four meetings and had individual conversations with specific employees as well. During the first meeting, the director provided a document to the employees regarding the proposed changes in hours of work or FTEs and asked the employees for feedback. The director never took a vote or poll but did ask employees for their input. Significantly, the director used the information she gathered from employees, without negotiating with the union, to justify changes she made in the second document, which she provided to employees during the third meeting. This back-and-forth communication between the director and the employees is by definition negotiation with the employees. See Central Washington University, Decision 12305-A.
Based on the facts in University of Washington, Decision 11600-A (PSRA, 2013), the employer argues that direct communications with represented employees about potential solutions to a problem, even if a particular solution is advanced and detailed by an employer representative in writing, do not rise to the level of direct dealing. In University of Washington the employer met with employees to discuss a potential shift change. In meetings and one-on-one conversations, the supervisor of the dispatch center informed the employees of her decision to change to rotating shifts. She then sent the represented employees multiple shift bid schedules, each one more detailed than the last. Finally, she held a meeting, and the employees bid under the new guidelines. The Commission determined these actions were not direct dealing because the employer had already made its decision and was merely informing the employees of that decision. No evidence indicated that the employees’ feedback was used to help form the decision; thus there was no negotiation. Because there was no negotiation, there was no circumvention.
The present case is distinguishable from University of Washington. Here, the meetings were held to gather feedback from the employees. The employer then used the employees’ feedback to create a new proposal for the change. There was a back-and-forth negotiation between the employer and the employees.
This case is more similar to that in City of Pasco, Decision 4197-B (PECB, 1999). There, the employer and union had an agreement that the employer would pay the full cost of police academy training for the employees. If within 24 months of full-time service as a police officer subsequent to the training an employee left for reasons other than termination, the employee would be responsible for reimbursing the employer for the police training costs on a prorated basis. When an employee resigned his position after nearly 21 months of full-time post-training service, the employer provided the employee with a form that sought the prorated reimbursement of the training academy cost. The employee responded to the employer saying he objected to the reimbursement because he was not informed of it when he was hired. The employer stated that the employee may not have been formally notified of the reimbursement policy at the time of hiring, but the employee had signed documentation agreeing to it. The employer decided to reduce the reimbursement cost by half. The employee accepted the offer. The union was never involved in any of these discussions. The Commission found that the employer was negotiating with the employee and had circumvented the union.
The facts of the present case are similar. The employer made an offer to the employees regarding a change in their hours of work. The employees provided feedback to the employer, and the employer made changes to its proposal and tried to compromise with the employees based on their feedback without bringing the union into the discussion. The employer made a second offer based on that feedback. The offer was not accepted nor implemented because an unfair labor practice complaint was filed prior to acceptance of the offer, but the employer was negotiating with the employees. The employer never notified the union, nor did it notify the employees that it intended to notify the union.
CONCLUSION
The employer circumvented the union when it engaged in direct negotiations with the employees in the oncology clinic regarding a mandatory subject of bargaining without involving the union. The union is the exclusive bargaining representative of the employees in the oncology clinic. The employees’ hours of work are a mandatory subject of bargaining, and the employer negotiated the hours of work with the employees in the oncology clinic without involving the union.
FINDINGS OF FACT
1. Skagit Regional Health is a public employer within the meaning of RCW 41.56.030(12). The employer operates a cancer care center, known as the oncology clinic, in Mount Vernon, Washington.
2. The Washington State Nurses Association (union) is an exclusive bargaining representative within the meaning of RCW 41.56.030(2). The union represents the nurses who work in the oncology clinic.
3. The employer and union are parties to a collective bargaining agreement effective from September 13, 2014, through May 31, 2017.
4. The Director of Oncology holds regular monthly nurses’ meetings, which are attended by nurses, medical assistants, the clinical supervisor, and the director. The regular monthly meetings are not mandatory, but attendance is taken at those meetings. At times, the director also holds informal meetings or “huddles” where attendance is not taken. There is dispute over the dates and number of meetings the parties held in July and August 2015. Three or four meetings are relevant to the present case. Similar events occurred at each of the meetings.
5. During the initial meeting in the beginning of July 2015, the director talked with the nurses regarding the need to offer more support to meet patients’ needs. The director identified the issue as a staffing issue. The structure of the oncology clinic was to have everyone titled as a “staff nurse.” All staff nurses completed a range of various tasks, and the employer believed this limited the number of patients each nurse could assist. The employer testified that the industry best practice is to employ nurses in two separate roles: triage nurses and staff nurses. By the employer utilizing two separate roles, the employees would have specific tasks to complete based on their respective roles, and because they would have focused tasks, they could accomplish meeting the needs of more patients.
6. During the initial July 2015 meeting, while describing the employer’s needs, the director handed out a document which included the assignments for the provider clinic and the treatment room in the oncology clinic. The treatment room assignment chart was the focus in this case.
7. The treatment room assignment chart, which was handed out during the initial July 2015 meeting, had three columns. The first column showed the budgeted full-time equivalent (FTE or hours of work) for each of the nurse positions in the treatment room. The second column reflected the actual scheduled or worked FTE for each nurse. The third column, titled “Proposed,” presented the employer’s suggested changes, which included increasing the FTEs for some positions and decreasing the FTEs for other positions. The employer did not notify the union of the proposed changes or that it was presenting this information to the employees during a staff meeting. The director did not notify the employees that she planned to take this information to the union after their discussions. The director testified that she explained what each of the columns meant and asked the employees to provide feedback and input on the employer’s suggestions. She did not ask the employees to vote or poll the employees and did not ask for agreement from the employees. The meeting ended with the director suggesting that she and the employees get together another time to talk about more ideas.
8. About a week after the first meeting, the director had a second informal meeting in “huddle” format. Attendance was not taken at this meeting. The director discussed other ideas of how to distribute the workload in the treatment room with the employees. There was not enough time to completely discuss the issue, so everyone left with the intention of meeting again to continue the discussion.
9. During the second July meeting and between meetings, a few employees discussed with the director their concerns about reducing the hours of some of the positions. The union’s witness notified the director that she did not have an interest in a reduction of her position’s FTE. A second employee stated she was interested in lowering her FTE, so the union’s witness could stay at her FTE.
10. On August 4, 2015, the director met with the employees again and continued the discussion of the changes to the treatment room employees’ FTEs. The union’s sole witness was not present at this meeting. The director credibly testified that during this meeting, she provided an additional document. This document was in the same format as the one that was distributed during the initial July meeting, but it had changes to the FTEs for individual nurse positions. On this document the FTE for the first nurse position at the top of the treatment room assignment chart had been changed. The changes were in the column titled “Proposed August 2015” with an increase from .8 FTE to .9 FTE. The FTE for the second nurse position on the chart had been decreased from .8 FTE to .7 FTE. The union’s witness testified that the first position on the chart was her position. The director took the information she had received from discussions in previous meetings and from the requests made by the union’s witness and another employee. The director made the changes to what the employer had proposed in July based on the employees’ input and stated she was attempting to meet everyone’s interests. She stated there was still no solid plan to move forward. The employer did not ask the employees to vote or poll the employees during this meeting.
11. While one employer witness testified that she did not remember an additional meeting, the union’s witness credibly testified that a few days after the August 4, 2015, meeting, a brief meeting took place where the FTE change was again discussed. There was no decision to move forward, and the meeting ended with an intent to continue discussions.
12. In September 2015 during a monthly nurses meeting, the director explained to the employees that the discussion regarding the changes in FTEs would need to be tabled because this unfair labor practice complaint had been filed regarding the matter. No changes have been made to the staffing or FTEs of the nurses in the oncology clinic.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and Chapter 391-45 WAC.
2. Based on Findings of Fact 4 through 12, the employer circumvented the union in violation of RCW 41.56.140(4) and (1) when it negotiated directly with the employees regarding a possible change in hours of work without providing notice to the union.
ORDER
Skagit Regional Health, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:
1. CEASE AND DESIST from:
a. Dealing directly with bargaining unit members concerning mandatory subjects of bargaining.
b. 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. Give notice to and, upon request, negotiate in good faith with the Washington State Nurses Association before changing nurses’ work hours and assigned FTEs.
b. Contact the Compliance Officer at the Public Employment Relations Commission to receive official copies of the required notice posting. Post copies of the notice provided by the Compliance Officer 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.
c. Read the notice provided by the Compliance Officer into the record at a regular public meeting of the Board of Commissioners of Skagit Regional Health, 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.
d. Notify the complainant, in writing, within 20 days following the date this order becomes final 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 provided by the Compliance Officer.
e. Notify the Compliance Officer, in writing, within 20 days following the date this order becomes final as to what steps have been taken to comply with this order and, at the same time, provide her with a signed copy of the notice she provides.
ISSUED at Olympia, Washington, this 16th day of September, 2016.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
EMILY K. WHITNEY, 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.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
NOTICE
STATE LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist an employee organization (union).
• Bargain collectively with your employer through a union chosen by a majority of employees.
• Refrain from any or all of these activities, except you may be required to make payments to a union or charity under a lawful union security provision.
THE WASHINGTON STATE PUBLIC EMPLOYMENT RELATIONS COMMISSION CONDUCTED A LEGAL PROCEEDING, RULED THAT SKAGIT REGIONAL HEALTH COMMITTED AN UNFAIR LABOR PRACTICE, AND ORDERED US TO POST THIS NOTICE TO EMPLOYEES:
WE UNLAWFULLY circumvented the union by dealing directly with employees regarding a possible change to hours of work in the oncology clinic without providing the union with notice and an opportunity to bargain.
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL give notice to and, upon request, negotiate in good faith with the Washington State Nurses Association before changing nurses’ work hours and assigned FTEs.
WE WILL NOT circumvent the Washington State Nurses Association by dealing directly with bargaining unit employees on matters of wages, hours, or working conditions.
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.
DO NOT POST OR PUBLICLY READ THIS NOTICE.
AN OFFICIAL NOTICE FOR POSTING AND READING
WILL BE PROVIDED BY THE COMPLIANCE OFFICER.
The full decision is published on PERC’s website, www.perc.wa.gov.
[1] Central Washington University is currently on appeal, but the standard has been consistent since 1982.