Municipality of Metropolitan Seattle (METRO), Decision 2197 (PECB, 1985)

Frank and Rosen, by Jon H. Rosen, Attorney at Law, appeared on behalf of the complainant.

Preston, Thorgrimson, Ellis and Holman, by J. Markham Marshall, Attorney at Law, appeared on behalf of the respondent.

On April 8, 1983, the complainant, Amalgamated Transit Union, Division No. 587, filed a complaint with the Public Employment Relations Commission, alleging that the respondent, Municipality of Metropolitan Seattle (Metro), had committed unfair labor practices in violation of RCW 41. 56. 140(1), (2) and (4). The complaint alleges that the parties negotiated a memorandum of agreement to their collective bargaining agreement which provided for Metro to audit certain job positions, upon the union's request, and, if necessary, reclassify the employees in the positions, develop new job descriptions and negotiate new wage rates. The complaint alleges that prior to reaching impasse in negotiations over the reclassification, job description and wage rates for five interme­diate clerks, Metro refused to negotiate further. The complaint further maintains that at a meeting between Metro and the clerks, Metro told the clerks that unless they agreed to accept newly created jobs outside of the bargaining unit, some or all of their jobs would be abolished and individuals would be hired for new jobs which would be excluded from the bargaining unit.

A hearing was held on the complaint on December 19 and 20, 1983 before Examiner Katrina I. Boedecker.

BACKGROUND

Sometime between December 4 and December 28, 1981, the union and Metro signed a memorandum of agreement to their collective bargaining agreement. The memorandum provided:

Within thirty (30) days from the execution date of this AGREEMENT, METRO will, upon request and in conjunction with the UNION, audit approximately fifteen (15) job positions in the Miscellaneous Employee category.

If it is agreed that an Employee is performing work more appropriate to another classification, the Employee shall be reclassified. If no appropriate job description exists, METRO agrees to develop a new job description and to negotiate a wage rate for the position.

On January 7, 1982, Union President David Johnston wrote Eugene Matt, personnel manager for Metro, requesting a 60‑day extension of the time limitations reflected in the memorandum. Matt responded on February 9, 1982, agreeing to extend the time limits until March 26, 1982.

In a letter dated March 8, 1982, Johnston requested review of certain positions, including the four intermediate clerk positions at the east, north, south and central operational bases. Subse­quently, those four clerks and the clerk at the Ryerson Base received position description questionnaires from Metro's personnel department. The surveys sought a description of the clerks' duties and the percentage of time devoted to each of these responsibili­ties. Their responses were reviewed by their supervisors, who indicated whether or not they concurred with them. After all of the completed questionnaires were returned, Jim Potter and Marsha Mitchell, members of Metro's personnel staff, conducted interviews with each of the clerks to review the information contained in the questionnaires. Potter and Mitchell then reviewed the information and, on July 12, 1982, Potter submitted his analysis and recommen­dations concerning the positions to Matt. Potter concluded that the clerks' duties had evolved over the prior two years into higher level clerical responsibilities and recommended the clerks' reclassification as secretaries.

On August 8, 1982, Johnston wrote Matt requesting a meeting to commence negotiations on the job audit of the intermediate clerks. Matt informed Johnston of the results of several position reviews in a letter dated September 21, 1982. With respect to the intermediate clerks at issue, Matt noted that Metro had determined the positions were improperly classified and that they were appropriately encompassed in the secretary classification.

Johnston again wrote Matt on October 28, 1982, requesting that negotiations begin concerning the intermediate clerk positions. The parties first met on the matter on December 10, 1982. They discussed the process used in reviewing the positions, as well as classifications into which the clerks might be placed. Metro proposed that they be classified as secretaries. The union resisted this proposal, as secretaries are excluded from the bargaining unit. Instead, the union, ought placement of the clerks in a newly created classification which would be included in the bargaining unit. The union also raised the issue of retroactive pay for the clerks, since the parties agreed that the clerks had been working outside of their classification.

A second negotiation session was held December 16, 1982. At that meeting the union acknowledged that the clerks were performing some secretarial work, but it did not agree that they would be properly classified as secretaries. Rather, it believed the clerks were performing a hybrid form of work, not entirely secretarial, yet more than clerical. Accordingly, it proposed creation or applica­tion of various classifications for the clerks. When agreement on the matter was not reached, the meeting was adjourned upon the proposition that Metro review the union's suggestions.

The parties met again on the proposed clerks' reclassification on January 31, 1983. Discussion in this meeting centered around finding an agreeable alternative to Metro's position. The parties also discussed what might occur if the union did not agree to the clerks, reclassification as secretaries. It was acknowledged that an alternative would be to remove secretarial responsibilities from the clerks and hire a secretary to assume them. Given this option, the union indicated it would let the clerks decide whether they wished to become secretaries. The union was to inform Metro of their decision. Sometime thereafter the affected employees met with the union and voted to remain as clerks.

In February, 1983, Jim Patrick, Metro's supervisor of employee and labor relations, returned a telephone call from Myra Bezuk, an intermediate base clerk. Bezuk expressed concern that the interme­diate clerks did not know what was going on concerning their proposed reclassification. Patrick informed her that she should contact the union regarding the matter, but told her he understood the union's position to be that the clerks continue in that classification. Patrick then telephoned Johnston and informed Johnston of his conversation with Bezuk. Johnston indicated to Patrick that he felt such contact was improper.

On March 1, 1983, Johnston sent Matt the following letter:

Pursuant to our last meeting on January 31, 1983 concern­ing the Intermediate Clerks, it was the company's position that the clerks were performing the work of secretaries. It was agreed between the company and the union that the clerks were indeed working outside of their job classification according to the bargaining agreement and their job description of Intermediate Clerk.

Since that time, I have met with the clerks, who have agreed among themselves that they do not wish to leave the bargaining unit. Therefore, pursuant to our meeting of January 31st, we will comply with the company's position that a secretary is needed at the bases to handle the confidential information and would welcome the posting for those positions.

At the meeting, you commented that Metro would be willing to pay retroactive for work performed outside the classification of Intermediate Clerk. We believe that retroactive pay should commence on or about November 1, 1981. Additionally, our five (5) Intermediate Clerks should continue to be paid outside their job classifica­tion pursuant to the labor agreement and established Metro policies.

This being the decision of the clerks and the union, we consider this matter resolved. We would welcome any meeting with you to establish when the Intermediate Clerks will receive their retroactive pay and when Metro proposes to post for the secretary positions in the bases. (emphasis added)

Intermediate base clerks Fran Cochran and Camilla Nohaver also initiated conversations with Patrick or Beth Gulotta, a personnel analyst for Metro. The record does not reflect whether such contact occurred before or after Johnston's March 1st letter. Because of the questions raised by the clerks in these conversa­tions, Gulotta sent a memo to the intermediate base clerks on March 10, 1983, scheduling a meeting for March 16th. The memo stated, in pertinent part:

The purpose of the meeting will be to provide you an opportunity to ask questions on the classification study for the Intermediate Clerks conducted earlier this year. They will be able to review the actual process, the results of the study, and the position Metro has taken on this matter.

The union was not informed of the meeting. The March 16th meeting, held at Metro's downtown office, was attended by Patrick, Matt and the clerks. Patrick began the meeting by stating that it was being held only upon the clerks' request, and that the purpose of the meeting was to answer their questions concerning the process involved in reviewing their positions. He noted that Metro would not negotiate nor advise the clerks concerning the matter.

In response to clerks' questions, Patrick and Matt addressed secretarial positions' benefits. The clerks were told, for example, that in contrast to their current positions, secretaries were paid more money, did not pay union dues nor contribute to the payment of insurance premiums, and did not receive compensatory time. When questioned, Matt told the clerks why he believed the use of data entry terminals did not entitle a clerk to secretarial pay.

The clerks were not told in the meeting that their positions would be abolished if they did not choose to be classified as secretar­ies. Rather, they were told that, given the union's position indicated in Johnston's March 1st letter, Metro would be removing their secretarial duties and hiring a secretary to assume the secretarial duties they were currently performing. Until then, the clerks were informed, they would continue performing such tasks. They were further advised that they could apply to become a secretary when such a position became open.

On March 18th, Johnston wrote Matt indicating that the union had not yet received a response to Johnston's March 1st letter. Johnston stated, "We feel it is very important that the clerks receive their retroactive pay and this matter be finalized at the earliest possible time. "

Matt responded by letter on March 23, 1983, indicating that Metro likewise believed the issue to be important "and to that end have continued to explore alternatives and have discussed with the base clerks, at their request, the issue at hand. "He then noted that with respect to retroactive pay for work performed in the secre­tarial classification, Metro had not yet established a date upon which to begin calculation of such pay, and that when Metro's position was formulated, the union would be notified.

On April 19, 1983, Johnston wrote Matt officially requesting payment to base intermediate clerks for working outside their job classification. The letter stated that the union was giving 30‑days notice pursuant to the interest arbitration provisions of an agreement between the parties required by the United States Department of Transportation as a condition for receipt of federal funds. The letter concluded, "Therefore, we want payment on behalf of our Intermediate Clerks and this matter resolved. " Such notice alerted Metro that the union would seek interest arbitration on the matter.

Matt informed Johnston by letter dated May 17, 1983, that Metro believed July 12, 1982, the date the intermediate base clerks' classification review was completed, was the date from which retroactive pay for the clerks should accrue. He indicated he did not believe November 1, 1981 to be the appropriate date, but noted that March 18, 1982, the date on which the union's request for review was received, was arguably justifiable. Accordingly, he stated, he was informing the union of Metro's willingness to discuss a more appropriate date. Matt further stated that Metro would reduce the clerks' duties effective at the end of the workday on July 1, 1983, so that their duties would be commensurate with the intermediate clerk classification. He informed the union that a secretary rotating among the bases would assume the clerks' secretarial functions and that an additional secretary would eventually be located at the east base.

Johnston wrote Matt on May 24, 1983, accepting retroactive pay from July 12, 1982, but noting that the union continued to seek retroactive pay from November 1, 1981 at the higher "principal clerk" rate. [1] The letter also declared the subject to he at impasse and demanded interest arbitration.

The base intermediate clerks subsequently received retroactive pay for the difference between clerks' wages and secretaries' wage rate for the period from July 12, 1982 through June 30, 1983.

POSITIONS OF THE PARTIES

The union argues that prior to the conclusion of negotiations between it and Metro, the employer met with the intermediate base clerks and discussed subjects which it was obliged to bargain with the union. The union further contends that Metro failed to bargain in good faith, as evidenced by its three‑month delay in commencing negotiations over the issue of the clerks' reclassification, its direct dealing with the clerks and its take‑it‑or­-leave‑it stance that the clerks were performing work which was exempt from the bargaining unit.

Metro maintains the union's contention that it did not bargain in good faith should not be considered, as it was not raised in the complaint. It also argues that it did not illegally negotiate with the clerks, because the meeting with the clerks occurred after negotiations regarding the clerks' reclassification had been resolved. Metro asserts that at the time of the meeting only the amount of the clerks' retroactive pay remained subject to negotia­tions.

DISCUSSION

Throughout negotiations concerning the clerks' proposed reclassifi­cation, Metro maintained that the clerks should be reclassified as secretaries. Three negotiation sessions failed to generate an agreement on the clerks' proper reclassification. At the third meeting, however, the parties discussed the potential of reassign­ing the clerks' secretarial responsibilities to a secretary and keeping the clerks in their current classifications. The union accepted this concept, as evidenced by its decision to allow the clerks to choose whether to become secretaries or remain in the bargaining unit.

When the clerks voted to remain in the bargaining unit, the union notified METRO of their decision by letter dated March 1, 1983. This letter closed negotiations over the clerks' position reclassi­fication. In informing Matt of the clerks' decision, welcoming the posting of a secretarial position and stating that, "This being the decision of the clerks and the union, we consider the matter resolved", the letter acknowledged that leaving the clerks in their current classification and assigning their secretarial responsibil­ities to a secretary resolved the issue of their proper classifica­tion. (emphasis added). The discussion in the letter regarding retroactive pay, and the union's solicitation of a meeting concerning it, merely showed that the separate issue of the clerks' retroactive pay had not yet been resolved. The lack of resolution on this aspect did not negate resolution on the issue of the clerks' reclassification. In addition, by seeking a meeting only with reference to the calculation of retroactive pay and to the mechanics of the posting of the secretarial position without soliciting negotiations over the clerks' classification, the letter further evidences the union's agreement to the procedure Metro implemented.

After receiving Johnston's letter indicating resolution of the clerks' proposed reclassification, Metro met with the clerks to answer their questions concerning the matter. The union alleged in its complaint that, at this meeting, Metro threatened the clerks with the loss of their jobs unless they agreed to accept new jobs excluded from the bargaining unit. Nothing in the record supports this allegation. Accordingly, no violation is found.

The union also maintained that Metro's meeting with the clerks illegally circumvented the union. An employer is obligated to bargain with the employees' exclusive bargaining representative to the exclusion not only of all other organizations, but of direct dealings with employees as well. Royal School District No. 160, Decision 1419‑A (PECB, 1982). In this case, however, Metro did not illegally deal directly with the clerks. The information conveyed to them was not in the nature of negotiations, but was merely a review of their reclassification study and of the process leading to agreement between Metro and the union on their classification. Since the union and Metro had already agreed to keep the clerks in their current classification and to hire a secretary to perform secretarial duties, Metro neither needed, nor attempted, to undermine the union on the issue. Rather, the meeting was held upon the employees' request in order to answer their questions concerning the classification review. While wages were discussed, such discussion was simply in response to questions from the clerks concerning secretaries' financial status. Retroactive pay, which was still at issue, was not discussed.

Because the record reflects that the meeting was called in response to clerks' questions, was informational rather than coercive in nature, and, most importantly, occurred after the parties had bargained to agreement regarding the clerks I classification, it cannot be concluded that the meeting violated RCW 41. 56. 140. See: Stokely‑Van Camp, Inc. , 186 NLRB 440 (1970); Proctor & Gamble Mfg. Co. , 160 NLRB 334 (1966).

Finally, the union contends in its brief that Metro did not bargain in good faith through delay in beginning negotiations over the clerks' reclassification, direct dealing the clerks, and assuming a take‑it‑or-­leave‑it position on their reclassification. Metro is correct in arguing that this matter was not pled in the union's complaint. Nor was it raised by a subsequent motion for amendment. Therefore, it cannot be raised for the first time now. Royal School District, supra; Seattle‑King County Health Department, Decision 1458 (PECB, 1982). Furthermore, even if the matter was properly at issue, the record does not support a conclusion that Metro failed to bargain in good faith.

FINDINGS OF FACT

1.                  Municipality of Metropolitan Seattle (Metro) is an employer within the meaning of RCW 41. 56. 030(1).

2.                  Amalgamated Transit Union, Local 587, is a bargaining repre­sentative within the meaning of RCW 41. 56. 030(3).

3.                  Pursuant to a letter of agreement, Metro audited the five intermediate base clerk positions. As a result of the audit, negotiations between the union and Metro commenced over the intermediate clerks' reclassification. Metro proposed that they become secretaries, positions which are excluded from the bargaining unit. The union sought to have them reclassified in the bargaining unit.

4.                  On March 1, 1983 the union notified Metro by letter that the intermediate clerks had agreed to remain as clerks and that it agreed that Metro may hire a secretary to perform confidential duties then being done by the intermediate clerks. This letter resolved the parties' negotiations over the intermedi­ate clerks' reclassification.

5.                  Metro met with the intermediate clerks on March 16, 1983 in order to respond to their questions conceding their classifi­cation review. The union was neither notified of the meeting nor in attendance. The meeting was for informational pur­poses.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to RCW 41. 56.

2.                  By the events described in Findings of Fact 3, 4, and 5, Metro did not circumvent the union or refuse to bargain in good faith. Metro did not commit unfair labor practices violative of RCW 41. 56. 140(1), (2), (4).

ORDER

On the basis of the foregoing findings of fact and conclusions of law, the undersigned examiner hereby orders that the complaint against Metro be, and hereby is, dismissed.

DATED at Olympia, Washington, this 8th day of April, 1985.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

KATRINA I. BOEDECKER, Examiner

This Order may be appealed by filing a petition for review with the Commission pursuant to WAC 391‑45‑350.