State - Corrections, Decision 9421 (PSRA, 2006)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
TEAMSTERS LOCAL 117,
Complainant,	CASE 20033-U-05-5085
WASHINGTON STATE - CORRECTIONS	DECISION 9421 - PSRA
Respondent.	FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

Spencer Nathan Thal, General Counsel, for the union.

Rob McKenna, Attorney General, by Rachelle Wills, Assistant Attorney General, for the employer.

On December 22, 2005, Teamsters Local 117 (union) filed charges of unfair labor practices against the State of Washington (employer). The union alleged that the employer interfered with the statutory rights of its employees and failed to bargain in good faith when it did not negotiate the impacts and effects of changes in work schedules at its Airway Heights Corrections Center (Corrections Center).

A preliminary ruling was issued on February 1, 2006, which found that the union’s allegations stated a cause of action. On April 26, 2006, the parties jointly requested that the Commission decide the case on summary judgment. After determining that there were no disputed issues of fact, the Examiner granted their request. The parties then submitted a joint stipulation of facts and later, simultaneous briefs.

ISSUES

1.         Did the employer interfere with its employees’ rights when it unilaterally changed working hours and assignments as a result of a change in funding?

2.         Did the employer refuse to bargain the effects of its decision to unilaterally change working hours and assignments for corrections officers?

Based upon the evidence, stipulations, and arguments presented by the parties, the Examiner finds that the employer did not interfere with employee rights as alleged under RCW 41.80.110(1)(a). However, the Examiner does find that the employer was in violation of RCW 41.80.110(1)(e) when it did not did not respond appropriately to the union’s requests to bargain and did not bargain in good faith the effects of unilaterally changing employee assignments and work hours.

APPLICABLE LEGAL STANDARDS

RCW 41.80.110 states:

(1) It is an unfair labor practice for an employer:

(a) To interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by this chapter.

. . . .

(e) To refuse to bargain collectively with the representatives of its employees.

Thus the statute imposes on the State of Washington, as an employer, the same obligations to not interfere with employee rights and to bargain in good faith that local government employers have had since the enactment of 41.56 RCW. Also, in RCW 41.80.020, the statute imposes similar definitions of mandatory subjects of bargaining:

(1) Except as otherwise provided in this chapter, the matters subject to bargaining include wages, hours, and other terms and conditions of employment, and the negotiation of any question arising under a collective bargaining agreement.

As has been held in cases prior to this one, the standards established by years of Commission precedent under nearly identical language also establishes the applicable precedents for the instant case. See Community College 7 (Shoreline), Decision 9094-A (PSRA, 2006).

STIPULATIONS OF THE PARTIES

The parties jointly proposed that the issues in the instant case be resolved by summary judgment. WAC 10-08-135 permits the determination of a charge of unfair labor practices by summary judgment.[1] Following the WAC rule, the parties agreed that there were no genuine issues as to any material fact and jointly developed a list of stipulated facts:

•           Prior to November of 2005, the food service facility at the Corrections Center (food factory) was open Monday through Friday, 5:30 a.m. to 10:00 p.m.

•           During the summer of 2005, the State of Washington Department of Corrections Headquarters notified the Corrections Center that additional funds had been appropriated to keep its food factory open seven days a week, 24 hours a day. The Corrections Center was also told that the library should become a five day-a-week operation and therefore it needed to close its library on Saturdays and Sundays.

•           As a result of this new funding and the orders to change the operation hours of the library, the Corrections Center filled new positions at the food factory and, effective November 13, 2005:

1.         Changed the days off of three correctional officers assigned to work in the food factory;

2.         Changed the days off of two correctional officers assigned to work in the library; and

3.         Changed the work location of two correctional officers from the library (on the regular officers days off) to the food factory.

•           Prior to September 30, 2005, the union had not been informed of these proposed changes nor was it offered an opportunity to bargain the changes or the impacts of the changes. On October 11, 2005, after having found out about the changes from the affected employees, the union wrote the Corrections Center’s Superintendent and requested bargaining on the effects of the employer’s decisions. The result of this correspondence was a series of letters between the parties in which the employer never acknowledged an obligation to bargain. Instead the Superintendent replied by requesting that the union cite what provisions of the collective bargaining agreement required it to bargain the proposed changes and then, in a later letter, indicated that she wanted to refer the issues to labor relations. The parties never met concerning the issues raised by the union.

ANALYSIS

Issue 1: Employer interference with employee rights.

The Commission’s test for an interference violation is whether one or more employees could reasonably perceive employer actions as a threat of reprisal or force or promise of benefit associated with the pursuit of rights under Chapter 41.80 RCW. It is not necessary for a complainant to show that the employer intended to interfere, or even that the employees involved actually felt threatened. City of Omak, Decision 5579-B (PECB, 1997); City of Tacoma, Decision 8031-A (PECB, 2004).

In the instant case, the union alleged interference in its complaint, but it did not argue a separate interference charge. Instead, it relied on the fact of the unilateral change of work schedules to support its charge of interference. However, from the language of the parties’ collective bargaining agreement, such a charge is not supported.

16.1         Definitions

. . . .

D.        Work Schedules

Workweeks and work shifts of different numbers of hours may be established by the Employer in order to meet business and customer service needs, as long as the work schedules meet federal and state laws.

. . . .

F.         Workweek

A regular re-occurring period of one hundred and sixty-eight (168) hours consisting of seven (7) consecutive twenty-four (24) hour periods. Workweeks will be designated by the appointing authority. If there is a change in their workweek, employees will be given written notification by the appointing authority.

. . . .

16.3         Scheduled work period Employees

. . . .

C.        Employer Initiated Schedule Changes

1.         The Employer will provide scheduled work period employees with seven (7) calendar days notice of a shift and/or days off changes unless the change is at the written request of the employee.

a.         If the employer changes the assigned hours of days of scheduled work period employees without giving them at least seven (7) calendar days notice of the change, employees will [be] paid for all time worked outside the scheduled hours or days at the overtime rate for the duration of the notice period.

. . . .

(emphasis added) The above-quoted language from the parties’ collective bargaining agreement deals with employer-initiated changes in work schedules. It is apparent from this language that when the parties negotiated the contract, they discussed and agreed upon procedures for changes of schedule, workweek, work period and assigned hours. There are various notice requirements imposed upon the employer but it is clear and unambiguous that, given the correct notice (which the union did not contest) the employer was able to effect the disputed changes in employee schedules.

The union argues that such language only “contemplates a process for implementing employer-initiated schedule changes.” By “contemplating” such changes in the agreement the parties have clearly and unambiguously agreed that the changes may take place. The parties’ contractual language above constitutes a “clear and unmistakable waiver” of the union’s right to bargain the decision to change employee days off. City of Anacortes, Decision 5668 (PECB, 1996).

The union then refers to Article 5.1 of the collective bargaining agreement which reads:

The employer will satisfy its collective bargaining obligation under law before changing a matter that is a mandatory subject of bargaining.

But the general language of Article 5.1 cannot trump the specific language of Article 16. It is clear from Article 16 that the union waived by contract its right to demand bargaining or charge interference based upon the decision to change individual employee work schedules. Thus the employer complied with the contractual statement above, insofar as the decision to change employees’ hours of work or work schedules is concerned, and the union’s charge of interference with employee rights based upon the changes in employee work schedules must be dismissed.

The employer, in addition to changing schedules and days off for some employees, also changed the work location of two employees when it moved them from the library to the food factory. However, neither party presented evidence related to a reasonably perceived threat of reprisal, a threat of force, or a promise of a benefit on the part of the affected employees in regards to any of these changes. Therefore, the charge of interference based upon a change of work location for these employees will also be dismissed.

Issue 2:            Did the employer refuse to bargain the effects of its decision to unilaterally change working hours and assignments for food factory and library corrections officers?

In their stipulations the parties agree that the Commission has interpreted the state’s collective bargaining statutes to mean that the employer has a continuing duty to bargain with the certified bargaining representative over issues that are mandatory subjects of bargaining and that have not been previously raised or are not covered by the parties’ collective bargaining agreement. City of Fircrest, Decision 5669-A (PECB, 1997), citing City of Seattle, Decision 1667-A (PECB, 1984). However, an employer decision which changes a mandatory subject of bargaining covered in the parties’ contract may then create effects which are still to be bargained. Seattle School District, Decision 5755-A (PECB, 1998):

Even if an employer has no duty to bargain a particular decision, it still is required to bargain the effects of its decision impacting the wages, hours, or working conditions of union-represented employees. See, Wenatchee School District, Decision 3240-A (PECB, 1990).

Request to Bargain

In this case the union’s correspondence to the employer on October 11, 31, and November 7, 2005, specifically requested bargaining over the effects of the employer’s decisions to change days off and work assignments for the corrections officers. The employer’s reply on October 12, 2005, did not address the bargaining request, but instead asked the union to reference the sections of the collective bargaining agreement that had been violated. And in a November 8, 2005, reply, the employer asked the union to identify the mandatory subjects and the impacts of changing the days off of two correction officers. The employer’s questions, at least in part, assume that the bargaining obligation only flows from the collective bargaining agreement, an assumption that is incorrect. The obligation to bargain in good faith is imposed by statute, specifically:

RCW 41.80.005 Definitions:

. . . .

(2) “Collective bargaining” means the performance of the mutual obligation of the representatives of the employer and the exclusive bargaining representative to meet at reasonable times and to bargain in good faith in an effort to reach agreement with respect to the subjects of bargaining specified under RCW 41.80.020. The obligation to bargain does not compel either party to agree to a proposal or to make a concession, except as otherwise provided in this chapter.

Waivers from a statutory bargaining obligation can and often do flow from the collective bargaining agreement and in this case the parties have included waivers of the obligation to bargain decisions changing employee days off or work assignments. However, the union did not waive its right to demand bargaining on the effects of such decisions and the effects of decisions on mandatory subjects of bargaining are also a mandatory subject of bargaining. City of Bellevue, Decision 3343-A (PECB, 1990):

The Commission dealt with the “decision vs. effects” concept as early as Federal Way School District, Decision 232-A (EDUC, 1977), where it concluded that decisions about budget and the services to be offered are generally regarded as the sole prerogative of management. The employer may implement decisions within its sole prerogative (e.g., the budget cut at issue in Federal Way or the shift staffing change at issue here) even though required bargaining has not been concluded on the effects of that decision (e.g., layoffs proposed by the employer in Federal Way).

In its correspondence on the issue, the union did not state what it believed were the effects of the employer’s decisions. Instead it only demanded bargaining using the generic term “effects”. In Spokane County Fire District 9, Decision 3661-A (PECB, 1991), the Commission said:

It must not be assumed that every permissive decision automatically requires “effects” bargaining. The impact on the bargaining unit of a particular managerial action must still be considered on a case-by-case basis. If a change has no material impact on employee wages, hours or working conditions, then there will be no duty to bargain “effects” of the permissive managerial action. See, e.g., Seattle School District, supra; Litton Microwave Cooking Products, 300 NLRB No. 37, 136 LRRM 1163 (1990) . . . .

Similarly, it should not be assumed that all “effects” of a mandatory decision require bargaining. In the instant case there is no indication in the union correspondence what effects the union wanted to negotiate. The union accused the employer of doing a “bob and a weave” in reply to the union’s request. In fact, both parties did some bobbing and weaving. The employer should have directly responded to the bargaining request and the union should have been more direct on the issues that it wanted to negotiate.

CONCLUSION

Nevertheless, once a bargaining demand is made, the employer has the obligation to respond appropriately. The employer did not do so and thereby committed an unfair labor practice.

FINDINGS OF FACT

1.         The State of Washington is a “public employer” within the meaning of RCW 41.80.005(8). The State Department of Corrections is a subdivision of the State as defined by RCW 41.80.005(1) and one of its facilities is the Airway Heights Correction Center.

2.         Teamsters Local 117 is an “exclusive bargaining representative” within the meaning of RCW 41.80.005(9) and represents the non-supervisory employees employed at the Airway Heights Corrections Center.

3.         The employer and the union are parties to a collective bargaining agreement which was in effect during all times relevant to the facts of this case. Article 16 of that agreement specifically references changes in work weeks, work shifts and periods, and assigned hours of days of scheduled work. The collective bargaining agreement only requires notice of employer initiated changes in employee hours of work.

4.         Prior to November of 2005, the “food factory” at the Airway Heights Correction Center was open Monday through Friday, 5:30 a.m. to 10:00 p.m. During the summer of 2005, the State Department of Corrections Headquarters informed the Superintendent of the Corrections Center that additional funds had been appropriated to extend the hours of operation of the food factory to seven days per week, 24 hours per day.

5.         The State Department of Corrections Headquarters also informed the Superintendent that the library at the Corrections Center was to be closed on Saturdays and Sundays.

6.         On or about September 30, 2005, the employer notified employees of the scheduling changes resulting from the funding changes. Three corrections officers had their days off changed and two other officers had their work location changed.

7.         Although the employer did not formally notify the union of these changes; the union was notified by the employees and on October 11, 2005, it began a series of correspondence with the employer about the changes in employee work schedules. In its correspondence it requested bargaining on the effects of the schedule and work location changes.

8.         On October 11, 2005, the union wrote the employer and requested bargaining on the effects of the employer’s decision to change employee work schedules; changes which it identified as mandatory subjects of bargaining. The employer replied on October 12, 2005, requesting references in the parties’ collective bargaining agreement that addressed the need to bargain the impacts of scheduling changes.

9.         On October 31, 2005, the union again wrote the employer citing an article in the parties’ collective bargaining agreement, and again requested bargaining and requested that the changes not be implemented until bargaining had taken place. The union wrote on November 7, 2005, modifying its original request by referencing other bargaining unit positions impacted by the employer’s scheduling decisions.

10.       On November 8, 2005, the employer replied and asked what mandatory subjects of bargaining the union wanted to bargain and for a listing of the impacts in regards to the changes in employee schedules.

11.       The scheduling changes were implemented on or about November 13, 2005, and no bargaining ever took place on the impacts on the effects of the employer’s decisions.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.80 RCW and Chapter 391-45 WAC.

2.         Without a showing by the union of a reasonably perceived threat of reprisal, or a threat of force, or a promise of a benefit associated with employee rights, its charge of interference under RCW 41.80.110(1)(a) cannot be sustained. In this case, no such showing was made by the union in the foregoing findings of fact.

3.         Changes in employee schedules and work assignments are mandatory subjects of bargaining as defined in RCW 41.80.020(1).

4.         In their collective bargaining agreement the parties agreed that the employer is able to make scheduling changes as long as the appropriate notice to is given. Therefore, the union waived its right to bargain decisions to change employee schedules and the scheduling decisions described in the foregoing findings of fact are not an interference in employee rights and do not constitute an unfair labor in violation of RCW 41.80.110(1)(a).

5.         When requested to do so by the union, the employer refused to bargain in good faith the impacts of its decision to change employee schedules and work assignments and therefore violated RCW 41.80.110(1)(d).

ORDER

THE STATE OF WASHINGTON, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

1.         CEASE AND DESIST from:

a.         Refusing to bargain in good faith with the union concerning the impacts of its decisions to change employee work schedules.

b.         In any other manner refusing to bargain in good faith concerning mandatory subjects of bargaining when requested to do so by the exclusive bargaining representative of its employees.

2.         TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter 41.80 RCW:

a.         Bargain in good faith with the Teamsters Local 117 over any impacts of the implemented changes in employees’ schedules that are identified by the union.

b.         Give notice to and, upon request, negotiate in good faith with Teamsters Local 117, before implementing any further changes in employee schedules.

c.         Post copies of the notice attached to this order in conspicuous places on the employer’s premises at the Airway Heights Correction Center 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.

d.         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.

e.         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 30^th day of August, 2006.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

WALTER M. STUTEVILLE, 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.