Community College District 17 (Spokane), Decision 9379 (PSRA, 2006)
STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION |
|
WASHINGTON FEDERATION OF STATE EMPLOYEES, |
|
Complainant, |
CASE 19385-U-05-4922 |
vs. |
DECISION 9379 - PSRA |
COMMUNITY COLLEGE DISTRICT 17 (SPOKANE), |
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER |
Respondent. |
|
Younglove Lyman & Coker, by Edward Younglove, Attorney at Law, for the union.
Rob McKenna, Attorney General of Washington, by Donna Stambaugh, Assistant Attorney General, for the employer.
The Washington Federation of State Employees (union) filed an unfair labor practice complaint against Community College District 17 (employer) on April 13, 2005. The complaint alleged multiple employer violations of RCW 41.80.110(1)(a) (interference with employee rights), and RCW 41.80.110(1)(e) (employer refusal to bargain). The Commission issued a preliminary ruling on May 25, 2005, finding that a cause of action existed. The union filed an amended complaint on June 21, 2005. Examiner David I. Gedrose granted the amendment on July 25, 2005. The employer timely answered the complaint and amended complaint. The Examiner held a hearing on January 10 and 11, 2006, in Spokane, Washington. The parties filed post-hearing briefs.
The union charges that the employer refused to bargain the subcontracting and skimming of certain bargaining unit work and refused to provide information requested by the union concerning subcontracting, discipline, and layoffs.
The Examiner rules that the employer failed to bargain over the subcontracting and skimming of certain bargaining unit work and changes in the employer’s information request requirements. The employer thus committed an unfair labor practice in violation of RCW 41.80.110(e). The employer also impeded the union’s access to information necessary to its functions as an exclusive bargaining representative. In doing so, the employer interfered with employee collective bargaining rights, committing an unfair labor practice under RCW 41.80.110(a).
ISSUES PRESENTED
1. Did the employer unlawfully refuse to bargain with the union over the subcontracting of work within the facilities department?
2. Did the employer unlawfully refuse to bargain with the union when it assigned other employees outside the bargaining unit to do bargaining unit work within the facilities department?
3. Did the employer unlawfully refuse to bargain with the union over changes in the method used for the union’s information requests?
4. Did the employer interfere with employee rights by impeding the union’s information requests?
5. Did the union sufficiently plead certain refusal to bargain allegations regarding subcontracting and skimming?
6. Is the union entitled to attorney fees?
ANALYSIS
Issue 1: Did the employer refuse to bargain over subcontracting?
The union claims that between October 13, 2004, and June 21, 2005, the employer refused to bargain over subcontracts in its facilities department, affecting members of the union’s custodial, grounds, trades and crafts bargaining unit (custodial, grounds, et al).
RCW 41.80.005(2)imposes a duty to bargain. The duty to bargain includes the duty of a party seeking changes to existing wages, hours, and working conditions to: (1) give notice to the opposite party; (2) provide an opportunity for bargaining prior to making a final decision; (3) upon request, bargain in good faith; and (4) bargain to agreement or impasse concerning mandatory subjects of bargaining. City of Seattle, Decision 8313-A (PECB,2003); Snohomish County, Decision 9180 (PECB, 2005).[1]
The term “subcontracting” in this decision refers specifically to the contracting of public sector work to private sector employers and their employees. The Commission, when ruling on subcontracting cases, follows the holding of the Supreme Court of the United States in finding subcontracting a mandatory subject of bargaining. Fibreboard Paper Products v. NLRB, 379 US 203 (1964); City of Kennewick, Decision 482-B (PECB, 1978); Clover Park School District, Decision 2560-B (PECB, 1988).
The Commission had no jurisdiction over state civil service employees before 2002 and thus, prior to the present case, had not ruled on the subcontracting of state civil service work.[2]
However, this case does not exist in a legal vacuum, since there is an extensive judicial history regarding subcontracting of state civil service work. In 1971, the Supreme Court of Washington decided Cunningham v. Community College District 3, 79 Wn.2d 793 (1971). The Court held that state civil service work could not be subcontracted if classified civil service employees could perform the work. In 1978, the union challenged the employer’s attempt to subcontract custodial work in lieu of using classified civil service employees. The Supreme Court of Washington held that public policy prohibited the employer’s action, ruling that “the policy of the civil service system is to establish merit as the basis for selecting personnel.” Washington Federation of State Employees v. Spokane Community College, 90 Wn.2d 698, 702-03 (1978). The Court stated that subcontracting work “ordinarily and regularly provided by classified civil servants,” although not illegal, contravened the civil service system’s basic policy and purpose. Washington Federation of State Employees, 90 Wn.2d, at 702-03.
In 1979, the Washington legislature modified the Supreme Court’s ruling in Washington Federation of State Employees, by passing RCW 41.06.380 and RCW 41.06.382. Those statutes provided that state employers could continue subcontracts if those contracts existed prior to April 23, 1979, on the condition that execution or renewal of said contracts would not have the effect of terminating classified employees or classified employee positions existing at the time of execution or renewal.[3]
The legislature did not overrule either Cunningham or Washington Federation of State Employees. In fact, Washington’s Supreme Court and courts of appeals continued to uphold the basic policy principle set forth in both cases. See Barrington v. Eastern Washington University, 41 Wn. App. 259 (1985); Western Washington University v. Washington Federation of State Employees, 58 Wn. App. 433 (1990).
The public policy favoring the use of civil service employees was so primary that cost savings became a secondary concern. Washington Federation of State Employees, 90 Wn.2d at 703. Only a showing that civil servants could not provide the services would allow the lawful use of outside contractors. Washington Federation of State Employees, 90 Wn.2d, at 703. Washington courts applied the Cunningham and Washington Federation of State Employees principles to government employees protected under Chapter 41.56 RCW. See Joint Crafts Council and Teamsters Local 117 v. King County, 76 Wn. App. 18, 21 (1994). In that case, the court found that a county did not violate civil service law by subcontracting out police vehicle maintenance and repair, where it was no longer practicable for civil servants to work on police vehicles. The court in Joint Crafts Council drew a distinction between subcontracting done for economic reasons, that is, to save money through the use of private employees, and the use of contractors where there was a showing that civil servants could not practicably do the work. In accordance with Washington case precedent, the court found that subcontracting primarily for economic reasons was contrary to public policy. Joint Crafts Council, 76 Wn. App. at 21.
The Commission has ruled that a public employer did not commit an unfair labor practice under Chapter 41.56 RCW when it subcontracted out bargaining unit work to a private contractor after showing: (1) the work was not within the normal and routine work of its own employees; and (2) that it was not within the workload capacities of its own employees. Lakehaven Utility District, Decision 8096 (PECB, 2003).
RCW 41.06.142 replaced RCW 41.06.380 and RCW 41.06.382 on July 1, 2005.[4] Because the union filed its complaint and amended complaint prior to July 1, 2005, RCW 41.06.142 does not apply in this case.
At the time the union filed its complaint, the union and employer had a collective bargaining agreement that was set to expire on June 30, 2005. The parties’ current bargaining agreement took effect on July 1, 2005. Under the terms of the expired contract, the parties agreed that subcontracting must comply with Chapter 41.06 RCW. The portions of Chapter 41.06 RCW that applied to that contract clause were the now-expired RCW 41.06.380 and RCW 41.06.382. Thus, this case involves a determination made under a defunct collective bargaining agreement and superceded statutes.
In light of the foregoing discussion, The Examiner notes the following:
• under the terms of the applicable collective bargaining agreement between the union and the employer, subcontracting was subject to the provisions of Chapter 41.06 RCW, and more specifically, to RCW 41.06.380 and .382;
• the parties presented no evidence that any of the subcontracts at issue existed prior to April 23, 1979;
• nothing in RCW 41.06.380 and .382 clouds the Court’s decision in Washington Federation of State Employees, 90 Wn.2d 698;
• the two principles set forth by the Court in the above noted decision that are most applicable to this case are: (1) Prior to July 1, 2005, a public employer that subcontracted work ordinarily and regularly performed by classified civil servants contravened public policy;[5] and (2) only a showing that civil servants could not provide the services would allow the legitimate use of outside contractors. Washington Federation of State Employees, 90 Wn.2d at 703-05.
The employer is the largest community college system in the state of Washington. It has two main campuses in Spokane,[6] although it operates throughout northeastern Washington. The union represents a bargaining unit consisting of classified employees within the employer’s facilities department. The union also represents a separate bargaining unit that includes classified clerical staff, and another bargaining unit representing Head Start staff.
Agreements between the parties complemented the statutory framework. Between 1995 and 2003, the union and the employer devised two agreements in the attempt to resolve their differences over subcontracting. Both grew out of contract grievances and were named after grievants. In 1995, the parties formed the “Bergstresser” agreement, whereby management committed to orally inform the bargaining unit that it intended to subcontract bargaining unit work. The purpose of this agreement was to give bargaining unit members the opportunity to bargain over the contemplated subcontracting. In 2003, the “Adams” agreement revised this process.
The Adams agreement:
• applied to projects containing work current employees were capable of performing and that members of the bargaining unit had traditionally and historically performed;
• required a supervisor to schedule a meeting with employees and the chief shop steward prior to any subcontracting;
• required a supervisor to give information on the work to the chief shop steward and union representative, including deadlines and estimated cost of the work;
• required subcontracting to conform to RCW 28B10.350 (the statute governing higher education construction projects);
• stated that work traditionally and historically performed by the bargaining unit, added to a public works project by a change order, had to be directly related to the original scope of the work.
One of the functions of the Adams agreement was to determine the relationship of a particular job to higher education public works projects (public works projects) as defined in RCW 28B10.350. The parties agreed that the employer could subcontract public works projects. This agreement resulted from the employer’s belief that RCW 28B10.350 mandates open bidding for public works projects. At the hearing, the union disputed the employer’s interpretation, asserting that the statute does not supercede Washington’s public policy concerning civil service protection and only requires public bidding when subcontracting is not contrary to that policy.
The question arises as to whether the union waived its right to object to the employer’s interpretation of RCW 28B.10.350. The creation of waivers includes those waivers contained in written agreements, as well as waivers by action or inaction. A collective bargaining agreement is a “collection of documented waivers by the parties of bargaining rights they have negotiated and agreed upon.” Yakima County, Decision 6594-C (PECB, 1999); Lakehaven Utility District, Decision 8096. An employer action in conformity with a written contract is not a unilateral change. Lakehaven Utility District, Decision 8096. A union can waive its bargaining rights if it understood what the contract intended when it accepted contract language relied upon by the employer. City of Yakima, Decision 3564-A (PECB, 1991). A union can also waive its bargaining rights through inaction or silence. Cowlitz County, Decision 7007-A (PECB, 2000).
Testimony by both parties established that, by mutual agreement, public works projects, in general, were not considered bargaining unit work. The Adams agreement provided a checklist to help determine if intended subcontracts involved public works projects. Only if the job involved a single craft and the cost was in excess of $15,000, or multiple crafts and exceeded $35,000, did it qualify as a public works project.
Analysis of the relevant case law after Cunningham indicates that public bidding was not mandated under RCW 28B10.350 prior to July 1, 2005, where civil servants were present and able to do work they had ordinarily and regularly performed. Public bidding would be required only if that were not the case, or if the employer could show that civil servants could not perform the work. Yet, no question exists, based on the record, that the union waived its right under the expired contract, to contest the subcontracting of public works projects over the thresholds of $15,000/$35,000.[7]
The union alleges that the employer unlawfully subcontracted the following work: (1) grease trap maintenance; (2) hinge and spring repair and replacement on certain roll-up doors; (3) the testing of backflow prevention devices; (4) HVAC work in SCC buildings 1 (chiller), 9 and 16 (energy management systems), 15 (echelon router), 19 (radiant heating pipe), and the HVAC system in the newer SFCC greenhouse; (5) work on storage racks and a mezzanine[8] in the drama storage building; (6) a lighting project on Stadium Way; (7) security work; and (8) an atrium roof repair job.
In the spring of 2005, the employer responded to a union complaint regarding the subcontracting of grease trap maintenance work. The employer conducted an investigation and concluded that a violation of the Adams agreement had occurred. The employer restored the work to the bargaining unit. In its answer, and at the hearing, the employer admitted it subcontracted grease trap maintenance work. The employer committed an unfair labor practice when it failed to bargain over the subcontracting of grease trap maintenance work.
Certain roll-up doors on the employer’s property use hinges and torsion springs that occasionally need repair or replacement. Evidence at the hearing showed that the employer has historically subcontracted spring replacement work, but that hinge repair is bargaining unit work. The employer admitted in its answer, and at the hearing, that when it employed a subcontractor for a spring replacement job, it used the same subcontractor to repair some hinges. The employer did not notify the union nor bargain over the hinge repair. The employer asserts that the violation was de minimus, since the hinge repair took only a few minutes. However, a de minimus argument is not an automatic defense to a subcontracting claim. See City of Seattle, Decision 8313-A. In that case, the Commission specifically declined to accept an employer’s argument that the failure to bargain a few skimming allegations, out of hundreds of work incidents that did not involve skimming, was de minimus.[9] Here, the employer offered no persuasive reason for its failure to notify the union about its intent to subcontract the hinge repair. The employer committed an unfair labor practice when it failed to bargain over hinge repair work.
The union further argues that bargaining unit employees are capable of doing the spring replacement work and that it should be bargaining unit work. However, there was no evidence that unit members have ever done that task for the employer. Although bargaining unit members have reset the tension on the springs, they have never replaced them. Even though Washington courts strongly favor using civil servants under Chapter 41.06 RCW, the relevant court decisions refer to work that: (1) has historically been in the bargaining unit, and (2) new work of the same nature ordinarily and regularly performed by the bargaining unit. Cunningham, 79 Wn.2d 793; Washington Federation of State Employees, 90 Wn.2d 698. In both instances, such work must remain with or be assigned to civil servants, absent an employer showing that civil servants cannot perform the work.
Washington courts distinguish between legitimate civil service bargaining work, as noted above, and work that a bargaining unit has not ordinarily and regularly performed. Because spring replacement is not work ordinarily and regularly performed by bargaining unit members, the employer did not commit an unfair labor practice when it subcontracted the work without bargaining.
The employer must test backflow prevention devices on its sprinkler systems. Such devices do what the name indicates –- they prevent contaminated water from backing up into the water source. Testing those devices requires special training and certification. No bargaining unit employee has the certification. The employer subcontracts testing work. The employer asserts that it cannot assign the work to bargaining unit members because of the lack of certification. In addition, the employer showed that it has never employed a certified backflow tester and has historically subcontracted this work. The union states that a bargaining unit member is capable of doing the work, but that the employer is denying him the training necessary to obtain the certification.
This argument is similar to the union’s argument that bargaining unit members are capable of doing spring replacement work (although backflow device testing requires certification). The record is conclusive that bargaining unit members have not done backflow device testing. According to the record, the employer has never approved the training and certification needed to do the testing. Backflow device testing is not work ordinarily and regularly performed by the bargaining unit. Thus, the employer had no obligation to bargain over providing backflow device certification training and had no duty to bargain over subcontracting backflow device testing.
The situation noted above is reversed regarding HVAC work in SCC buildings 1, 9, 15, 16, and 19, and the newer SFCC greenhouse. Bargaining unit members had ordinarily and regularly performed HVAC repair and maintenance in those buildings. The employer provided the employees with continued training to keep up with technological changes in the equipment. This training ceased in the latter part of 2004. The employer began using subcontractors to perform work ordinarily and regularly done by bargaining unit members. For example, a bargaining unit member who had worked on HVAC controls in the employer’s greenhouses for 12 years was told by the employer that a subcontractor would now do that work. Another bargaining unit employee assigned to other HVAC work did not receive training in the work; rather, the employer issued him a phone and instructed him to call a subcontractor in the event maintenance or repair became necessary.
The union discovered the existence of numerous HVAC subcontracts when it examined documents the employer provided in the autumn of 2004. The employer did not provide notice to the union about the subcontracting. The employer had the duty to bargain over this with the union prior to making a final decision. Because the employer provided no notice, made its decision without bargaining, and unilaterally implemented the decision, a fait accompli occurred. The employer did not attempt to show that its workforce could not perform the work, nor did it explain why it did not provide the union notice of its subcontracting. The employer committed an unfair labor practice when it subcontracted, without notice to the union, HVAC work in SCC buildings 1 (chiller), 9 and 16 (energy management systems), 15 (echelon router), 19 (radiant heating pipe), and the newer SFCC greenhouse.
The employer subcontracted the construction of a drama department storage building as a public works project. The employer had initially planned to build storage racks and a mezzanine inside the building, using bargaining unit employees, but determined that the construction cost was prohibitive and decided not to construct the storage racks and mezzanine. However, during construction the employer found that it had sufficient funds for the inside work and requested that the subcontractor build the storage racks and mezzanine.
Carpenters in the bargaining unit, who were capable of doing the work, inadvertently discovered the subcontractor’s work and inquired about it to the employer. The employer responded that it had assigned the mezzanine work to the subcontractor because bargaining unit carpenters did not have the time to work on the project. Nothing in the record clearly sets forth the employer’s explanation for not using bargaining unit carpenters to build the storage racks.
At the hearing, evidence showed that the employer executed change orders to the subcontractor regarding the inside work, apparently after the work was completed. The Adams agreement provided that change orders would justify using subcontractors if the change orders “directly related to the original scope of work.” There was no evidence of a change order or other documentation eliminating the storage racks and mezzanine from the subcontractor’s original construction authorization. Thus, the inside work was not within the original scope of work initially assigned to the subcontractor.
The employer acknowledged that bargaining unit carpenters were capable of doing the inside work, and that the employer considered it bargaining unit work, when it originally contemplated using them. The employer also indicated that it had again considered using bargaining unit members when it subcontracted the work, since the employer analyzed its options and decided that the bargaining unit carpenters did not have time to work on the mezzanine. The employer informed the carpenters of this after the fact. The employer provided no evidence showing that bargaining unit members could not perform the work.
The balance is tipped toward the employer’s duty to bargain by the employer’s original intent to use bargaining unit members for the inside work at issue. Evidence for the employer’s decision not to bargain is found in its execution of change orders for the inside work after the work was completed. In addition, the employer gave conflicting and cursory explanations to the union about its failure to use bargaining unit members for the inside work: first, that funding did not exist, and then, that the carpenters did not have time.
The employer’s discretion to determine how to use its employees is not in question -– for example, the time element might have been a legitimate concern. However, the employer had the duty to bargain over this with the union prior to making a final decision. The employer committed an unfair labor practice through a fait accompli when it failed to give notice to the union that it intended to subcontract work it knew was bargaining unit work and failed to allow the union the opportunity to bargain the issue.
The employer subcontracted a project that involved the placement of multiple large light poles along a thoroughfare (Stadium Way) on the employer’s property. A bargaining unit member testified that he had done such work in the past, but that the employer had wrongfully subcontracted the Stadium Way project. The employer replied that while the bargaining unit member had done similar work on isolated projects, the Stadium Way job was a large, public works project. The employer provided evidence at the hearing that bore this out: The project was worth over $15,000 and involved a single craft. The employer produced a form it submitted to the bargaining unit under the Adams agreement, determining that the Stadium Way work was a public works project. The bargaining unit representative refused to sign the form acknowledging that contention.
By agreeing that certain public works projects were open to subcontracting, the union waived its right to protest said subcontracting. Refusing to sign one form did not negate the waiver. The union needed to produce evidence refuting the employer’s determination that the Stadium Way job was a public works project. The union did not do so, but asserted only that a bargaining unit employee was capable of doing the work. The employer did not commit an unfair labor practice by subcontracting out the Stadium Way project and had no duty to bargain with the union.
For a number of years, bargaining unit members acted as campus security on holidays. This work was not part of bargaining unit members’ job descriptions. Bargaining unit members received holiday pay, based on their regular classification pay, and had no special training for this task. In 2004, the employer decided to assign those duties to its regular campus security workers, composed of both a private security firm and paid students. In January 2005, it notified the union of the intended change and announced it would take place on July 1, 2005. The employer stated at the hearing that the union did not demand to bargain over the decision. The union did not specifically rebut this claim, but asserted that the employer had seemingly made up its mind, thus implying it would have been futile to make a demand. The union provided no compelling evidence of futility. A failure to even raise a demand to bargain over a six-month period, during which there were labor-management meetings between the parties, constitutes a waiver.
There was no fait accompli in January 2005, because the employer only announced its plans. The employer gave the union reasonable notice and had no obligation to inquire about the union’s silence. Because of the six-months notice, with no response, there was also no fait accompli in July 2005. In Snohomish County, Decision 9180 (PECB, 2005), no fait accompli occurred where that union did not request bargaining, and the employer gave the union nine months notice and opportunity to bargain prior to implementation. In the present case, the employer did not refuse to bargain, nor commit an unfair labor practice, when it implemented its change in security practices in July 2005.
The union claimed that the employer subcontracted work on repairing an atrium roof when it knew the work was bargaining unit work, and knew that bargaining unit members were capable of doing it. However, evidence showed that bargaining unit members were aware of the subcontractor’s work on the roof and did not object to it at the time. In fact, in May 2005, the bargaining unit agreed to a subcontractor working on the atrium roof. Bargaining unit members wanted to learn new repair techniques from the subcontractors and admitted that only the subcontractors had the necessary equipment and training to complete some aspects of the job. The union did not present clear evidence that it ever demanded bargaining over the atrium roof repair. The employer offered credible testimony that it never knew that the union considered the atrium roof project contractually problematic. The employer did not commit an unfair labor practice when it subcontracted the atrium roof repairs.
Issue 2: Did the employer refuse to bargain over the skimming of bargaining unit work?
The union alleged two incidents of skimming between October 13, 2004, and June 21, 2005: The employer’s use of its employees outside the bargaining unit as security workers; and the employer’s use of its employees outside the bargaining unit to maintain the HVAC system in the newer greenhouse at Spokane Falls Community College.
The skimming claims in the present case do not involve the same public policy present in the subcontracting charges. Subcontracting concerns the priority of civil servants doing state work, rather than private contractors. The skimming charge involves the transfer of work between civil servants in one bargaining unit and civil servants or other employees working for the same employer, who are either members of no bargaining unit or of a different bargaining unit.
Skimming of bargaining unit work occurs when an employer fails to honor its bargaining obligations before transferring work historically performed within the bargaining unit to its own employees outside of the unit. South Kitsap School District, Decision 472 (PECB, 1978); City of Seattle, Decision 8313-A. The decision to transfer bargaining unit work to other employees, like the decision to subcontract, is a mandatory subject of bargaining. South Kitsap School District, Decision 472; City of Seattle, Decision 8313-A. The harmful effect of skimming results from the prejudicial effect on the status and integrity of the bargaining unit. City of Kennewick, Decision 482-A (PECB, 1979). The harmful effects of skimming may only be felt in the future, leading to erosion of bargaining unit work, promotional opportunities and job security. City of Seattle, Decisions 4163, 4163-B (PECB, 1995).
The Commission considers several factors in determining a duty to bargain over transfers of work: (1) had the employer previously assigned the work to non-bargaining unit employees; (2) was the employer’s motive solely economic; (3) was there an opportunity to bargain; (4) was the work fundamentally different from regular bargaining unit work; and (5) was there a change in the employer’s practice that materially affected the bargaining unit’s wages, hours, and working conditions. Spokane Fire District 9, Decision 3482-A (PECB, 1991); Evergreen School District, Decision 3954 (PECB, 1991).
As noted above, in the discussion of this issue, the union failed to demand bargaining over the employer’s intent to subcontract the holiday security work. The same failure applies to the skimming charge. The skimming charge regarding the security work is thus dismissed, in accordance with the dismissal of the claim for the subcontracting of security work.
Bargaining unit members historically maintained the HVAC system in the employer’s greenhouses. In 2004, the employer trained faculty and students to maintain a new greenhouse HVAC system at SFCC, refused to train bargaining unit members in the new system, and ceased using bargaining unit members for the work. There was no opportunity to bargain, no evidence by the employer that it had previously used faculty or students for this task, and no evidence of the employer’s motive. There was evidence that the work was the same as that performed by bargaining unit members. On the other hand, the union produced no evidence that the change caused immediate economic harm to bargaining unit employees.
However, taken in the context of the employer’s wrongful subcontracting of HVAC work, the employer’s skimming of HVAC work, combined with the subcontracting, harms the bargaining unit’s long-term status and integrity. The union provided persuasive evidence that the employer, through subcontracting and skimming, is chipping away at the job security of bargaining unit members working in the field of heating, ventilation, and air-conditioning. For this reason, the employer committed an unfair labor practice when it transferred the greenhouse HVAC work to employees outside the bargaining unit.
Issue 3: Did the employer refuse to bargain over changes regarding the union’s information requests?
The union alleges that between October 13, 2004, and June 21, 2005, the employer unilaterally changed the method by which the union must request collective bargaining information from the employer. The union claims that the employer began requiring the union to submit all requests for collective bargaining information through the channels established in the Public Disclosure Act (PDA), Chapter 42.17 RCW.
The duty to bargain and the duty to provide the opposite party with information related to bargaining are interrelated. City of Bremerton, Decision 6006-A (PECB, 1998). The duty to provide information extends to all aspects of the collective bargaining agreement. City of Bremerton, Decision 6006-A. Thus, each party must provide relevant information needed by the opposite party for the proper performance of its duties in the collective bargaining process. City of Bremerton, Decision 6006-A; Washington State Patrol, Decision 8785 (PSRA, 2004).
The Washington legislature and Supreme Court have established that collective bargaining statutes supercede other conflicting statutes. RCW 41.56.905; Rose v. Erickson, 106 Wn.2d 420, 423-24 (1986). The PDA cannot limit the duty to provide information growing out of a collective bargaining relationship. Washington State Patrol, Decision 8785. A party requesting information has a reasonable expectation that the other party will promptly forward it. City of Yakima, Decision 1124, 1124-A (PECB, 1981).
The union states that it requested information from the employer in the exercise of its duties as the exclusive bargaining representative for three bargaining units. The union requested information on subcontracting with reference to the custodial, grounds, et al. bargaining unit. It asked for information regarding the discipline of a member of the office-clerical-food service bargaining unit (clerical). The union also wanted information related to the employer’s claim that economic factors led to layoffs of employees in the Head Start bargaining unit.
The employer did not openly refuse to provide the information, but required the union to ask for it solely through the PDA. The employer acknowledges that the union’s right to information is broader than the general public’s, but states that the large volume of information requests it receives necessitates a uniform method for tracking and assuring the accountability of documents.
The union asserts that the employer instituted the PDA requirement in 2004, without notice or discussion. The union claims that this was a departure from the former protocol, and that it led to the lack of necessary information, or a delay in obtaining such information, relative to the union’s representation of its members. The union states that prior to 2004, it could -- and did -- request information orally from the employer and received it without any problems. It states that when the policy changed, the employer required the union to request information under the PDA, including submitting written requests, which the employer then processed through its public records officer. The union contends that the employer’s demands frustrated and diminished the union’s ability to properly perform its duties. The employer replies that the PDA method was the most efficient means of handling informational requests. The employer denies that it refused to provide information.
The employer did not directly refute the union’s claim that the 2004 requirement of information submissions through the PDA was a change of practice. Rather, the employer testified that it had no knowledge of the former method. The union provided ample evidence of its protests to the employer over this claimed change of policy, although it complied with the employer’s demands. The employer refused to bend on its PDA demands, stating that it was not refusing to provide information, only changing the method by which the union must request it. The employer provided some of the subcontracting information when requested; however, the union obtained portions of the requested documents only at the time of hearing.
The employer might have a legitimate interest in controlling its information requests. It also has a duty to bargain that interest with the union and has failed to do so. In 2004, the employer should have first informed the union of its concerns, stated its desire to institute a new method for information requests, and given the union a reasonable time to request bargaining. The employer did none of that, and then reacted defensively when the union objected to the change. The employer committed an unfair labor practice when it unilaterally imposed a condition of compliance with the PDA, in order for the union to obtain information necessary to its collective bargaining duties.
The request for information regarding the clerical unit is distinct from that involving the other two units. The collective bargaining agreement between the employer and the union’s clerical unit had a provision that the employer had to conduct disciplinary investigations in a timely manner and serve allegations upon the suspected employee, “except as precluded by RCW 42.17 [sic].” This provision appeared only in the clerical bargaining unit’s contract. The union requested information concerning the discipline of one of its clerical members in order to prepare for a disciplinary hearing. The employer required the union to go through the PDA for the information.
The employer had a legitimate argument that, under the terms of the contract, it could screen the information contained in the allegations through the filter of the PDA. However, that is a separate issue from requiring the union to apply for the information only through the procedures of the PDA. The employer’s insistence on using the PDA led to a delay in the union receiving information, with the union getting vital documents after the disciplinary hearing was over. The employer’s actions harmed the union’s ability to carry out its representation duties. Even though the clerical contract allowed the employer the right to screen information under the PDA, the employer committed an unfair labor practice when it failed to bargain with the union over the employer’s insistence that the union must use the PDA to request information.
Issue 4: Did the employer interfere with employee rights when the union requested information?
The union alleges substantive interference with employee collective bargaining rights regarding subcontracting, skimming, and information requests, between October 13, 2004, and June 21, 2005.
RCW 41.80.110(1)(a) provides that it is an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by this chapter.” 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 [collective bargaining] rights. It is not necessary for a complainant to show that the employer intended to interfere, or even that the employee involved actually felt threatened.
City of Omak, Decision 5579-B (PECB, 1997); City of Tacoma, Decision 8031-A (PECB, 2004).
The union presented no compelling evidence or argument that the employer’s subcontracting violations were in retaliation, or promised a benefit, for the pursuit of rights under Chapter 41.80 RCW. There was no testimony that employees perceived the violations as such. The employer did not interfere with employee collective bargaining rights when it subcontracted the grease trap maintenance, hinge repair, HVAC maintenance, and drama storage building work.
Evidence presented at the hearing substantiated the union’s contention that it perceived the PDA requirement as an arbitrary burden, more intended to impede the exchange of information than enhance it. On one occasion, for example, a union representative personally asked an employer official for information and was told to submit the request in writing. The representative did so, but was immediately told it was not on the proper PDA form and it had to be resubmitted. On another occasion, the union representative was told to access PDA forms on an employer website, but could not gain access to the website.
Employees could reasonably perceive these responses as reprisals for requesting collective bargaining information (through their bargaining representative). The employer committed an unfair labor practice by interfering with employees in the exercise of their collective bargaining rights, when it unilaterally and arbitrarily imposed new, obstructive methods, under the guise of the PDA, regarding the union’s legitimate request for information.
Issue 5: Were portions of the union’s complaint sufficient to state a claim?
The employer contends that the union failed to state a cause of action regarding the subcontracting of grease trap maintenance, roof repairs, and HVAC repairs, because it did not identify those claims with sufficient specificity.
The Commission requires that unfair labor practice complaints contain specific statements of facts. WAC 391-45-050 provides, in pertinent part:
Each complaint charging unfair labor practices shall contain, in separate numbered paragraphs:
(2) Clear and concise statements of the facts constituting the alleged unfair labor practices, including times, dates, places and participants in occurrences.
Because Commission rules, and the Administrative Procedures Act, Chapter 35.05 RCW, do not allow for pre-hearing discovery, the provisions of WAC 391-45-050(2) are essential in providing proper notice to a respondent of the claims against it, allowing the respondent adequate time to prepare a defense. On the other hand, a factor integral to the collective bargaining process is that the parties will, in most cases, have been in negotiations or other face-to-face interactions over the subjects involved in unfair labor practices complaints. Thus, a defense to a claim based on surprise might not be well-founded, depending on the circumstances and facts of the allegation.
The Commission provides a pre-hearing remedy for respondents who believe that the complaint is not sufficiently specific. WAC 391-45-250 allows an Examiner to direct the complainant to make the complaint more definite and detailed, upon a respondent’s motion. The respondent must file the motion before its answer is due; filing of the motion extends the answer’s due date.
The employer admitted in its answer to the union’s complaint that grease trap maintenance was bargaining unit work, and that it subcontracted the work without bargaining. The employer also admitted this during a labor-management meeting in March 2005. Under the expired contract, those meetings were used by the parties as opportunities for negotiations over contract terms. The employer had knowledge of this issue, cannot claim surprise, and was not prejudiced by having to answer the charge.
The employer argues that it lacked sufficient notice of the union’s claim that the employer failed to bargain over the subcontracting of repairs to the atrium roof in the autumn of 2004, and the spring of 2005. The complaint only mentioned the subcontracting of “roof repairs.” The union offered specifics of this charge at the hearing, based in part on records obtained by the union from the employer in October and November 2004. The employer asserted that it was not aware that the atrium project was in dispute until the hearing. However, the employer did not file a motion to make the union’s complaint more definite and detailed. Although the employer had control of those records, and so had constructive knowledge of potential violations of RCW 41.80.110 for the six months prior to the union’s complaint, the employer argued that the large amount of material in the records precluded it from knowing which alleged violations the union referred to in its complaint.
The employer could have searched for roofing subcontracts within the relevant time period, and it could have filed a motion demanding that the union specify which roofing repairs the union was referencing. However, the employer did not raise this as a defense prior to its answer. The employer’s protest at the hearing was untimely.
The employer states that the union’s complaint references only alleged violations involving the subcontracting of “HVAC work.” At the hearing, the union specifically alleged that the employer wrongfully subcontracted HVAC work for the chiller in SCC building 1 and the energy management systems in SCC buildings 9 and 16. These charges were the subjects of a grievance filed by the union (the Kelly grievance). The employer responded to the grievance in writing. Thus, the employer cannot claim surprise or prejudice on those matters.
As previously discussed, the union introduced evidence at the hearing that the employer subcontracted work on the echelon router in SCC building 15; the radiant heating pipe in SCC building 19; and HVAC work in the newer SFCC greenhouse. The charges involving the SCC buildings and greenhouse came as a result of records obtained by the union from the employer in October and November 2004. The employer had control of those records, and, as with the complaints involving roofing repairs, had constructive knowledge of subcontracting violations.
In addition, the union alleges the skimming of bargaining unit work when the employer assigned other employees outside the bargaining unit to maintain the HVAC system in the employer’s newer SFCC greenhouse.
In both the subcontracting and skimming instances, the employer could have promptly made a motion that the union specify its charges about the HVAC work. It did not, and so forfeited its ability to exclude those claims at the hearing.
Issue 6: Should the union be awarded attorney fees?
The union asked for attorney fees as part of its requested remedies.
The Commission awards attorney fees when the prevailing party shows that the losing party engaged in a repetitive pattern of illegal conduct or committed egregious or willful bad acts. Mansfield School District, Decision 5238-A (EDUC, 1996); City of Anacortes, Decision 6863-B (PECB, 2001).
The legal sanctions against the employer span a period of 28 years, from the Washington Supreme Court’s 1979 decision, to this present case. In between, no record exists of a pattern of wrongful conduct by the employer. In addition, the bad acts proven here did not result in terminations, layoffs, or demonstrated economic harm to employees. Thus, the employer’s actions do not rise to the level of egregiousness or willfulness necessary to warrant attorney fees.
Conclusion
The duty to bargain is not an onerous one. The parties have been fighting over subcontracting for at least thirty years. This case has been another instance of that disputatious relationship. The agreements, statutes, and arguably public policy under which the parties fought those skirmishes passed into history over one year ago with the effective application of Chapter 41.80 RCW to the parties’ collective bargaining relationship. Bygone rules of engagement will not determine the outcome of any further battles over subcontracting. However, subcontracting remains a mandatory subject of bargaining. An employer’s duty to give notice and bargain, upon request, remains the same. The elements of waiver apply; thus, unions should be aware that waiver of employee collective bargaining rights under the new law are binding. The parties would do well to study together the statute that now governs state employee subcontracting -- RCW 41.06.142.
FINDINGS OF FACT
1. Community College District 17 (Spokane) is an employer within the meaning of RCW 41.80.010(4).
2. The Washington Federation of State Employees, an employee organization within the meaning of RCW 41.80.005(7), is the exclusive bargaining representative of three separate bargaining units within the employer’s organization: custodial, grounds et al.; clerical; and Head Start.
3. All allegations in the union’s complaint occurred within a six-month period prior to the filing of the complaint and amended complaint.
4. The employer subcontracted grease trap maintenance work ordinarily and regularly done by employees of the custodial, grounds et al. bargaining unit, without giving notice to the union. The employer admitted this violation.
5. The employer subcontracted hinge repair work ordinarily and regularly done by employees of the custodial, grounds et al. bargaining unit, without giving notice to the union. The employer admitted this violation.
6. The employer subcontracted work on storage racks and a mezzanine, in a drama storage building, that was ordinarily and regularly done by employees of the custodial, grounds et al. bargaining unit, without giving notice to the union.
7. The employer did not show that its employees could not perform the work on the drama building storage racks and mezzanine.
8. The employer subcontracted work on a chiller in SCC building 1; energy systems in SCC buildings 9 and 16; an echelon router in building 15; a radiant heating pipe in building 19; and the HVAC systems in the newer SFCC greenhouse. This was work that was ordinarily and regularly done by employees of the custodial, grounds et al. bargaining unit. The employer failed to give notice to the union prior to subcontracting the work.
9. The employer did not show that its employees could not perform the HVAC work.
10. The employer transferred work historically done by bargaining unit members to its employees outside the bargaining unit when it trained faculty members and students to maintain an HVAC system in the newer SFCC greenhouse. The employer excluded bargaining unit members from performing the work. The employer did not give notice to the union prior to transferring the work.
11. The employer subcontracted spring replacement work that was not work ordinarily and regularly done by the custodial, grounds et al bargaining unit.
12. The employer subcontracted backflow device testing work that was not work ordinarily and regularly done by the custodial, grounds et al. bargaining unit.
13. The employer subcontracted work on the Stadium Way lighting project under the terms of a written, contractual agreement with the union that allowed the employer to subcontract certain public works projects.
14. The employer subcontracted repairs to an atrium roof with the knowledge and approval of the union. The union did not demand bargaining over the repairs.
15. The employer gave six-months notice to the union of its intent to subcontract security work previously performed by the custodial, grounds et al. bargaining unit, and/or to assign its employees outside the bargaining unit to the work.
16. The union failed to demand decision or effects bargaining over the security work.
17. In 2004, including the six month period prior to filing its complaint and amended complaint, the union requested information from the employer directly related to the union’s collective bargaining duties regarding subcontracting within the custodial, grounds et al. bargaining unit; discipline within the clerical bargaining unit; and economic information related to the Head Start unit. The employer informed the union that it needed to submit its requests only through the Public Disclosure Act (PDA).
18. The union protested that the Public Disclosure Act requirement was a change in the method by which the employer had historically provided collective bargaining information to the union. The employer did not deny this, and its witnesses testified that they were not personally aware of the procedure prior to 2004.
19. The employer unilaterally imposed arbitrary and obstructive methods in responding to the union’s information requests.
20. Bargaining unit employees could reasonably perceive that the employer’s unilateral, arbitrary, and obstructive methods in handling the union’s information requests were in reprisal for those statutorily protected information requests.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter under RCW 41.80.120 and Chapter 391-45 WAC.
2. On the basis of Findings of Fact 3-9, the employer committed an unfair labor practice by refusing to bargain over certain subcontracting projects with the union, in violation of RCW 41.80.110(1)(e).
3. On the basis of Findings of Fact 3 and 10, the employer committed an unfair labor practice by refusing to bargain over transferring bargaining unit work to its employees outside the custodial, grounds et al. bargaining unit, in violation of RCW 41,80.110(1)(e).
4. On the basis of Findings of Fact 11-14, the employer did not committed an unfair labor practice when it subcontracted other projects without bargaining with the union.
5. On the basis of Findings of Fact 15 and 16, the employer did not commit an unfair labor practice when it transferred security work from the bargaining unit to its employees outside the bargaining unit.
6. On the basis of Findings of Fact 17-18, the employer committed an unfair labor practice by refusing to bargain with the union over its decision to require the union to request collective bargaining information through the Public Disclosure Act, in violation of RCW 41.80.110(1)(e).
7. On the basis of Findings of Fact 17-20, the employer committed an unfair labor practice by interfering with the collective bargaining rights of employees, when it obstructed the union’s attempts to collect information necessary to its representation duties, in violation of RCW 41.80.110(1)(a).
ORDER
The complaint charging unfair labor practices by Community College District 17 (Spokane), filed in case 19385-U-05-4922, is, on the merits, SUSTAINED in part and DENIED in part.
Community College District 17, 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, upon request, with the Washington Federation of State Employees over subcontracting.
b. Refusing to bargain, upon request, with the Washington Federation of State Employees over the skimming of bargaining unit work.
c. Refusing to bargain, upon request, with the Washington Federation of State Employees over the method for requesting collective bargaining information.
d. Interfering with employee collective bargaining rights by obstructing the Washington Federation of State Employees requests for information.
e. Using subcontractors to repair and maintain the chiller in SCC building 1; energy systems in SCC buildings 9 and 16; the echelon router in SCC building 15; the radiant heating pipe in SCC building 19; and the HVAC system in the newer SFCC greenhouse.
f. Using faculty members or other of its employees outside the bargaining unit to maintain the HVAC system in the newer SFCC greenhouse.
g. Requiring the Washington Federation of State Employees to submit collective bargaining information requests through the Public Disclosure Act, Chapter 42.17 RCW.
h. In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their collective bargaining rights secured by the laws of the state of Washington.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter 41.80 RCW:
a. Give reasonable notice to, and bargain upon request, with the Washington Federation of State Employees on all subcontracting of work ordinarily and regularly performed by employees of the custodial, grounds, and trades and crafts bargaining unit.
b. Give reasonable notice to, and bargain upon request, with the Washington Federation of State Employees on all transfer of work to employees outside the bargaining unit.
c. Give reasonable notice to, and bargain upon request, with the Washington Federation of State Employees on the method for requests for collective bargaining information involving employees of the custodial, grounds, and trades and crafts bargaining unit; the office-clerical-food service bargaining unit; and the Head Start bargaining unit.
d. Immediately employ only members of the custodial, grounds, trades, and crafts bargaining unit for all HVAC work in SCC buildings 1, 9, 15, 16, and 19, and the newer SFCC greenhouse.
e. 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.
f. Read the notice attached to this order into the record at a regular public meeting of the Board of Directors of Community College District 17 (Spokane) 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.
g. 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.
h. 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 30th day of June, 2006.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
[SIGNED]
DAVID I. GEDROSE, 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.
[1] Chapter 41.80 RCW assigned jurisdiction over unfair labor practice complaints to the Commission as of July 1, 2002. The Commission has developed extensive legal standards for unfair labor practices under Chapter 41.56 RCW. The legislative intent and language of the two statutes are substantially similar. The Commission has consistently adjudicated Chapter 41.80 RCW unfair labor practice claims under precedents resulting from decisions under Chapter 41.56 RCW.
[2] Chapter 41.06 RCW applies to state civil service employees.
[3] RCW 41.06.380 and RCW 41.06.382 have identical language. RCW 41.06.380 refers to RCW 41.06.020 (applicable to general government employees); RCW 41.06.382 refers to RCW 28B.10.016 (applicable to community college employees.
[4] RCW 41.06.142 allows state employers to subcontract services that have been customarily and historically provided by classified employees. Subcontracting may be done only under conditions set forth in detail in the new statute, including allowing classified employees to offer alternatives to subcontracting or allowing them to compete for the contracts. Under the new statute, cost savings is a legitimate concern and may justify subcontracting over using classified employees, even if classified employees have customarily and historically done the work. Chapter 41.80 RCW incorporates RCW 41.06.142 through RCW 41.80.020(7), “This section does not prohibit bargaining that affects contracts authorized by RCW 41.06.142.” This provision took effect on July 1, 2005. The legislature thus intends that all subcontracting decisions after July 1, 2005, shall conform to RCW 41.06.142.
[5] This Examiner is not adjudicating the public policy effects of RCW 41.06.142; however, the legislature obviously changed the rules on subcontracting.
[6] Spokane Community College (SCC) and Spokane Falls Community College (SFCC).
[7] The union did not waive all of its rights related to public works projects, as more fully set forth below in the discussions of the drama storage building project.
[8] The mezzanine project included construction of stairs.
[9] Skimming and subcontracting both involve the employer’s using non-bargaining unit members for bargaining unit work. The employer uses outside workers when it subcontracts, and uses its own employees, outside the bargaining unit, when it skims work. Skimming is thus the in-house variant of subcontracting. City of Seattle, Decision 8313-A.