Central Washington University, Decision 10413 (PSRA, 2009)

Eric T. Nordlof, General Counsel for the union.

Attorney General Rob McKenna, by Lawson Dumbeck, Assis­tant Attorney General, for the employer.

On June 17, 2008, Public School Employees of Washington (union) filed an unfair labor practice complaint against Central Washington University (employer). The union represents a bargaining unit which includes patient service representatives who work in the employer’s health and counseling center. The union alleged that the employer had refused to bargain the effects of a unilateral change in its staffing in violation of RCW 41.80.110(1)(a) and (e). A preliminary ruling was issued on June 23, 2008. Examiner Emily Martin held an evidentiary hearing on November 25, 2008.

ISSUE

Did the employer violate its bargaining obligation when it unilaterally eliminated a position and effected a change in staffing without giving the union notice and an opportunity to bargain the effects of its decision?

The Examiner finds that the employer violated its bargaining obligation when it failed to provide the union with notice and an opportunity to bargaining the effects of a decision which elimi­nated a position in the bargaining unit.

APPLICABLE LEGAL PRINCIPLES

The employer is governed by the Personnel System Reform Act, Chapter 41.80 RCW, and therefore has a duty to bargain with the exclusive bargaining representative of its employees. RCW 41.80.005(2). If the employer refuses to bargain, it commits an unfair labor practice under RCW 41.80.110(1)(e). The topics which are subject to bargaining, except as otherwise provided by the statute, include wages, hours and other terms and conditions of employment. RCW 41.80.020(1).

Wages, hours and working conditions are categorized as mandatory subjects of bargaining. Federal Way School District, Decision 232-A (EDUC, 1977) citing NLRB v. Borg-Warner Corp., 356 U.S. 342 (1958). Unless a union waives its statutory right to notice and the opportunity to bargain, the employer is prohibited from making unilateral changes to mandatory subjects and commits an unfair labor practice if it fails to bargain a change concerning a mandatory subject of bargaining. State - Social and Health Services, Decision 9551-A (PSRA, 2008). In general, an employer has an obligation to refrain from unilaterally changing terms or conditions of employment unless it: (1) give notice to the union; (2) provides an opportunity for bargaining prior to making a final decision; (3) bargains in good faith, upon request; and (4) bargains to agreement or impasse concerning any mandatory subjects of bargaining. Skagit County, Decision 8746-A (PECB, 2006). The employer’s notice to the union does not have to be in writing, but must be sufficiently clear to afford the union with reasonable notice of the impending change. See Washington Public Power Supply System, Decision 6058-A (PECB, 1998).

Under Chapter 41.80 RCW, the employer does not have the duty to bargain over the size of its work force. The management rights provision of the statute, RCW 41.80.040, states:

The employer shall not bargain over rights of management which, in addition to all powers, duties, and rights established by constitutional provision or statute, shall include but not be limited to the following:

. . . .

(2) The employer’s budget and the size of the agency workforce, including determining the financial basis for layoffs;

However, even when a decision concerning the size of its workforce does not have to be bargained, this employer still is required to bargain the effects of a decision on terms and conditions of work. SeeState - Social and Health Services, Decision 9551-A (PSRA, 2008).

ANALYSIS

Duty To Bargain

Both Marilyn Allred and Marcia Eckert worked in the employer’s Health and Counseling Center. Allred is a patient service representative and Eckert was patient service lead. Both positions involved registering patients, scheduling appointments, managing charts, and other patient intake duties. Eckert had worked at the patient intake area of the counseling service while Allred worked in a similar capacity for the patient intake window of the medical service. On May 1, 2008, Eckert retired.

When Eckert retired, the employer did not fill the position. Instead, it distributed her duties to its remaining staff and shifted a patient service representative from the health center to Eckert’s place at the counseling center. Before Eckert’s retire­ment, Allred had been one of two patient service representatives at the health center’s intake window. After Eckert retired, Allred became the only patient service representative primarily stationed at the medical service’s patient intake window.

Eckert’s retirement was not sudden. Eckert announced her May 1, 2008, retirement on January 25, 2008. In the months between the announcement and the retirement, the employer cross-trained the remaining employees to perform Eckert’s duties. Meanwhile, the health and counseling center was facing budget reductions. According to Robert Trumpy, the Senior Director of Health and Counseling Services, the employer initially decided to leave Eckert’s position vacant until the fall semester when more budget and enrollment information was available. Eventually, Trumpy decided that the staffing was working appropriately and the decision to leave the position vacant was made for cost saving and budgetary reasons.

The employer did not provide the union with notice of its decision to leave Eckert’s position vacant or how it was going to accommo­date the work without that position. The union found out about the decision because several employees who worked at the health center told their union president of the rumors that Eckert’s position would not be filed. The president then notified the union’s field representative and attorney of the staff rumors. As the union only learned of the change through rumors circulating through the health and counseling center’s staff, the union was not provided with notice of the change.

In reaction to the rumors, the union’s attorney sent an e-mail to the employer regarding the effects of the employer’s decision not to replace Eckert. The e-mail alleged that this was an unlawful change in working conditions and therefore a violation of the employer’s bargaining obligation. The e-mail stated the union would file an unfair labor practice charge against the employer unless the employer filled the position with a temporary employee and scheduled bargaining dates with the union. Even though the union had not been provided with prior notice of the staffing change, the union was essentially requesting the right to bargain the change.

Upon receiving the union’s e-mail, the employer’s Director of Operations for Human Resources, Angela Beaudry, consulted with the health center’s managers. Beaudry determined that managers were still evaluating what to do with Eckert’s vacancy in the fall quarter. Beaudry then called the union’s field representative and reached her voice mail. Beaudry did not offer bargaining dates or a temporary replacement for Eckert. The union filed its unfair labor practice charge on June 17, 2008.

During the summer of 2008, the employer ultimately determined that it would leave Eckert’s position vacant for an entire year. Meanwhile, in mid-June, Beaudry left her employment with the university. Her replacement began work in August. There is no evidence in the record that anyone one at the university offered to bargain the effects of its staffing decision until mid-October 2008, months after the employer unilaterally decided not to replace Eckert for an entire year.

In order to avoid committing an unfair labor practice violation, this employer had an affirmative duty to provide the union with notice and an opportunity to bargain the staffing decision which affected working conditions for members of its bargaining unit. As the employer failed to provide such notice, the union did not have a meaningful opportunity to bargain the decision’s effects. Before the employer made its final decision to leave Eckert’s position vacant, it needed to have notified the union of this potential decision and provide the union with an opportunity to begin bargaining the effects on mandatory subjects.

The employer failed to provide the union with notice of its decision to remove a position from the bargaining unit. Since the union was not given notice, it was not given an opportunity to bargain the effects of this change. Furthermore, even after the union contacted the employer and essentially requested bargaining, the employer again did not provide an opportunity to bargain until months after its decision went into effect.

As the employer failed to provide notice or an opportunity to bargain the effects of its staffing decision, the employer has refused to bargain in good faith and has committed an unfair labor practice.

FINDINGS OF FACT

1.         Central Washington University is an institution of higher education within the meaning of RCW 41.80.005(10) and is an employer for the purposed of collective bargaining as is permitted under RCW 41.80.010(4).

2.         Public School Employees of Washington is the exclusive bargaining representative of a bargaining unit which includes patient service representatives employed by Central Washington University.

3.         Maria Eckert and Marilyn Allred were patient service represen­tatives in the bargaining unit represented by the union.

4.         When Eckert retired in May 2008, the employer shifted her duties to other staff members including Allred.

5.         The employer did not provide the union with notice of its decision to change workload assignments. Through rumors among it represented staff, the union learned of the employer plans to leave Eckert’s position vacant and shift her work to other employees.

6.         The union sent an e-mail to the employer in May of 2008 regarding the change in Allred’s working conditions and demanded bargaining. At the time of this e-mail, the employer had already implemented its decision to keep Eckert’s position vacant. Eventually, the employer determined that the posi­tions would be vacant an entire year.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.80 RCW and Chapter 391.45 WAC.

2.         The employer interfered with employee rights in violation of RCW 41.80.110(1)(a) and refused to bargain in good faith in violation of RCW 41.80.110(1)(e) in regard to the effects of a staffing decision made in the context of Marcia Eckert’s retirement.

ORDER

Central Washington University, 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 collectively with Public School Employees of Washington.

b.         In any other manner interfering with, restraining or coercing its employees in the exercise of their collec­tive bargaining rights under 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.         Restore the status quo ante by reinstating the wages, hours and working conditions which existed for the employees in the affected bargaining unit prior to the unilateral change in staffing found unlawful in this order.

b.         Give notice to and, upon request, negotiate in good faith with Public School Employees of Washington before significantly increasing the volume of work of its patient service representative position.

c.         Post copies of the notice provided by the Compliance Officer of the Public Employment Relations Commission 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.

d.         Read the notice provided by the Compliance Officer into the record at a regular public meeting of the Board of Trusteesof Central Washington University, 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.

e.         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 provided by the Compliance Officer.

f.          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 provided by the Compliance Officer.

ISSUED at Olympia, Washington, this 28^th day of May, 2009.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

EMILY MARTIN, 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.