Richard D. Atherton, Attorney at Law, appeared on behalf of the complainant.

Douglas Jewett, City Attorney, by Debra K. Hankins, Assistant City Attorney, appeared on behalf of the respondent.

On July 24, 1981, International Federation of Professional & Technical Engineers, Local 17 (complainant) filed a complaint charging unfair labor practices against Seattle-King County Health Department (respondent). Complainant alleged that respondent violated RCW 41.56.140(1) and (2) by negotiating directly with a bargaining unit employee. A hearing was conducted on February 1, 1982 in Seattle, Washington before Kenneth J. Latsch, Examiner. At the hearing, complainant amended the complaint to allege that respondent's actions also violated RCW 41.56.140(4). The parties submitted post-hearing briefs.

BACKGROUND:

The City of Seattle and King County are separate governmental entities which jointly operate the Seattle-King County Health Department. The department provides clinical and diagnostic services at 39 locations throughout the greater King County area. International Federation of Professional and Technical Engineers, Local 17 represents health department employees classified as environmental health specialists, micro-biologists, social workers, clericals, and sanitarians. The collective bargaining agreement in effect between complainant and the city for 1981-1983 period specifies that employees working less than 20 hours a week or who are hired to work for a period of three months or less are not in the bargaining unit. The parties agree that this provision applies to employees represented by complainant in the health department.

Respondent prepares an annual budget by soliciting recommendations from department sections and then formulating a comprehensive budget proposal. The proposal is submitted to the city's Office of Management and Budget and the county's Office of Budget and Program Development by the first of July. Hearings are conducted with each fiscal office, and a revised budget proposal is then submitted to the mayor and the county executive. The executive officers submit the department's proposal to their respective legislative councils as part of total budget requests in mid-September.

Preparation of the 1981 budget proved to be difficult for respondent. Relying on approximately 90 revenue sources from federal, state and local governments, respondent anticipated a loss of funds for its programs. In particular, federal grants were not forthcoming because of a lack of congressional action on a variety of social programs. The unsettled situation led to widespread rumors of sweeping staff reductions in respondent's various sections. The most persistent rumor during the health department's 1981 budget cycle was that a 25% budget reduction had to be made. Although the rumor was unconfirmed, the possiblity of revenue loss led department fiscal officers to miscalculate the amount in the budget. Approximately 24 hours before the initial budget request was submitted, additional funds were found to be available. This money later appeared in the county budget for respondent as a line item to be used at respondent's discretion for training and services.

The budgetary problems were complicated by a change in the administration of the health department. On January 1, 1981, King County assumed responsiblity for the department's payroll. Prior to that time, the city and county shared respondent's financial matters. Even with the change in payroll procedure, the city retained administrative authority over the department.

Rumors about staff reductions led Michael Waske, business manager for complainant, to have a series of discussions with city and county officials in the early part of 1981. Waske testified that he was assured that the union would be notified if staff cutbacks were imminent. In fact, the mayor indicated that unions would take some part in the decision-making process prior to any layoffs. This promise potentially broadened complainant's rights under the collective bargaining agreement, which only detailed notification procedures in the event of layoffs and specified that seniority principles would apply during reductions in force. The agreement did not limit respondent from determining how many employees would be laid off or what work classifications would be affected.

On April 16, 1981, Waske wrote to Everett Rosmith, Director of Labor Relations for the city, requesting that the issue of possible layoffs be added to the agenda of a labor/management meeting scheduled for May 1, 1981. Rosmith replied by letter dated April 27, 1981, stating that any discussion of layoffs in the health department would have to be deferred to a later time. Rosmith suggested that a timetable for such discussions could be established at the upcoming meeting. During the course of the labor/management meeting, the issue of layoffs was nevertheless raised by the union. Of particular interest to complainant was the status of employees in the classification "social worker", as rumors had spread to the effect that all social workers would be terminated as part of the projected budget cuts. Terry McLaughlin, Director of Administrative Services for respondent, told Waske that the union would be notified before any staff reductions were finalized.

Concern about social workers' status was shared by members of the health department's administrative staff. Dr. Walter Miller, Director of the Tuberculosis Clinic (a department section) learned of the potential loss of social workers during the early part of June, 1981. The clinic had only one social worker, Linda Pope, and her termination would impair the clinic's program. Pope was on vacation when Miller first learned of the possible layoffs. When she returned on June 15, 1981, Miller called Pope into his office to discuss the situation. At the time, Pope was working 32 hours a week. Pope stated that Miller asked her to consider a reduction in hours to 20 hours a week to avoid the possibility of termination. Miller also informed Pope that she could be subject to "bumping rights" if she accepted the hours reduction. According to the collective bargaining agreement, an employee could be "bumped" if an employee in a classification which was eliminated had greater seniority. Miller asked Pope to inquire of other social workers whether they would exercise bumping rights if Pope changed to a 20-hour week.

Several days later, Miller and Pope met again. The possible 20-hour position was discussed in more detail, and Miller raised the possibility of a 19 hour a week position, at a higher rate of pay but without fringe benefits, as an employment alternative. Pope testified that Miller actually offered her the 19 hour a week position and stated that there were budgeted funds for such a position. Miller testified that the issue was discussed, but he did not offer any type of employment at reduced hours because he did not have independent personnel authority. Miller further testified that he was not aware of Pope's union membership when the conversations took place, nor was he aware of the collective bargaining agreement's provisions. As a result of the conversations, Pope indicated that she would accept a 20-hour week, but after discussions with complainant, she informed Miller that the 19-hour week would not be acceptable and that the offer of such reductions violated the collective bargaining agreement. Miller and Pope did not have any further discussions about reduced work weeks. Waske contacted Rosmith about the Miller/Pope meeting, asking him to investigate. Rosmith contacted the department and informed management staff members that such conversations were improper.

Rosmith and Waske met again on July 16, 1981. The meeting was called to discuss difficulties in the transition in payroll administration from the city to the county. Specifically, complainant was not receiving the appropriate amount of union dues withheld from employee paychecks during the transition period. The meeting was also open to other topics, however, and complainant raised the issue of respondent's budget and possible staff reductions. Rosmith and Dr. Jesse Tapp, department director, informed Waske that respondent was not prepared to discuss the budget or staff difficulties.

The unfair labor practice complaint at issue in these proceedings was filed July 24, 1981. The parties did not have further meetings until December, 1981, when complainant made a request to negotiate the layoff of social workers. By December, the budget had been clarified, and it was apparent that all social workers were to be terminated. Complainant filed two grievances, alleging violation of five sections of the collective bargaining agreement, because of the layoffs. At issue in one of the grievances was respondent's authority to create any position of less than 19 hours per week. The parties did meet to negotiate the layoffs, with layoff notices going to social workers on December 11, 1981. The notices were amended on December 16, 1981 by a letter clarifying insurance coverage and giving the employees an option to continue insurance for a period after layoff. Social workers, including Linda Pope, were laid off on December 31, 1981.

POSITION OF THE PARTIES:

Complainant argues that respondent violated RCW 41.56.140(1), (2), and (4) by refusing to negotiate with the exclusive bargaining representative over the issue of layoffs and, at the same time, negotiating directly with bargaining unit employees about staff reductions. Complainant contends that Dr. Walter Miller was acting as an agent for respondent when he discussed work schedule changes with Linda Pope, and his actions could legally bind respondent. Complainant further contends that respondent's actions must be viewed in the totality of circumstances present at the time, and that the Miller/Pope discussions cannot be isolated from complainant's continuing effort to negotiate layoffs.

Respondent contends that these unfair labor practice proceedings must be limited in scope to allegations contained in the complaint. Since the complaint speaks only to the discussions between Dr. Miller and Ms. Pope, respondent argues that only those occurrences can be considered by the Examiner. Respondent argues that an unfair labor practice was not committed because Miller's discussions were not intended to interfere with rights guaranteed to Pope or complainant under RCW 41.56. Respondent further maintains that this dispute should be deferred to arbitration since complainant has filed two grievances about the layoffs.

DISCUSSION:

Scope of Inquiry

Respondent urges the Examiner to limit the scope of inquiry to those allegations contained in the unfair labor practice complaint, citing WAC 391-45-270 which provides:

"Hearings shall be public and shall be adversary in nature, limited to matters concerning the unfair labor practices alleged in the complaint. The complainant shall prosecute its own complaint and shall have the burden of proof. It shall be the duty of the examiner to inquire fully into the facts as to whether the respondent has engaged in or is engaging in an unfair labor practice so as to obtain a clear and complete factual record on which the examiner and commission may discharge their duties under these rules: Provided, however, That such duty of the examiner shall not be construed as authorizing or requiring the examiner to undertake the responsibilities of the complainant with respect to the prosecution of its complaint or of the respondent with respect to the presentation of its defense." (Emphasis added).

WAC 391-45-270 must be read in light of WAC 391-45-070 which specifies that any complaint may be amended by motion prior to the time that the case is transferred to the Commission. In this case, complainant did amend the complaint to allege that the Miller/Pope conversation violated RCW 41.56.140(4), in addition to RCW 41.56.140(1) and (2). Complainant did not amend any of the complaint's factual allegations. During the course of the hearing, complainant presented detailed testimony about a series of meetings which dealt with projected layoffs and budget deficits. On the basis of that evidence, complainant now asks the Examiner to find that respondent refused to bargain in good faith. Such a conclusion is not forthcoming from this record. If complainant desired to amend the complaint's factual allegations, it had that opportunity but failed to exercise it. The only issue to be decided is whether Dr. Miller's conversations with Linda Pope constituted an unfair labor practice.

Deferral to Arbitration

Respondent's argument that this matter should be deferred to arbitration is not persuasive. Examination of the record indicates that complainant is pursuing grievances concerning complainant's authority to create any position of 19 hours a week or less and other issues arising from the reduction in force. The Public Employment Relations Commission does not have "violation of contract" jurisdiction through the unfair labor practice provisions of RCW 41.56. City of Walla Walla, Decision 104 (PECB, 1976). The interpretation of a contract is not an issue before the Examiner in this case, as the negotiations about layoffs have been excluded from consideration in these proceedings. The allegations of circumvention deal with a union's ability to effectively represent bargaining unit employees, and are not susceptible to deferral to arbitration. The dispute is properly before the Examiner for determination.

Agency

Complainant argues that Dr. Miller was acting as an agent of respondent when he discussed an hours reduction with Linda Pope. While Miller does not have independent authority to hire or discharge, the record indicates that he has authority to effectively recommend such personnel actions. More importantly, as director of the Tubercolosis Clinic, Miller is in a position of authority, such that employees would reasonably perceive that Miller speaks on behalf of the employer. See: City of Tacoma. Decision No. 1342 (PECB, 1982). In his position as director, Miller is the employer's primary contact with employees in the Tuberculosis Clinic, and he binds the employer by his actions. See: City of Mercer Island, Decision No. 1026 (PECB, 1980).

Circumvention of Bargaining Representative

The National Labor Relations Board (NLRB) consistently holds that an employer commits an unfair labor practice by negotiating directly with bargaining unit employees rather than with the recognized bargaining representative. Such a violation has been found even if the employer makes the same offer to employees that it did to the union. See: C. K. Smith and Co., Inc., 127 NLRB 1061 (1977). In addition, such employer conduct has been found to interfere with the right of employees to freely choose a bargaining representative. See: Jamaica Towing, Inc., 223 NLRB 1700 (1978).

Respondent maintains that it did not commit an unfair labor practice because Miller's remarks were not intended to interfere with complainant's rights as exclusive bargaining representative. In this case, however, a supervisory employee discussed substantial alterations of wages and work schedules with a bargaining unit employee. In a similar situation, a violation was found where an employer discussed the enhancement of an employee's wages if part of a business operation shut down. The discussions were held in the absence of the exclusive bargaining representative and would have resulted in appreciable changes in the affected employee's compensation. See: NLRB v. Rude Carrier Corporation, 93 LRRM 2297 (CA 4, 1976).

FINDINGS OF FACT

1.                  Seattle-King County Health Department is a jointly operated public health department and is a "public employer" within the meaning of RCW 41.56.030(1).

2.                  International Federation of Professional and Technical Engineers, Local 17 is a "bargaining representative" within the meaning of RCW 41.56.030(3). The union represents employees in various work classifications within the health department, including those employees classified as social workers, who work 20 or more hours per week.

3.                  The department submits an annual budget request which is reviewed by city and county government. The budget process for 1981 was complicated because the health department projected a loss of federal funds.

4.                  On June 15, 1981, Dr. Walter Miller, Director of the Tuberculosis Clinic spoke to Linda Pope, a bargaining unit employee classified as a social worker. Miller asked Pope if she would consider a reduction in hours to 20 hours per week in the event of budget cuts.

5.                  Several days later, Miller asked Pope to consider a reduction to 19 hours per week. Such a reduction would remove Pope from the bargaining unit and would also terminate Pope's benefits under the existing collective bargaining agreement. To compensate for the loss of benefits, Miller proposed a higher rate of pay than Pope was being paid at the time.

6.                  Pope refused to accept the 19 hours per week assignment and informed the union of the situation. The union filed an unfair labor practice complaint about the discussions on July 24, 1981.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to RCW 41.56.

2.                  This dispute should not be deferred to grievance arbitration because it involves interference with rights guaranteed in RCW 41.56 and not with the interpretation of a collective bargaining agreement.

3.                  Dr. Walter Miller was acting as an agent of Seattle-King County Health Department and could bind the department by his statements.

4.                  By events described in Findings of Fact 4 and 5, above, respondent has circumvented the exclusive bargaining representative, thus violating RCW 41.56.140(1) and (4).

ORDER

Upon the basis of the above Findings of Fact and Conclusions of Law, and pursuant to RCW 41.56.160 of the Public Employees Collective Bargaining Act, it is ordered that the Seattle-King County Health Department, its officers and agents shall immediately:

1. Cease and desist from:

a)      Negotiating directly with individual employees represented by International Federation of Professional and Technical Engineers, Local 17 with respect to wages, hours, and terms or conditions of employment.

2. Take the following affirmative actions to remedy the unfair labor practice and effectuate the policies of the Act:

a)      Post, in conspicuous places on the employer's premises where notices to all employees are usually posted, copies of the notice attached hereto and marked "Appendix A". Such notices shall, after being duly signed by an authorized representative of the Seattle-King County Health Department, be and remain posted for sixty (60) days. Reasonable steps shall be taken by the Seattle-King County Health Department to ensure that said notices are not removed, altered, defaced, or covered by other amterial.

b)      Notify the Executive Director of the Public Employment Relations Commission, in writing, within twenty (20) days following the date of this Order, as to what steps have been taken to comply herewith, and at the same time provide the Executive Director with a signed copy of the notice required by the preceding paragraph.

DATED at Olympia, Washington this 28th day of May, 1982.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

KENNETH J. LATSCH, Examiner