Wapato School District, Decision 10743 (PECB, 2010)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
WAPATO PUPIL PERSONNEL ASSOCIATION/WEA,
Complainant,	CASE 22726-U-09-5809
vs.	DECISION 10743 - PECB
WAPATO SCHOOL DISTRICT,	FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
Respondent.
WAPATO ASSOCIATION OF EDUCATIONAL OFFICE PERSONNEL/WEA,	CASE 22735-U-09-5811
Complainant,	DECISION 10744 - PECB
vs.
WAPATO SCHOOL DISTRICT,	FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
Respondent.

James A. Gasper, Attorney at Law, for the unions.

Stevens, Clay & Manix, P.S., by Gregory L. Stevens, Attorney at Law, for the employer.

On September 18, 2009, the Wapato Pupil Personnel Association (WPPA) and the Wapato Association of Educational Office Personnel (WAEOP) both filed unfair labor practice complaints against the Wapato School District (employer). The WPPA asserted that the employer committed an unfair labor practice by skimming bargaining unit work without providing an opportunity for bargaining. The WAEOP asserted that the employer committed unfair labor practices by changing working conditions of bargaining unit employees without providing an opportunity for bargaining and by circumventing the union.[1]

The Commission consolidated the two complaints for hearing and appointed Jamie L. Siegel as examiner. I held a hearing on March 2 and 3, 2010. The parties submitted post-hearing briefs on April 2, 2010.[2]

ISSUES

1.                  Did the employer refuse to bargain in violation of RCW 41.56.140(4) by skimming bargaining unit work from the WPPA when it laid off three attendance clerks and assigned some of the duties historically performed by attendance clerks to school secretaries who are in the WAEOP bargaining unit?[3]

2.                  Did the employer unilaterally change a mandatory subject without providing an opportunity for bargaining in violation of RCW 41.56.140(4) when it assigned some of the duties historically performed by attendance clerks to the WAEOP bargaining unit employees?

After reviewing the record and considering the parties' arguments, I dismiss the WPPA's complaint. Although I find that the attendance work in dispute was WPPA bargaining unit work and that the employer was required to bargain before transferring the work to the secretaries, the WPPA waived its bargaining rights by inaction. With respect to the WAEOP complaint, I conclude that the employer committed a unilateral change violation when it assigned secretaries some of the duties historically performed by the attendance clerks, without providing notice and an opportunity to bargain the impacts of its decision.

APPLICABLE LEGAL STANDARDS

Duty to Bargain

Chapter 41.56 RCW requires a public employer to bargain with the exclusive bargaining representative of its employees. The duty to bargain extends to mandatory subjects of bargaining including wages, hours and working conditions. RCW 41.56.030(4). The law limits the scope of mandatory subjects to those matters of direct concern to employees. International Association of Fire Fighters, Local 1052 v. PERC (City of Richland), 113 Wn.2d 197 (1989). Unless a union clearly waives its right to bargain, an employer is prohibited from making unilateral changes to mandatory subjects. An employer must give a union sufficient notice of possible changes affecting mandatory subjects of bargaining and, upon union request, bargain in good faith until reaching agreement or impasse.

The Commission classifies managerial decisions that only remotely affect terms and conditions of employment as permissive subjects of bargaining. North Franklin School District, Decision 5945-A (PECB, 1998). Parties may bargain regarding such subjects but are not required to do so. If an employer's decision on a permissive subject of bargaining materially impacts wages, hours or working conditions of bargaining unit employees, the employer must bargain with the union concerning those impacts. Spokane County Fire District 9, Decision 3661-A (PECB, 1991).

The Commission's decisions cannot always draw bright lines between mandatory and permissive subjects of bargaining because the cases often present unique facts. In situations where a managerial decision also involves wages, hours or working conditions, the Commission and its examiners apply a balancing test to determine whether the matter is a mandatory subject of bargaining. The balancing test analyzes which of the following two characteristics predominate: (1) the extent to which the managerial action impacts the employees' wages, hours or working conditions, or (2) the extent to which the managerial action is an essential management prerogative. City of Richland, 113 Wn.2d 197.

A party asserting an unfair labor practice complaint bears the burden of proving its case. WAC 391-45-270(l)(a).

Transferring Bargaining Unit Work

Commission precedent establishes that an employer's decision to transfer work from the bargaining unit that has traditionally performed the work to a different bargaining unit (skimming) or to non-employees (contracting out) is typically considered a mandatory subject of bargaining. City of Snoqualmie, Decision 9892-A (PECB, 2009).

The Commission utilizes a two step approach to determine whether an employer has violated its bargaining obligations by skimming or contracting out work. The first step is to determine whether the work is bargaining unit work. The Commission defines bargaining unit work as work that bargaining unit employees have historically performed. Once an employer assigns unit employees to perform a certain body of work, the work attaches to the unit and becomes bargaining unit work. Kitsap County Fire District 7, Decision 7064-A (PECB, 2001). If the work falls outside the scope of work normally performed by bargaining unit employees, the employer has no duty to bargain.

When the disputed work attaches to the bargaining unit, the Commission then considers the following five factors to determine whether the employer has a duty to notify the union of the intended transfer of work and provide the union an opportunity for bargaining:

1.      The previously established operating practice as to the work in question (i.e., had non-bargaining unit personnel performed the work before?);

2.      Whether the transfer of work involved a significant detriment to bargaining unit members (e.g., by changing conditions of employment or significantly impairing reasonably anticipated work opportunities);

3.      Whether the employer's motivation was solely economic;

4.      Whether there had been an opportunity to bargain generally about the changes in existing practices; and

5.      Whether the work was fundamentally different from regular bargaining unit work in terms of the nature of the duties, skills, or working conditions.

Skagit County, Decision 8746-A (PECB, 2006). When analyzing these factors, no one factor is determinative. State – Social and Health Services, Decision 9551-A (PSRA, 2008).

Waiver by Inaction and Fait Accompli

When an employer provides a union notice of a proposed change to a mandatory subject of bargaining, the union may elect to accept the change and not request bargaining. If the union wishes to engage in bargaining concerning the change, the union bears an affirmative obligation to timely request bargaining. City of Anacortes, Decision 9004-A (PECB, 2007). A union that fails to timely request bargaining waives by inaction its bargaining rights.

To find a waiver by inaction, the employer must have provided notice of the intended change sufficiently in advance of the actual implementation to allow a reasonable opportunity for bargaining. If the employer presents its decision as a final decision, or as a "fait accompli," the union is excused from its obligation to request bargaining. University of Washington, Decision 8878-A.

An employer's notice of an intended change need not be formal and need not be direct to the union, provided the union has actual notice. As the Commission explained in City of Anacortes, Decision 9004-A, citing its decision in Washington Public Power Supply System, Decision 6058-A (PECB, 1998):

In the absence of formal notice, however, it must be shown that the union had actual timely knowledge of the contemplated change. The Commission's focus should be on the circumstances as a whole, and on whether an opportunity for meaningful bargaining existed. If the union is adequately notified of a contemplated change at a time when there is still an opportunity for bargaining which could influence the employer's planned course of action, and the employer's behavior does not seem inconsistent with a willingness to bargain if requested, then a fait accompli should not be found.

An employer asserting union waiver by inaction bears a heavy burden of proof. The employer must prove that the union's conduct is such that the only reasonable inference is that the union has abandoned its rights to negotiate. A union's action in filing an unfair labor practice complaint does not constitute a request for bargaining. Clover Park Technical College, Decision 8534-A (PECB, 2004).

ANALYSIS

The WPPA represents a residual unit of classified employees which includes a position that had been titled "Bilingual Parent Advisor Liaison/Attendance Clerk" (attendance clerk). The bargaining agreement between the WPPA and the employer was to expire August 29, 2009; on August 10, 2009, the parties negotiated a memorandum of agreement extending the expiration date to December 31, 2009. The WAEOP represents the employer's secretarial employees. The WAEOP and the employer are parties to a collective bargaining agreement through August 31, 2010.

In the spring of 2009, faced with over $1.5 million in anticipated budget cuts for the 2009-10 school year, the employer sought ways to reduce its expenditures.[4] On March 25, 2009, the school board approved a resolution directing the superintendent to develop a reduced educational program for the 2009-10 school year that reduced expenditures to "a level not exceeding reasonably anticipated revenues while maintaining a cash fund balance of no less than 5% cash of the budget."

The employer met with representatives from the WPPA and the WAEOP in March or April of 2009 to discuss possible budget cuts. The employer provided a list of proposed reductions that included the rationale for the cuts. Included on the list was "Decrease attendance clerks by $100,000." The rationale included references to the automation of attendance calling, the automation of daily/period record keeping, and the lack of impact on direct instructional services to students. At the meeting the employer shared the possibility of attendance clerk layoffs. The evidence does not establish that the employer shared any information about anticipated impacts of the possible layoffs.

On May 15, 2009, Charles Wheaton, the employer's Executive Director of Support Operations, sent a memo and list of proposed budget reductions to departments, principals, and union representatives inviting them to provide input on implementation of the reductions by May 20, 2009. The list of possible cuts included the same "Decrease attendance clerks by $100,000" and accompanying rationale that was included on the previous list shared in March or April. The communication provided no additional information on how the job responsibilities would be met if the employer laid off attendance clerks. The WPPA provided no input.[5]

By letters dated May 28, 2009, the employer provided layoff notices to three of the five attendance clerks, effective at the end of the 2008-2009 school year.

By letter dated June 24, 2009, the employer sent the two remaining attendance clerks correspondence informing them of the modification of their assignments for the 2009-10 school year. The letter shared the job title change to "Bilingual District Parent Contact Person/Attendance Clerk" (attendance clerk) and explained: "As agreed upon, according to WPPA Collective Bargaining Agreement Section 6, Part E. Job Description, you will find enclosed an updated job description for your position that will take effect for the 2009-10 school year."[6]

The updated job description reflects that the employer restructured the responsibilities of the two remaining attendance clerks so that the purpose of their job changed to: "providing assistance to building office staff to ensure accurate attendance accounting within the district." The prior job description included that the position's purpose was "ensuring accurate attendance accounting within the district. …" Some of the updated job description's essential functions remained the same as those in the prior version. The following highlights a few of the key differences:

FORMER JOB DESCRIPTION	UPDATED JOB DESCRIPTION
Compiles student records (e.g. attendance) for the purpose of meeting state, federal and/or district requirements.	Assists building staff in compiling student records (e.g. attendance) for the purpose of meeting state, federal and/or district requirements.
Ensures accuracy of attendance records (e.g. truancies, etc.) for the purpose of complying with laws governing attendance accounting.	Assist building staff to ensure accuracy of attendance records (e.g. truancies, etc.) for the purpose of complying with laws governing attendance accounting. Withdrawls [sic] will not be a function of District Attendance Clerks.
Processes documents and materials (e.g. attendance) for the purpose of disseminating information to appropriate parties.	Assists building staff in the processing of documents and materials (e.g. attendance) for the purpose of disseminating information to appropriate parties.

The employer copied the WPPA president, Adelaida Therriault, on the May 28 and June 24, 2009 letters. In advance of May 28, Wheaton and Therriault discussed the layoffs, including ways to try to avoid layoffs, and related seniority issues.

In August 2009, Assistant Superintendent Daniel Murray met with Therriault about the responsibilities of the attendance clerks and shared some written information with her about the attendance clerks' assignments. Therriault testified that she did not believe it was until August that she understood that secretaries would be performing some of the duties previously performed by the attendance clerks.

In August 2009, shortly before the school year started, the school principals informed their secretaries that they would have responsibility for some of the student attendance work that had been previously performed by attendance clerks.

Neither the WPPA nor the WAEOP requested bargaining.

ISSUE 1 – SKIMMING THE WPPA'S BARGAINING UNIT WORK

Bargaining Unit Work

To determine whether the employer skimmed bargaining unit work, I must first determine whether the disputed work is, in fact, bargaining unit work. For the reasons described below, I find the work in question is the WPPA's bargaining unit work.

The evidence demonstrated that prior to the 2009-10 school year, two of the key responsibilities held by attendance clerks included collecting attendance information from parents (through notes, tardy slips, phone calls, etc.) and inputting that data into the employer's computer system. Effective September 1, 2009, the employer re-assigned these duties to the school secretaries.

The employer argues that because other school staff members have historically performed duties relating to attendance, the work transferred to the secretaries was not bargaining unit work. The employer points to teachers, principals, counselors, tutors, home visitors, and secretaries as staff members who have historically performed attendance work.

The evidence established that student attendance is a broad and significant topic in schools. For example, student attendance can impact student achievement; documented lack of attendance may require the employer to file truancy petitions with the court; attendance/enrollment reporting impacts school district funding. As a result, the evidence demonstrated that the employer has chosen to assign various staff members to play various roles with respect to student attendance.

Teachers, principals, counselors, tutors, and home visitors - Teachers, principals, and counselors all play a role in working with students and parents on attendance-related issues. Teachers, principals, and counselors may, for example, investigate whether students who are not succeeding in school have attendance-related issues. The evidence demonstrated that one tutor, a position within the WPPA bargaining unit, telephoned parents and played a role in filing truancy petitions. Home visitors, another position within the WPPA bargaining unit, also delivered letters to parents and spoke to the parents about student attendance issues, sometimes offering suggestions.

Such involvement with student attendance differs substantially from the attendance clerk work at issue in this case. The attendance clerk work at issue in this case does not involve counseling or advising parents or students about attendance issues. Instead, the work at issue focuses on receiving specific attendance information from parents and inputting that information in the computer system. The evidence does not show that teachers, principals, counselors, tutors, or home visitors perform that type of work with any type of consistency that would cause the work to lose its characterization as the WPPA's bargaining unit work.

Secretaries - The employer correctly identified that secretaries have historically played a role in supporting student attendance. That role, however, changed significantly beginning on September 1, 2009, when the employer transferred some of the attendance clerk work to the school secretaries.

Prior to the 2009-10 school year, the employer assigned each attendance clerk to one school. Based upon the employer's assignment of hours to the different positions, the secretaries began their work day earlier than the attendance clerks. As a result, the secretaries would take phone calls and visits from parents, some of them relating to student absences and tardies, before the attendance clerks arrived to work. During the attendance clerks' work day, however, secretaries consistently forwarded such calls and referred such visitors to the attendance clerks. Additionally, by e-mail dated September 18, 2009, the secretaries received instruction from the employer on how to enter attendance data into the computer system. The fact that secretaries provided coverage for the attendance clerks outside of the attendance clerks' work day does not cause the work to lose its characterization as the WPPA's bargaining unit work.

The employer also points to the secretaries completing the P223 Report in previous school years as evidence that secretaries have historically performed attendance work. The evidence supports that the employer has historically assigned the task of completing the P223 to the school secretaries. One secretary in each school spends approximately one day each month completing the P223 which provides the Office of the Superintendent of Public Instruction (OSPI) with critical enrollment/attendance data. This is a discrete responsibility that the employer has chosen to assign to the secretaries over the course of numerous years. The employer's choice in assigning the P223 to the WAEOP bargaining unit secretaries does not change the characterization of the attendance work at issue in this case.

The employer also argues that the secretary job description includes references to attendance, which is why the employer believed it was unnecessary to modify the job description when it transferred some of the attendance clerk duties to the secretaries. Regardless of the job description's references to "attendance," prior to September 1, 2009, the attendance clerks, not the secretaries, maintained responsibility for collecting and entering student attendance information into the computer system.[7]

In summary, prior to September 1, 2009, the attendance clerks maintained responsibility for collecting and entering student attendance information into the computer system. Effective September 1, 2009, the employer re-assigned that work to the secretaries. That work constitutes the WPPA's bargaining unit work.

Obligation to Bargain

Below, I apply the five factors considered by the Commission to determine whether the employer was required to bargain before transferring attendance work out of the WPPA bargaining unit.

Previous practice - As discussed above, the previous practice involved the employer assigning attendance clerks responsibility for collecting and inputting student attendance information. Although secretaries helped with the collection of this information, the evidence demonstrated the disputed work was that of the attendance clerks.

Significant detriment - The employer laid off three bargaining unit employees, causing a significant detriment to those employees.

Employer's motivation - The evidence demonstrated that the employer's decision was purely economic. The employer faced a significant budget deficit and the layoffs and transfer of duties contributed to balancing the budget. Union animus played no role in the decision.

Opportunity to bargain - As discussed in more detail below, the evidence established that the union had knowledge of the layoffs and the plan to transfer some of the work by the end of June, 2009. This provided the WPPA with sufficient time to request and to engage in bargaining.

Work not fundamentally different - The work transferred to the secretaries was not fundamentally different from the attendance clerks' regular work. It was work that they historically performed.

Considering the five factors, factors 1, 2, and 5 weigh in favor of the employer's obligation to bargain. As a result, I conclude that the employer was required to bargain before transferring the work out of the bargaining unit.

Fulfill Obligation to Bargain?

Determining that the employer had an obligation to bargain with the WPPA concerning its decision to transfer some of the attendance clerk work to the secretaries, I now analyze whether the employer fulfilled its obligation by providing the union with timely notice of its decision and an opportunity to bargain.

Employer's notice - As discussed above under "Applicable Legal Standards," the employer's notice need not be in any particular form. The notice can be informal and oral. The notice must, however, be sufficiently clear to afford the union reasonable notice of the intended change. Snohomish County, Decision 9770-A (PECB, 2008). The notice must also provide sufficient time for meaningful bargaining.

In this case, the union argues that the earliest the employer gave the WPPA notice of its intent to transfer attendance duties to secretaries was the middle of August 2009, when Murray gave Therriault more detailed written information about the attendance clerks' adjusted assignments. The employer argues that it provided notice prior to May 29, 2009. I disagree with both the WPPA and the employer and find that by the end of June 2009, the employer gave the WPPA effective notice of its intent to assign the secretaries some of the work previously performed by attendance clerks.

The employer met with the WPPA about budget cuts in March or April of 2009 and shared information about the potential layoff of attendance clerks. Wheaton and Therriault had conversations between the March or April meeting and May 29 about the attendance clerk layoffs. The record does not clearly demonstrate, however, that during that time period the employer communicated its intent to transfer some of the attendance clerk work to the secretaries. Although Wheaton and Murray both talked with Therriault about the transfer of work to the secretaries, their testimony about the conversations with Therriault lacked sufficient specificity on the timing and content necessary for me to find that the employer gave notice before the end of June 2009.

By the end of June, however, I find that the employer provided the WPPA sufficient notice of its intent to transfer some of the attendance clerk work to the secretaries. When Wheaton sent Therriault a copy of the June 24, 2009 letter and updated attendance clerk job description, the employer placed the WPPA on notice that it planned to transfer some of the attendance clerk work to the secretaries. Therriault testified that after receiving the updated job description and talking with Wheaton, she thought the two remaining attendance clerks would still be doing what they had been doing, including entering data, but they would be doing the work for the entire district. Although I found Therriault to otherwise be a credible witness who testified candidly and openly, I do not find her testimony in this regard to be reasonable or credible. As highlighted earlier in this decision, the updated job description clearly identified that the attendance clerks would play a different role with attendance. Instead of compiling, processing and ensuring the accuracy of the attendance records as they had done in the past, the job description identified that the attendance clerks would assist the building staff with those duties. In reading the job description, Therriault knew or reasonably should have known that the employer intended to transfer the disputed work to the secretaries.

Although the employer did not provide its notice until the end of June, the WPPA still had the opportunity for meaningful bargaining. The laid off attendance clerks worked through the last school day in June of 2009 and the attendance clerk work year for 2009-10 was not scheduled to begin again until the end of August. The parties had two months in which to bargain before the decision would have any actual impact upon members of the bargaining unit.

The totality of the evidence supports that the employer's notice to the WPPA was sufficient to afford it the opportunity to request bargaining. The employer demonstrated a willingness and interest in talking with Therriault about the budget cuts, the layoffs, and the changes to the attendance clerk job responsibilities. Both Wheaton and Murray appeared to value talking with Therriault about these matters, particularly given her prior experience as an attendance clerk. Although the employer did not formally invite the WPPA to engage in bargaining, nothing in the record identified any type of employer behavior that was inconsistent with a willingness to bargain with the WPPA.

No request to bargain - At no time did the WPPA request to bargain with the employer about any aspect of the layoff or the transfer of bargaining unit work. The WPPA argues that when the parties met in August and negotiated the extension of their collective bargaining agreement, the employer failed to make any proposals relating to its plan to transfer some of the attendance clerk duties to the secretaries. At that point, however, the employer had already put the WPPA on notice of its plan to transfer some of the work. Having placed the WPPA on notice, the employer had no obligation to make proposals absent the WPPA's request for bargaining on that issue.

In response to a question at the hearing about what she did after she learned that secretaries were going to be performing job duties that had previously been performed by attendance clerks, Therriault testified:

Well, at that time I was just concerned about my attendance clerks, because being only two left, and knowing how much work an attendance clerk does, I just said, 'Well, let's see how this works.' At that time I was not concerned with what the secretaries were going to do.

The evidence clearly demonstrated that the WPPA waived its right to bargain the transfer of bargaining unit work to the secretaries.

Conclusion

The employer provided the WPPA with adequate prior notice of its intent to transfer bargaining unit work to the secretaries. Because the WPPA did not request bargaining, it waived by inaction its bargaining rights. The employer did not commit a refusal to bargain unfair labor practice violation.

ISSUE 2 – UNILATERAL CHANGE IN SECRETARY WORKING CONDITIONS

Obligation to Bargain

The WAEOP asserts that the employer unilaterally changed working conditions when it assigned the secretaries duties that had been previously performed by the attendance clerks. The employer argues that it was exercising its management right to assign additional attendance-related duties to employees who were already performing attendance-related tasks.

To establish an unlawful unilateral change, the union bears the burden of proving that the employer's decision to assign attendance clerk duties to the secretaries was a mandatory subject of bargaining. In the alternative, if the decision was a permissive subject, the employer still had a duty to bargain the effects of its decision on the wages, hours or working conditions of the secretaries.

The assignment of additional job duties may be a mandatory or permissive topic depending upon the facts of the particular case. As a result, I apply the balancing test described above under "Applicable Legal Standards" to determine whether the assignment of additional job duties in this case is a mandatory or permissive subject of bargaining.

The employer decided to restructure how it handled some of the clerical responsibilities involved with student attendance. It decided to move the work location of the attendance clerks to a nonschool setting and to focus their work on what it considered higher priority truancy issues, leaving the secretaries to handle the day-to-day data collection and input of attendance information at each school site. One of the unique and compelling facts in this case is that although the attendance clerks work in a separate bargaining unit from the secretaries, much of their work has been clerical in nature. As a result, the employer's decision to re-assign duties from the attendance clerks to the secretaries involved moving clerical duties to other employees who also have clerical skills and duties. The restructuring and reassignment of duties in this case is a classic example of an essential management prerogative.

Without question, the employer's decision to assign secretaries some of the duties previously performed by the attendance clerks increased the secretaries' workload, materially impacting their working conditions. Although the extent of the workload impact varied among some of the secretaries who testified, I find that the impact was significant for each of them.

In weighing the extent to which the employer's decision is an essential management prerogative against the extent to which it impacts employee wages, hours or working conditions, I conclude that the balance tips in favor of the decision being an essential management prerogative and, therefore, a permissive subject of bargaining. As a permissive subject, the employer maintained an obligation to provide the WAEOP with notice of its decision and an opportunity to bargain the impacts.

Lack of Notice, Fait Accompli

The employer communicated to the WAEOP in the spring of 2009 that it was considering reducing the number of attendance clerk positions. The employer did not share that it was considering assigning any of the attendance-related duties previously performed by attendance clerks to the WAEOP bargaining unit employees. The WAEOP president testified without contradiction that the employer never informed her, as the WAEOP president, that it intended to assign the secretaries duties that had been previously performed by attendance clerks.

The secretaries who testified explained that it was anywhere from a few days to two weeks in advance of school starting that their individual principals informed them that they were being assigned the new duties effective September 1. Because the employer presented this change to the WAEOP as a fait accompli, the union had no obligation to request bargaining.

The employer highlights that it faced uncertainties about the impact its decision would have on the secretaries. Starting in September, the employer was implementing an automated system that would telephone parents about student absences. The employer hoped this would save staff time. Additionally, the employer anticipated possible changes in truancy proceedings that could also impact the time staff spent on attendance matters. Although the employer was well-intentioned in trying to minimize the impact of its decision on the secretaries, the employer knew that its actions would increase the secretaries' work load. The employer's uncertainty about the extent of the impact does not excuse it from its bargaining obligation. Because at least some of the impacts of the employer's decision were sufficiently foreseeable, the employer's bargaining obligation attached before the decision was implemented. Spokane County Fire District 9, Decision 3661-A.

Conclusion

The record establishes that the employer failed to provide the WAEOP with prior notice and an opportunity to bargain the impacts of its decision to assign bargaining unit employees some of the attendance-related responsibilities that the attendance clerks had previously performed. As a result, the employer committed a refusal to bargain unfair labor practice violation.

FINDINGS OF FACT

1.                  The Wapato School District is a public employer within the meaning of RCW 41.56.030(1).

2.                  The Wapato Pupil Personnel Association (WPPA) is a bargaining representative within the meaning of RCW 41.56.030(3). Adelaida Therriault serves as the WPPA president. The WPPA represents a residual unit of classified employees which includes attendance clerks.

3.                  The Wapato Association of Educational Office Personnel (WAEOP) is a bargaining representative within the meaning of RCW 41.56.030(3). The WAEOP represents secretaries.

4.                  The employer and the WPPA are parties to a collective bargaining agreement.

5.                  The employer and the WAEOP are parties to a collective bargaining agreement.

6.                  In the spring of 2009, faced with over $1.5 million in anticipated budget cuts for the 2009-10 school year, the employer sought ways to reduce its expenditures.

7.                  The employer met with representatives from the WPPA and the WAEOP in March or April of 2009 to discuss possible budget cuts, including the possibility of laying off some of the attendance clerks. The employer provided a list of proposed reductions.

8.                  On May 15, 2009, Charles Wheaton, the employer's Executive Director of Support Operations, sought input from departments, principals, and union representatives on implementation of proposed budget reductions, including those relating to attendance clerks. The communication provided no information on how the job responsibilities would be met if the employer laid off some of the attendance clerks. The WPPA provided no input.

9.                  By letters dated May 28, 2009, the employer provided layoff notices to three of the five attendance clerks, effective at the end of the 2008-2009 school year. In advance of May 28, Wheaton and Therriault discussed the layoffs, including ways to try to avoid the layoffs, and related seniority issues.

10.              By letter dated June 24, 2009, the employer sent the two remaining attendance clerks correspondence informing them of the modification of their assignments for the 2009-10 school year. The letter included an updated job description.

11.              The updated attendance clerk job description reflects that the employer restructured the responsibilities of the two remaining attendance clerks so that the purpose of their job changed to: "providing assistance to building office staff to ensure accurate attendance accounting within the district." The prior job description included that the position's purpose was "ensuring accurate attendance accounting within the district…."

12.              The employer copied Therriault, on the May 28 and June 24, 2009 letters.

13.              The updated job description clearly identified that the attendance clerks would play a different role with attendance. Instead of compiling, processing, and ensuring the accuracy of the attendance records as they had done in the past, the job description identified that the attendance clerks would be assisting the building staff with those duties. In reading the job description, Therriault knew or reasonably should have known that the employer intended to transfer the disputed work to the secretaries.

14.              By the end of June 2009, after having sent Therriault a copy of the updated attendance clerk job description, the employer provided the WPPA notice of its intent to transfer some of the attendance clerk work to the secretaries. The totality of the evidence supports that the employer's notice to the WPPA was sufficient to afford it the opportunity to request and engage in meaningful bargaining.

15.              At no time did the WPPA request to bargain with the employer about any aspect of the layoff or the transfer of bargaining unit work.

16.              Prior to the 2009-10 school year, two of the key responsibilities held by attendance clerks included collecting attendance information from parents (through notes, tardy slips, phone calls, etc.) and inputting that data into the employer's computer system. This work constitutes the WPPA's bargaining unit work.

17.              Effective September 1, 2009, the employer re-assigned the work described in Finding of Fact 16 to the WAEOP bargaining unit secretaries. This constitutes a transfer of the WPPA's bargaining unit work. The employer's decision to transfer unit work was a mandatory subject of bargaining.

18.              In August 2009, shortly before the school year started, the school principals informed their secretaries that they would have responsibility for some of the student attendance work that had been previously performed by attendance clerks.

19.              The employer's decision to restructure how it handled some of the clerical responsibilities involved with student attendance included moving the work location of the attendance clerks to a nonschool setting and focusing their work on what it considered higher priority truancy issues. This left the secretaries to handle the day-to-day data collection and input of attendance information at each school site.

20.              The employer's decision to re-assign duties from the attendance clerks to the secretaries involved moving clerical duties to other employees who also have clerical skills and duties.

21.              The assignment of the attendance clerk work to the WAEOP bargaining unit secretaries had a significant impact on the secretaries' workload.

22.              The restructuring and re-assignment of the attendance clerk work to the WAEOP bargaining unit secretaries is a classic example of an essential management prerogative.

23.              In weighing the extent to which the employer's decision is an essential management prerogative against the extent to which it impacts employee wages, hours or working conditions, the balance tips in favor of the decision being an essential management prerogative and, therefore, a permissive subject of bargaining

24.              The employer did not notify the WAEOP that it intended to assign the work described in Finding of Fact 16 to the WAEOP bargaining unit secretaries and did not provide the WAEOP with an opportunity to request bargaining concerning the impacts of its decision.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in these matters under Chapter 41.56 RCW and Chapter 391-45 WAC.

2.                  Case 22726-U-09-5809: By its transfer of attendance clerk work from the WPPA bargaining unit, as described in Findings of Fact 7 through 17, the Wapato School District did not refuse to bargain or violate RCW 41.56.140(4) or (1).

3.                  Case 22735-U-09-5811: By its failure to provide notice and an opportunity to bargain the impacts of its decision to assign attendance clerk duties to the WAEOP secretary bargaining unit, as described in Findings of Fact 7, 8, and 17 through 24, the Wapato School District refused to bargain in violation of RCW 41.56.140(4) and (1).

ORDER for Case 22726-U-09-5809

The complaint charging unfair labor practices filed in this matter by the Wapato Pupil Personnel Association (WPPA) is dismissed.

ORDER for Case 22735-U-09-5811

The complaint charging unfair labor practices filed in this matter by the Wapato Association of Educational Office Personnel (WAEOP) is concluded as follows:

WAPATO SCHOOL DISTRICT, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

1.                  CEASE AND DESIST from:

a.                   Failing to provide the Wapato Association of Educational Office Personnel (WAEOP) notice and opportunity to bargain the impacts of decisions affecting bargaining unit employee wages, hours or working conditions.

b.                  In any other manner interfering with, restraining or coercing its employees in the exercise of their collective bargaining rights under the laws of the state of Washington.

2.                  TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter 41.56 RCW:

a.                   Within twenty-five (25) days of receipt of this decision, offer the Wapato Association of Educational Office Personnel (WAEOP) the opportunity to bargain the impacts of the employer's decision to assign attendance clerk duties to the WAEOP secretary bargaining unit. If the WAEOP requests bargaining, negotiate in good faith.

b.                  In the future, give notice to and, upon request, negotiate in good faith with the Wapato Association of Educational Office Personnel (WAEOP), before assigning bargaining unit employees work from other bargaining units that will significantly impact their work load.

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 School Board of the Wapato School District, 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 he provides.

ISSUED at Olympia, Washington, this 28th day of April, 2010.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JAMIE L. SIEGEL, 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.