Seattle School District, Decision 5755-A (PECB, 1998)

STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 609,
Complainant,	CASE 12680-U-96-3029
vs.	DECISION 5755-A - PECB
SEATTLE SCHOOL DISTRICT,
Respondent.	DECISION OF COMMISSION

Schwerin, Burns, Campbell & French, by Cheryl French, Attorney at Law, and Kathleen Phair Barnard, Attorney at Law, appeared on behalf of the complainant.

Perkins Coie, by Lawrence B. Hannah, Attorney at Law, and Ruth Todd Chattin, Attorney at Law, appeared on behalf of the employer.

This case comes before the Commission on a petition for review filed by the International Union of Operating Engineers, Local 609, seeking to overturn a decision issued by Examiner Walter M. Stuteville.[1]

BACKGROUND

The Seattle School District (employer) and International Union of Operating Engineers, Local 609 (union) were parties to a collective bargaining agreement in effect from September 1, 1994 through August 31, 1997, covering custodial engineers and gardeners. The agreement stated in pertinent part:

ARTICLE XV: BUILDING RECLASSIFICATION AND STAFF ADJUSTMENTS

...

SECTION B: Staff Adjustments

1.         When a school building or department (including gardeners) is closed or reorganized, or a program is ended, the District will make every effort to transfer employees displaced by such action(s) to comparable positions.

2.         The parties to this Agreement will convene no later than June 1 of each year to explore and try to reach agreement on alternatives to layoffs.

a.         This process shall include, but is not limited to, specific procedures calling for reassignment, promotion, demotion, transfer, retirement, worksharing, free time, or other methods directed towards the employees either directly or indirectly affected.

b.         If no alternatives are agreed to by July 30 of each year, the layoff and bumping procedure will be implemented as described in items 1, above, and 3, below.

[Emphasis by bold supplied.]

At a labor/management relations committee meeting on April 26, 1996, the employer informed the union that budget reductions were going to take place, and that custodial services was targeted for a $1,025,000 reduction. Representatives of the employer and the union reviewed a document showing various options that might be available to meet the targeted amounts. Participants at the meeting discussed the fact that there would be layoffs and the option used would determine the actual number of custodial personnel to be laid off. The participants also discussed the feasibility of reductions in the cleaning schedule from every other day to every third day.

By letter of May 15, 1996, the employer again notified the union that it contemplated layoffs in the custodial/gardener bargaining unit, and suggested meeting dates of May 23, May 24, and May 30, to discuss the union’s suggestions in regard to alternatives to layoff. In a letter of May 16, 1996, the union’s representative, Dale Daugharty, informed the employer that he would be out of town, so that the suggested dates would not work. Daugharty suggested several days in June. The employer and union met about once a week during June and July of 1996.

At a meeting on July 29, 1996, the employer and union signed a letter of agreement concerning alternatives to layoff. The letter of agreement states in part:

In order to minimize the effects of displacement on affected 609-A full-time employees who remain after available benefitted part-time positions have been filled, Local 609 and the District agree to the following alternatives:

3.         HIRING DISPLACED EMPLOYEES FOR TEMPORARY GARDENING WORK...

4.         PAIRING OF SHORT-HOUR CUSTODIAL SERVICES POSITIONS WITH SHORT-HOUR CHILD NUTRITION (CNS) POSITIONS...

5.         PAIRING OF TWO (2) SHORT-HOUR PART-TIME CUSTODIAL SERVICES POSITIONS...

6.         OFFERING OF GROUNDS APPRENTICE POSITIONS

7.         PRIORITY HIRING CONSIDERATION FOR CHILD NUTRITION POSITIONS...

8.         QUALIFICATIONS...

9.         STAFF ADJUSTMENTS...

10.       RECALL...

[Emphasis by bold supplied.]

The employer’s representative assumed that the agreement the parties were signing on July 29^th covered all topics of concern. At the July 29 meeting, however, the union raised issues concerning further effects of the layoffs, and asserted that the employer had an obligation to bargain issues such as additional pay and rebidding rights for the remaining members of the bargaining unit. The employer responded that effects bargaining already took place, and requested a written proposal delineating the items the union wanted to negotiate.

By letter of August 1, 1996, the union requested “a time on August 15^th when we can meet to start negotiations on the changes being unilaterally made to the Members of Local 609-A working conditions”. By letter of August 13, 1996, to the employer, the union stated:

The Unilateral changes that the Seattle School District is implementing is [sic] creating major changes in the working conditions of the Members of Local-609-A. We respectively request to negotiate the effects of these changes has [sic] on the workforce.

The Custodian Engineers bid for Middle Schools for numerous reasons close to home, type of building and staffing. By eliminating the Assistant Engineer in these building [sicl you have changed their shift times, responsibility, duties and workload. When these Custodian Engineers bid for their current buildings they knew what their workshift [sic] would be. They knew how the building was staffed and what their duties would be. This has all changed. Therefore, we request to negotiate a new pay scale for the ones that have no Engineer and a bumping procedure for those who do not want to be in a building without an Engineer.

The same holds true for the Licensed Assistant Custodian “I” Classification. They have bid for the specific building for the same reasons that the Custodian Engineer did. In this case their skill factors will be increased in all four criteria called out in Article XVIII: Job Description. Therefore, we request to negotiate a new pay rate for these Members and a bumping procedure for the ones that do not wish to work in building the does [sic] not have an Assistant Engineer?

We request that the Assistant Engineers that are being bumped to a lower position retain their rate of pay for two years. We request the same for the Licensed Assistants “H” Classification. For the Assistant Custodians who accept a Part-Time position we request that they remain in their increment step if they are at the top of the scale and receive the increments they [are] entitled to on the first of September....

A meeting was scheduled for August 15, 1996. The employer’s representative canceled the meeting due to illness, then on August 19^th or 20^th, telephoned the union and stated he was being removed from his position as the director of labor relations.

On August 21, 1996, Daugharty wrote to the employer’s superintendent, requesting that “someone in authority” meet with the union concerning the “effects on remaining employees” issues.

The newly-appointed executive director of human resources responded that Daugharty should continue to deal with the present director of labor relations until a replacement was named. The parties agreed to meet on September 6, 1996, to discuss the effects of the layoff on the remaining custodial employees.

Three days before the parties’ scheduled meeting, on September 3, 1996, the union filed the complaint charging unfair labor practices to initiate this proceeding. It alleged that the employer refused to bargain in violation of RCW 41.56.140(4) and interfered with employee rights in violation of RCW 41. 56.140 (1). The union alleged that its representatives indicated to the employer during June and July that the union would be discussing effects of the layoffs after the conclusion of negotiations over alternatives. The union alleged that it requested to bargain with the employer over the effects of the layoffs at the close of the meeting on July 29^th, and that the employer refused to bargain. The union alleged that the employer failed to bargain by unilaterally altering employees’ duty schedules and duty requirements, performance standards, working hours and working locations. The union requested an order requiring the employer to rescind the layoffs and the ensuing changes in the terms and conditions of employment for bargaining unit employees.

Examiner Walter M. Stuteville held a hearing and, on September 8, 1997, issued his decision in the matter. Examiner Stuteville concluded that the employer gave timely notice to the union of its proposals to lay off employees, and bargained in good faith concerning its layoff decision and the effects of that decision, so that the employer did not commit any unfair labor practice under RCW 41.56.140. The Examiner concluded that, by failing to either make a timely request for bargaining on the “effects on remaining employees” issues or to inform the employer of its desire to delay bargaining on such issues until a later time, the union waived its bargaining rights under RCW 41.56.030(4) by inaction. The Examiner found that the employer did not fail or refuse to bargain in good faith concerning the effects of the layoff on the remaining employees, and dismissed the unfair labor practice complaint.

POSITIONS OF THE PARTIES

Contending that it did not waive bargaining by inaction, the union argues that it announced its intention in June to bargain the effects of the layoff on remaining employees after an agreement was reached on the layoffs, and that it fully disclosed its intention prior to the July 29^th meeting. The union asks the Commission to reverse the Examiner’s decision, and hold that the employer committed an unfair labor practice in failing to bargain the effects of the layoff.

The employer contends the parties’ collective bargaining agreement governs layoffs and their effects, and that the agreement requires the union to act before July 30 to negotiate the impact of layoffs on remaining employees. It asserts that the union contractually waived its rights by not requesting negotiation of the impact of layoffs on remaining employees prior to July 30^th. The employer argues that the July 29 letter of agreement deals with some effects of the layoff on remaining employees, and that the union could have pursued a specific agenda with the employer in advance of July 29^th. The employer asserts that it remained willing to meet with the union concerning effects, and to entertain a union proposal. The employer argues, however, that the union’s August 13 letter requested negotiations on bidding procedures and pay rates that are covered by the parties’ collective bargaining agreement. The employer asks the Commission to affirm the Examiner’s decision.

DISCUSSION

The Legal Standards

The duty to bargain is defined in the Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, as follows:

RCW 41.56.030 Definitions.

...

(4) “Collective bargaining” means... to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to grievance procedures and collective negotiations on personnel matters, including wages, hours and working conditions, which may be peculiar to an appropriate bargaining unit of such public employer, except that by such obligation neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this chapter.

...

[Emphasis by bold supplied.]

That definition is patterned after the definition found in the National Labor Relations Act (NLRA). The Supreme Court of the State of Washington has ruled that decisions construing the NLRA are persuasive in interpreting state laws which are similar to the NLRA. Nucleonics Alliance v. WPPSS, 101 Wn.2d 24 (1984).

The potential subjects for bargaining between an employer and union are commonly divided into categories of “mandatory”, “permissive” and “illegal”. Matters affecting wages, hours, and working conditions are mandatory subjects of bargaining, while matters considered remote from “terms and conditions of employment” or which are regarded as a prerogative of employers or of unions have been categorized as “nonmandatory” or “permissive”. See, Federal Way School District, Decision 232-A (EDUC, 1977), citing NLRB v. Wooster Division of Bora-Warner, 356 U.S. 342 (1958), affirmed, WPERR CD-57 (King County Superior Court, 1978).

The duty to bargain includes a duty to give notice and provide opportunity for bargaining prior to changing mandatory subjects of bargaining. A party to a bargaining relationship commits an unfair labor practice if it fails to give notice of a change affecting such subjects, (i.e., presents the other party with a fait accompli),[2] or fails to bargain in good faith upon request. Federal Way School District, supra.[3]

Even if an employer has no duty to bargain a particular decision, it still is required to bargain the effects of its decision impacting the wages, hours, or working conditions of union-represented employees. See, Wenatchee School District, Decision 3240-A (PECB, 1990); Lake Chelan School District, Decision 4940-A (EDUC, 1995); and Bates Technical College, Decision 5140-A (PECB, 1996). The issues before the Commission in this case are confined to whether the employer committed an unfair labor practice by failing to bargain the effects of the employer’s layoff decision on remaining employees.

Waiver of Bargaining Rights

The union requests review of the Examiner’s Conclusions of Law, where he held that the union waived its bargaining rights by inaction. Having reviewed the record, we find there was a waiver of bargaining rights. We agree with the Examiner that the union did not make a specific request to bargain the effects on remaining employees until it was too late, but we also conclude there was a waiver by contract, as well as a waiver by inaction.

When presented with notice of an opportunity for bargaining on either a decision or its effects, a party must make a timely request to bargain if it desires to assert its rights under the statute. See, King County, Decision 4893-A (PECB, 1995). The Commission does not find waivers by inaction easily, but if a union fails to request bargaining in a timely manner once notified of a contemplated change,[4] or fails to advance proposals in a timely manner for the employer to consider,[5] a “waiver by inaction” defense asserted by the employer will likely be sustained. See, Mukilteo School District, Decision 3795-A (PECB, 1992); North Franklin School District, Decision 3980-A (PECB, 1993); and Lake Washington Technical College, Decision 4721-A (PECB, 1995). A specific and timely request that the employer bargain a matter generally will support a finding that the union has not waived bargaining by inaction,[6] while silence will support finding a waiver by inaction.[7] The burden of proof is with the party claiming waiver. City of Wenatchee, Decision 2194 (PECB, 1985) and City of Yakima, Decision 3564-A (PECB, 1991).

The object of the collective bargaining process is for the parties to conclude a written and signed contract to govern their affairs for a period of up to three years. RCW 41.56.030(4); RCW 41. 56. 070; State ex rel. Bain v. Clallam County, 77 Wn.2d 542 (1970). Where agreements on a negotiated subject are set forth in a collective bargaining agreement, a “waiver by contract” will exist as to that subject for the life of that agreement.

In this case, the disputed events occurred in the context of a collective bargaining agreement which contained the following language related to layoff and recall:

ARTICLE XV: BUILDING RECLASSIFICATION AND STAFF ADJUSTMENTS

...

SECTION B: Staff Adjustments

1.         When a school building or department (including gardeners) is closed or reorganized, or a program is ended, the District will make every effort to transfer employees displaced by such action(s) to comparable positions.

2.         The parties to this Agreement will convene no later than June 1 of each year to explore and try to reach agreement on alternatives to layoff.

a.         This process shall include, but is not limited to, specific procedures calling for reassignment, promotion, demotion, transfer, retirement, worksharing, free time, or other methods directed towards the employees either directly or indirectly affected.

b.         If no alternatives are agreed to by July 30 of each year, the layoff and bumping procedure will be implemented as described in items 1, above, and 3, below.

c.         The District does not grant voluntary days off without pay except in unusual circumstances.

3.         Should staff adjustments become necessary, the following criteria will be used to determine the employees to be affected:

a.         Selection of employees for layoff and recall shall take into account affirmative action policies relating to ethnic groups to the extent consistent with State and Federal Law.

b.         Seniority within job titles will govern for all gardener job titles. Bumping will begin with the highest affected job title and continue through the lowest job title to the least senior employee who is subject to layoff if there are no alternatives found in item 2 above.

c.         Seniority within job title will govern for all custodial job titles. Bumping will begin with the highest affected job classification and continue through the G classification to the least senior employee who is subject to layoff if there are not alternatives found in item 2 above; as follows:

1)         The layoff and recall of part-time employees who have worked for the District fewer than six (6) consecutive working months in positions represented by IUOE, Local 609, shall be at the discretion of the District: provided that, all such employees shall be laid off prior to the implementation of c-2) below; and, provided further, that such employees shall not be recalled prior to the implementation of c-2) below.

2)         The layoff and recall of part-time employees who have worked for the District six (6) consecutive working months or more, in positions represented by IUOE, Local 609, shall be accomplished in seniority order {i.e., least senior = first laid off); provided that, all such employees shall be laid off prior to the implementation of c-3) below; and, provided further, that such employees shall be recalled prior to the implementation of 1) above. Such employees will have recall rights for a period of twelve (12) months, provided that the employee keeps the District appraised of his/her current address.

3)         The layoff and recall of full-time employees in the G classification who have worked for the District fewer than six (6) consecutive working months in positions represented by IUOE, Local 609, shall be at the discretion of the District; provided that, all such employees shall be laid off prior to the implementation of c-4) below; and, provided further, that such employee shall not be recalled prior to the implementation of 4) below.

4)         Seniority within job title will govern the layoff and recall of full-time employees in the G classification who have worked for the District at least six (6) consecutive working months in positions represented by IUOE, Local 609. Such employees will have recall rights for a period of twelve (12) months, provided that the employee keeps the District appraised of his/ her current address.

4.         It is recognized that Facilities’ Area Supervisors shall be eligible to return to 609-A bargaining unit positions comparable to bargaining unit positions held prior to becoming Area Supervisors, based on their seniority within the appropriate job titles. Facilities’ Area Supervisors shall not accrue bargaining unit seniority for time spent as a Facilities’ Area Supervisor.

Thus, the parties’ collective bargaining agreement already set forth the seniority-based layoff process which would take place if the union never asked,

“to explore and try to reach agreement on alternatives to layoffs”,

or if the parties negotiated between June 1 and July 30 without reaching agreement on either “alternatives to layoffs” or

“specific procedures calling for reassignment... worksharing, free time, or other methods directed towards the employees either directly or indirectly affected”.

We interpret the “employees... indirectly affected” in the latter clause as encompassing the remaining employees who were the subject of the union’s proposals in this case. Thus, a party which desires to modify the seniority-based layoff system already set forth in the contract must specifically request to do so when the parties convene to discuss alternatives to layoffs within the June 1 - July 30 bargaining timetable. This supports the employer’s view of its limited bargaining obligation in this case.

In addition, the union’s August 13, 1996 letter to the employer specifically requested to negotiate new pay scales, changes in pay increments, and different bumping procedures, all of which were already set forth in the parties’ collective bargaining agreement. We interpret the contract as providing that employees who move to new positions or endure other changes due to operation of the seniority-based layoff system take the already-agreed wages that go with the position (s) they retain or secure. In that light, it appears the union was trying to block the layoff itself by its late requests to renegotiate items already agreed to by the parties.

The union takes issue with Paragraph 8 of the Examiner’s Findings of Fact, and Paragraph 4 of the Examiner’s Conclusions of Law, which refer to a failure of the union to disclose its intentions to the employer during bargaining prior to the July 29, 1996 meeting. The union asserts that its plan to bargain “effects on remaining employees” after the bargaining on the layoffs themselves was disclosed to the employer prior to July 29, 1996. We are amending the Finding of Fact and Conclusion of Law to reflect that the record shows the union did disclose its plan to the employer in June and July,[8] but we do not reverse them in their entirety. In the context of the contract already in effect between the parties, the union’s notice that it planned to bring up effects on remaining employees at a later time falls short of proof that the employer assented to a change of the contractual July 30 deadline for bargaining before “the layoff and bumping procedure will be implemented”.

Finally, a stated purpose of the July 29 agreement was to “minimize the effects of displacement on affected... employees who remain...”. Thus, it appears that the parties did bargain and agree on some effects of the layoff on the remaining employees.

The Employer’s Willingness to Meet and Good Faith

The Examiner ruled that the union did not sustain its burden of proof with respect to the employer refusing to bargain the effects on the remaining employees. We concur.

Even though Miner initially expressed some doubts about the existence of a duty to bargain on the “effects on remaining employees” subjects raised by the union for the first time on July 29^th, the record shows that the employer was willing to meet with the union on those effects during August.[9] The record also establishes that the parties had a meeting set (for September 6, 1996) when the union filed the complaint to initiate this proceeding. Therefore, a violation of the “meet at reasonable times” aspect of the duty to bargain cannot be found as to the employer’s actions in August.

The union never moved to amend its complaint in this case. Thus, any requests or proposals made after the filing of this unfair labor practice complaint on September 3, 1996, are not within the scope of this proceeding.

Other Disputed Findings of Fact

The union takes issue with paragraphs 6, 9, 11, 12, and 13 of the Examiner’s Findings of Fact, but provides little support for its assertions. We find those findings to be supported by the record.

NOW, THEREFORE, the Commission makes the following:

AMENDED FINDINGS OF FACT

1.         The Seattle School District is a public employer within the meaning of RCW 41.56.030(1). The district superintendent is John Stanford and its human resources director is Tom Weeks. The employer’s labor relations director during most of the time pertinent to this case was Lawrence Miner.

2.         International Association of Operating Engineers, Local 609, a bargaining representative within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of approximately 340 Seattle School District employees holding gardener and custodial engineer positions. At all times pertinent to this proceeding, Dale Daugharty was the business manager of the union.

3.         The employer and union were parties to a collective bargaining agreement in effect for the period from September 1, 1994 through August 31, 1997. Within the general custodial engineer classification covered by that collective bargaining agreement are several job titles, including: “licensed assistant”, “assistant custodian”, and “custodial engineer”. Those employees are responsible for cleaning buildings, equipment and facility repairs, and the operation of hot water boilers. The employees work at elementary schools, middle schools, alternative schools, and high schools, as well as at the employer’s administration building, memorial stadium, a warehouse, and a facilities/maintenance building.

4.         On April 26, 1996, the employer orally informed the union that it was looking at a potential budget reduction of $1,025,000 which would impact its custodian bargaining unit as well as non-represented employees within the logistics department.

5.         The employer sent the union a written notice of impending layoffs on May 15, 1996. During June and July of 1996, the parties met nine times to specifically discuss and negotiate alternatives to the layoff of logistics department employees.

6.         The employer’s final budget included changing from an “every other day” cleaning schedule to an “every third day” schedule. That decision resulted in the layoff of 7 assistant engineer positions from the district’s middle schools, 22 full time equivalent positions from the ranks of the assistant custodians and 1 central office supervisory position. A total of approximately 53 persons were to be laid off.

7.         On July 29, 1996, the parties signed an agreement which provided for some alternatives to the scheduled layoffs. It included hiring displaced workers in temporary gardening positions, the pairing of short-hour custodial employees with short-hour nutrition positions and the pairing of short-hour custodial positions. The agreement also provided for the bumping of senior employees into the positions of less senior employees and for the recall of laid-off employees.

8.         Also at the July 29, 1996 meeting, the union gave notice to the employer that it wished to begin bargaining the “effects” resulting from the departmental layoffs. Specifically, it wanted to focus on changed work loads and responsibilities on remaining custodial employees, and new and additional issues concerning effects of the layoffs. The timing of that request was apparently the fulfillment of a bargaining strategy and timetable which was developed by the union, but the employer did not assent to change the contractual timetable. The union did not present any concrete proposals at that time.

9.         Miner’s initial reaction was to question whether the employer had a duty to bargain, but he agreed to schedule a meeting and requested that the union put its proposals in writing.

10.       On August 13, 1996, the union sent the employer a written demand to bargain concerning unilateral changes in the working conditions of remaining custodial employees. The demand included a new pay scale for some employees, and a bumping procedure for employees who remained in positions impacted by the loss of the laid off employees.

11.       The cancellation of a scheduled bargaining session in August of 1996 was due to the illness of the employer’s negotiator.

12.       A delay in rescheduling of bargaining sessions in August was due to the union’s making contact with the district superintendent upon learning that the employer’s negotiator was to be replaced, to which the employer responded that the union should deal with Miner until he was actually replaced.

13.       The scheduled layoffs did occur in September 1996, at the start of the school year. Subsequent to the filing of this charge of unfair labor practices on September 3, 1996, the parties met to discuss the impact of the layoffs.

AMENDED CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW.

2.         The Seattle School District met its bargaining obligations under RCW 41. 56. 030 (4), by giving timely notice to International Union of Operating Engineers, Local 609, of its proposal to lay off employees from the bargaining unit represented by the union in response to a budget cut, and of its proposal to change the school cleaning schedule to accommodate the reduced staffing, and by bargaining with Local 609 concerning that decision and its effects upon the bargaining unit employees to be laid off, so that the employer did not commit any unfair labor practice under RCW 41.56.140 in regard to those matters.

3.         The employer gave notice and bargained in good faith, as required by RCW 41.56.030(4), concerning its layoff decision and the effects of that decision on the employees who were actually laid off, so that it did not commit any unfair labor practice under RCW 41.56.140.

4.         By failing to either make a timely request for bargaining on the “effects on remaining employees” issues or to obtain employer assent for a variance of the contractual deadline for negotiation on layoff decisions or effects, Local 609 waived its bargaining rights under RCW 41.56.030(4) by inaction, so that the Seattle School District did not commit any violation of RCW 41.56.140 by failing or refusing to bargain on the issues raised by the union in an untimely manner.

5.         International Union of Operating Engineers, Local 609, has failed to sustain its burden of proof with respect to its allegation that, by its actions as described in paragraphs 4 through 11 of the foregoing Findings of Fact, the Seattle School District failed or refused to bargain in good faith concerning the effects of the layoff on remaining employees, so that the Seattle School District has not committed, and is not committing, any unfair labor practice under RCW 41.56.140 in regard to such matters.

ORDER

The Order dismissing the complaint charging unfair labor practices in the above captioned matter is affirmed and adopted as the Order of the Commission.

Issued at Olympia, Washington, on the 19th day of May, 1998.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARILYN GLENN JBAYAN, Chairperson

[SIGNED]

JOSEPH W. DUFFY, Commissioner

DISSENT:

The majority holds that the collective bargaining agreement bars collective bargaining on effects of the layoff on remaining employees if not done between June 1st and July 30th. They cite 2(a) of the agreement, but in my view, 2(a) is limited by 2(b) to layoff and bumping procedure. There is more to effects of a layoff than the actual layoff and bumping procedure. Hence, the contract language does not bar collective bargaining on all effects after July 30^th.

The majority also holds that the union waived its bargaining rights. “We agree with the Examiner that the union did not make a specific request to bargain the effects on remaining employees until it was too late... “. What is the criteria for too late? The majority apparently feels that the July 30^th date is the deadline. Although the union maintains it made such a request on numerous occasions, it is at least agreed by all the parties that the union made its latest request for such bargaining on July 29^th. Whether the 29^th is one day before the 30^th is not the only criteria that could and should be used. More important is the fact that this request was well before the effects would take place, by some thirty days.

Lastly, the majority holds “that the employer was willing to meet with the union on those effects during August”, and therefore could not be found in violation of the “meet at reasonable times” aspect of the duty to bargain. They state in their Findings of Fact #11 “the cancellation of a scheduled bargaining session in August of 1996, was due to the illness of the employer’s negotiator”. For various reasons there was no bargaining session held in August, but it is clear that there was a bargaining session agreed to in August by the employer.

In my view it is not a question of who was willing to meet at a reasonable time and who was responsible for the various cancellations but rather that when they did meet, would they be bargaining about a “fait accompli”.

What is not cited by the majority is the fact that the employer called a meeting of all the affected employees on August 29^th in which the employer unilaterally advised them, the employees, that the very issues the employer agreed to bargain with the union, would take effect immediately.

Are effects of layoff mandatory subjects of bargaining? I say yes. Did the collective agreement bar such bargaining, after July 30^th? I say no. Did the union waive its bargaining rights by being too late in making its request to bargain? I say no. In any event, did the employer eventually agree to bargain? I say yes. Did the employer unilaterally put into effect the items he agreed to bargain? I say yes. In my view, the employer did commit an unfair labor practice.

[SIGNED]

SAM KINVILLE, Commissioner