City of Bellevue, Decision 10830 (PECB, 2010)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
|
bELLEVUE pOLICE SUPPORT GUILD,
Complainant,
vs.
cITY OF BELLEVUE,
Respondent.
|
CASE 22416-U-09-5719
DECISION 10830 - PECB
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
|
Cline & Associates, by Christopher J. Casillas, Attorney at Law, for the union.
Cheryl A.
Zakrzewski and Siona
D. Windsor, Assistant City Attorneys, for
the employer.
On April 23, 2009, the Bellevue Police Support Guild (union) filed an unfair labor practice complaint against the City of Bellevue (employer). The union alleges that the employer interfered with employee rights in violation of RCW 41.56.140(1) and refused to bargain in violation of RCW 41.56.140(4), by refusing to bargain concerning its decisions to: (a) join the North East King County Regional Public Safety Communications (NORCOM), a regional dispatch organization that provides emergency dispatch services previously performed by bargaining unit members, and (b) lay off all emergency dispatchers within the bargaining unit. The Commission appointed Jessica Bradley, Examiner, to hear this case.
A series of events caused the processing of this case to be delayed. A hearing was initially scheduled for September 2009. On August 18, 2009, the employer filed a motion for summary judgment. On August 18, 2009, the union and employer jointly requested a four-month continuance to allow for settlement discussions. I granted the parties’ joint request for a continuance. The parties were not able to reach a settlement. The union responded to the summary judgment motion, and both parties filed reply briefs on the motion. By letter dated December 23, 2009, I denied the employer’s motion for summary judgment because there were key facts in dispute between the parties. The hearing was held on February 2, 3, and 4, 2010. At the request of the parties, I granted an extended briefing schedule. The parties completed the record by filing post-hearing briefs on May 3, 2010.
ISSUES
1. Is the union’s complaint filed in a timely manner under RCW 41.56.160(1)?
2. Was the employer’s decision to lay off bargaining unit dispatchers a mandatory subject of bargaining?
3. Did the employer unlawfully refuse to bargain about its decision to lay off its dispatchers in violation of RCW 41.56.140(4) and commit a derivative interference violation of RCW 41.56.140(1)?
The union alleges that the employer had an obligation to bargain the decision to join NORCOM, and the decision to lay off dispatchers. The allegation concerning the employer’s obligation to bargain its decision to join NORCOM was not filed within the six-month statute of limitations period and is therefore dismissed. The allegations in the complaint concerning the employer’s obligation to bargain the decision to lay off dispatchers, although filed on the last day of the six-month statute of limitations period, are timely filed.
The employer’s decision to lay off all of its emergency dispatchers had a major impact on employees’ terms and conditions of employment and is a mandatory subject of bargaining. However, the employer established that the union agreed to contract language that waived its right to bargain over the decision to lay off employees under certain circumstances. This contract waiver eliminated the employer’s obligation to bargain with the union over its decision to lay off the emergency dispatchers in this situation. The complaint is dismissed.
ISSUE 1 - TIMELINESS
LEGAL STANDARDS
The statute of limitations for filing an unfair labor complaint under the Public Employees' Collective Bargaining Act is addressed in RCW 41.56.160(1) (emphasis added):
The commission is empowered and directed to prevent any unfair labor practice and to issue appropriate remedial orders: PROVIDED, That a complaint shall not be processed for any unfair labor practice occurring more than six months before the filing of the complaint with the commission. This power shall not be affected or impaired by any means of adjustment, mediation or conciliation in labor disputes that have been or may hereafter be established by law.
The timeliness of the complaint is a threshold question in any unfair labor practice case. If a complaint is not timely, the Commission does not have jurisdiction to remedy it. City of Bellevue, Decision 9343-A (PECB, 2007) citing Clark v. Selah, 53 Wn. App. 832 (1989); Stewart v. Omak School District, 108 Wn. App. 1049 (2001); Malpica v. Mary M. Knight School District 311, 93 Wn. App. 1084 (1999).
“The start of the six-month period, also called the triggering event, occurs when ‘a potential complainant has actual or constructive notice of the complained-of action.”’ Community College District 17 (Spokane), Decision 9795-A (PSRA, 2008) citing Emergency Dispatch Center, Decision 3255-B (PECB, 1990).
The Commission's precedents concerning timeliness and statute of limitations are generally consistent with the rulings of the National Labor Relations Board. City of Selah, Decision 5382 (PECB, 1995).
Under the standard used by the NLRB and embraced by the Commission, the six-month statute of limitations period begins at the time the employer provides clear and unequivocal notice to the union. Unequivocal notice of a decision requires that a party communicate enough information about the decision or action to allow for a clear understanding. Statements that are vague or indecisive are not adequate to put a party on notice. Community College District 17 (Spokane), Decision 9795-A.
The party asserting a complaint is untimely has the burden of showing actual or constructive notice. Community College District 17 (Spokane), Decision 9795-A; Courier-Journal, 342 NLRB 1093-1104 (2004), R.G. Burns Electric, 326 NLRB 440, 446 (1998). “[T]he six month time limit has been extended only where it can be demonstrated that the complainant did not have actual or constructive knowledge of the acts or events which are the basis of the charge.” City of Selah, Decision 5382 citing Spokane County, Decision 2377 (PECB, 1986) and City of Dayton, Decision 2111-A (PECB, 1986). Participation in settlement discussions does not extend or delay the six-month period.
ANALYSIS
The employer is located to the east of Seattle and Lake Washington in King County, Washington. The employer operates police and fire departments. Until June 30, 2009, the employer operated an emergency dispatch center that provided dispatch services for its police and fire departments and had contracts to provide dispatch services for seven fire districts and seven cities. The dispatch center was referred to as the eastside communications center. Until 2009, the cities of Kirkland, Mercer Island, Redmond, Issaquah, and Bothell, which are all located on the east side of Lake Washington and northern part of King County, also operated dispatch centers for dispatching police, fire, and medical calls.
Timeline of Events
• 2004 – Emergency dispatchers employed by the City of Bellevue were represented by Teamsters Local 763 and worked under a collective bargaining agreement that was effective from 2004 through December 31, 2006.
• 2004 – The cities of Bellevue, Kirkland, Mercer Island, Clyde Hill, Medina, and Woodinville Fire and Life Safety District began studying whether there was sufficient merit and interest in the concept of regionalized dispatch to warrant further study.
• 2005 – All 14 Eastside public safety providers (Bellevue, Bothell, Clyde Hill, Issaquah, Kirkland, Medina, Mercer Island, Redmond, Eastside Fire and Rescue, King County Fire District 27 (Fall City), King and Kittitas Counties (Snoqualmie Pass) Fire District 51, Northshore Fire District, Shoreline Fire District, and Woodinville Fire and Life Safety District) hired consultants to complete the second study and develop a draft governance Inter Local Agreement (ILA) and a business service plan for a regional dispatch agency. The employer e-mailed dispatchers information and updates regarding the study and notified employees that more information and documents related to the proposed regionalized dispatch agency were posted on the City of Kirkland’s web site.
• October 31, 2006 – The Bellevue Police Support Guild (union) filed a petition seeking to represent dispatchers and other police support employees employed by the City of Bellevue.
• March 8, 2007 – In City of Bellevue, Decision 9608 (PECB, 2007), the Commission certified the union as the exclusive bargaining representative of all full-time and regular part-time non-commissioned employees of the City of Bellevue Police Department, excluding supervisors, confidential employees and all other employees. The bargaining unit included emergency dispatchers employed by the City of Bellevue Police Department.
• April 4, 2007 – The employer sent all dispatchers employed by the City of Bellevue, including union officers, an e-mail and attached a copy of packet materials provided to the Bellevue City Council regarding the proposed formation of a new regional dispatch organization.
• May 2007 – The employer and union began contract bargaining for the police support employees, including dispatchers.
• August 2007 – The proposed ILA had been developed and presented to the various participating cities and fire districts for adoption. The proposed ILA called for the creation of a new not-for-profit corporation called the North East King County Regional Public Safety Communications (NORCOM).
• August 6, 2007 – The Bellevue City Council agenda included a resolution authorizing the execution of the ILA and articles of incorporation for NORCOM. The employer sent dispatch employees, including union officers, an e-mail alerting them to the agenda item. That evening, the City Council voted to approve the ILA and articles of incorporation. The ILA specifies that “NORCOM has the responsibility and authority for providing emergency communications and all related incidental functions for communicating and dispatching services between the public and the Participating Agencies’ directly served public safety departments.” The agreement has an initial term of six years and does not allow principals, including the employer, to withdraw from the agreement.
• November 1, 2007 – NORCOM was incorporated as a Washington not-for-profit corporation. By this time, NORCOM had enough signatory agencies for the project of a regional dispatch agency to go forward.
• November 14, 2007 – Bellevue dispatchers, including union officers, were advised by e-mail that NORCOM had held its first meeting.
• November 2007 – NORCOM began e-mailing all City of Bellevue dispatchers a newsletter called NORCOM Dispatch, which discussed future plans for NORCOM. Volumes of the newsletter were also sent by NORCOM by e-mail in February 2008 and September 2008.
• January 23, 2008 – The employer and union signed a collective bargaining agreement that was effective through December 31, 2009. This was the first contract between the union and the employer.
• May 2008 – NORCOM began distribution of a newsletter titled NORCOM News to all of the employer’s dispatchers. This newsletter focused on employment-related topics of interest to future dispatch employees.
• August 28, 2008 – NORCOM sent Bellevue dispatch employees, including union officers, an issue of NORCOM News in which NORCOM announced that it would soon be sending out “Solicitation of Interest” letters to current employees in various dispatcher classifications at the cities of Bellevue and Kirkland.
• August 2008 – The union’s attorney began scheduling dates for negotiations between NORCOM and some dispatch employees working for Bellevue and Kirkland. The purpose of the meetings was to determine what the starting wages, benefits, and other working conditions NORCOM would be offering to dispatchers who were previously employed by the City of Bellevue and the City of Kirkland.
• October 10, 2008 – NORCOM sent all Bellevue dispatchers an employment solicitation letter along with several attachments, including a proposed wage and benefit goal information sheet, to all dispatchers working for the City of Bellevue.
• October 21, 2008 – Julie Erdmann, the union’s president and a bargaining unit dispatcher, sent Yvonne Tate, the employer’s human resource director, a memo which stated: “We are aware the City has considered transferring our bargaining unit work for dispatching to a new entity, NORCOM. The Guild has never agreed to any such transfer. The Guild requests that the City of Bellevue negotiate with the Guild over all aspects of such a potential transfer, both decision and effects.”
• October 22, 2008 – At 4:38 P.M., Tate sent an e-mail to Erdmann and to Jim Cline, the union’s attorney. The subject line said “Notice of Layoff.” Attached to the e-mail was a memo, The memo stated:
This correspondence serves as official notice of layoff.
As you know, for quite some time the City has planned to go out of the dispatch business with the creation of a new government agency that will provide this service to a number of cities including Bellevue. In 2007, the Bellevue City Council, along with a number of other eastside public agencies approved the creation of NORCOM. For the last ten months NORCOM has been working diligently to become a functioning dispatch agency. It is anticipated that it will commence providing this service on or about July 1, 2009.
As a result of the formation of NORCOM, the City will no longer be providing dispatch services once NORCOM goes on line. This will result in all dispatchers being laid off once NORCOM commences providing this service. Because this is an entrepreneurial decision to go out of the dispatch business, there is no duty to bargain this decision. (See also Article 20.5 of the collective bargaining agreement). We are willing to engage the union in effects bargaining regarding the decision to layoff, please contact me to let me know who your bargaining team members will be and to schedule meeting times.
The text on the document indicates that it was also sent to the union by mail.
• October 22, 2008 – Erdmann began her shift working as a dispatcher at either 8 P.M. or 9 P.M. Erdmann testified that she usually logs on to her e-mail when she arrives at work, unless she is needed on the radio or has other duties that require her immediate attention. Erdmann didn’t remember if she had immediately checked her e-mail when she arrived at work on October 22.
• October 23, 2008 – At 12:49 A.M., Erdmann sent an e-mail to Tate thanking her for the quick response. Erdmann said she would send the employer the names of bargaining team members and suggestions for dates and times at the beginning of the next week.
• October 23, 2008 – At 5:26 A.M., Cline replied to the employer’s October 22 e-mail and reiterated his request to bargain both the decision and the effects of the decision to have NORCOM provide dispatching services for the employer. Cline stated, “Your commitment to engage only in effects bargaining is inadequate to respond to our request. If the Guild cannot have a commitment from the City within one week to engage in decisional bargaining, it will have little choice but to file an unfair labor practice complaint.”
• October 23, 2008 through April 2009- Cabot Dow, the employer’s lead labor negotiator, maintained that the employer was only obligated to bargain the effects of the layoff and refused to bargain with the union over the decision to lay off all emergency dispatchers effective July 1, 2009.
• April 23, 2009 – The union filed the complaint in this case with the Commission.
Decision to Have NORCOM Provide Dispatch Services
The employer argues that the portion of the union’s compliant concerning the employer’s decision to join NORCOM and have NORCOM provide dispatch services is not timely. Specifically, the employer points out that the union was on notice in August 2007 of the employer’s decision to sign the ILA and become a principal party to NORCOM.
The union argues that it did not receive formal notice of the employer’s desire to close down the eastside communications center and lay off dispatchers until it received the notification of layoff e-mail from Tate on October 23, 2008.
The union’s complaint was filed on April 23, 2009, and is applicable to events occurring on or after October 23, 2008. The record supports the employer’s position that the union knew, or reasonably should have known, in 2007 that the employer’s decision to join NORCOM meant that the employer was agreeing to have NORCOM provide dispatch services at some point in the future. Section 4 of the ILA states: “NORCOM has the responsibility and authority for providing emergency communications and all related incidental functions for communicating and dispatching services between the public and the Participating Agencies’ directly served public safety departments.” The document attached to the August 6, 2007, e-mail from Bellevue City Manager Steve Sarkozy to all bargaining unit employees specifically states:
The Services to be provided by NORCOM include:
• Taking 911 calls for police, fire and medical services and dispatching those calls to agencies and units;
• Providing ongoing communications support to police, fire and EMS units in the field.
The latest the union should have known that the Employer was committed to having NORCOM provide dispatch services was on or around November 1, 2007, when a critical number of participants signed the ILA and NORCOM was incorporated as a not-for-profit corporation. Former union president Kevin Bryson testified that he was aware that the employer had hit the threshold of signatory agencies to make NORCOM happen in November 2007, when Shoreline signed on to participate in NORCOM. The related documents, which were sent to bargaining unit employees and union officers, made it clear that the decision to join NORCOM meant the employer was agreeing to make NORCOM responsible for providing emergency dispatch services.
The employer’s decision to join NORCOM and make it responsible for providing emergency dispatch services clearly falls outside of the six-month statute of limitations period set forth in RCW 41.56.160(1) and cannot be considered in this decision.
Decision to Lay off Dispatchers
Notice of Layoff
The employer argues that the union was on notice that dispatchers would be laid off as early as 2007. In support of this position, the employer presented many pieces of correspondence and newsletters that NORCOM sent employees throughout 2007 and the first half of 2008. I find that these pieces of correspondence could not have served as notice from the employer, because they were authored by NORCOM, not by the employer. Notice to the union of a change to a mandatory subject of bargaining must come from the employer or its agent because the employer is the party in the bargaining relationship. King County, Decision 10547-A (PECB, 2010), citing Skagit County, Decision 8746-A (PECB, 2006). “Although Commission precedents do not require that an employer provide written notice to a union regarding a proposed change in the status quo, an employer’s communication to the union must be sufficiently clear to afford the union actual notice of the intended change.” King County, Decision 10547-A citing Washington Public Power Supply System, Decision 6058-A (PECB, 1998).
The employer asserts that the union had clear and unequivocal notice that the employer was legally committed to be a principal in NORCOM in October or November of 2007 when NORCOM was incorporated, and should have known that the dispatchers would eventually be laid off. “In order to be clear and unambiguous, notice must contain specific and concrete information regarding the proposed change. The six-month clock begins to run when a party gives clear and unambiguous notice of its intent to implement the action in question.” Community College District 17 (Spokane), Decision 9795-A; citing Emergency Dispatch Center, Decision 3255-B (PECB, 1990).
I find that notice of the formation of NORCOM did not constitute clear and unequivocal notice that the employer was going to lay off all emergency dispatch employees. Clear notice would have to include a layoff date and identification of the employees or positions affected. After thoroughly reviewing the record, I find that the first clear and unambiguous notice from the employer to the union concerning the employer’s decision to lay off dispatch employees is contained in the e-mail Tate sent to Erdmann and Cline on October 22, 2008, at 4:38 P.M. This e-mail was the communication from the employer notifying the union of a layoff date.
When Does the Clock Start to Run?
The employer argues that even if notice was not given until October 22, 2008, the union’s complaint was filed one day beyond the six-month statute of limitations period and should be dismissed. The union argues that the complaint is timely because the union learned of the employer’s intent to lay off its dispatchers when Erdmann and Cline actually received and read the e-mail from Tate on October 23, 2008.
The statute of limitations period begins to run when a party receives actual or constructive notice of the event. This is a distinctly different standard than the “mail box” rule that is used to determine when a legal complaint is filed and served. The triggering event in the unfair labor practice context occurs when the impacted party actually receives notice, not when a letter containing notice is put in a mailbox or an e-mail is sent. The actual receipt of the notice about the decision or event is critical, because the union can only request to bargain about decisions or events it is aware of. “The six-month clock begins to run when a party gives clear and unambiguous notice of its intent to implement the action in question.” Community College District 17 (Spokane), Decision 9795-A (PSRA, 2008), citing Emergency Dispatch Center, Decision 3255-B (PECB, 1990).
Union Received Notice on October 23, 2008
Sending an e-mail is not always an instant form of communication. It is not uncommon to have a lag period between the time an e-mail is sent and the time the recipient receives the message. Furthermore, an e-mail recipient must be at a computer or possess a similar electronic device with e-mail capability in order to read an e-mail. If a sender wants to be sure that information is communicated to another party immediately, they need to have an in-person conversation, a phone conversation or hand-deliver a document to the recipient. Sending an e-mail is much like leaving a voicemail message; there is no guarantee that the recipient will get the information immediately.
When Tate sent the union an e-mail at 4:38 P.M., there was no certainty that the e-mail would be received and read by the union the same day.
Erdmann testified that she normally logs on to her work e-mail when she begins her shift, unless other duties require her immediate attention. Based on this testimony, the employer argues that Erdmann should have read Tate’s e-mail on October 22, upon arriving to work at 8 P.M. or 9 P.M. However, when Erdmann was asked if she had checked her e-mail at the beginning of her shift on October 22, Erdmann said she couldn’t remember. I found her testimony credible.
Erdmann’s e-mail back to Tate was sent at 12:49 A.M. on October 23, 2008. This proves that the union had notice of the layoff on October 23. Erdmann’s brief response to Tate seems to indicate that Erdmann spent little time writing the response after reading the initial e-mail. The content and timing of Erdmann’s reply e-mail supports a conclusion that Erdmann read the e-mail from Tate sometime shortly before replying at 12:49 A.M. The record fails to establish that the union actually received the layoff notice contained in Tate’s e-mail on October 22.
CONCLUSION
The employer’s decision to join NORCOM occurred in 2007 and falls outside of the statues of limitations period set forth in RCW 41.56.160(1). The portion of the union’s complaint concerning the employer’s decision to have NORCOM provide dispatch services previously performed by bargaining unit members is untimely and cannot be considered in this decision.
The six-month statute of limitations for the decision to lay off allegation began on October 23, 2008, when the union received the e-mail from Tate containing the notification of the employer’s decision to lay off emergency dispatchers. Although the union filed this complaint on the last day of the six-month statute of limitations period, the allegation concerning the employer’s decision to lay off emergency dispatchers is timely filed.
ISSUE 2 - MANDATORY SUBJECTS OF BARGAINING
LEGAL STANDARDS
The Public Employees' Collective Bargaining Act, Chapter 41.56 RCW, requires public employers to engage in collective bargaining with the exclusive bargaining representative of their employees concerning wages, hours, and other terms and conditions of employment (mandatory subjects). RCW 41.56.030(4); 41.56.100.
Determining whether an issue is a mandatory subject is critical to determining whether a bargaining obligation exists. “Absent a clear and unmistakable waiver of a union’s right to bargain, an employer is prohibited from making unilateral changes to mandatory subjects.” Tacoma-Pierce County Employment and Training Consortium, Decision 10280-A (PECB, 2009).
Balancing Test to Determine Mandatory and Permissive Subjects
“When subjects relate to both conditions of employment and managerial prerogatives, the Commission applies a balancing test on a case-by-case basis to determine whether an issue is a mandatory subject of bargaining.” King County, Decision 10576-A (PECB, 2010), citing International Association of Fire Fighters, Local 1052 v. PERC, 113 Wn.2d 197, 200 (1989); Federal Way School District, Decision 232-A.
In International Association of Fire Fighters, Local 1052 v. PERC, the Supreme Court held that “[t]he scope of mandatory bargaining is limited to matters of direct concern to employees.” In applying the balancing test to determine whether an issue is a mandatory subject of bargaining, “the Commission weighs the extent to which the issue affects working conditions. Where a subject relates to conditions of employment and is a managerial prerogative, the focus of the inquiry is to determine which of these characteristics predominates.” Tacoma-Pierce County Employment and Training Consortium, Decision 10280-A, citing IAFF, Local 1052 v. Public Employment Relations Commission. “[M]anagerial decisions that only remotely affect ‘personnel matters,’ and decisions that are predominately ‘managerial prerogatives,’ are classified as nonmandatory subjects.” International Association of Fire Fighters, Local 1052 v. PERC.
Bargaining Obligations Differ on Mandatory and Permissive Decisions
An employer who wishes to make changes to a mandatory subject of bargaining is obligated to bargain about the decision and the effects of the decision. An employer who wishes to make changes to a permissive subject of bargaining, such as an entrepreneurial or managerial decision, only has an obligation to bargain about the effects of the decision.
In King County, Decision 10547-A (PECB, 2010), the Commission explained:
The bargaining obligation is applicable to a decision on a mandatory subject of bargaining and the effects of that decision, but will only be applicable to the effects of a managerial decision on a permissive subject of bargaining. Skagit County, Decision 6348 (PECB, 1998); City of Kelso, Decision 2120 (both the decision to contract out bargaining unit work and its effects on the employees are mandatory subjects of bargaining); City of Kelso, Decision 2633 (decision to merge operation with another employer is an entrepreneurial decision, and only the effects of that decision on employee wages, hours and working conditions are mandatory subjects of bargaining). While an employer has no duty to bargain concerning a decision to reduce its budget, the "effects" of such decisions could be mandatory subjects of bargaining. See Spokane Education Association v. Barnes, 83 Wn.2d 366, 374 (1974).
ANALYSIS
Was the Employer Obligated to Bargain the Layoff Decision?
The employer laid off all of its emergency dispatchers effective July 1, 2009. The only question before me is whether the employer had an obligation to bargain with the union over its decision to lay off all emergency dispatch employees. There is no dispute concerning the obligation to engage in effects bargaining.
The employer argues it had the managerial right to decide to lay off all of its dispatch employees because the layoff was dictated by the employer’s entrepreneurial decision to join NORCOM. The employer also argues that requiring the employer to bargain would be detrimental to the employer’s freedom to manage its operation.
The union argues that the employer’s decision to lay off the emergency dispatchers directly impacted wages and working conditions. The union argues that the fact the dispatchers lost their jobs and years of accrued benefits at the City of Bellevue tips the balancing test in favor of finding the decision to lay off a mandatory subject of bargaining.
Cases Cited by the Parties
City of Anacortes
The employer cites City of Anacortes, Decision 6830-A (PECB, 2000) in support of its position that its decision to lay off emergency dispatchers was a permissive subject of bargaining. In City of Anacortes, the Commission explained “that an employer may have to bargain over the decision to contract out, but does not have to bargain where it decides to shut down part of its business for entrepreneurial reasons.” It is important to note that in City of Anacortes, Decisions 6830 and 6830-A, the issue was a refusal to bargain concerning the decision to join a new regional organization called SECOM. The commission found the employer’s decision to join SECOM was not a mandatory subject of bargaining, but the effects of that decision were mandatory subjects of bargaining. There was no violation found because the union in that case failed to request effects bargaining.
The employer argues that its situation is analogous to City of Anacortes. The employer explains that it decided to go out of the dispatch business and lay off its dispatchers when it signed a contract with NORCOM to provide dispatch services. However, it is important to note that deciding to join NORCOM was not the same as deciding to lay off all dispatch employees effective July 1, 2009. The decision to lay off all dispatch employees is related to, but not the same as, the employer’s decision to join NORCOM. The only timely question in this case concerns the employer’s decision to lay off emergency dispatchers. City of Anacortes only addresses that employer’s decision to join a regional organization.
Kelso I and II
In their briefs, the union and employer discuss the Commission’s decisions in City of Kelso, Decision 2120 and 2120-A (PECB, 1985)(Kelso I) and City of Kelso, Decision 2633 and 2633-A (PECB, 1988)(Kelso II). The employer argues that the facts at issue in the complaint are analogous to the going out of business scenario described in Kelso II and should be treated as a permissive subject of bargaining. The union argues the situation is more analogous to the contracting out described in Kelso I and should be found a mandatory subject of bargaining.
In Kelso I, the Examiner and the Commission were asked to determine whether the City of Kelso’s decision to subcontract its firefighting services was a mandatory subject of bargaining. The legal question in Kelso I concerned the decision to subcontract and is distinct from the question of whether the decision to lay off the affected employees is a mandatory subject of bargaining, which is presented in the case at hand.
The Kelso II case contained several allegations. The Commission concluded that the employer’s decision to annex the City of Kelso to Cowlitz County Fire Protection District No. 2 under the annexation procedures set forth and authorized under Chapter 52 RCW was not a mandatory subject of collective bargaining. However, in Kelso II the Examiner held, and the Commission affirmed, that “the effects of an annexation decision upon displaced employees, including the discretionary effective date of layoff, employment rights with the successor employer in the event of a discretionary transfer of services, re-employment rights with the city, severance pay, and interim employment, are mandatory subjects of collective bargaining under Chapter 41.56 RCW.” Likewise, the Examiner in Kelso I explained, “A municipality's decision to enter into an intergovernmental agreement with another governmental entity may not be mandatory for purposes of collective bargaining. However, the underlying decision to terminate its existing workforce, in the conditions present in this case, must be considered to be mandatory.”
In Kelso II, the Commission was also asked to determine whether the employer’s decision to lay off two employees was a mandatory subject of bargaining. The Commission explained: “In the case of imminent layoffs, however, the effect of the layoff decision on the wages, hours, and working conditions of the bargaining employees to be laid off are clear. Hence, the decision to lay off is a mandatory bargaining subject.” This would support the union’s position that the decision to lay off the dispatchers should be treated as a mandatory subject of bargaining.[1]
Wenatchee School District
The employer cites Wenatchee School District, Decision 3240-A (PECB, 1990) in support of finding layoffs a permissive subject of bargaining. In Wenatchee School District the Commission held that the employer was not obligated to bargain with the union over its decision to change the kindergarten day. The Commission went on to explain that “while an employer need not bargain with its employees' union concerning an economically motivated decision to terminate a services contract (a nonmandatory subject), it must bargain over how the layoffs necessitated by the contract's termination will occur.”
Tacoma-Pierce County Health Department
The employer also relies on Tacoma-Pierce County Health Department, Decision 6929-A (PECB, 2001) in support of finding the decision to lay off was not a mandatory subject of bargaining. In Tacoma-Pierce County Health Department, the examiner held “the employer’s decision to restructure its substance abuse program was a permissive subject of bargaining.” The resulting layoff of six employees was treated as an effect of the decision to restructure the substance abuse program. The examiner found that the employer did not refuse to bargain “when it met with the union to negotiate proposals concerning the impact of the reorganization and layoffs, but did not agree to any of the union’s proposals as the union’s proposals covered either permissive subjects of bargaining or were preempted by specific language in the parties’ collective bargaining agreement.”
The analysis in these cases, which has varying relevance, cannot substitute for an independent analysis of the facts in this case. The critical consideration in determining whether an employer has a duty to bargain a matter is the nature of the impact on the bargaining unit.
Balancing Test Analysis
The employer’s decision to lay off all of its emergency dispatchers decreased the size of the police support bargaining unit and ended the employment relationship of approximately 38 emergency dispatch employees. This impacted the bargaining relationship at its core. As a result of the employer’s decision, all emergency dispatchers lost their jobs and ultimately their wages, hours and working conditions with the City of Bellevue. The competing interest is the employer’s right to manage its services and workforce.
A factor that is used in applying the balancing test is whether the decision could be amenable to resolution through the bargaining process. In this case, the employer decided to lay off all of its emergency dispatch employees effective July 1, 2009. Even though the employer had already agreed to join NORCOM, there were aspects of the layoff decision that could be amenable to resolution though the bargaining process. Issues such as transferring employees into other job classifications, or moving the effective date of the layoffs, are some elements of the decision that could meaningfully be bargained.
CONCLUSION
The employer’s decision to lay off its dispatchers caused the employees to lose wages, health care and continued investment in retirement benefits. This impact is being balanced with employer’s interest to manage its workforce. On balance, in this case, the extent to which the employer’s action impacts employee wages, hours and working conditions predominates over the extent to which the action is an essential management prerogative. There is no greater possible impact on an employee than the complete loss of the employment relationship. I find that the employer’s decision to lay off all of its emergency dispatch employees effective July 1, 2009, is a mandatory subject of bargaining.
ISSUE 3- REFUSAL TO BARGAIN LAYOFFS
LEGAL STANDARDS
Unilateral Change
“As a general rule, an employer has an obligation to refrain from unilaterally changing terms or conditions of employment unless it: (1) gives notice to the union; (2) provides an opportunity for bargaining prior to making a final decision; (3) bargains in good faith, upon request; and (4) bargains to agreement or impasse concerning any mandatory subjects of bargaining.” King County, Decision 10547-A, citing Skagit County, Decision 8746-A (PECB, 2006).
Contractual Waiver
A contractual waiver is language in a valid collective bargaining agreement which gives a party the right to take an action without further bargaining. The general idea is that bargaining has already occurred on the subject during contract negotiations, and the binding agreement is codified in the collective bargaining agreement. If the employer’s action is consistent with the waiver language in the collective bargaining agreement, no unfair labor practice will be found. North Franklin School District, Decision 5945-A (PECB, 1998); City of Yakima, Decision 3564-A (PECB, 1991). Contract waiver defenses are one of the limited instances where examiners for the Commission will interpret collective bargaining agreements. In order to prove a contractual waiver, the party asserting the waiver defense, in this case the employer, must establish that the other side clearly and knowingly waived its right to future bargaining. Lakewood School District, Decision 755-A (PECB, 1980).
For example, in Tacoma-Pierce County Health Department, Decision 6929-A, the examiner found that the employer had not committed a refusal to bargain violation “when, as a part of the above referenced reorganization, and, following the procedures spelled out in the parties’ collective bargaining agreement, it laid off the employees in its substance abuse program classified as office clerical employees.” In that situation, the employer was not obligated to engage in decision bargaining because there was specific language in the collective bargaining agreement (contract waiver) that gave the employer the right to “relieve employees from duty because of lack of work or other legitimate reasons.”
ANALYSIS
The employer and union had a collective bargaining agreement that was effective from January 23, 2008, through December 31, 2009. The agreement includes the following relevant language:
ARTICLE 10 LAYOFF AND RECALL
10.1 In layoff and recall the Employer shall give primary consideration to an employee’s ability to perform the duties required in the job and secondary consideration to an employee’s length of continuous service with the employer. In applying this provision, it is the intent to provide qualified employees with opportunities for promotion and the Employer with efficient operations. Due consideration shall be given to Federal and State statutory regulatory and contractual requirements relating to Affirmative Action.
10.1.1 In case of a layoff, the employee with the shortest length of continuous service in the classification affected, shall be laid-off first provided those remaining on the job have comparable qualifications and can provide efficient operations.
10.1.2 In the case of recall, those employees with the longest length of continuous service in the classification affected shall be recalled first provided they can perform the duties required. An employee on layoff must keep both the Employer and the Guild informed of the address and telephone number where he or she can be contacted. When the Employer is unable to contact any employee who is on layoff for recall, the Guild shall be so notified. If neither the Guild nor the Employer are able to contact the employee within five (5) working days from the time the Guild is notified, the Employer’s obligation to recall the employee shall cease. The Employer has no obligation to recall an employee after he has been on continuous layoff for a period of one (1) year. Also, if an employee does not return to work when recalled, the Employer shall have no further obligation to recall him.
ARTICLE 20 EMPLOYER RIGHTS
…
20.5 The Employer reserves the right to discipline or discharge for cause. The employer reserves the right to layoff for lack of work or funds, or the occurrence of conditions beyond the control of the Employer or where such continuation of work would be wasteful or unproductive.
20.6 The Employer has the right to assign work and determine duties of employees; to schedule hours of work; to determine the number of personnel to be assigned at any time; to transfer and promote employees; and to perform all other functions not limited by this Agreement.
20.7 Nothing in this Agreement shall prohibit or restrict the right of the Employer from executing an administrative decision to subcontract out work performed by employees covered by this Agreement. The Employer shall meet with the Guild and discuss the effect of any temporary subcontracting decision upon employees covered by this Agreement.
This was the first contract between this union and the employer. The bargaining unit was previously represented by Teamsters Local 763. Witnesses testified that the union felt significant pressure to reach a contract settlement with the employer because employees could not get their wage increases until the union’s first contract with the employer became effective. The union and employer agreed to use the bargaining unit’s old Teamsters Local 763 contract, which expired in 2006, as a starting point for negotiating their new contract.
The union initially proposed to strike the language in Section 20.7. The employer said it did not want to give up any of its management rights. There was no substantive discussion between the parties on the meaning of the language in Section 20.7. The union also proposed striking the entirety of Article 10 Layoff and Recall, and gave the employer a proposal stating “The guild opens on layoff and recall.” The employer expressed its desire to keep the language from the Teamsters agreement. The union never proposed any new or additional layoff or recall language. There were no discussions in bargaining between the parties about the substance or meaning of Article 10.
After the initial meetings where the union presented its initial proposals for changes to the expired Teamsters agreement, the union dropped its proposals to delete Article 10 and Article 20.7 and agreed to language that was in the previous contract. The union explains that it knew the language in 20.7 was weak, but agreed to keep it in the contract in order to get the bargain completed and get the employees their wage increase.
The union and employer never discussed the language on layoffs in Section 20.5. The employer’s lead negotiator, Cabot Dow, testified that he never specifically asked the union for a waiver on bargaining the decision to close down the emergency communications center.
Waiver by Contract?
The employer argues that it had the right to decide to lay off the emergency dispatchers under Articles 20.5 and 20.7 of the contract. Specifically, the employer explains that Article 20.5 gives it the right “to layoff for lack of work or funds, or the occurrence of conditions beyond the control of the employer or where such continuation of work would be wasteful or unproductive.”
The union argues that the lack of discussion between the employer and union concerning the meaning of Sections 20.5 and 20.7 precluded the parties from having a meeting of the minds on the meaning of the language.
In order to prove a waiver by contract defense, the party asserting the defense must prove that the other party knowingly, specifically, and intentionally waived its right. Griffin School District, Decision 10489-A (PECB, 2010), Whatcom County, Decision 7643-A (PECB, 2003), City of Yakima, Decision 3564-A (PECB, 1991). “When the contract terms themselves evidence a meeting of the minds, [it is not necessary to conduct analysis on] what was intended.” Chelan County, Decision 5469-A. A waiver by contract gives an employer clear permission to take an action that would otherwise constitute a unilateral change. Chelan County, Decision 5469-A (PECB, 1996).
CONCLUSION
Parties in a collective bargaining relationship can agree to contract waiver language that gives an employer the right to unilaterally take an action that, absent specific contract waiver language, would require notice and bargaining. The management rights language in Article 20.5 of the parties’ collective bargaining agreement contains clear language giving the employer the right to lay off employees if there is “a lack of work . . . or where continuing the work would be wasteful or unproductive.” The union knowingly included Article 20.5 in its own proposals and so accepted the language as it stood. This language, which the union agreed to include in the collective bargaining agreement, gives the employer the right to lay off employees, without having to bargaining about that decision “where continuing the work would be wasteful or unproductive.” The union also knowingly abandoned its proposals to change the language in 20.7 and Article 10. The fact that the union abandoned this language in exchange for a more rapid implementation of a wage increase does not negate the fact that they knowingly agreed to keep the language from the expired contract.
The employer established that it had an agreement with NORCOM to provide emergency dispatch services effective July 1, 2009. Continuing to employ its own dispatchers, when the employer had a binding six year agreement with NORCOM to provide the same services, would have been wasteful and unproductive. The clear contract language in Article 20.5 relieved the employer of its obligation to bargain dispatcher layoffs, which absent the waiver language would be a mandatory subject. I find that the employer acted within its contractual rights when it decided to lay off the emergency dispatchers. The allegation of employer refusal to bargain over the decision to lay off emergency dispatchers is dismissed.
FINDINGS OF FACT
1. The City of Bellevue (employer) is a public employer within the meaning of RCW 41.56.030(1).
2. The Bellevue Police Support Guild (union) is a bargaining representative within the meaning of RCW 41.56.030(3).
3. Emergency dispatchers employed by the employer were previously represented by Teamsters Local 763 and worked under a collective bargaining agreement that was effective from 2004 through December 31, 2006.
4. On March 8, 2007, in City of Bellevue, Decision 9608 (PECB, 2007), the Commission certified the union as the exclusive bargaining representative of all full-time and regular part-time non-commissioned employees of the City of Bellevue Police Department, excluding supervisors, confidential employees, and all other employees. The bargaining unit included emergency dispatchers employed by the City of Bellevue Police Department.
5. The employer and union entered into a collective bargaining agreement that was effective from January 23, 2008, through December 31, 2009. This was the first contract between the union and the employer.
6. On August 6, 2007, the Bellevue City Council voted to approve the Inter Local Agreement (ILA) and articles of incorporation for North East King County Regional Public Safety Communications (NORCOM). The ILA specifies that “NORCOM has the responsibility and authority for providing emergency communications and all related incidental functions for communicating and dispatching services between the public and the Participating Agencies’ directly served public safety departments.” The agreement has an initial term of six years and does not allow principals, including the employer, to withdraw from the agreement. The employer’s decision to join NORCOM meant that the employer was agreeing to have NORCOM provide dispatch services at some point in the future.
7. The union was aware of the city council’s vote to approve the ILA and NORCOM in August of 2007.
8. On November 1, 2007, NORCOM was incorporated as a Washington not-for-profit corporation. By this time, the ILA had enough signatory agencies for NORCOM to go forward with providing dispatch services.
9. The union was aware of the events described in Finding of Fact 8, in November 2007.
10. On October 21, 2008, Julie Erdmann, the union’s president and a bargaining unit dispatcher, sent Yvonne Tate, the employer’s human resource director, a memo which stated: “We are aware the City has considered transferring our bargaining unit work for dispatching to a new entity, NORCOM. The Guild has never agreed to any such transfer. The Guild requests that the City of Bellevue negotiate with the Guild over all aspects of such a potential transfer, both decision and effects.”
11. On October 22, 2008, at 4:38 P.M., Yvonne Tate, on behalf of the employer, sent an e-mail to Erdmann and to Jim Cline, the union’s attorney, notifying them that the employer would be laying off all emergency dispatch employees when NORCOM commenced providing services on or about July 1, 2009.
12. On October 23, 2008, Erdman and Cline received and responded to the email from Tate, described in Finding of Fact 11. Cline reiterated his request to bargain both the decision and the effects of the decision to contract work with NORCOM.
13. From October 23, 2008, through April 2009, Cabot Dow, the employer’s lead labor negotiator, maintained that the employer was only obligated to bargain the effects of the layoff and refused to bargain with the union over the decision to lay off all emergency dispatchers effective July 1, 2009.
14. As described in findings of Fact 11 and 12, the union received the e-mail from Tate on October 23, 2008. This was the first clear and unequivocal notification from the employer to the union that emergency dispatchers would be laid off.
15. On April 23, 2009 the Union filed the complaint in this case with the Commission.
16. The employer laid off all of its emergency dispatchers effective July 1, 2009.
17. The extent to which the employer’s action described in Findings of Fact 11 and 16 impacts employee wages, hours and working conditions predominates over the extent to which the action is an essential management prerogative.
18. The management rights language in Article 20.5 of the parties’ collective bargaining agreement, described in Finding of Fact 5, contains clear language giving the employer the right to lay off employees if there is “a lack of work . . . or where continuing the work would be wasteful or unproductive.”
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and 391-45 WAC.
2. As described in Findings of Fact 6 through 9, the allegations of refusal to bargain over the employer’s decision to join NORCOM and make it responsible for providing emergency dispatch services fall outside of the statute of limitations period set forth in RCW 41.56.160(1).
3. The six-month statute of limitations period on the employer’s decision to lay off emergency dispatch employees, as described in Findings of Fact 11, 12, 14, and 15 began when the union received notice on October 23, 2008. The portion of the complaint concerning the decision to lay off emergency dispatchers is timely filed under RCW 41.56.160(1).
4. The decision to lay off emergency dispatch employees as described in Finding of Fact 11 is a mandatory subject of bargaining which the employer, absent a waiver, must bargain under RCW 41.56.140(4).
5. By agreeing to the contract language described in Finding of Fact 18, the union waived its right to bargain the employer’s decision to lay off dispatchers in the circumstances described in the above Findings of Fact.
6. As described in the above Findings of Fact, the actions of the employer did not constitute a refusal to bargain in violation of RCW 41.56.140(4) and (1).
ORDER
The complaint charging unfair labor practices filed in the above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 12th day of August, 2010.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
Jessica J. Bradley, Examiner
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.
[1] It is important to note that both of the Kelso I and Kelso II decisions were issued prior to the 1989 decision in International Association of Fire Fighters, Local 1052 v. PERC, 113 Wn.2d 197, establishing a case by case balancing test to determine whether a decision is a mandatory subject of bargaining.