DECISIONS

State - Corrections, Decision 11060 (PSRA, 2011)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

washington federation of state employees,   Complainant,   vs.   state - corrections,   Respondent.	CASE 23325-U-10-5941   DECISION 11060 - PSRA           FINDINGS OF FACT,       CONCLUSIONS OF LAW,       AND ORDER

 

Younglove and Coker, by Christopher J. Coker, Attorney at Law, for the union.

 

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

 

On June 30, 2010, the Washington Federation of State Employees (union) filed a complaint charging unfair labor practices against the Washington State Department of Corrections (employer).  On July 2, 2010, a preliminary ruling was issued, finding that the allegations, if proven, constituted a violation of RCW 41.80.110(1)(e), with accompanying derivative interference in violation of RCW  41.80.110(1)(a) for:

 

            (a)  refusal to bargain concerning the elimination of custody officer (CO) and Sergeant      transport positions at Pine Lodge Corrections Center for Women (PLCCW) . . . ;

 

            (b)  skimming CO and Sergeant transport work previously performed by bargaining unit    members, without providing an opportunity for bargaining;

 

(c)  unilateral change in removing CO and Sergeant transport bargaining unit work, without providing an opportunity for bargaining the effects;

 

            (d)  circumvention of the union through direct dealing with employees represented by       the union, in posting CO and Sergeant transport positions at Airway Heights Corrections           Center, before presenting the postings to the union;

            (e)  breach of its good faith bargaining obligations, in creating the illusion of a        willingness to bargain, while also implementing changes to the exact subject of       bargaining prior to actual bargaining.

 

A hearing was conducted before Examiner Kenneth J. Latsch on November 2, 2010.  The parties submitted post-hearing briefs on December 17, 2010.

 

ISSUES

 

1.                  Did the employer refuse to bargain concerning the effects of eliminating the Correction Officer and Sergeant positions at PLCCW?

 

2.                  Did the employer unilaterally “skim” transport work previously performed by the Corrections Officer and Sergeant positions?

 

3.                  Did the employer initiate an unlawful unilateral change by removing the Correction Officer and Sergeant positions at PLCCW?

 

4.                  Did the employer circumvent the union by posting Correction Officer and Sergeant positions at Airway Heights before giving notice to the union?

 

5.                  Did the employer breach its obligation to bargain in good faith by expressing a willingness to bargain while actually implementing the changes in transport services?

 

I find that the employer committed unfair labor practices by unilaterally removing the Corrections Officer and Sergeant transport positions at Pine Lodge Corrections Center for Women and by failing to bargain concerning the removal of those positions.  I further conclude that the employer skimmed the transportation positions without negotiation, and circumvented the union by posting transport positions in the employer’s Airway Heights facility before notifying the union.  Finally, I find that the employer violated its duty to bargain in good faith by expressing a willingness to bargain about the changes to the transportation service while actually implementing the changes.

 

APPLICABLE LEGAL STANDARDS

 

WAC 391-45-270 requires the complaining party to bear the burden of proof concerning the allegations made in an unfair labor practice complaint.  See Community College District 13, Decision 8117-B (PSRA, 2005).  The complaining party must prove that the elements of the alleged unfair labor practice occurred and that harm was caused.

 

RCW 41.80.005(2) and 41.80.020(1) require the State of Washington to bargain in good faith with an exclusive bargaining representative concerning the mandatory subjects of wages, hours, and other terms and conditions of employment.  In determining whether a particular issue is a mandatory subject, the Public Employment Relations Commission analyzes whether the issue directly impacts the wages, hours or working conditions of the affected bargaining unit.  Port of Seattle, Decision 7271-B (PECB, 2003). 

Unilateral Changes in Mandatory Bargaining Subjects

 If the employer wants to make a change in a mandatory subject of bargaining, it must give notice and the opportunity to bargain to the exclusive bargaining representative.  As expressed in Lake Washington Technical College, Decision 4721 (PECB, 1994), aff'd, Decision 4721-A (PECB, 1995):

A union that is recognized or certified as exclusive bargaining representative holds a unique statutory status, and an employer is required to take the initiative in giving such an organization notice of contemplated changes affecting the employees it represents.

This directive makes it clear that an employer may make changes in mandatory subjects of bargaining if it follows the appropriate steps.  First, the employer must notify the exclusive bargaining representative of the proposed change and give the representative the opportunity to respond to the proposal and to raise issues at the bargaining table.  Without such notice, the employer’s unilateral actions will be an unfair labor practice.

 

Duty to Bargain and Skimming of Bargaining Unit Work

The Commission has long held that the removal of bargaining unit work is a mandatory subject of bargaining.  See South Kitsap School District, Decision 472 (PECB, 1978).   Removal of work can occur in two different ways.  “Skimming” occurs when bargaining unit work is transferred to non-bargaining unit employees of the same employer.  “Contracting out” occurs when the employer transfers bargaining unit work to an outside entity, either public or private.  See City of Seattle, Decision 4163 (PECB, 1992).  The failure to bargain about skimming or contracting out is an unfair labor practice if an employer fails to provide notice and opportunity to bargain before unilaterally transferring bargaining unit work to non-bargaining unit employees.  The instant case involves allegations that the employer skimmed bargaining unit work. 

In a skimming case, it must first be determined whether the complainant had a right to the disputed work. King County Fire Protection District 36, Decision 5352 (PECB, 1995).  “Bargaining unit work” is defined as the work historically performed by bargaining unit employees. Where an employer assigns bargaining unit employees to perform a certain body of work, that work attaches to the unit and becomes bargaining unit work.  The complainant in a skimming case has the burden of proving that the work had attached to the bargaining unit and that it was removed from the bargaining unit without bargaining in good faith.  City of Snoqualmie, Decision 9892-A (PECB, 2009).

Once bargaining unit work has been established, the five factor test enunciated in Port of Seattle, Decision 7271-B is applied to determine whether or not the employer had a duty to bargain.  The five factors are: (1) the previously established operating practice as to the work in question; (2) whether the transfer of work involved a significant detriment to bargaining unit members; (3) whether the employer’s motivation was solely economic; (4) whether there has been an opportunity to bargain generally about the changes to the existing practice; and (5) whether the work was fundamentally different from bargaining unit work in terms of the nature of the duties, skills or working conditions.

 

If the complaining party can meet the five factor test, the employer owes a duty to bargain concerning the proposed skimming.  For example, in University of Washington, Decision 9410 (PSRA, 2006), the Commission ruled that an employer’s decision to transfer bargaining unit work to non-bargaining unit employees was a mandatory bargaining subject, and that the university did not fulfill its bargaining obligation with the exclusive bargaining representative.  The university’s arguments about administrative efficiency could not overcome its bargaining obligation.

Circumvention

The Commission has consistently found that it is an unfair labor practice for an employer to circumvent its employees’ exclusive bargaining representative and negotiate directly with bargaining unit employees concerning mandatory subjects of bargaining.  Bellevue School District, Decision 10198 (EDUC, 2008); Royal School District, Decision 1419-A (PECB, 1982); City of Raymond, Decision 2475 (PECB, 1986).

 

The prohibition against circumvention of a union and direct dealing with employees has been spelled out by the Commission in City of Seattle, Decision 3566-A (PECB, 1991):

Where employees have exercised their right to organize for the purposes of collective bargaining, their employer is obligated to deal only with the designated exclusive bargaining representative on matters of wages, hours and working conditions. RCW 41.56.100; RCW 41.56.030(4).  Under such circumstances, an employer may not seek to circumvent the exclusive bargaining representative of its employees through direct communications with bargaining unit employees.

An employer that bypasses the exclusive bargaining representative of its employees, and deals directly with the employees themselves on mandatory subjects of bargaining, commits an unfair labor practice. 

 

Although employers are prohibited from negotiating directly with represented employees concerning mandatory subjects of bargaining, employers may communicate factually accurate information about collective bargaining to employees and the public.  In Lake Washington School District, Decision 2483 (EDUC, 1986), an Examiner explained:

 

The phrase “ . . . no threat [of] reprisal or force or promise of benefit” found in RCW 41.59.140(3) must be interpreted in the same context as the identical language of Section 8(c) of the National Labor Relations Act.  The right of free speech provided to employers in these statutes, like the constitutional guarantee of free speech and freedom of expression, has its reasonable limits.

 

Some of these reasonable limits include prohibitions against threatening employees and disparaging the union.  Lake Washington School District, Decision 2483 citing Endo Industries, 239 NLRB 1074 (1978); Public Utility District 1 of Clark County, Decision 2045-B (PECB, 1989).

Additional factors for determining whether an employer communication relating to collective bargaining negotiations constitutes unlawful circumvention are addressed in Bellevue School District, Decision 10198:

 

[One] type of circumvention allegation . . . involves an employer’s written communication to bargaining unit employees about the status of ongoing collective bargaining negotiations.  An employer’s communication of information to bargaining unit employees about negotiations may be a neutral act and is not by itself an unfair labor practice.  In these cases, the Commission specifies that the communication must be truthful, not purposefully misleading, and the same as that offered to the union.  Spokane County, Decision 2793 (PECB, 1987).

 

The complainant in an unfair labor practice proceeding has the burden of proof to show that these standards have not been adhered to, and that the employer’s communication with employees was inappropriate within the meaning of Commission precedent.

Refusal to Bargain and the Bargaining Obligation

The totality of circumstances must be examined to determine whether a party has refused to bargain in good faith.  Snohomish County, Decision 9834-B (PECB, 2008); City of Fife, Decision 5645 (PECB, 1996); Shelton School District, Decision 579-B (EDUC, 1984).  When bargaining subjects relate to both conditions of employment and managerial prerogatives, the Commission applies a balancing test to determine whether a particular issue is a mandatory subject of bargaining.  King County, Decision 10576-A (PECB, 2010), citing International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission, 113 Wn.2d 197, 200 (1989); Federal Way School District, Decision 232-A (EDUC, 1978). The determination of whether a particular subject is “mandatory” or “permissive” is crucial because it establishes the scope of the bargaining obligation on the particular issue.

 

In International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission, the Washington State Supreme Court ruled that “[t]he scope of mandatory bargaining is limited to matters of direct concern to employees.”  When the Commission applies the balancing test to determine whether an issue is a mandatory subject of bargaining, it “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 International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission.  “[M]anagerial decisions that only remotely affect ‘personnel matters,’ and decisions that are predominantly managerial prerogatives, are classified as nonmandatory subjects.”  International Association of Fire Fighters, Local 1052 v. PERC. 

  

An employer has the right to reorganize the manner in which it provides services to the public.  The employer may choose to create or eliminate positions, or may decide to modify duties for existing positions.  The Commission may not dictate what kind of service or what level of service an employer should offer.  However, the Commission has long held that an employer must negotiate any effects of reorganizing its workforce, including the wage level of new or modified positions.  International Association of Firefighters, Local 1052 v PERC; City of Richland, Decision 2448-B (PECB, 1987); City of Anacortes, Decision 6830-A (PECB, 2000).  Decisions concerning staffing (other than those involving safety) and the level of services to be provided to the public are within the managerial prerogatives of public employers.  As such, they are considered to be permissive bargaining subjects. 

 

ANALYSIS

 

The Course of Bargaining

The employer operates a number of correctional facilities across the State of Washington.  In the latter part of 2009, the employer determined that the Pine Lodge Correctional Center for Women (PLCCW) would have to be closed because of a lack of funding from the Washington State Legislature.  At all times pertinent to these proceedings, the Washington Federation of State Employees (WFSE) represented a bargaining unit at PLCCW that was composed of “transport officers and sergeants.”  Unit employees were responsible for transporting male and female offenders to different correctional facilities across the eastern part of Washington State.  Teamsters Union, Local 117 represented a bargaining unit of correctional officers at the nearby Airway Heights Correctional Facility, including a group of armed inmate transportation officers.  The record reflects that the WFSE did not represent any employees at the Airway Heights facility.

The transport officers and sergeants were based at PLCCW, but often left that facility to transport offenders to and from remote locations.  Prisoner transport orders came from the department’s headquarters in Olympia, Washington, and could involve multiple inmate transports to and from any department facilities in eastern Washington.  For example, it was not unusual for PLCCW personnel to transport inmates from the State Penitentiary in Walla Walla to the Airway Heights facility in Spokane, or from the Coyote Ridge facility in Connell to PLCCW.  Any inmate transportation work in eastern Washington was handled by the PLCCW transport officers.    The PLCCW transportation group performed a much broader mission than the Airway Heights transport group, which was primarily responsible for moving inmates to and from Airway Heights to other facilities.

 

On December 29, 2009, the employer notified the union of the impending closure at PLCCW.  On January 4, 2010, union Labor Advocate Sherri-Ann Burke sent a “demand to bargain” letter to Diane Leigh, Director of the Labor Relations Office.  The parties set bargaining dates for March 2 and 3, 2010.  On February 16, 2010, the parties decided to delay the start of bargaining until the Washington State Legislature completed its session. 

 

In the early part of April 2010, the employer posted new inmate transit positions at its Airway Heights facility.  The postings were made before the employer and the union met to discuss impacts concerning the closure of the PLCCW facility and the effect of that closure on the PLCCW inmate transport bargaining unit.  The posting complied with requirements in the Teamsters Local 117 contract, and specified that the new positions would be part of the Teamster bargaining unit at Airway Heights.  The postings called for armed transport officers.  PLCCW transport officers were not armed during their work at that facility. The record indicates that while the Airway Heights group was armed, their general work was similar to that provided by the PLCCW transportation group, although on a more restricted geographic basis

 

On April 20, 2010, Lieutenant Frank Rivera, a supervisor at the PLCCW facility, spoke to several bargaining unit employees, informing them that their inmate transport positions were to be eliminated.  At approximately the same time, the union learned that the employer intended to shift the inmate transfer work out of its bargaining unit and place it in a bargaining unit represented by Teamsters Local 117 at the Airway Heights Correction Center. 

On April 21, Burke sent an e-mail to Todd Dowler, Labor Relations Manager, challenging the posting and the perceived removal of work from the complainant’s bargaining unit. Burke went on to propose that the PLCCW work be transferred to Airway Heights, rather than being eliminated at PLCCW and re-bid at the second facility.  The parties did not reach agreement, and on April 22, 2010, the parties agreed to meet on May 5, 2010, to negotiate concerning the impacts caused by the closure of PLCCW. 

 

On April 26, 2010, Burke and Dowler exchanged e-mail correspondence about the PLCCW situation.  Dowler stated that the employer intended to eliminate the PLCCW positions, and would not transfer them to the Airway Heights facility. Dowler further stated that the employer intended to use Airway Heights personnel to perform all inmate transport work after PLCCW closed.  The employer intended to use existing Airway Heights employees to perform the work, supplemented by several new transport positions that were the subject of the recruiting bulletin at issue in these proceedings.

 

On May 5, 2010, the parties met to discuss the impacts from the PLCCW’s closure.  The parties presented very different approaches to resolve the situation during the course of the meeting.  During negotiations, the union asked to retain the transport group as a separate unit at Airway Heights, and later raised the possibility of keeping the work with the PLCCW transport team, even if the group was made part of the Teamsters bargaining unit.  The employer did not agree to that approach to resolve the issue.  The union presented a number of different ideas during the course of the May 5 meeting concerning the impacts of the facility’s closure.  While preferring the creation of a WFSE unit at Airway Heights, the union also proposed allowing the employees to continue inmate transport work without having to go through the bidding procedure. 

 

Jackie Marks, Labor Negotiator, spoke on behalf of the employer at the meeting.  Marks rejected the union’s proposals concerning transferring PLCCW employees as a group or placing them in the Airway Heights inmate transfer positions.  Marks argued that the PLCCW work was to be eliminated with the facility’s closure, so there was no work available to any PLCCW employees after the closure date.  Marks told the union that all PLCCW employees would be laid off and given appropriate layoff options, rather than transferring them into the same work at a different facility.  Later, the employer presented a counter-proposal that did not address the union’s request to transfer the inmate transportation work, nor did the counter-proposal address the impacts of eliminating the transport positions.  The employer’s counter-proposal reiterated its position that the PLCCW inmate transfer employees would be laid off and given layoff options rather than guaranteeing any position at any other facility.

 

The parties did not reach agreement at the May 5, 2010 meeting, and continued to exchange e-mails on open issues.  On May 13, 2010, the union sent an e-mail reiterating its position that it wanted to negotiate concerning the effects of closing the PLCCW and that the inmate transport work should be transferred intact. 

 

The parties met again on May 13, 14, and 18, 2010, to discuss the situation.  The union did not raise the inmate transportation issue during these meetings.  At the conclusion of the May 18, 2010 meeting, the parties executed an agreement concerning the closure of the PLCCW facility.  The agreement stated that the union withdrew its demand to bargain concerning the closure of PLCCW.  The union, however, did not make any commitments concerning the ongoing dispute about the transport officers and their employment with the department.  Burke told employer officials that the transport issue was still unresolved, and the settlement of other issues did not change the union’s position about the transport officers.

 

Shortly thereafter, PLCCW was closed, and bargaining unit employees were laid off.  The employees were provided layoff options to take other available positions with the employer. Most of the PLCCW transport employees went to work at the Airway Heights facility, but none of them performed any transport work.  On June 30, 2010, the union filed the instant unfair labor practice complaint concerning the inmate transportation work.

 

Application of Legal Standards

The union fulfilled its obligation to demonstrate that the five factor test set out in Port of Seattle has been met as it applies to the inmate transportation work.  First, the union proved that there was a long established operating practice related to inmate transportation.  The PLCCW transportation group performed most of the inmate transfer work in eastern Washington, and had done so without interruption for a considerable period of time.  There is no doubt that bargaining unit work was affected by the PLCCW closure.  Second, the union proved that the removal of the inmate transportation work from the PLCCW group would cause a detriment to bargaining unit members.  

Third, the employer’s initial motivation for closing PLCCW was economic, but analysis cannot stop there.  The employer’s bargaining attitude showed that it would not entertain any other alternatives to the course of conduct it initially followed concerning removal of the work, and that it was prepared to recruit for similar positions at Airway Heights without giving the union a chance to negotiate about the effects of the PLCCW closure.  Fourth, the union showed there was  time to meet about the disputed work, but proved that the employer had already made up its mind about the situation and did not give any indication that it would attempt to negotiate about the transfer of work.  Finally, the union proved that the work at PLCCW was not fundamentally different from the transportation work at Airway Heights.  The employer simply refused to even discuss the possibility of transferring the affected PLCCW employees, and presented the union with a fait accompli on the matter, in violation of its duty to bargain.   Ultimately, the affected employees exercised their layoff and recall options, and the record indicates that they found employment elsewhere in the employer’s correctional facilities.  However,  none of them worked in inmate transportation again, and they lost the opportunity for overtime and other benefits linked to their original transport positions.  The record also indicates that they did not receive the same rate of pay after exercising their layoff options. 

 

There is no doubt that the parties met to discuss the situation caused by the closure of the PLCCW.  The issue is whether these meetings were intended for negotiations or for some other reason.  The facts presented in this case suggest that the employer did not enter the negotiation process with the intent to negotiate concerning the inmate transfer personnel, and that it had already set a process in motion to lay off the affected employees from service with the state.

 

The employer had the right to close the PLCCW facility.  The legislature’s budget directives set the closure in motion, and the employer made an entrepreneurial decision to meet its economic needs.  Such a decision is reserved to the employer and is not subject to the collective bargaining obligation.  City of Kirkland, Decision 10883 (PECB, 2011).   However, the employer owed the union a duty to bargain the effects of the closure.  It is up to the parties to determine what the final outcome of such negotiations will be, but the employer must come to the bargaining table with the intention of negotiating in good faith about the impact that the closure would cause on bargaining unit employees. 

 

The employer showed that it did not have any intention to bargain by a series of actions at the bargaining table and at the PLCCW.  Lieutenant Rivera notified transport employees that their positions were going to be eliminated before any negotiations took place.  Rivera’s statements show that the employer had already set itself on a course of action and that any discussions with the union would not change that result.  In addition, conduct at the bargaining table showed that the employer did not want to consider the union’s proposals concerning the inmate transport work. 

 

During the course of the May 5, 2010 bargaining session, the employer’s representative Jackie Marks pointedly told the union that the employer would not discuss any impacts concerning the removal of inmate transport work.  It appears that the employer had already decided that it would deal with the situation as a “layoff and recall” matter, rather than negotiating the effects of its decision to close PLCCW.  The employer’s attitude reflected a “take it or leave it” approach to the bargaining process that completely short-circuited any chance for meaningful discussion of the inmate transport issue.

 

In its closing brief, the union contended that the employer presented it a fait accompli in terms of the inmate transport issue.  That description is well founded.  The employer met to discuss the situation, but the record reflects that the employer did not have an intent to try and settle the issue concerning the inmate transport matter.  As noted in Walla Walla County, Decision 2932-A (PECB, 1988), there is a distinction between lawful “hard bargaining” and unlawful “surface bargaining.”  Surface bargaining occurs when a party only goes through the procedures of collective bargaining without the requisite intent to work toward settlement.  See also Western Washington University, Decision 9010 (PSRA, 2005).  The course of events presented in this case demonstrates that the employer did not seriously consider the union’s proposals concerning the disputed work, and did not bargain in good faith.

Given the events described above, I further conclude that the employer circumvented the union by posting the inmate transportation positions at Airway Heights before there was any communication with the union about the status of the bargaining unit work lost at PLCCW.  By posting the positions before even notifying the union that such posting was about to take place, the employer made its position known to bargaining unit employees prior to any negotiation, and presented the union with what amounted to a fait accompli.

 

As noted in Spokane County, Decision 2793 (PECB, 1987), an employer can make factual expressions without committing a circumvention violation.  However, in this case, the employer’s announcement of transport positions at Airway Heights showed that it would not take any union proposal concerning effects of the closure of PLCCW seriously, and that its mind was closed to the subject.  By directly announcing this to the bargaining unit without any prior discussion with the union, the employer circumvented the union and breached its duty to bargain in good faith.

 

REMEDY

 

The Commission is empowered to remedy unfair labor practices, and its authority is liberally construed.  In this case, an appropriate remedy must be fashioned in light of the realities of the situation presented.  The employer has closed the PLCCW facility.  It would be meaningless to order the employer to reinstitute work at that location.  Similarly, the work has been sent to the Airway Heights facility, and has been integrated into Teamsters Local 117’s bargaining unit. 

 

The Examiner is aware that an order pulling the inmate transport employees from the bargaining unit and somehow recreating their work at Airway Heights would be difficult and would create more institutional problems to be overcome.  It would be needlessly disruptive to make such an order, and it would also involve the bargaining relationship between the employer and Teamsters Local 117 in a case that Teamsters did not have an active role.  It appears that Teamsters members have assumed the inmate transportation work that was originally performed by PLCCW staff members. 

 

The public needs to have consistent and uninterrupted service from its correctional staff.  This order, while attempting to correct certain actions by the employer must be framed in such a way to minimize disruption to that level of continuous service. In Community Transit, Decision 3069 (PECB, 1988), this Examiner decided that the employer inappropriately expanded the scope of an existing subcontracting relationship to the bargaining unit’s detriment.  While a standard remedy would be the revocation of the offending subcontract, I decided that such a result would cause significant disruption to the commuting public in the south Snohomish and north King County area.  Accordingly, I directed the parties to bargain, and to submit any unresolved issues to interest arbitration. [1]

 

It would be beyond my authority as an Examiner to cause a restructuring of the inmate transportation work now being performed. On the other hand, the employer’s unlawful activity must be acknowledged and an appropriate remedy must be created.

 

The employer will be ordered to post notices of its unlawful behavior, with affirmative statements that it will bargain in good faith, if required, by the complainant concerning issues surrounding effects of the transfer of inmate transportation work.  This is not a mere repeat of the earlier set of discussions held with the union.  Rather, the employer will have to come to the bargaining table with the intent to come to a final conclusion about the transport work. 

 

In the event that the negotiations are unsuccessful, remaining issues will be submitted to interest arbitration for resolution.  The imposition of interest arbitration will keep the parties focused on the importance of their negotiations. Furthermore, the parties will have a time limit for submitting their dispute to interest arbitration.  I will order the negotiations to be completed within a 60 day period, or unresolved mandatory bargaining subjects will be submitted to interest arbitration for resolution.  It is important to note that I have not specifically required back pay or other benefits be restored.  As I noted in Community Transit, back pay, if any, to be paid to employees should be addressed in the context of the bargaining ordered in this remedy.  It would be inappropriate for the Examiner to artificially impose a settle­ment of such negotiations before they even began.   

Finally, I am ordering the employer to pay the union reasonable attorneys’ fees for the presentation of this case.  Attorney fees have been awarded as a punitive remedy in response to egregious conduct, recidivist conduct, or to frivolous defenses asserted by a party.  Western Washington University, Decision 9309-A (PSRA, 2008), citing Lewis County, 644-A (PECB, 1979), aff'd, 31 Wn. App. 853 (1982) (attorney fees awarded where it is clear that history of underlying conduct evidenced patent disregard for statutory mandate to engage in good faith negotiations) and Auburn School District, Decision 2710-A (1987) (motion for attorney fees on appeal denied where Commission found that although employer’s appeal had no merit, it was not frivolous).

 

In this case, the employer showed a complete lack of willingness to entertain any proposals concerning the inmate transport work that was lost when PLCCW closed.  Once the employer determined that the only way to address the situation was through a layoff procedure, it decided that there was no other alternative worth discussing.  It is important to note that the employer’s attitude demonstrated that it had already made up its mind about the matter before bargaining could even begin, as evidenced in the premature posting of the positions at Airway Heights and Garcia’s comments to the bargaining unit employees.  Taken together, these factors indicate that an exceptional remedy like the awarding of attorneys’ fees is appropriate.

                                                             FINDINGS OF FACT

1.         The Department of Corrections is an “agency” of the State of Washington within the meaning of RCW 41.80.005(1).  The State of Washington is an “employer” within the meaning of RCW 41.80.005(8).  The employer operates a number of correctional facilities throughout the state.

2.         The Washington Federation of State Employees represented a bargaining unit of Department of Corrections employees at the Pine Lodge Correctional Center for Women (PLCCW), and is an “employee organization” within the meaning of RCW 41.80.005(7).

3.         The union represented a bargaining unit of PLCCW employees performing inmate transportation work.  This work involved moving male and female inmates to and from correctional facilities throughout eastern Washington.

4.         In the latter part of 2009, the Department of Corrections determined that PLCCW would have to be closed because of a lack of funding from the Washington State Legislature.  On December 29, 2009, the employer notified the union about the impending closure.

5.         On January 4, 2010, union Labor Advocate Sherri-Ann Burke sent a letter to Diane Leigh, Director of the Washington State Labor Relations Office, demanding to bargain about the effects of the facility’s closure.

6.         The parties set bargaining dates for March 2 and 3, 2010, but on February 16, 2010, they decided to delay the start of bargaining until the Washington State Legislature completed its session.  

7.         In the early part of April 2010, the employer posted new inmate transit positions at its Airway Heights facility in a bargaining unit represented by Teamsters Union, Local 117. The postings were made before the employer and Washington Federation of State Employees met to negotiate concerning the PLCCW closure on the PLCCW inmate transportation bargaining unit.  

8.    The posting complied with requirements in the Teamsters Local 117 contract, and specified that the new positions would be part of the Teamster bargaining unit at Airway Heights.  The postings called for armed transport officers. Other than carrying firearms, the work was generally similar to that provided by the transportation unit at PLCCW.  

9.         On April 20, 2010, Lieutenant Frank Rivera, a supervisor at the PLCCW facility, spoke to several bargaining unit employees, informing them that their inmate transport positions were to be eliminated.  

10.       At approximately the same time of Rivera’s comments, the union learned that the employer intended to shift the inmate transfer work out of its bargaining unit and PLCCW.  

11.       On April 21, Burke sent an e-mail to Todd Dowler, Labor Relations Manager, challenging the posting and the removal of work from the complainant’s bargaining unit. Burke proposed that the PLCCW work be transferred to Airway Heights, rather than being eliminated at PLCCW and re-bid at the second facility.

12.       The parties did not reach agreement, and on April 22, 2010, the parties agreed to meet on May 5, 2010 to negotiate concerning the impacts caused by the closure of PLCCW.

13.       On April 26, 2010, Dowler sent Burke an e-mail, stating that the employer intended to eliminate the PLCCW positions, and would not transfer them to the Airway Heights facility.  Dowler further stated that the employer intended to use Airway Heights personnel to perform all inmate transport work after PLCCW closed.

14.       On May 5, 2010, the parties met to discuss the impacts from the PLCCW’s closure.  During the course of the negotiations, the union raised the possibility of keeping the work with the PLCCW transport team, even after it was made part of the Teamsters bargaining unit at Airway Heights.  The employer did not agree to that approach to resolve the issue.  

15.   Jackie Marks, Labor Negotiator, spoke on behalf of the employer at the meeting.  Marks rejected the union’s proposals, arguing that the PLCCW work was to be eliminated with the closure of the facility, so there would be no work available to any PLCCW employees after the closure date.  Marks told the union that all PLCCW employees would be laid off, and given appropriate layoff options, rather than transferred into the same work at a different facility.

16.   Later in the meeting, the employer presented a counter proposal that did not address the union’s request to transfer the inmate transportation work or the impacts of eliminating the transport positions.

17.       The parties did not reach agreement at the May 5, 2010 meeting, and continued to exchange e-mails on open issues.  On May 13, 2010, the union sent an e-mail reiterating its position that it wanted to negotiate concerning the effects of the closure of the PLCCW and that the inmate transport work should be transferred intact.

18.       The parties met again on May 13, 14, and 18, 2010, to discuss the situation.  The union did not raise the inmate transportation issue during these meetings. 

19.       At the conclusion of the May 18, 2010 meeting, the parties executed an agreement concerning the closure of the PLCCW facility.  The agreement stated that the union withdrew its demand to bargain concerning the effects of the closure of PLCCW.

20.       Shortly thereafter, PLCCW was closed and bargaining unit employees were laid off.  The employees were provided layoff options to take other available positions with the employer.  Most of the PLCCW transport employees went to work at the Airway Heights facility, but none of them performed any transport work in their new work assignments.  

 

CONCLUSIONS OF LAW

 

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to RCW 41.80.005(3).

 

2.                  By events described in Findings of Fact 7, 8, 9, 10, 11, and 12, the employer committed unfair labor practices within the meaning of RCW 41.80.110(1)(e) by unilaterally eliminating the inmate transportation work from PLCCW without the opportunity to negotiate in good faith concerning the effects of that closure.

 

3.                  By events described in Findings of Fact 7, 8, 9 and 10, the employer committed unfair labor practices within the meaning of RCW 41.80.110(1)(e) by circumventing the union when it posted the inmate transportation work at Airway Heights before it met with the union and started collective bargaining negotiations.

4.                  By events described in Findings of Fact 9 and 10, the employer committed unfair labor practices within the meaning of RCW 41.80.110(1)(e) by skimming bargaining unit work from the union’s jurisdiction without the opportunity for meaningful negotiations about the impacts of closing PLCCW.

 

5.                  By events described in Finding of Fact 13, 14, 15, and 16, the employer committed unfair labor practices within the meaning of RCW 41.80.110(1)(e) by refusing to bargain with the union in good faith by presenting the union with a fait accompli concerning the inmate transportation work without regard for any proposals that the union could advance in bargaining.

 

ORDER

 

The Washington State Department of Corrections, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

 

1.         CEASE AND DESIST from:

 

            a.         Refusing to bargain in good faith with the Washington Federation of State Employees concerning the inmate transportation work originally performed at the Pine Lodge Correctional Center for Women (PLCCW).

 

            b.         Circumventing the Washington Federation of State Employees in its representative capacity of department personnel by directly communicating with bargaining unit employees concerning the closure of a facility before giving the union notice and an opportunity to negotiate, and by posting job availability at Airway Heights before giving the union notice about PLCCW’s closure.

 

            c.         Skimming work from the Washington Federation of State Employees with respect to inmate transportation services by transferring the work to another bargaining unit without negotiating in good faith about the effects of the closure of PLCCW.

 

            d.         Initiating unilateral changes in wages, hours and working conditions without bargaining with the Washington Federation of State Employees concerning the closure of PLCCW and the inmate transport service.

 

2.         TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter 41.80 RCW:

           

a.         Give notice to and, upon request, negotiate in good faith with the Washington Federation of State Employees concerning the inmate transportation work originally performed at Pine Lodge Correctional Institution for Women.

 

b.         In the event that bargaining is unsuccessful, submit unresolved issues concerning wages, hours and conditions of employment to interest arbitration for final resolution. The parties will have 60 days of negotiation following the issuance of this decision before the unresolved mandatory subjects of bargaining must be submitted to interest arbitration for resolution.

 

c.         Upon demand, pay the Washington Federation of State Employees for their attorneys’ fees and reasonable costs incurred in the presentation of the instant unfair labor practice complaint.

 

d.         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.

 

           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  10^th  day of May, 2011.

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

KENNETH J. LATSCH, 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.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

NOTICE

THE WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION CONDUCTED A LEGAL PROCEEDING IN WHICH ALL PARTIES HAD THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT.  THE COMMISSION RULED THAT THE DEPARTMENT OF CORRECTIONS COMMITTED UNFAIR LABOR PRACTICES IN VIOLATION OF STATE COLLECTIVE BARGAINING LAWS, AND ORDERED US TO POST THIS NOTICE TO EMPLOYEES:

 

WE UNLAWFULLY failed to negotiate in good faith with the Washington Federation of State Employees concerning the effects of removing inmate transportation work when Pine Lodge Correctional Institution for Women was closed.

 

WE UNLAWFULLY circumvented the Washington Federation of State Employees by posting inmate transportation positions at the Airway Heights facility before meeting with the union to begin negotiations.

 

WE UNLAWFULLY failed to negotiate in good faith by presenting the Washington Federation of State Employees with a final position before any negotiations took place concerning the inmate transportation work.

 

TO REMEDY OUR UNFAIR LABOR PRACTICES:

 

WE WILL, upon request, negotiate with the Washington Federation of State Employees concerning the inmate transportation work originally performed at Pine Lodge Correctional Institution for Women.

 

WE WILL, in the event negotiations are unsuccessful, submit remaining issues concerning wages, hours and working conditions to interest arbitration for resolution.

 

WE WILL pay attorney fees and reasonable costs to the Washington Federation of State Employees for the costs associated with the presentation of this unfair labor practice complaint.

 

WE WILL NOT, in any other manner, interfere with, restrain, or coerce our employees in the exercise of their collective bargaining rights under the laws of the State of Washington.

 

DO NOT POST OR PUBLICLY READ THIS NOTICE.

 

AN OFFICIAL NOTICE FOR POSTING AND READING

WILL BE PROVIDED BY THE COMPLIANCE OFFICER.

 

The full decision is published on PERC’s website, www.perc.wa.gov.