DECISIONS

Seattle School District, Decision 11161 (PECB, 2011)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

Seattle King County Building and Construction Trades Council, LABORERS LOCAL 242,   Complainant,   vs.   Seattle School Disrict,   Respondent.

CASE 23564-U-10-06006   DECISION 11161 - PECB     FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

 

 

Robblee Detwiler & Black, P.L.L.P., by Dan Hutzenbiler, Attorney at Law, for the union.

 

Seattle School District Office of the General Counsel, by Kevin F. O’Neill, Senior Assistant General Counsel, for the employer.

 

On October 8, 2010, the Seattle King County Building and Construction Trades Council, Laborers Local 242 (council) filed an unfair labor practice complaint against the Seattle School District (employer).  In its complaint, the council alleges that the employer unlawfully skimmed bargaining unit work.  A preliminary ruling was issued on October 11, 2010.  The employer filed an answer to the complaint on November 1, 2010.  Examiner Karyl Elinski held a hearing on February 9, 2011.  The parties submitted post-hearing briefs to complete the record.

 

ISSUE PRESENTED

 

Did the employer skim bargaining unit work by appointing a member of the carpenters’ union to a position represented by the council?

 

Despite the employer’s inadvisable conduct in appointing a member of The Pacific Northwest Regional Council of Carpenters, Local 131 (the carpenters’ union) to the position in question without providing adequate notice or opportunity to bargain with the council, the employer properly complied with the terms of the collective bargaining agreement (CBA).  By agreement among the carpenters, the employer, and the council, the carpenters were covered by the terms and conditions of the council’s CBA at the time of the appointment.  The complaint in this matter is therefore dismissed.

 

APPLICABLE LEGAL STANDARDS

 

The council alleges that the employer refused to bargain and interfered with the council’s rights in violation of RCW 41.56.140(4) and if so, derivative interference in violation of RCW 41.56.140(1), when the employer appointed a member of the carpenters’ union to a position traditionally held by a member of the council, without sufficient notice and an opportunity to bargain, resulting in skimming of traditional bargaining unit work.

 

The Duty to Bargain

The Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, imposes a duty to bargain.  RCW 41.56.030(4).  When an unfair labor practice is alleged, the complainant has the burden of proof.  WAC 391-45-270(1)(a).  The determination as to whether a duty to bargain exists is a question of law and fact for the Commission to decide.  Kitsap Transit, Decision 9667-A (PECB, 2008).

 

Unilateral Changes

Under longstanding Commission precedent, an employer seeking changes to existing wages, hours or working conditions must give notice to the union, provide an opportunity for bargaining prior to making a final decision, bargain in good faith upon request, and bargain to agreement or impasse concerning any mandatory subject(s) of bargaining.  An employer violates RCW 41.56.140(4) if it implements a new term or condition of employment or changes an existing term or condition of employment of its represented employees without having honored its statutory bargaining obligations.  City of Pasco, Decision 9181-A (PECB, 2008); Yakima County, Decision 6594-C (PECB, 1999); Spokane Fire District 9, Decision 3482-A (PECB, 1991).

Skimming Bargaining Unit Work

A bargaining unit has a legitimate interest in preserving the work it has historically performed.  Kitsap Transit, Decision 9667-A (PECB, 2008).  Skimming of bargaining unit work occurs when an employer fails to honor its bargaining obligations before transferring work historically performed within the bargaining unit to employees of the same employer outside of the bargaining unit.  Spokane Fire District 9, Decision 3482-A (PECB, 1991); South Kitsap School District, Decision 472 (PECB, 1978).  Both the decision to transfer bargaining unit work and the effects of that decision on bargaining unit employees may be mandatory subjects of bargaining.  Community Transit, Decision 3069 (PECB, 1988); Battle Ground School District, Decision 2449-A (PECB, 1986); City of Kelso, Decision 2120-A (PECB, 1985); Newport School District, Decision 2153 (PECB, 1985).

 

When an employer is dealing with two bargaining units within its workforce, it is obligated to respect the separate work jurisdictions of both bargaining units, absent a tripartite agreement.  Kitsap County Fire District 7, Decision 7064-A (PECB, 2001).  Establishing that the work at issue is or could be bargaining unit work is a key element of proof in a skimming case.  City of Anacortes, Decision 6830 (PECB, 1999), aff’d, Decision 6830-A; Spokane Fire District 9, Decision 3482-A; City of Anacortes, Decision 6863-B (PECB, 2001).

 

Another key element of a skimming case is whether there has been an actual unilateral change.  Absent a change, there is no basis to find a refusal to bargain violation.  Evergreen School District, Decision 3954 (PECB, 1991) (citing City of Seattle, Decision 2935 (PECB, 1988)).  In a recent decision, the Commission held that before it could find a skimming violation, there must be an actual unilateral change.  State - Office of the Governor, Decision 10948-A (PSRA, 2011).   Similarly, in Community Transit, Decision 2938 (PECB, 1999), the agency’s Executive Director found that a complaint for unilateral change is not ripe until the change is actually implemented by the employer.  In determining whether a union has met its burden of proving an unfair labor practice charge, the trier of fact is not at liberty to fill in gaps.  Reardan-Edwall School District, Decision 5750 (PECB, 1996), aff’d, Decision 5750-A.

 

 

Unit Clarification   

An unfair labor practice proceeding is not the appropriate vehicle to raise unit placement issues.  Snohomish County, Decision 9540 (PECB, 2007).  The Public Employment Relations Commission has sole authority to determine disputes concerning the appropriateness of bargaining units.  The Commission had adopted specific procedures for the filing and processing of unit clarification cases.  Chapter 391-35 WAC.  The Commission has long held that when determining bargaining units or placement of positions within the bargaining unit, it will not speculate concerning duties to be performed after the time the petition is filed.  Port of Seattle, Decision 11131 (PORT, 2011).  

 

ANALYSIS

 

For many years, dating back at least to the 1990s, the council has represented a number of trade union affiliates for the purposes of collective bargaining with the Seattle School District, including:  the Heat and Frost Insulators and Allied Workers, Local 7; Bricklayers/Allied Crafts, Local 1; Carpet and Soft Tile Layers, Local 1238; Sheet Metal Workers, Local 66; Glaziers and Glassworkers, Local 188; Building Laborers, Local 242; International Brotherhood of Painters & Allied Trades; Plasterers, Local 77; Plumbers & Pipefitters, Local 32; Roofers, Local 54; and International Brotherhood of Electrical Workers, Local 46.  The carpenters’ union was also one of the council’s affiliates.

 

The present case concerns the employer’s appointment of a member of the carpenters’ union to a position traditionally held by members of the council.  While at first glance the council’s claim seems relatively straightforward, it is complicated by two significant facts: (1) the carpenters’ disaffiliation from the council in March 2010, and (2) the agreement among the employer, the carpenters’ union, and the council on March 23, 2010, to extend the terms and conditions of the council’s CBA to the carpenters until the employer reached a successor CBA with the carpenters. 

 

The parties agree on most of the relevant facts in this case.    Since at least 1998, the employer periodically appointed foremen and general foremen to oversee the various building trade and construction employees represented by the council.  In 1999, the council and the employer entered into a settlement agreement to resolve an underlying unfair labor practice dispute concerning promotions to the foreman and general foreman positions. The terms of the settlement agreement describe the appointment process and require the employer to promote employees into the foreman and general foreman positions from among the ranks of current council employees working at the district.  If the employer is unable to find an acceptable foreman from its current council employees, it may recruit from the appropriate union hall(s).  If the employer is unable to find a foreman from current council employees or union halls, it may then recruit a qualified applicant from other sources.  The employer and the council acknowledge that the 1999 settlement agreement continued to apply at the time this dispute arose in the present case.

 

The present case involves a dispute regarding the employer’s appointment of an employee to the position of “zone crew leader.”  On at least three occasions since 1999, the employer promoted members of the council to fill the zone crew leader position. A zone crew leader supervises employees from multiple council construction crafts who work together on an established team.  The parties agree that the zone crew leader position is equivalent to a general foreman under the CBA.  A carpenter from the council has held the zone crew leader position in the past, as have council members from other trades.  In 2003, budget cuts caused the employer to abandon the practice of filling the zone crew leader positions.

 

The employer and council were parties to a CBA effective April 2008 through August 31, 2010.[1]   In March 2010, the carpenters’ union disaffiliated from the council and correspondingly withdrew from the multi-union relationship between the council and the employer.  The employer, the council, and the carpenters entered into an agreement on March 23, 2010, which provides:  (1) the carpenters would no longer be represented by the council for bargaining; (2) the carpenters would bargain directly with the employer for a successor collective bargaining agreement; and (3) the terms and conditions of the CBA effective when signed in 2008 and valid through August 31, 2010, “shall apply to both [the Council] and Carpenters until a successor CBA is negotiated for each respective unit or until Washington law provides that a CBA expires, whichever is sooner.”  The March 23, 2010 disaffiliation agreement does not refer to the zone crew leader position.

 

Shortly after the disaffiliation agreement, the employer engaged in separate negotiations with the carpenters and the council.  The council and employer entered into a successor CBA from September 1, 2010, through August 31, 2013.  Although the employer and council discussed the zone crew position in the regular weekly bargaining sessions leading up to the successor CBA, they did not address any specific issues relating to the selection of an employee to fill the zone crew leader position.  The successor CBA is silent on the topic of the zone crew leader position.

 

In 2010, while both the council and the carpenters were bargaining with the employer for their successor CBAs, the employer decided to fill the zone crew leader position for the first time since 2003.   The employer posted the position in June 2010, and placed three employees qualified for the position on the zone crew leader promotion list.  In the summer of 2010, the employer appointed George Thiele, a member of the trades represented by the council, to the zone crew leader position. Although he accepted the position, he resigned within approximately one month of assuming the position.  The employer then wanted to fill the newly-vacant position as early in the school year as possible.   

 

On September 30, 2010, the employer’s human resources manager, Misa Garmoe, wrote a letter to the council’s executive secretary, Lee Newgent, asserting the employer’s position that:

 

[E]mployees in both the Building Trades and the Carpenter unions can and should be able to be a zone crew leader and stay in their respective unions; just as was the case when the MOU was signed.  Please contact the District if you are interested in negotiating this matter . . . . If we do not hear from you by October 15, 2010, we will consider that you agree with the District’s preliminary position and staff positions accordingly.

 

Just one day later, October 1, 2010, the employer appointed Brian Zadorozny to the zone crew leader position.  Zadorozny was a carpenter who held the zone crew leader position in the past.   The union filed its unfair labor practice in the present case on October 7, 2010, alleging that the employer had illegally skimmed the zone crew leader work from the council by giving the position to Zadorozny.

 

Approximately six weeks after Zodorozny was selected to fill the zone crew leader position, on November 15, 2010, the employer and carpenters reached agreement on a successor CBA.  The terms of that CBA are effective November 15, 2010, through  August 31, 2013.  The parties did not discuss the zone crew leader position during bargaining, and the contract does not refer to that position.

 

The facts above present four thorny impediments to resolving this matter.  First, all of the relevant agreements amongst and between the employer, carpenters, and council are silent regarding from which trade(s) the employer may draw an employee to fill its zone crew leader positions, rendering a decision on the skimming issue difficult at best.  In the past, members of the carpenters’ union, as well as members of the other unions belonging to the council, held the position.  Second, the March 23, 2010 disaffiliation agreement specifically provided that the employer, council, and carpenters would continue to operate under the terms and conditions of the council’s CBA with the employer until the employer reached successor CBAs with the both the council and the carpenters.  The employer appointed Zadorozny to the zone crew leader position while the terms and conditions of the council’s CBA applied.  Pursuant to State – Office of the Governor, Decision 10948-A (PSRA, 2011), the Commission cannot find skimming before there is an actual unilateral change.  Although the employer, council, and carpenters agreed to the carpenters’ disaffiliation from the council in March 2010, they were still covered under the council’s CBA at the time the employer appointed Zadorozny to the zone crew leader position.  The employer could not make a unilateral change at the time it appointed Zadorozny to the zone crew leader position before the carpenters entered into a successor agreement with the employer.  To rule otherwise would require the Examiner to ignore the council’s agreement with the employer and the carpenters regarding the continued application of the council’s CBA until the employer signed a new CBA with the carpenters.  Third, the employer’s failure to notify the council until the day before it appointed Zadorozny to the position in question teeters on the precipice of bad faith and cannot be condoned.

Fourth, at the time the employer and the council reached their 1999 settlement agreement on the placement of the zone crew leader position within the council, the agreement did not anticipate the carpenters’ disaffiliation from the council twelve years later.  In essence, the council requests, though its unfair labor practice complaint, that the Examiner to issue a ruling that the zone crew leader work belongs to the council.  An unfair labor practice complaint is not the appropriate forum to determine the proper unit placement of a position.  See, e.g., Snohomish County, Decision 9540.   Although the employer failed to provide timely communication with the council when it was filling the vacant zone crew leader position, the Examiner will not rule on a unit placement decision in the context of this pending unfair labor practice claim.  Such a decision may be made in the context of a unit clarification case.

 

Conclusion

In sum, the employer, the council and the carpenters signed an agreement that they would follow the terms and conditions of the CBA between the council and the employer until the employer executed a new CBA with the carpenters.  The employer properly followed the then valid CBA with the council when the employer appointed Zadorozny to the zone crew leader position.  The employer appointed an individual employee to the existing zone crew leader position; the employer did not transfer the zone crew leader position to perform the council’s work.  Based on the forgoing, the complaint in this matter is dismissed.

                                  

FINDINGS OF FACT

 

1.   Seattle School District (employer) is an employer within the meaning of RCW 41.56.030(13).

 

2.         Seattle/King County Building and Construction Trades Council (council) is a bargaining representative within the meaning of RCW 41.56.030(2).

 

3.         At all relevant times, the council represented a number of trade union affiliates for the purposes of collective bargaining with the employer, including: the Heat and Frost Insulators and Allied Workers, Local 7; Bricklayers/Allied Crafts, Local 1; Carpet  and Soft Tile Layers, Local 1238; Sheet Metal Workers, Local 66; Glaziers and Glassworkers, Local 188; Building Laborers, Local 242; International Brotherhood of Painters & Allied Trades; Plasterers, Local 77; Plumbers & Pipefitters, Local 32; Roofers, Local 54; and International Brotherhood of Electrical Workers, Local 46. The Pacific Northwest Regional Council of Carpenters, Local 131 (the carpenters) was also one of the council’s affiliates until March 2010. 

 

4.         In 1999, the council and the employer entered into a settlement agreement requiring the employer to promote employees into the foreman and general foreman positions from among the ranks of district employees under the council’s umbrella.  The employer and the council acknowledge that the 1999 agreement continued to apply at the time the dispute arose in the present case.  

 

5.         On at least three occasions since 1999, the employer promoted employees from council bargaining unit positions to fill a zone crew leader position. A zone crew leader supervises employees from multiple council construction crafts who work together on an established team.  A carpenter from the council has held the zone crew leader position in the past, as have council members from other trades.

 

6.         The employer and council were parties to a Collective Bargaining Agreement effective April 2008 through August 31, 2010.

 

7.         In March 2010, the carpenters’ disaffiliated from the council and correspondingly withdrew from the multi-union relationship between the council and the employer.

 

8.         The employer, the council, and the carpenters entered into an agreement on March 23, 2010, which provides:  (1) the carpenters would no longer be represented by the council for bargaining; (2) the carpenters would bargain directly with the employer for a successor collective bargaining agreement; and (3) the terms and conditions of the CBA effective when signed in 2008 and valid through August 31, 2010 “shall apply to both [the Council] and Carpenters until a successor CBA is negotiated for each respective unit or until Washington law provides that a CBA expires, whichever is sooner.”  The March 23, 2010 disaffiliation agreement does not refer to the zone crew leader position.

 

9.         In the summer of 2010, the employer appointed a non-carpenter member of the council to a zone crew leader position.  The employee resigned within approximately one month of accepting the assignment.

 

10.       The council and the employer entered into a successor CBA effective from September 1, 2010, through August 31, 2010.  The parties discussed the zone crew leader position during bargaining for the successor agreement, but did not address specific issues relating to appointment of an employee to the zone crew leader position.  The collective bargaining agreement is silent on the topic of the zone crew leader position.

 

11.       On September 30, 2010, the employer’s human resources manager, Misa Garmoe, wrote a letter to the council’s executive secretary, Lee Newgent, asserting the employer’s position that:

 

[E]mployees in both the Building Trades and the Carpenter unions can and should be able to be a zone crew leader and stay in their respective unions; just as was the case when the MOU was signed.  Please contact the District if you are interested in negotiating this matter . . . . If we do not hear from you by October 15, 2010, we will consider that you agree with the District’s preliminary position and staff positions accordingly.

 

12.       Just one day later, October 1, 2010, the District appointed Brian Zadorozny to the zone crew leader position.  Zadorozny was a carpenter who held the zone crew leader position in the past.

 

13.       Approximately six weeks after Zadorozny was selected to fill the zone crew leader position, on November 15, 2010, the employer and carpenters reached agreement on a successor contract.  The terms of that CBA went into effect on November 15, 2010, and will expire on August 31, 2013.  Neither the carpenters nor the employer discussed the zone crew leader position during bargaining, and the CBA does not refer to the position.

CONCLUSIONS OF LAW

 

1.         The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and Chapter 391-45 WAC.

 

2.         By its actions described in the above findings of fact, the employer did not commit an unfair labor practice and did not violate RCW 41.56.140(4) or (1).

 

ORDER

 

The complaint charging unfair labor practices filed in the above-captioned matter is dismissed.

 

ISSUED at Olympia, Washington, this  9^th  day of September, 2011.

 

 

                                              PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

                                              KARYL ELINSKI, 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.