DECISIONS

City of Spokane, Decision 11288 (PECB, 2012)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

City of spokane managerial and professional association,   Complainant,   vs.   city of spokane,   Respondent.	CASES 23815-U-11-6077               23820-U-11-6081               24016-U-11-6142   DECISIONS 11288 – PECB                        11289 – PECB                        11290 – PECB   FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

 

Robblee Detwiler & Black, PLLP, by Jacob H. Black, Attorney at Law, for the union.

 

Keller W. Allen, Attorney at Law, for the employer.

 

The City of Spokane Managerial and Professional Association (union) represents two bargaining units:  “Exempt - A” and “Managerial - B.”  On February 18, 2011, the union filed two unfair labor practice complaints against the City of Spokane (employer).[1]   The complaints alleged refusal to bargain violations related to the decision and effects of laying off and eliminating bargaining unit positions.  Agency staff issued preliminary rulings on March 29, 2011.  On May 27, 2011, the union filed a third complaint, alleging that the employer failed to bargain over the decision and effects of contracting out bargaining unit work.[2]  Agency staff issued a preliminary ruling on June 1, 2011, finding a cause of action and consolidating all three cases under WAC 10-08-085.  The employer filed timely answers to all three complaints, and Examiner Lisa A. Hartrich conducted a hearing on June 15 and 16, 2011.  The parties submitted post-hearing briefs to complete the record.

ISSUES

 

1.                  Was the employer’s motion to amend its answer prior to the close of the hearing allowable under WAC 391-45-210?

 

2.                  Did the union contractually waive its right to bargain the decisions to layoff employees and contract out bargaining unit work?

 

3.                  Did the employer fail to bargain in good faith over the effects of the decisions to layoff employees, eliminate positions, and contract out bargaining unit work?

 

4.                  Did the employer refuse to bargain by failing or refusing to provide relevant information requested by the union?

 

The motion to amend the employer’s answer was allowable under WAC 391-45-210.  The union contractually waived its right to bargain the decisions to layoff employees and contract out bargaining unit work.  The employer bargained in good faith over the effects of the decisions to layoff employees, eliminate positions, and contract out bargaining unit work.  The employer did not fail or refuse to provide information.

 

ISSUE 1 – Was the employer’s motion to amend its answer prior to the close of the hearing allowable under WAC 391-45-210?

 

Applicable Legal Standards

Under WAC 391-45-210(3)(c), a motion to amend an answer may be allowed after the opening of an evidentiary hearing, provided the amendment conforms the pleadings to evidence received without objection.

 

Analysis

On June 16, 2011, at the close of a two-day hearing, the employer moved to amend its answer under WAC 391-45-210(3)(c) to include the affirmative defense of waiver by contract.    At that time, the union took no formal position on the motion, and the Examiner granted the motion.  In its post-hearing brief, however, the union argues it did object to the admission of evidence related to the employer’s motion at the hearing.  Specifically, the union objected to Exhibit 44. The union contends that, since it did object to one exhibit, it was improper for the Examiner to grant the employer’s motion to amend its answer.  The union argues that the employer’s “newfound” waiver defense is in contradiction to the parties’ bargaining history, and should not be allowed.[3]

 

Multiple exhibits introduced at hearing, without the union’s objection, clearly and repeatedly describe the employer’s position – that the collective bargaining agreement (CBA) between the parties included a waiver which allowed the employer to layoff and contract out without bargaining the decisions with the union.  As early as August 19, 2010, the union was on notice that the employer believed it did not have to bargain over the decision to layoff employees because of the waiver language contained in the management rights clause.[4]  At least by October 25, 2010, the union was on notice that the employer believed it did not have to bargain over the decision to contract out bargaining unit work because of the waiver language in the management rights clause.  The waiver by contract defense was thoroughly explored during the course of the hearing, and should come as no surprise to the union.

 

Conclusion

The Examiner concludes that the evidence objected to by the union at hearing is inconsequential as to whether or not the motion to amend the answer was properly granted.  Other evidence received without the union’s objection demonstrates the employer consistently put forth a waiver by contract defense.  The employer’s motion to amend its answer was allowable, and the Examiner’s decision to grant the motion remains unchanged.

ISSUE 2 – Did the union contractually waive its right to bargain the decisions to layoff employees and contract out bargaining unit work?

 

Applicable Legal Standards

A public employer must engage in collective bargaining with the exclusive bargaining representative of its employees concerning wages, hours, and working conditions.  RCW 41.56.030(4).  However, through the collective bargaining process, a union can waive its statutory rights to notice and opportunity to bargain.  To effectively waive these rights, the union and employer must consciously agree to the waiver and the waiver must be clear and unmistakable.  City of Wenatchee, Decision 8802-A (PECB, 2006).  When parties agree to a contractual waiver, the employer can make lawful unilateral changes as long as the changes conform to the contractual waiver.  The party alleging the existence of a waiver has the burden of proof.  State – Social and Health Services, Decision 9690-A (PSRA, 2008).

 

Typical management rights clauses tend to be too general and fail to meet the high standards for finding a waiver.  Griffin School District, Decision 10489-A (PECB, 2010).  On the other hand, management rights clauses containing specifically itemized subjects are within the employer’s prerogative to change without bargaining.  City of Wenatchee, Decision 8802-A.

 

Waivers are permissive subjects of bargaining, and expire with the parties’ collective bargaining agreement if not renewed by mutual consent.  Community Transit, Decision 10647-A (PECB, 2011).

 

Where language in a collective bargaining agreement is unambiguous, the Commission considers the subjective intentions of the parties irrelevant and goes no further to determine the parties’ intentions.  State – Social and Health Services, Decision 9690-A.

 

Analysis

The employer asserts the affirmative defense of waiver by contract because Article V of the collective bargaining agreement provides specific language stating that decisions regarding layoffs and contracting out are reserved for the employer.  The union counters that Article VIII modifies or is contrary to Article V, and therefore the employer had a duty to bargain with the union over its decision to lay off employees, contract out bargaining unit work, and eliminate bargaining unit positions.[5] 

 

The employer and union are parties to a collective bargaining agreement, effective from January 1, 2008, to December 31, 2010.  In January 2009, the parties agreed to extend the agreement for one additional year.  From 1993 to present, the collective bargaining agreement between the union and employer included the following relevant language:

 

Article V – Management Rights

Section A – The City possesses the sole right and authority to operate and direct the employees of the City and its various departments in all aspects, including, but not limited to, all rights and authority exercised by the City prior to the execution of this Agreement.  These rights include, but are not limited to, the right:

. . . .

f.          to layoff or relieve employees due to lack of work or funds or for other legitimate reasons;

g.         to move work in or out of the bargaining unit;

. . . .

j.          to contract out for goods and services;

 

The current collective bargaining agreement also contains the following language:

 

Article VIII – Continuity of Conditions

. . . .

This Agreement shall not be interpreted to restrict the Association’s right under state law to bargain the decision and impact of changes in subjects of bargaining where required by state law.

 

The union argues that Article V is subject to Article VIII because Article VIII was negotiated later in time (in agreements after 2004).  The union contends that Article V must necessarily be interpreted in juxtaposition with Article VIII.

 

Article V, subsections f, g, and j, are specific itemized subjects which clearly and unmistakably constitute a waiver of the union’s right to bargain over decisions in the area of layoffs, moving work in or out of the bargaining unit, and contracting out.  The language is unambiguous, and does not require the Examiner to contemplate the intent of the parties when it later negotiated Article VIII.[6]  These waivers existed in the collective bargaining agreement as far back as 1993.  Each time the parties re-negotiated the agreement, the union had the opportunity to bargain to remove these waivers.  Yet, the language remains in the agreement to this day. 

 

Conclusion

The language in Article V is sufficiently specific to demonstrate that the union waived its right to bargain the decisions to layoff employees and contract out bargaining unit work.  Therefore, the employer was legally entitled make these decisions without bargaining with the union.  This allegation is dismissed.

 

ISSUE 3 – Did the employer fail to bargain in good faith over the effects of the decisions to layoff employees, eliminate positions, and contract out bargaining unit work?

 

Applicable Legal Standards

The bargaining obligation is not onerous and does not mandate agreement.  There is no duty to agree, but the process of communication between labor and management must be given a chance to operate.  State – Social and Health Services, Decision 9551-A (PSRA, 2008).  The bargaining obligation may extend to the effects of an employer’s decision, even when the union has waived its right to bargain the decision.  See State – Social and Health Services, Decision 9690-A.

 

Analysis – Layoffs and Position Eliminations

The union argues that the employer failed to meet in a timely fashion to bargain the effects of the decisions to lay off employees and eliminate positions.  The employer maintains that the management rights clause contains a waiver which relieves the employer from its duty to bargain the decision to layoff and eliminate bargaining unit positions.  However, the employer asserts that it did engage in good faith bargaining over the effects of the layoffs and position eliminations.

 

On August 10, 2010, Mayor Mary Verner met with the city’s labor unions and presented proposals for balancing the 2010 and 2011 budgets, in light of expected budget shortfalls.  In an attempt to avoid layoffs for 2011, the mayor asked the unions to contemplate what concessions could be made in their existing collective bargaining agreements.  She asked for a response from each bargaining unit by August 31, 2010. 

 

The union met with the employer on August 19, 2010.  In an August 24, 2010 follow-up letter from Terry Jensen, the union’s attorney, to Erin Jacobson, the employer’s attorney, Jensen stated that his understanding of the employer’s proposal was that the union would agree to give up negotiated cost-of-living raises for 2011, and in exchange, the employer would attempt to eliminate or minimize potential layoffs in 2011.  He stated that the union wanted to work with the employer because it realized that the employer was in a difficult economic situation, and that the union would work to craft a proposal.  Jensen added that, in order to assist in crafting a proposal, the union would be making an information request.  However, despite the willingness to work with the employer, Jensen added that the union still maintained its position that the employer was obligated to bargain with the union over any layoff decisions.

 

On September 15, 2010, Jacobson e-mailed a proposal to the union guaranteeing no layoffs for 2011 if the union agreed to no cost-of-living increases in 2011, and three additional economic concessions.[7]  Jacobson reaffirmed this proposal in an e-mail to the union on September 20, 2010.  On September 21, 2010, union president Kristy Pettit e-mailed Jacobson, stating that the union would be willing to discuss the employer’s proposals once the employer provided the union with “the basic information we have requested.”  In a letter to Jacobson on September 24, 2010, Jensen continued to dispute the employer’s right to make the layoff decision without bargaining.  Jensen stated it was “black letter labor law” that the employer could not implement layoff decisions until it engaged in effects bargaining with the union. 

 

On October 6, 2010, Jacobson again informed Pettit of the employer’s proposal for concessions to guarantee no layoffs.  On October 27, 2010, the parties met and the union presented the employer with a proposal titled “2011 Concessions.”  On November 1, 2010, Jacobson provided a written response to the union’s proposal, again guaranteeing no layoffs for 2011 if the union agreed to concessions as initially proposed by the employer on September 15, 2010, but with the addition of a two percent cost-of-living increase for 2012.

 

On November 4, 2010, Jensen e-mailed Jacobson, stating that the union planned to provide the employer with an “effects bargaining proposal.”  On November 5, 2010, Pettit sent Jacobson an “effects bargaining” proposal.  Pettit indicated that the union would also be providing a written response to the employer’s November 1, 2010 “concessions” proposal. 

 

On November 9, 2010, the mayor sent a letter addressed to “bargaining unit leaders,” stating that the city was “approaching the point of no return for the 2011 budget, after which there is not enough time to incorporate any salary freezes or medical benefit changes before the Council votes on the budget with 9% across-the-board cuts.”  She emphasized that if the unions were unable to deliver the requested concessions, the employer would have to abide by the terms of the current collective bargaining agreements.  Without the concessions, the employer would be required to give raises, which would lead to layoffs.  She stated, “Layoff notices have already been given, and if nothing further is agreed, the layoffs will be final at the Christmas pay period and we will negotiate the effects.”

 

On November 19, 2010, Pettit told Jacobson that the union had planned to send another “concessions” proposal on November 10, 2010, but decided it would rather meet with the employer in person.  In response, Jacobson stated that she thought, given that the union did not provide a response to the employer’s November 1 “concessions” proposal, and instead sent an “effects” proposal, that the parties “had moved on from concession bargaining to effects bargaining.”  Pettit responded by requesting a meeting for November 22, 2010.  Jacobson agreed to meet, but also noted, “if your intention is to talk effects of layoffs rather than concessions, please let me know so we can reschedule to the next week when I’m actually prepared for that topic.” 

 

Jacobson testified the employer had prioritized concession bargaining in an effort to avoid layoffs altogether.  The employer was engaged in concession bargaining with several other unions simultaneously.  Most of the other unions were able to avoid layoffs by making concessions.

 

The parties met on the morning of November 22, 2010.  That afternoon, Pettit e-mailed Jacobson the union’s “Final 2011 Concession Proposal.”  Jacobson responded on November 23, 2010, stating that the union’s proposal would be acceptable, but for one piece of the proposal for overtime for “all Professional-B members.”  Jacobson indicated that if the union removed that item, the parties could reach an agreement.  However, Jacobson warned that the union had to decide by December 3, 2010, in order to “make it into this year’s budget.”[8]

 

On December 3, 2010, Pettit e-mailed Jacobson, stating that the employer had the union’s “last and final” concession offer.  She explained that the union would consider another proposal from the employer if it had one.  However, Pettit continued, “Regardless of the direction the City goes on this, M&P [the union] still wants to bargain the effects of lay-offs before any lay-offs are implemented for M&P personnel.” 

 

On December 10, 2010, Jacobson responded to Pettit by clarifying that the employer had in fact made a revised concession proposal on November 23, 2010, which did not receive a response from the union.  Jacobson stated, “My logical assumption based on your lack of response was that [the union] would not agree to remove the overtime provision and therefore rejected the City’s proposal.”

 

On December 17, 2010, Jacobson e-mailed Pettit a response to the union’s November 5, 2010 effects bargaining proposal.  Jacobson stated she would be on vacation until January 3, 2011, but would be available to meet after she returned.  On December 22, 2010, Pettit e-mailed the mayor and requested that an interim negotiator be appointed while Jacobson was on vacation.  Pettit testified that two bargaining unit members were going to be laid off on December 25, 2010 and the union wanted to meet before they were laid off.  The mayor replied on December 23, 2010, stating that the employer was willing to continue effects bargaining with the union, but she would not appoint an interim negotiator.

On December 25, 2010, the position of Assistant Attorney III in the Exempt-A bargaining unit and the position of City Planner II in the Managerial-B bargaining unit were eliminated.  The two employees holding those positions retired in lieu of being laid off. 

 

On January 11, 2011, the parties had a meeting to discuss the effects of the employer’s decision to eliminate bargaining unit positions.  At that meeting, the parties discussed the informational needs of the union, which the employer agreed to provide prior to the next meeting.  The employer also wanted to know what the union believed the effects of the decision were.  The parties agreed to meet again.   

 

The parties met again on February 10, 2011, where further discussions regarding the effects of the position eliminations continued.  Jacobson testified that she left the February 10 meeting with the idea that the parties would meet again and continue the discussion.  However, on February 18, 2011, the union filed two of the instant unfair labor practice complaints.  No further discussions regarding the effects took place once the complaints were filed.

 

Conclusion – Layoffs and Position Eliminations

Examining the facts as a whole, the record does not indicate the employer was unwilling to bargain the effects of its decision to lay off employees or eliminate positions.  It was reasonable for the employer to prioritize concession bargaining over effects bargaining in an attempt to avoid layoffs altogether.  The employer was responsive to the union’s request to meet and discuss the effects of the employer’s decisions, and responded to the union’s effects bargaining proposal.  The employer bargained in good faith over the effects of these decisions.  Therefore, this allegation is dismissed.

 

Analysis – Contracting Out

The union argues that the employer failed to bargain the effects of the decision to contract out bargaining unit work.  The employer maintains it was always willing to bargain the effects of the decision to contract out.

 

On July 29, 2010, the employer notified the union that it intended to contract out property management work in the real estate division to an outside property management company.  The work was performed by at least one bargaining unit employee for many years.[9] 

 

On October 25, 2010, Jacobson informed the union that, despite the employer’s position that it did not have to bargain the decision to contract out, the employer was interested in the union’s response.[10]  At a meeting on October 27, 2010, the union provided the employer with a list of concerns regarding the decision to contract out, but agreed to the change if the employer implemented certain proposed conditions.  On November 9, 2010, Jacobson responded to the union’s proposal in an e-mail, stating that even though the employer did not have an obligation to bargain the decision, it was willing to work toward a mutually agreeable solution, provided the solution did not include any cost items. 

 

On November 30, 2010, the union responded by stating it believed the employer had an obligation to bargain over the decision to contract out bargaining unit work, and that the employer’s refusal to address cost items constituted a refusal to bargain.  The union requested a meeting as soon as possible.  The parties met on January 11, 2011, to discuss the effects of contracting out the work.  The next day, the employer informed the union it was moving forward with its decision to contract out the property management work, although Jacobson was not aware the decision had been made.

 

On January 24, 2011, the employer issued a “request for proposals” to provide property management services.  The parties met again on February 10, 2011.  At that meeting, Jacobson informed the union that the mayor had approved the decision to move forward with contracting out, but said the employer was willing to discuss the effects on employees.  Jacobson testified that she left the February 10 meeting thinking the discussion about the effects of contracting out would continue.

On February 17, 2011, the union requested a civil service commission hearing on the contracting out issue.  The unfair labor practice complaint was filed on May 27, 2011.

 

Conclusion – Contracting Out

Examining the facts as a whole, nothing in the record indicates the employer was unwilling to bargain the effects of the decision to contract out bargaining unit work.  Rather, the record demonstrates that the employer and union met to discuss the issue on several occasions.  The employer responded in writing to the union’s proposal, and met with the union to discuss the effects.  The employer bargained in good faith over the effects of its contracting out decision.  Therefore, this allegation is dismissed.

 

ISSUE 4 – Did the employer refuse to bargain by failing or refusing to provide relevant information requested by the union?

 

Applicable Legal Standards

A party to a collective bargaining relationship has the duty to provide relevant information requested by the other party in order to perform its collective bargaining responsibilities.  City of Bellevue, Decision 3085-A (PECB, 1989), aff’d, 119 Wn.2d 373 (1992).   The party receiving an information request has an obligation to respond and the duty to explain any objection to the request.  King County, Decision 10576-A (PECB, 2010). 

 

The Commission views the duty to provide information as part of an ongoing and continuous obligation to bargain, and expects that parties will negotiate solutions to any difficulties encountered in connection with information requests.  Port of Seattle, Decision 7000-A (PECB, 2000).  An employer may initially respond to an information request by claiming that compliance is difficult or not warranted, but must explain its concerns to the union and make a good faith effort to reach a resolution that will satisfy the employer’s concerns and yet provide maximum information to the union.  City of Yakima, Decision 10270-B (PECB, 2011), citing Port of Seattle, Decision 7000-A.

 

 

Analysis

The union argues that the employer refused to provide timely information related to the decision and effects of the decision to contract out,[11] layoff employees, and eliminate bargaining unit positions.  The employer argues that the union presented multiple and changing requests for information from different sources, and communicated different positions as to what information the union actually needed and wanted.

 

On August 24, 2010, Terry Jensen, the union’s attorney, sent a request for information to Ted Danek, city administrator.  The request, which consisted of 18 items, followed an August 19, 2010 meeting between the union and city representatives over the 2011 budget.  On September 9, 2010, Jensen renewed his request.  On September 13, 2010, Danek responded to Jensen, stating that the employer would provide at least a partial response to the request within the next week, but that much of the union’s request relied on specific line item expenses in the 2011 budget.  A 2011 budget draft was not expected to be ready until October 5, 2010.

 

Meanwhile, a parallel inquiry was taking place between union president Pettit and Jacobson.  On September 14, 2010, Pettit e-mailed Jacobson with a request for four informational items, including the number of positions which were identified for layoffs in 2011.  Jacobson responded on September 15, 2010, stating that some requests required the completing of the 2011 draft budget.  She also stated that the employer was working to compile answers to Jensen’s requests, many of which also required completion of the 2011 budget.  

 

On September 17, 2010, Jacobson e-mailed Pettit, and confirmed an earlier discussion with Pettit which prioritized two pieces of information:  the list of potential layoffs, and the list of project employees.  Pettit replied by e-mail on September 20, 2010, requesting the layoff and project employee lists for a union meeting that same day, stating that the information was necessary if the employer wanted the union “to participate in any discussions.”  Jacobson replied the same day, stating that she was working on getting the two information items to Pettit as soon as possible.  The layoff lists were still being compiled.

On September 28, 2010, Pettit e-mailed Jacobson, again requesting the layoff list, as well as a list of vacant positions that were expected to be filled or eliminated for the 2011 budget.  Jacobson responded the same day, stating that the layoff list was not yet final.

 

On September 30, 2010, Jacobson e-mailed a list of employees who would be receiving layoff notices to all bargaining unit presidents, including Pettit.  A list of vacant positions was also attached.  She stated that the list was “only the list as we know it today,” and was subject to change depending on “concession agreements” with bargaining units, unexpected retirements, or other changed circumstances.

 

On October 6, 2010, Jacobson e-mailed Pettit with additional responses to Pettit’s informational requests, including the list of project employees, and a list of employees exempt from overtime.

 

On November 4, 2010, Jensen e-mailed Jacobson with a renewed request for information, stating that the union still needed the information in order to bargain with the employer over the decision and effects of laying off employees.  Nevertheless, the union provided an effects bargaining proposal to the employer on November 5, 2010.  On November 12, 2010, Jensen sent a letter to Jacobson, again requesting the information so that the union could bargain over both the decision and effects.  He additionally requested the employer’s proposals to other bargaining units, as well as the responses from other bargaining units.

 

On November 19, 2010, Pettit e-mailed Jacobson, again asking for the information from the August 24, 2010 request, and reporting that at an October 27, 2010 meeting between the employer and the union, Jacobson acknowledged the employer “owed” the union the information.  Jacobson responded the same day, stating that she intended to work on the information request “next week,” after she had completed any last “concession bargaining” with other bargaining units.

 

On December 3, 2010, Pettit e-mailed Jacobson, again asserting the union’s desire to bargain over the decision and effects of any layoffs, and again requesting the information the union believed it needed to carry out that bargaining.   On December 10, 2010, Jacobson responded to Pettit, and provided several reasons why the employer had not yet responded to the union’s information request.  First, she apologized for not having enough time to attend to the request.  Then she referenced a meeting where Jacobson asked Pettit to prioritize the information request, and Pettit agreed to hold off on the rest of the information.  Jacobson also referred to the October 27, 2010 meeting with the union where Jensen indicated that, although the union still maintained its position that the employer was obligated to bargain over the layoff decision, it would revise the information request to specifically address information needed for effects bargaining.  Jacobson stated that she did not believe that the employer had an obligation to provide information related to the layoff decision.  She invited the union to make a revised information request addressing the effects of the layoffs.

 

On December 14, 2010, Jensen sent a revised request for information, pulling back from the union’s insistence on bargaining the layoff decision, in preparation for bargaining the effects of the decision.[12]  Jensen also prioritized the items from the initial August 24 request to those items important to effects bargaining.  Jensen suspended the union’s request for several items which were no longer relevant for effects bargaining only.

 

On December 17, 2010, Jacobson e-mailed Pettit (copied to Jensen) with the employer’s counter-proposal to the union’s November 5, 2010 effects bargaining proposal.  Jacobson acknowledged that she received Jensen’s revised request for information.  She stated that she believed the parties could come to an agreement regarding layoff effects “without the need for the extended information retrieval process.”  She stated that the lengthy information requests would delay the process further.  Nevertheless, Jacobson stated that she would begin working on the revised request after the first of the year when she returned from vacation.

 

On December 22, 2010, Pettit e-mailed the mayor, asking the employer to produce the requested information and appoint an interim negotiator in Jacobson’s absence.  The mayor declined to appoint an interim negotiator. 

 

The parties met to discuss the effects of the layoffs on January 11, 2011, after Jacobson returned from vacation.  Jacobson testified that they discussed Jensen’s December 14, 2010 information request, and she asked the union what they really needed in order to bargain over the effects of the layoffs.  Jensen was not at the meeting.  

 

Jacobson asked the union to prioritize the information request.  Jacobson’s meeting notes reflect that the union wanted to know: (1) how the work previously performed by the eliminated positions was getting done, (2) who was doing the work, and (3) whether the employees now performing the work were being compensated.  Jacobson testified that this request seemed reasonable and relevant to effects bargaining, and she committed to provide that information to the union prior to the next meeting.

 

Pettit testified that the union left the meeting with the understanding that the employer was going to provide the union with more information and then meet again to further discuss the effects of the layoffs and elimination of positions.  Jacobson instructed her assistant to schedule a follow-up meeting with the union.

 

The parties met again on February 10, 2011.  Prior to that meeting, Jacobson provided the union with information regarding how the work previously done by the eliminated positions was getting done, and a list of actual layoffs throughout the city in 2010, as well as positions retained.  Jacobson also issued a memo to all city department heads (and copied to Pettit), emphasizing that any employee performing work out of classification had to be compensated accordingly.

 

Conclusion

Despite the fact the union did not receive a formal response to Jensen’s multiple requests for information, the Examiner concludes there was an ongoing conversation between the parties about the scope of requests for information.  Although the union claimed the lack of information inhibited the union from making proposals, the lack of information did not actually keep the union from making both concession and effects bargaining proposals.  The employer made a good faith effort to reach a resolution with the union to provide the information the union needed, but without unnecessarily burdening the employer. Given the volume of the information requests, it was reasonable for the employer to bargain to modify the union’s request. 

 

The Examiner finds the employer did not attempt to frustrate the process, but only sought to clarify the union’s request.  The employer did not fail or refuse to provide information.  Accordingly, this portion of the complaint is dismissed.

 

FINDINGS OF FACT

 

1.                  The City of Spokane (employer) is a public employer within the meaning of RCW 41.56.030(12).

 

2.                  The City of Spokane Managerial and Professional Association (union) is a bargaining representative within the meaning of RCW 41.56.030(2).  The union represents two bargaining units:  “Exempt - A” and “Managerial - B.”

 

3.                  The employer and union are parties to a collective bargaining agreement, effective from January 1, 2008, to December 31, 2010.  In January 2009, the parties agreed to extend the agreement for one additional year.

 

4.                  From 1993 to present, the management rights clause in the collective bargaining agreement between the union and employer included specific itemized subjects which clearly state the employer has the right to layoff employees, move work in or out of the bargaining unit, and contract out for goods and services.

 

5.                  The employer and union bargained over the effects of the employer’s decisions to layoff employees and eliminate positions, as evidenced by:

 

(a)                A November 5, 2010 “effects bargaining” proposal, sent by the union to the employer;

 

(b)               The employer’s December 17, 2010 response to the union’s “effects bargaining” proposal;

 

(c)                A January 11, 2011 meeting between the union and employer, where the parties discussed the effects of the employer’s decision to eliminate bargaining unit positions;

 

(d)               A February 10, 2011 meeting between the union and employer, where the parties further discussed the effects of the employer’s decision to eliminate bargaining unit positions.

 

6.                  The employer and union bargained over the effects of the employer’s decision to contract out bargaining unit work, as evidenced by:

 

(a)                An October 27, 2010 meeting between the union and employer, where the union provided the employer with a list of concerns regarding the decision to contract out, but agreed to the change if the employer implemented certain proposed conditions;

 

(b)               The employer’s November 9, 2010 written response to the union’s proposal;

 

(c)                A January 11, 2011 meeting between the union and the employer, where the parties discussed the effects of the employer’s decision to contract out bargaining unit work;

 

(d)               A February 10, 2011 meeting between the union and employer, where the parties futher discussed the effects of the employer’s decision to contract out bargaining unit work.

 

7.                  The employer and the union engaged in ongoing conversations about the scope of the union’s request for information, as evidenced by:

 

(a)                The union’s initial requests for information on August 24 and September 9, 2010;

 

(b)               The employer’s September 13, 2010 response to the union’s requests for information, stating reasons why the employer could not immediately respond to the request;

 

(c)                The union’s September 14, 2010 request for information, and the employer’s September 15, 2010 response, stating that the employer was working to fulfill the union’s request;

 

(d)               The employer’s September 17, 2010 e-mail to the union where the employer clarified the union’s information request priorities;

 

(e)                The union’s September 20, 2010 e-mail requesting two priority pieces of information, and the employer’s September 20, 2010 response, stating that the employer would provide the two information items as soon as possible;

 

(f)                The union’s September 28, 2010 e-mail requesting the layoff list, as well as a list of vacant positions that were expected to be filled or eliminated for the 2011 budget, and the employer’s September 28, 2010 response, stating that the layoff list was not yet final.

 

(g)               The employer’s September 30, 2010 production of the layoff list and list of vacant positions to the union;

 

(h)               The employer’s October 6, 2010 production of other information requested by the union.

 

(i)                 An October 27, 2010 meeting between the union and the employer, where the union indicated it would revise its information request;

 

(j)                 The union’s November 12, 2010 letter to the employer, renewing its request for information, and requesting additional information;

(k)               The union’s November 19, 2010 renewed request for information, and the employer’s November 19, 2010 response, stating that the employer would provide information related to effects bargaining after it finished concession bargaining;

 

(l)                 The union’s December 3, 2010 renewed request for information;

 

(m)             The employer’s December 10, 2010 response to the union’s request, explaining reasons for the delay in providing certain information, and inviting the union to make a revised information request addressing the effects of layoffs;

 

(n)               The union’s December 14, 2010 revised request for information;

 

(o)               The employer’s December 17, 2010 e-mail to the union, including the employer’s counter-proposal to the union’s November 5, 2010 effects bargaining proposal, acknowledging the union’s revised request for information, and stating that the parties could come to an agreement regarding layoff effects without delaying the process further with lengthy information requests;

 

(p)               A January 11, 2011 meeting between the union and the employer, where the employer asked the union to prioritize its information request, and the union complied.  The employer committed to provide that information to the union prior to the next meeting;

 

(q)               The employer’s production of information to the union prior to the next meeting on February 10, 2011.

 

CONCLUSIONS OF LAW

 

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

 

2.                  As described in Finding of Fact 4, the union contractually waived its right to bargain the decisions to layoff employees and contract out bargaining unit work, and therefore, the employer did not violate RCW 41.56.140(4).

 

3.                  As described in Findings of Fact 5 and 6, the employer bargained in good faith over the effects of the decisions to layoff employees, eliminate positions, and contract out bargaining unit work, and therefore did not violate RCW 41.56.140(4).

 

4.                  As described in Finding of Fact 7, the employer did not fail or refuse to provide information requested by the union, and therefore did not violate RCW 41.56.140(4).

 

ORDER

 

The complaints charging unfair labor practices filed in the above-captioned matters are dismissed.

 

ISSUED at Olympia, Washington, this  8th  day of February, 2012.

 

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

LISA A. HARTRICH, 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.