City of Lynnwood, Decision 11614 (PECB, 2013)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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washington state council of county and city employees,
Complainant,
vs.
city of lynnwood,
Respondent.
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CASE 24068-U-11-6155
DECISION 11614 - PECB
FINDINGS OF FACT,
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Audrey B. Eide, General Counsel, for the union.
Inslee, Best, Doezie & Ryder, P.S., by Katherine F. Weber, Attorney at Law, for the employer.
On June 27, 2011, the Washington State Council of County and City Employees (union) filed an unfair labor practice complaint against the City of Lynnwood (employer). On July 21, 2011, a preliminary ruling was issued finding a cause of action for employer refusal to bargain in violation of RCW 41.56.140(4), and employer domination or assistance of a union in violation of RCW 41.56.140(2). Examiner Claire Nickleberry conducted a hearing on May 30 and 31, 2012. The parties filed post-hearing briefs to complete the record.
ISSUES
1. Did the employer refuse to bargain by unilaterally implementing a compensation study without providing an opportunity for bargaining, breaching its good faith bargaining obligations regarding the compensation study, or circumventing the union through direct dealing with employees represented by the union?
2. Did the employer dominate or assist the union by interfering with the internal affairs of the union concerning the compensation study and the union’s collective bargaining rights and obligations?
I find that the employer did not refuse to bargain by implementing the compensation study, did not breach its good faith bargaining obligations regarding the compensation study and did not circumvent the union through direct dealing with the employees represented by the union. I also find that the employer did not dominate or assist the union.
BACKGROUND
The employer and union have an established collective bargaining relationship. In early 2009, the parties were in bargaining for a successor agreement to the previous collective bargaining agreement (CBA). Paul Krauss, Community Development Director, was the lead negotiator for the employer. Bill Keenan, Director of Organizing, was the lead negotiator for the union. Frank Navage, the union’s President, actively participated with Keenan in the bargaining process. On June 11, 2009, the parties reached a tentative agreement on a new CBA for the duration of 2009, 2010, and 2011. In August of 2009, the parties signed the CBA with an expiration date of December 31, 2011. The CBA included an agreement to engage in a compensation study to be conducted in 2010 for implementation in 2011.
Prior to 2009, the employer had engaged Waters Consulting Group (Waters) to conduct a compensation study for its non-represented employees. During the bargaining process in 2009, the union proposed that the parties conduct a compensation study for the union-represented employees. The union wanted the study to be conducted and implemented on the same basis as the non-represented employees’ study. The final agreement on the study included using the same methodology and market data from the same jurisdictions used in the non-represented employees’ study. There was extensive bargaining and proposals exchanged about the elements of the study. The parties eventually agreed to a process and included the detail of the agreement in Appendix E of the 2009-2011 CBA. Article 14, Section 14.1(E) of the CBA states: “The results of the compensation study conducted in 2010 will be implemented as outlined in Appendix E.”
On January 20, 2010, Paula Itaoka, Acting Human Resources Director,[1] met with union representatives Keenan and Navage to present a draft of the Compensation Study Plan. This document detailed the study objectives, tangible products, timing, establishment of a job evaluation team, elements of the study including how it would be conducted, implementation methodology, appeal process, communications to participants, forms to be used and job title list. Itaoka, Keenan, and Navage reviewed the document and discussed the timing of various elements of the study process and the need for the job description process. Neither Keenan nor Navage expressed concerns that were not addressed in the discussion. The document was given to Waters and incorporated into their scope of work. Itaoka provided ongoing updates and communication regarding the study process to the union; at times requesting that Navage review and provide feedback regarding the ongoing processes. On March 9 and 10, 2010, meetings were held at which Waters made a presentation to bargaining unit employees regarding the compensation study process. The union made no objection to the materials and information provided at the meetings.
On April 22, 2010, Itaoka sent the draft study instrument that Waters would use for the study to Navage for his review. In her cover e-mail, she asked if he could respond within a week or two and invited him to provide any “tweaks” he may have to the job summaries.
One part of the compensation study process involves a job evaluation team (JET). The JET assigns job evaluation points to compensable factors and establishes the relative value of positions to one another. The team was made up of members from management and the bargaining unit. Although Navage participated on the JET as a bargaining unit representative, he did not raise any concerns about the team’s ongoing work.
In addition to conducting the compensation study, the parties agreed it made sense to have Waters update the job descriptions that had not been reviewed for three years or longer. As a part of the study, employees were asked to complete job description questionnaires to assist in making job comparisons.
Itaoka received the completed study results from Waters sometime in September 2010. On October 20, 2010, she met with Keenan and Navage to provide the completed study data from Waters. They had scheduled the meeting to go over the study results but instead spent the time dealing with some critical issues of budget cuts and potential layoffs.
On November 29, 2010, Itaoka sent an e-mail to Keenan and Navage expressing concern about meeting the study implementation date of January 1, 2011. She also inquired if they had any feedback about the results of the study, if they wished to discuss anything about the study and if the union had concerns about implementing the study results on January 1, 2011.
The parties met a few times in December 2010 but were focused on a budget crisis that the employer was experiencing including potential layoffs, so did not spend time discussing the compensation study. On January 12, 2011, Navage informed Itaoka that the union’s executive board was reviewing the compensation information, but would need more time to complete the review.
On January 24, 2011, Itaoka sent a packet of information via e-mail with a cover letter to Keenan and Navage. The e-mail cover letter states the subject to be: “Compensation Study – Intent to Implement.” Itaoka stated that the employer intended to implement the study results retroactive to January 1, 2011, and that on February 7, 2011, each employee would receive a memo with several attachments which would include: a memo to the employee, a data sheet showing how the study impacts the employee, information on the appeal process extracted from Appendix E of the CBA, a listing of how all union jobs are classified and a copy of the original questionnaire the employee completed for the study. She also indicated that the wage increases, if applicable would appear on the March 11, 2011 paycheck and any retroactive payments would be made on the March 25, 2011 paycheck. She acknowledged that the union had indicated concerns regarding some of the conclusions reached by Waters. She encouraged the union to contact her regarding any specific concerns by February 1, 2011.
On January 25, 2011, Keenan sent an e-mail to Itaoka regarding the union’s position concerning the implementation of the compensation study. He made reference to a conversation where Itaoka had agreed to put off the February 7th date “until the Union has had the opportunity to meet and discuss/negotiate the issues that the Union has concerning this matter.” He further indicated that Navage had informed Itaoka that the union’s executive board had established a special committee to meet several times during the month of January and that he and Navage could meet with her prior to February 1, 2011. He also stated that the union felt that any “deadlines or implementation dates should be done by mutual agreement, as a team, working together.”
On January 26, 2011, Itaoka responded with dates that she was available to meet prior to February 1, 2011. She stated, “I look forward to reviewing the information from the compensation study with you and identifying specifically any issues that the Local has with the outcome of the study.” The parties met informally in late January 2011, at which time the union shared some general concerns about the outcomes of the study.
On March 11, 2011, Keenan sent a follow-up letter to Itaoka which included an update on the union’s progress in reviewing the compensation study and indicating they would be sending potential dates to meet again. Itaoka sent a similar follow-up letter on March 24, 2011.
On April 7, 2011, the parties met again informally and the union provided a document to Itaoka that reflected the union’s view of how the employees’ positions should be aligned within the established grades.
On April 18, 2011, Itaoka e-mailed a response comparing the Waters’ job groupings with the union’s job groupings and asking the union to review her work for accuracy. She expressed concern that the union’s April 7, 2011 document included a total of 37 job titles that were slotted differently, and “those job slotting differences create an additional +7.49% for a total aggregate average increase of 11.3% from the 2010 to the 2011 pay ranges.”
On May 19, 2011, the parties met to begin negotiations for a new CBA. The agenda for the meeting included an item entitled, “Waters Study issues raised by the Union.” At the meeting, the union shared a document entitled: Compensation Study AFSCME Local 3035. Minutes of that meeting reflect that the union made a proposal to extend the current contract through 2012 with no language changes, no cost-of-living adjustment (COLA) unless other groups within the employer received one, and medical insurance split 85/15 through 2012. The proposal included delaying the implementation of the Waters compensation study. The employer requested some time to review the union proposal.
On June 8, 2011, Krauss sent a letter to Keenan and the union’s bargaining team responding to the previous union proposal. He stated that the employer had “costed-out” the revisions to the Waters study outcomes proposed by the union. Krauss stated that the union told the employer that its proposal would cost the employer an additional $97,000 more than the Waters study. However, he stated that the employer’s review of the union’s proposal indicated that it would actually result in nearly $575,000, more than double the cost of implementation of the Waters study. Krauss attached documentation that supported the employer’s claim. He further stated that: “The City continues to assert that under the current Contract, in exchange for the City’s agreement to undertake the study and to commit to funding its outcome “sight unseen,” the Union waived the right to contest, challenge or otherwise grieve the outcomes of the Waters Study.” The parties had met at least twice to consider the union’s concerns and Krauss continued, “Issues pertaining to the Study have already been bargained in good faith and there is no valid reason to spend additional time on this matter.” He then included notification that the employer would implement the study on or about July 1, 2011. In closing, Krauss stated: “The City declines the Union’s proposal to carry forward discussions on implementation of the Waters Study into the 2012 Contract negotiations, as this directly contradicts and conflicts with Appendix ‘E’ of the current contract. However, other aspects of the Union’s proposal do seem to serve well as the basis for bargaining the next agreement.”
On June 15, 2011, Keenan sent an e-mail response to Krauss expressing the union’s concern about the employer’s “intent to unilaterally implement” the Waters study. Keenan accused the employer of refusing to bargain and cancelled bargaining meetings previously set for June 17 and June 20. He followed up with a letter on June 16, 2011, detailing the union’s concerns and responding in detail to Krauss’ letter of June 8, 2011.
On June 17, 2011, Krauss responded to Keenan confirming that the employer would be implementing the Waters study in compliance with the 2009-2011 CBA. He also stated that the employer had “intended to discuss and substantively address” the union’s proposals in the meetings that the union cancelled and requested that the union reconsider the cancellations or reschedule the meetings as soon as possible. Krauss requested: “that the Union refrain from conditioning future collective bargaining upon the City’s agreement with its demands regarding the Compensation Study.” He also restated that implementation of the study would take place on July 1, 2011, and that the proposed communications to employees provided to the union on January 24, 2011 would be used to inform employees about the compensation study process and results. He indicated that the union had not raised any objections to the nature of the correspondence so the employer intended to use that format to communicate with employees. He closed by stating that he did not agree with the points Keenan made in his letter of June 16, 2011 and that he would provide a response within the next week.
On June 22, 2011, Keenan replied with an e-mail to Krauss again objecting to the implementation of the Waters compensation study and the letters that the employer planned to send to the employees.
On June 22, 2011, Jeff Elekes, Deputy Public Works Director, sent a letter to the union on behalf of Krauss, addressing each of the issues that the union had raised in Keenan’s June 16, 2011 letter. Elekes also confirmed that the employer would move ahead with implementation of the Waters compensation study on July 1, 2011. The employer had delayed implementation for six months beyond the date established in the CBA. He also restated the employer’s desire to continue to meet to negotiate a successor agreement and that the union was free to bring good faith wage proposals to the table as part of the negotiations.
ISSUE 1
Did the employer refuse to bargain by unilaterally implementing a compensation study without providing an opportunity for bargaining, breaching its good faith bargaining obligations regarding the compensation study, or circumventing the union through direct dealing with employees represented by the union?
APPLICABLE LEGAL STANDARDS
Duty to Bargain/Unilateral Change
In Chapter 41.56 RCW, a public employer is prohibited from making decisions to change mandatory subjects of bargaining until it has satisfied its collective bargaining obligations with the exclusive bargaining representative of its employees. It is well established in case law that wages, hours and working conditions are mandatory subjects of bargaining. Community Transit, Decision 10647-A (PECB, 2011).
The employer must give notice to the union of its intent to make a change to a mandatory subject of bargaining, allowing sufficient time for the union to request bargaining of the change, and to allow an opportunity for bargaining to take place.
For an allegation of unilateral change to be sustained, the union must establish that:
• It is the exclusive bargaining representative of the employees involved.
• The employer had an established practice concerning a mandatory subject of bargaining.
• The employer decided upon and implemented a change of that mandatory subject of bargaining: without any notice to the union, or with notice that was insufficient to permit bargaining on the subject, or without engaging in bargaining as requested by the union, or without bargaining in good faith to agreement or impasse.
• That there was an actual change of a mandatory subject of bargaining.
Breach of Good Faith
A public employer is required under RCW 41.56.030(4) to bargain in good faith. The statute’s definition states: “‘Collective bargaining’ means the performance of the mutual obligations of the public employer and the exclusive bargaining representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to grievance procedures and collective negotiations on personnel matters, including wages, hours and working conditions. . . .”
To establish a violation of breach of good faith, the union must prove that:
• It is the exclusive bargaining representative of the employees involved.
• It requested collective bargaining negotiations on a collective bargaining agreement or some issue that was a mandatory subject of bargaining under the applicable law.
• The employer engaged in specific conduct and/or a course of conduct designed to frustrate the collective bargaining process, including tactics such as: failing or refusing to consider proposals made by the union; failing or refusing to make proposals or to explain the proposals it made; providing the union with misleading proposals or positions; failing to follow through on a commitment to recommend proposals made in bargaining; altering its position in a manner designed to avoid agreement; or other tactics that delay or avoid reaching an agreement.
Waiver by contract
The Commission very clearly discussed the duty to bargain and waiver by contract in Whatcom County, Decision 7244-B (PECB, 2004):
It is well settled that an employer violates the duty to bargain if it unilaterally implements a change on a mandatory subject of bargaining, without first giving notice to the exclusive bargaining representative of its employees and fulfilling its collective bargaining obligations. While collective bargaining agreements commonly fix some terms for the life of the contract, the duty to bargain continues to exist during the life of a collective bargaining agreement as to any mandatory subjects of bargaining which are not specifically addressed by the contract.
Waivers of statutory bargaining rights must be clear and unmistakable. The Commission has found broadly-worded management rights clauses insufficient to constitute a waiver of a union’s right to bargain changes in mandatory subjects.
. . . .
To meet the “clear and unmistakable” standard, the contract language must be specific, or it must be shown that the matter claimed to have been waived was fully discussed by the parties and that the party alleged to have waived its rights consciously yielded its interest in the matter. Allison Corporation, 330 NLRB 1363, 1365 (2000); Lakewood School District, Decision 755-A (PECB, 1980) (waiver of bargaining was made knowingly and intentionally); City of Wenatchee, Decision 6517 (PECB, 1998).
An employer may defend its actions in a unilateral change situation by asserting a “waiver by contract” defense. The burden to establish an affirmative defense lies with the party asserting the defense. WAC 391-45-270(1)(b).
An employer will be relieved of its obligation to bargain over a mandatory subject if the matter is fully set forth in the parties’ collective bargaining agreement. Yakima County, Decision 6594-C (PECB, 1999); Tacoma-Pierce County Health Department, Decision 6929-A (PECB, 2001). Once a contract is signed, the parties will have met their obligation to bargain as to the matters set forth in the contract, relieving the parties of their obligation to bargain the specific issue for the life of the agreement. No unfair labor practice will be found if a party makes changes in a manner consistent with the contract.
Circumvention
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. City of Pasco, Decision 4197-B (PECB, 1999); Whatcom County, Decision 7244-B (PECB, 2004); City of Yakima, Decision 9062-B (PECB, 2008).
To establish a violation of employer circumvention, the union must establish that:
• It is the exclusive bargaining representative of the employees involved.
• The employer engaged in direct negotiations with one or more bargaining unit employees concerning one or more mandatory subjects of bargaining.
ANALYSIS
Duty to Bargain/Breach of Good Faith
The parties bargained the compensation study in Appendix E of the 2009-2011 CBA. The evidence at hearing included many proposals exchanged during the bargaining process. During the various stages of the compensation study process, Itaoka kept the union informed and Navage participated in some of the aspects of the process personally as a representative of the union. Subsequent to the completion of the compensation study, Itaoka met with Keenan and Navage to provide and discuss the results of the study. The union requested and was accommodated with time to have its team go over the study and analyze it. The parties met several times to discuss the union’s concerns regarding the outcome of the study while delaying the negotiated implementation date. There was extensive dialogue, meetings held, and letters exchanged without satisfaction of the union’s concerns. The parties had meetings and exchanged many e-mails and letters in an attempt to resolve the conflict. A lack of agreement does not necessarily constitute a lack of bargaining.
Appendix E of the parties’ CBA for 2009-2011 is very specific regarding what may be appealed. Krauss and Itaoka testified that the employer was willing to look at very specific data as outlined in the appeal elements process of the compensation study. Thus, the employer agreed to delay the implementation for six months while trying to resolve the union’s concerns which were not about a few specific issues, but an extensive overhaul of the compensation study’s results.
The parties met many times and exchanged numerous e-mails and letters which detailed their positions and concerns. Appendix E is very specific regarding the implementation and appeal rights. The employer bargained in good faith with the union and fulfilled its statutory duty to bargain.
Waiver by Contract
The employer has asserted that the union waived by contract its right to bargain the outcome of the compensation study because the union openly agreed in bargaining to a very limited appeal process and non-appealable elements of the study. The parties also agreed that no grievances or arbitrations could be filed regarding the compensation study.
Appendix E is a comprehensive outline of the process for the completion of the study, providing as follows:
1. In 2010, the City will conduct a Compensation Study to:
A. Attract and retain qualified, high-performing talent;
B. Compete with similar employers for employees;
C. Effectively and efficiently manage financial resources; and
D. Define compensation opportunities for positions which accurately reflect differences and similarities in levels of responsibility and accountability.
2. Objectives for the study:
A. Develop a compensation program that is both internally equitable and externally competitive.
B. Develop the internally equitable part of the program by using the same point factor job evaluation methodology as used in the non-represented employee study.
C. Develop the externally equitable part of the program by collecting market data from the same jurisdictions used in the non-represented compensation study. The analysis will be conducted based on base salary at top step, longevity pay at the average longevity of the bargaining unit and what, if any certification pay, exists for specific job titles in the same jurisdictions used in the non-represented compensation study. This data, for each position, will be used in the study to develop a new pay structure.
3. The resulting tangible products from this process are as follows:
A. A new salary structure. As with the non-represented employees, this new structure will not have any relationship to the former salary structure.
B. A system for evaluating substantive changes in position responsibility during normal contract negotiations for bargaining successor labor agreements and no additional changes will be made after bargaining is concluded. This system will replace the reclassification provisions of Article 15 of the previous contract and under this system there shall be no change to salary grade assignments during the term of the contract. In the event that the employer creates a new bargaining unit classification, the employer will bargain the wages for that classification with the union.
4. The implementation methodology for 2011:
A. Any adjustments made as a result of the Compensation Study will be made to individual job classifications and employees.
B. If an upward adjustment for an individual job classification is indicated, the Employee’s hourly rate of pay will be rounded up to the nearest step in the new salary structure.
C. For example: Assume Employee A’s hourly rate of pay in the former structure at the time of implementation is $22.00 at step 7. Employee A’s new pay range has seven steps. Step 3 of the new range is $21.50 and Step 4 of the new range is $23.00. When Employee A's hourly rate of pay is rounded up to the nearest step in the new salary structure, Employee A will move from $22.00 to $23.00, Step 4 of the new structure.
5. If a downward adjustment is indicated for an individual job classification and the employee’s pay rate is above the maximum for the classification, the employee’s hourly rate of pay will be redlined. Redlined means that an employee’s wage rate remains unchanged until the pay scale catches up with the employee’s wage. That means the employee would not receive a COLA nor any other type of base salary increase until Step 7 is once again higher than the employee’s pay rate.
6. Timing for this process:
A. Begin work in 2010 to use the results subject to the following for 2011.
B. The structural steps will be set starting in 2011 at a rate that the compensation study recommends.
7. The process will include a Job Evaluation Team (JET), made up of five (5) employer representatives (as named by the employer) and three (3) bargaining unit representatives (as named by the union). The Job Evaluation Team will be trained by the consultant to evaluate the jobs included in the study. This evaluation will be used in determining the appropriate pay grades for the new pay structure.
If either side needs to replace a member of the JET, Waters Consulting will be asked to provide individual training to the new member. As a courtesy, the side needing to replace a member is asked to notify the other side within 5 working days of determining the need to designate a replacement.
The Job Evaluation Team plays a role in both the initial job evaluation process and in the appeal process. For that reason, members of the JET cannot be members of the Final Review Board.
8. The City agrees, as part of the Compensation Study, to engage the Consultant to update all job descriptions older than 3 years. The City and Union recognize that the Consultant will use a questionnaire to obtain information about an employee’s job and to author job descriptions, and further that the Employee and Supervisor will each complete their respective portions of the questionnaire.
9. The Job Description Update Process:
The Union and the City acknowledge that Waters Consulting may wish to provide input into the details of the process they will be asked to follow. For example, timeframes for the steps outlined below will be provided after consultation with Waters Consulting Group. Further, Waters Consulting Group may wish to manage how they are contacted by individual employees and supervisors. The City and the Union will review such input and suggested timeframes to ensure the outlined process meets the intent of the tentative agreement reached on June 11th, 2009.
A. Employee prepares Job Description Questionnaire (JDQ); supervisor reviews and signs; department head reviews and signs; Human Resources (HR) reviews and signs.
B. Completed JDQ is forwarded to Waters Consulting Group (Waters) along with current job description on file.
C. Waters drafts an updated job description and returns that to HR. HR reviews for obvious errors only.
D. If no obvious errors, draft job description is forwarded to supervisor and employee to review and comment; supervisor and employee suggest edits if appropriate and returns to Waters for revision.
E. Waters makes suggested revisions and returns draft to employee and supervisor. If there is disagreement, Waters and/or employee and/or supervisor advise HR. HR reviews the disagreement. If disagreement is insignificant, HR works through the disagreement with employee and supervisor and department head. If substantial, HR advises Union of the disagreement and continues to work through the disagreement with employee and supervisor. Union assists as appropriate. If disagreement cannot be resolved in a timely fashion, department head makes final determination and Union will then receive a final copy of all completed job descriptions.
10. Appealable Elements of the Compensation Study:
A. The allocation of a specific classification to a specific salary grade or the assignment of a specific employee to a specific classification may be appealed only if the Questionnaire (originally prepared by the employee and supervisor for use in the study) contains incorrect or incomplete documentation of job duties and responsibilities actually performed.
B. The placement of an employee on a step in the new pay structure may be appealed only if a mathematical error was made when determining the closest step to which the employee’s pay rate was rounded.
11. The Appeal Process is as follows:
A. Employee:
1. Complete Section 1 of the Classification Review Request Form.
2. Complete a Questionnaire per the Consultant form used for non represented employees. (Currently located separately at L:\COLSHARE\HUMANRES\Compensation Study).
3. Forward to the Department Head.
B. Department Head:
1. Complete Section 2 of the Classification Review Request Form.
2. Review the Questionnaire (ensure all needed signatures are present).
3. Forward to the Human Resources Representative.
C. Job Evaluation Team (JET) and Consultant:
1. Complete Section 3 of the Classification Review Request Form.
2. Forward to the Human Resources Representative.
3. Human Resources Representative will inform the Employee and the Final Review Board of the feedback provided by Job Evaluation Team and Consultant.
12. Final Review Board (FRB):
The FRB consists of two (2) Department Directors and a Human Resources Representative. Members of the FRB cannot have served on the JET.
13. The process is as follows:
A. Complete Section 4 of the Classification Review Request Form.
B. Forward to the Human Resources Director who will inform the Employee, the Department Head and the Mayor.
C. If the Final Review Board cannot reach agreement on a decision, the parties agree that the position will remain as originally classified by the Compensation Study. The Union and the City agree that the Final Review Board’s decision or failure to reach a decision is final and binding and shall not be subject to the grievance process and arbitration.
14. Non-Appealable Elements of the Study:
The following are generally not considered appealable, except under exceptional circumstances:
A. The assignment of job evaluation points.
B. Changes in internal equity (classifications which used to be higher or lower than each other in the old salary ranges might have a different relationship to one another in the new salary ranges).
C. The allocation of classifications to salary grades based on employee performance, longevity, or any other reason not provided for in Appealable Elements of the Study.
D. The assignment of an employee to a salary grade based on future or past job duties and responsibilities not currently performed.
E. The use of market data.
F. The new salary ranges.
There shall be no grievances and no arbitrations (Article 18-Settlement of Disputes) pertaining to the methodology, outcome and implementation of the compensation study and the updating of job classifications.
The parties extensively covered the objectives of the study, tangible products expected, the implementation methodology, timing of the process, a process to update job descriptions over three years old, appealable elements and non-appealable elements, and an appeal process. The appendix is detailed and very specific regarding what is and is not appealable.
The non-appealable section of Appendix E states: “There shall be no grievances and no arbitrations (Article 18-Settlement of Disputes) pertaining to the methodology, outcome and implementation of the compensation study and the updating of job classifications.” The employer’s affirmative defense is that this language in Appendix E constitutes a waiver by contract for the union and therefore, the employer has no duty to bargain the outcome of the compensation study. The Commission does not take waivers of contract lightly. The waiver must be clear, specific, and arrived at through bargaining by the parties.
In reviewing the language of Appendix E and the record as a whole, I am struck by the clarity of the language and the detail of the appeal/non-appeal elements as well as the appeal process. The parties made an agreement to accept the study and its results regardless of how they came out. If the study results had produced more increases for the union membership and fewer “redlined” results, the union would most likely be making the same argument that the employer now puts out in its defense. The language of Appendix E is clear and unambiguous.
The union points to previous Commission decisions where broad management rights clauses have not been found to rise to the level of a waiver. The difference in this case is that the language outlining the right to appeal and non-appealable elements set out in Appendix E is very specific and also includes the restriction that no grievances or arbitrations may be filed regarding the elements. The elements include: the methodology, outcome and implementation of the compensation study, and the updating of job classifications.
The union argues that it would never have agreed to waive its right to bargain regarding the outcome and/or impacts of the study. The employer argues that it would never have agreed to a “blank check” approach to the study. The evidence submitted illustrates the parties’ interests regarding the bargaining of the compensation study. During bargaining for the 2009-2011 CBA, the union was insistent that its members have a compensation study that was the same as a recent study for the non-represented employees of the city. Throughout the bargaining process, the evidence clearly shows that the parties exchanged various proposals regarding a compensation study. The evidence also demonstrates that there was movement by both parties to achieve the final agreement. Appendix E signed by the parties included a detailed outline of the compensation study process.
I disagree with the union’s argument in its post-hearing brief that “There is no specific language anywhere in the documents provided at the hearing or in the contract stating such a waiver.” Appendix E clearly states the rules for appeal and what is non-appealable. It is not reasonable upon reading the language of Appendix E to accept that it was meant only for individual employees and not the union as a whole. I find that the union waived its right to bargain the outcome of the compensation study.
Circumvention
The union asserts that the employer circumvented the union and committed a direct dealing violation when it sent out letters to bargaining unit employees regarding implementation of the results from the compensation study. The employer provided copies of the proposed letters to the union in January 2011. At the request of the union, the employer delayed implementation of the study to allow the union time to complete a review of the results and to give the union the opportunity to share concerns it might have with the study. In June 2011, after having met with the union and exchanged numerous letters explaining its position that the employer was responsible to implement the results of the survey as per Appendix E of the CBA, the employer advised the union that it was going to implement the study on July 1, 2011.
The Commission found the following in City of Yakima, Decision 9062-B:
Where public employees exercise their rights under Chapter 41.56 RCW to organize and select a labor organization as their exclusive bargaining representative, the public employer’s obligation is to bargain with that organization to the exclusion of all others and also to the exclusion of direct dealings with employees on matters that are mandatory subjects of collective bargaining. City of Wenatchee, Decision 2216 (PECB, 1985). An employer who circumvents that obligation commits a violation of RCW 41.56.140(4) by refusing to bargain with the exclusive bargaining representative and derivatively interfering with employees’ rights in violation of RCW 41.56.140(1).
The parties negotiated the details of the compensation study during the negotiations of the 2009-2011 CBA in Appendix E. The employer provided the union with a copy of the information that would be provided to each employee for its approval. The union protested implementation of the study but did not raise issues with the accompanying letter until Keenan’s e-mail on June 22, 2011. The employer postponed implementation of the study, while continuing to address the union’s issues with the study. The employer negotiated the compensation study with the union and did not negotiate with the employees directly. The employer simply sent out the results of the study to its employees when it implemented the study on July 1, 2011, six months after the original implementation date of January 1, 2011. The letters explained the process and provided each employee with notice of what the compensation study results were for their individual position. At no time did the employer negotiate with the employees directly.
CONCLUSION
I find that the employer did not refuse to bargain by implementing the compensation study, did not breach its good faith bargaining obligations regarding the compensation study, and did not circumvent the union through direct dealing with the employees represented by the union, in sending letters to bargaining unit employees on June 22 and 23, 2011, concerning the compensation study.
ISSUE 2
Did the employer dominate or assist the union by interfering with the internal affairs of the union concerning the compensation study and the union’s collective bargaining rights and obligations?
APPLICABLE LEGAL STANDARDS
RCW 41.56.140(2) states that it is an unfair labor practice for an employer to control, dominate, or interfere with a bargaining representative. To prove that an unfair labor practice has been committed, the union must prove that the employer intended to dominate the internal affairs of the union (potentially including selection of officers, policy decisions, or ratification of collective bargaining agreements).
A complainant must successfully show intent to prevail on a domination charge. King County, Decision 2553-A (PECB, 1987); Community College District 13 – Lower Columbia, Decision 8117-B (PSRA, 2005); Northshore Utility District, Decision 10534-A (PECB, 2010).
ANALYSIS
The union claims that the employer attempted to dominate the union when it made statements regarding the union’s proposal in negotiations of the 2012 agreement. The union charges that the employer attempted to dominate the union by stating that the union was not allowed to make a proposal to negotiate the results of the compensation study in conjunction with the successor agreement and insisting the union “refrain” from proposing it.
Keenan testified in response to cross examination: “I believe what I said was the city was telling us we couldn’t propose−we couldn’t propose making the compensation study a part of the 2012 negotiations or it would violate the agreement that we had between the city and the union on Appendix E. . . .”
Krauss testified that the employer did not believe it was required to bargain the outcome or implementation of Appendix E in the 2009-2011 CBA, so if the employer agreed to carry the implementation into the 2012 CBA it would be putting the employer into the position of re-negotiating Appendix E.
The comments that the union has objected to are:
1. In Krauss’ letter dated June 17, 2011, he stated: “The City further requests, respectfully, that the Union refrain from conditioning future collective bargaining upon the City’s agreement with its demands regarding the Compensation Study.”
2. In Elekes’ letter (on behalf of Krauss) dated June 22, 2011, he states in part: “The City regrets that the Union disagrees with the City’s implementation of the wage adjustments. It again emphasizes that it will continue to meet with the Union in good faith for purposes of negotiating a successor agreement, and that the Union is free to bring good faith wage proposals to the table as part of these negotiations.”
The first comment is not a directive, but a request from the employer. The second does not suggest a restriction on the union’s proposals, although it does infer a desire to move forward with negotiations on the new agreement. I do not interpret the intent of either of these letters or the corroborating testimony given by Krauss to indicate any attempt on behalf of the employer to dominate the union. Based on the situation at hand, I do understand the union’s frustration with the employer’s firm bargaining position, but it does not meet the standard for a domination violation.
CONCLUSION
The employer did not commit a domination violation.
FINDINGS OF FACT
1. The City of Lynnwood is a public employer within the meaning of RCW 41.56.030(12).
2. The Washington State Council of County and City Employees is a bargaining representative within the meaning of RCW 41.56.030(2).
3. On June 11, 2009, the parties reached a tentative agreement on a collective bargaining agreement (CBA) for the duration of 2009, 2010, and 2011.
4. In August of 2009, the parties signed the CBA with an expiration of December 31, 2011. The CBA included an agreement known as Appendix E to engage in a compensation study to be completed for implementation by January 2011.
5. During negotiations for the compensation study, the union proposed that the compensation study be performed the same as a previous study done for non-represented employees. The parties agreed to use the same consultant used for the non-represented employees’ compensation study, Waters Consulting Group.
6. On January 20, 2010, a meeting was held by Paula Itaoka, Acting Human Resources Director with Bill Keenan, Director of Organizing for the union, and Frank Navage, the union’s President, to review a draft of the Compensation Study Plan.
7. On March 9 and 10, 2010, meetings were held at which Waters made a presentation to bargaining unit employees regarding the compensation study process.
8. On April 22, 2010, Itaoka sent the draft study instrument that Waters would use for the study to Navage for his review. Itaoka invited him to provide any “tweaks” he may have to the job summaries.
9. Navage participated on behalf of the union on the job evaluation team (JET). This team establishes the relative value of positions to one another. Navage did not raise any concerns about the team’s ongoing work.
10. On October 20, 2010, Itaoka met with Keenan and Navage to provide the completed study data from Waters.
11. On November 29, 2010, Itaoka sent an e-mail to Keenan and Navage expressing concern about meeting the study implementation deadline of January 1, 2011. She also inquired if they had any feedback about the results of the study, if they wanted to discuss the study, or had any concerns with the January 1, 2011 implementation date.
12. In December 2010, the parties met a few times but they were focused on a budget crisis that the employer was experiencing.
13. On January 12, 2011, Navage informed Itaoka that the union’s executive board was reviewing the compensation information, but would need more time to complete the review.
14. On January 24, 2011, Itaoka sent a packet of information via e-mail with a cover letter to Keenan and Navage. The e-mail cover letter states the subject to be: “Compensation Study – Intent to Implement.” Itaoka stated that the employer intended to implement the study results retroactive to January 1, 2011, and that on February 7, 2011, each employee would receive a memo with several attachments which would include: a memo to the employee, a data sheet showing how the study impacts the employee, information on the appeal process extracted from Appendix E of the CBA, a listing of how all union jobs are classified and a copy of the original questionnaire the employee completed for the study.
15. On January 25, 2011, Keenan sent an e-mail to Itaoka regarding the union’s position concerning the implementation of the compensation study. He made reference to a conversation where Itaoka had agreed to put off the February 7th date “until the Union has had the opportunity to meet and discuss/negotiate the issues that the Union has concerning this matter.”
16. On January 26, 2011, Itaoka sent dates to Keenan that she was available to meet prior to February 1, 2011, to identify any issues the union may have with the outcome of the compensation study.
17. In late January 2011, the parties met informally at which time the union shared some general concerns about the outcomes of the study.
18. On March 11, 2011, Keenan sent a follow-up letter to Itaoka which included an update on the union’s progress in reviewing the compensation study and indicating that they would be sending potential dates to meet again. Itaoka sent a similar follow-up letter on March 24, 2011.
19. On April 7, 2011, the parties met again informally and the union provided a document to Itaoka that reflected the union’s view of how the employee’s positions should be aligned within the established grades.
20. On April 18, Itaoka e-mailed a response comparing the Waters’ job groupings with the union’s job groupings and asking the union to review her work for accuracy.
21. On May 19, 2011, the parties met to begin negotiations for a new CBA. The agenda for the meeting included an item entitled, “Waters Study issues raised by the Union.” At the meeting, the union shared a document entitled: Compensation Study AFSCME Local 3035. The union made a proposal to extend the current contract through 2012 and included a proposal to delay the implementation of the Waters compensation study.
22. On June 8, 2011, Krauss sent a letter to Keenan and the union’s bargaining team responding to the previous union proposal. He raised issues with the estimated cost of the previous union proposal which he claimed would more than double the cost of implementing the Waters study. He also raised the issue that the union had waived its right to bargain the implementation of the study and announced that the employer would implement the study on or about July 1, 2011.
23. On June 15, 2011, Keenan sent an e-mail response to Krauss expressing the union’s concern about the employer’s “intent to unilaterally implement” the Waters study and refusing to bargain. He also cancelled two upcoming bargaining sessions.
24. On June 16, 2011, Keenan followed up with a letter detailing the union’s concerns and responding to Krauss’ letter of June 8, 2011.
25. On June 17, 2011, Krauss responded to Keenan confirming that the employer would be implementing the Waters study in compliance with the 2009-2011 CBA. To that end, the employer would be sending employees communications previously provided to the union. He also requested the union reconsider cancellation of the upcoming bargaining sessions as the employer “had intended to discuss and substantively address” the union’s proposals. Krauss also requested “that the Union refrain from conditioning future collective bargaining upon the City’s agreement with its demands regarding the Compensation Study.”
26. On June 22, 2011, Keenan replied with an e-mail to Krauss again objecting to the implementation of the Waters compensation study and the letters that the employer planned to send to the employees.
27. On June 22, 2011, Jeff Elekes sent a letter to the union on behalf of Krauss, addressing each of the issues raised by the union in Keenan’s June 16th letter and confirming implementation of the Waters study on July 1, 2011. The employer had delayed implementation for six months beyond the date established in the CBA. He also restated the employer’s desire to continue to meet to negotiate a successor agreement and that the union was free to bring good faith wage proposals to the table as part of the negotiations.
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 Findings of Fact 3-6, 8-12, 14, 16-17, 19-22, 25, and 27, the employer did not breach its good faith bargaining obligations or violate RCW 41.56.140(4), by unilaterally implementing a compensation study that was bargained by the parties.
3. The union failed to establish that the employer circumvented the union or violated RCW 41.56.140(4) through its actions described in Finding of Fact 25.
4. The union failed to establish that the employer dominated the union or violated RCW 41.56.140(2) through its actions described in Findings of Fact 25 and 27.
ORDER
The complaint charging unfair labor practices filed in the above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 2nd day of January, 2013.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CLAIRE NICKLEBERRY, Examiner
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.
[1] At the beginning of the bargaining process for this CBA, Itaoka’s job title was Labor Relations Program Manager. In that role she supported the employer’s bargaining team. When the previous HR Director, Robin Hall, became ill Itaoka became the acting HR Director and then was appointed to the position in March 2010.