Seattle Community College, Decision 12014 (CCOL, 2014)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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AMERICAN FEDERATION OF TEACHERS, Seattle CoMMNITY cOLLEGEs, LOCAL 1789,
Complainant,
vs.
sEATTLE cOMMUNITY cOLLEGE (cOMMUNITY COLLEGE dISTRICT 6),
Respondent.
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CASE 25676-U-13-6579
DECISION 12014 - CCOL
FINDINGS OF FACT,
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Schwerin Campbell Barnard Iglitzin & Lavitt L.L.P., by Carson Glickman-Flora, Attorney at Law, for the union.
Attorney General Robert W. Ferguson, by Derek Edwards, Assistant Attorney General for the employer.
On May 1, 2013, the American Federation of Teachers, Seattle Community Colleges, Local 1789 (union) filed an unfair labor practice complaint against Seattle Community College (employer), charging a refusal to bargain violation. A Preliminary Ruling was issued on May 7, 2013, and a timely answer was filed May 23, 2013. On October 23, 2013, a hearing was held before Examiner Casey King and simultaneous briefs were submitted on December 20, 2013.
ISSUE PRESENTED
Did the employer refuse to bargain in violation of RCW 28B.52.073(1)(e) by its unilateral change to the Learning Management System (LMS), without providing an opportunity to bargain the decision and effects?
Based on the entirety of the record, the Examiner rules that the employer’s decision to switch the LMS is a managerial prerogative, is not a mandatory subject of bargaining, and didn’t require bargaining. The record supports that the union was provided several meaningful bargaining opportunities and bargained the effects of the employer’s decision. Therefore, the employer did not refuse to bargain in violation of RCW 28B.52.073(1)(e).
BACKGROUND
As an alternative to traditional in-class instruction, the employer provides opportunities for its students to take online courses over the internet. Students are able to participate in online courses by accessing the online program or LMS their professor has selected for the course. Although the faculty are not required to use any particular LMS for their online teaching assignments, most faculty select the LMS that the employer provides for online courses. Using the employer’s LMS allows faculty to use the LMS at no cost and receive free technical support. During the 2011-2012 school year, the employer supported LMS was a program called Angel.
The LMS Angel had been selected by the employer after the State Board for Community and Technical Colleges (SBCTC) had negotiated a state-wide contract for Angel in previous years. In May 2012, the SBCTC announced that the Board had signed a contract for a new LMS program called Canvas.
Starting in the summer of 2012, members of the faculty began to receive e-mails outlining the possible timelines for the migration from Angel to Canvas. The e-mails were sent from the employer’s E-learning Office Director Sara Newman. In the e-mails, Newman discussed the expectation that faculty would need certification prior to being allowed to use Canvas, as well as dates and times for training opportunities for Canvas. During that same time, the union and the employer were engaged in collective bargaining over their upcoming 2013-2016 CBA. As more members of the faculty became aware of the pending transition from Angel to Canvas as well as the amount of training necessary for using Canvas, the union began to propose new language during contract negotiations to address potential changes to the LMS and the possible effects of those changes.
On November 8, 2012, at a union executive board meeting, faculty shared concern with Karen Strickland, President of the union, about the amount of training some faculty were experiencing in anticipation for the transition to Canvas. As a result, during a December 7, 2012 bargaining session between the union and the employer, potential effects of the employer’s move to Canvas were discussed. These discussions included how part-time faculty would learn the new program, the cost of training, and the type of training. During a December 14, 2012 bargaining session between the union and the employer, potential effects of the employer moving to Canvas were again discussed. At this meeting, the effects discussed were the amount of release time necessary for training and if learning a new LMS is part of the faculties’ professional obligation. In previous announcements and discussions regarding the transition from Angel to Canvas, the employer had expressed an expectation that the transition from Angel to Canvas would occur at the start of the winter quarter in January 2013. However, because some faculty needed additional time to complete the Canvas training, the employer provided Angel during winter quarter free of cost and with technical support from the employer while it was also providing Canvas.
During a January 18, 2013 bargaining session, the parties bargained over stipends and retroactive compensation for learning Canvas. During a February 1, 2013 bargaining session, the parties bargained over the use of stipends for training on Canvas. On February 12, 2013, Strickland wrote a letter to the employer requesting to bargain the “details” of the working conditions impacted by the transition from Angel to Canvas. Charles Sims, the employer’s chief human resources officer, agreed to meet to discuss the effects of the transition but expressed that he was confused by the request because it had been the employer’s understanding that the parties had been bargaining over the effects of the transition for several months in contract negotiations for the parties next CBA. On March 20, 2013, the parties met and bargained over the training requirement and the possibility of a stipend for training on the new Canvas. In June 2013, the parties agreed to terms on the 2013-2016 CBA.
APPLICABLE LEGAL STANDARD
A public employer has a duty to bargain with the exclusive bargaining representative of its employees. RCW 41.80.020. In deciding whether a duty to bargain exists, there are two principal considerations: (1) “the relationship the subject bears to the wages, hours, and working conditions” of employees, and (2) “the extent to which the subject lies ‘at the core of entrepreneurial control’ or is a management prerogative.” International Association of Fire Fighters, Local 1052 v. PERC (City of Richland), 113 Wn.2d 197, 203 (1989). The decision focuses on which characteristic predominates. Id.
“The scope of mandatory bargaining is limited to matters of direct concern to employees” and “managerial decisions that only remotely affect ‘personnel matters’ and decisions that are predominately ‘managerial prerogatives,’ are classified as non-mandatory subjects.” City of Richland, 113 Wn.2d at 200, citing Klauder v. San Juan County Deputy Sheriffs’ Guild, 107 Wn.2d 338, 341 (1986). Mandatory subjects of bargaining include grievance procedures, wages, hours, and working conditions. RCW 41.56.030(4). Permissive subjects of bargaining are management and union prerogatives, along with the procedures for bargaining mandatory subjects, over which the parties may negotiate. Pasco Police Association v. City of Pasco, 132 Wn.2d 450, 460 (1997).
An employer that fails or refuses to bargain in good faith on a mandatory subject of bargaining commits an unfair labor practice. RCW 41.56.140(4) and (1).
Effects Bargaining
The bargaining obligation applies to a decision on a mandatory subject of bargaining as well as the effects or impacts of that decision, but only applies to the effects of a managerial decision on a permissive subject of bargaining. Central Washington University, Decision 10413-A (PSRA, 2011), citing Skagit County, Decision 6348 (PECB, 1998); City of Kelso (Kelso I), Decision 2120-A (PECB, 1985); City of Kelso (Kelso II), Decision 2633-A (PECB, 1988). An employer must bargain the effects of the permissive decision on mandatory subjects of bargaining. Wenatchee School District, Decision 3240-A (PECB, 1990). For example, while an employer has no duty to bargain concerning a decision to reduce its budget, the effects of such decisions could constitute mandatory subjects of bargaining. See Wenatchee School District, Decision 3240-A.
An employer is not required to delay implementation of a decision on a permissive subject of bargaining while impact or effects bargaining occurs. City of Bellevue, Decision 3343-A (PECB, 1990); Federal Way School District, Decision 232-A (EDUC, 1977). An employer cannot refuse to commence effects bargaining until after the permissive decision is implemented. Spokane County Fire District 9, Decision 3661-A (PECB, 1991).
When the effects are sufficiently foreseeable before implementation of a permissive decision, a bargaining obligation can arise. Spokane County Fire District 9, Decision 3661-A.
Formal written notice of an employer’s proposed change is not required. In the absence of formal notice, however, an employer must prove that the union had actual, timely knowledge of the contemplated change. Lake Washington Technical College, Decision 4721-A citing Clover Park School District, Decision 3266 (PECB, 1989); and see City of Yakima, Decision 1124-A (PECB, 1981). “[W]here a union had actual notice of an employer’s intentions at a time when there was sufficient opportunity to bargain prior to implementation of the change, the employer may not be faulted for failing to afford formal notification.” City of Bainbridge Island, Decision 11465 (PECB, 2012).
In determining whether an unfair labor practice has occurred, the totality of the circumstances must be analyzed. City of Mercer Island, Decision 1457 (PECB, 1982); Walla Walla County, Decision 2932-A (PECB, 1988). The evidence must support the conclusion that the respondent’s total bargaining conduct demonstrates a failure or refusal to bargain in good faith or an intention to frustrate or avoid an agreement. City of Clarkston, Decision 3246 (PECB, 1989). When evaluating notice and whether an opportunity for meaningful bargaining existed, the Commission has held that the focus should be on the circumstances as a whole. Lake Washington Technical College, Decision 4721-A, see also, Mukilteo School District, Decision 3795-A (PECB, 1992).
The decision to change the LMS program was not a mandatory subject of bargaining
The employer’s decision to change the LMS program from Angel to Canvas must be analyzed under the two part City of Richland test as mentioned above. The first part of the test is to determine the extent to which the managerial action impacts wages, hours, or working conditions and the second part is to determine the extent to which managerial action is deemed to be an essential management prerogative.
1) The extent to which managerial action impacts the wages, hours, or working conditions of employees
The union argues that the employer’s decision to change the LMS program from Angel to Canvas was a mandatory subject of bargaining because of the substantial impact the decision had on employees’ hours. Particularly, the union argued employees were required to spend an exorbitant amount of time learning the new system. The amount of time it took faculty to complete the training for the new LMS varied among members. As reported by the faculty, the average time of training fell somewhere between a few hours and 20+ hours. However, the faculty had several months in which to complete the training and faculty were allowed to complete the training during work hours. Also, not every member of the faculty were required to take the training because not all of the faculty were going to be using Canvas in their teaching assignments. Although this additional training requirement for faculty who wanted to use Canvas was an increase in workload, I do not find the amount of time needed for learning Canvas was a substantial increase in hours.
In addition to the increased workload, the union alludes that Angel provided a benefit to the faculty that was lost when the employer changed to Canvas. In Snohomish County, Decision 9291-A (PERC, 2007), the Commission weighed the benefit of a union-only bulletin board and determined that the slight change in location, from inside to outside the staff dining room did not require the employer to bargain that change. The Commission determined that the past practice or benefit the employer was providing “one bulletin board for the exclusive use of the bargaining unit” was not lost or significantly altered by the change in location. In the case at hand, I find that the benefit the employer was providing was an employer-supported free-to-faculty LMS. When the employer decided to switch from the employer-supported and free-to-faculty Angel LMS to the employer-supported and free-to-faculty Canvas LMS, the benefit the employer was providing to the faculty remained.
2) The extent to which managerial action is deemed to be an essential management prerogative
The union contends that which LMS the employer will use is not the sort of decision that lies at the core of the employer’s entrepreneurial control. I disagree. The primary purpose of a school is to provide an education to its students. How a school chooses to provide that education is at the core of its entrepreneurial control. One such example of entrepreneurial control within an educational setting is the length of time a school sets for its classes. In Wenatchee School District, Decision 3240-A (PECB, 1990), the employer determined that in order to provide a better education to its kindergarten students, it needed to extend the hours of its kindergarten program. Wenatchee School District. Although the employer’s decision had a direct impact on employee wages, hours and working conditions, the Commission concluded:
The employer’s decision to convert its kindergarten program to full day came from the employer’s Curriculum Department and was clearly a decision regarding the educational program to be offered. Weighing the extent to which that decision relates to the employer’s curriculum prerogative against its relationship to the wages, hours and working conditions of employees, we conclude, as in Federal Way, supra, that the kindergarten change is the kind of program decision properly classified as a nonmandatory subject for bargaining.
Wenatchee School District, Decision 3240-A.
Universities today have multiple venues in which to provide their students with an education; there is the traditional way of in-classroom instruction from a professor, in-field experience with internships, and in relatively recent years the addition of online classrooms. I find that the employer’s decision to determine the LMS program most beneficial to its students analogous with the employer’s decision regarding the length of its Kindergarten program in Wenatchee School District. Both decisions address the central issue at the heart of any educational institution’s entrepreneurial control, how to best provide an education to its students.
Using the City of Richland balancing test, I conclude that the managerial prerogative of an educational institution to determine what platform the institution will use to provide its students with an online education outweighs the limited effects that decision had on wages, hours, and working conditions for employees. Therefore, the decision to change LMS programs from Angel to Canvas was not a mandatory subject of bargaining.
The employer met its duty to bargain the effects of its decision
The employer’s decision to change the LMS program Angel to Canvas was not a mandatory subject of bargaining and therefore the employer was not required to bargain prior to the employer making that decision. Once the decision was made however, the employer did have an obligation to bargain the effects of that decision.
The record contains evidence to suggest that the union may have had knowledge of the employer’s proposed change as early as August 2012. However, after the November 8, 2012 union executive board meeting, there is no doubt the union had actual notice of the employer’s contemplated change. With that notice, the union began making proposals and having discussions about the effects of the employer’s decision. At least twice in December 2012, prior to the employer’s transition to Canvas, the union met with the employer and was given an opportunity to bargain the effects of the employer’s decision. After the start of winter quarter, the employer’s stated deadline for transferring to Canvas, the employer continued to bargain with the faculty over the effects of the transition, continuing to provide Angel free of cost with technical support in addition to Canvas. The union and employer continued to bargain over the effects during bargaining sessions for their 2013-2016 CBA on January 18, 2013, February 1, 2013, February 12, 2013, and March 20, 2013, before agreement on the new CBA in June 2013.
The union suggests that because the employer’s contract proposals for the 2013-2016 CBA did not include any terms of retroactivity for employees who trained on Canvas in 2012, than the employer did not fulfill its effects bargaining obligation. However, when determining if a union was afforded a sufficient opportunity to bargain the effects, the scope of the analysis is much broader than not agreeing with or liking the proposals one side has presented. Here the employer showed it bargained in several meetings over the effects of the change. It was not required to agree to the union’s proposal.
Based upon the circumstances as a whole, I find that the union was provided numerous opportunities for meaningful bargaining regarding the effects of the employer’s decision to change the LMS program. Therefore, the employer met its bargaining obligation.
FINDINGS OF FACT
1. The Seattle Community College is a public employer within the jurisdiction of the Public Employment Relations Commission. RCW 41.80.005(10).
2. The American Federation of Teachers, Seattle Community Colleges, Local 1789, is the certified exclusive bargaining representatives of academic employees employed by the employer. RCW 41.80.005(9).
3. The union and the employer were signatory to a collective bargaining agreement (CBA) which was effective on its terms from July 1, 2007, through June 30, 2010, and then by agreement was extended through June 30, 2013.
4. As an alternative to traditional in-class instruction, the employer provides opportunities for it students to take online courses over the internet using a Learning Management System (LMS).
5. During the 2011-2012 school year, the employer provided a free LMS with technical support for faculty who taught online courses. The LMS program was called Angel.
6. Faculty are not required to use a particular LMS for their online teaching assignments and may use the employer supported LMS or their own.
7. In May 2012, the State Board for Community and Technical Colleges signed a contract for a new LMS program called Canvas.
8. The LMS the employer will use to provide its students access to online education is at the core of the employer’s entrepreneurial control and therefore is an essential managerial prerogative.
9. During the summer of 2012, the union and the employer were engaged in collective bargaining over their upcoming 2013-2016 CBA and the union began to propose new language to address effects of a change to the LMS.
10. On November 8, 2012, at a union executive board meeting, faculty shared concern with Karen Strickland, President of the union, about the amount of training some faculty were experiencing in anticipation for the transition to Canvas.
11. During a December 7, 2012, bargaining session, effects of the employer moving to Canvas were discussed. These discussions included how part-time faculty will learn the new program, the cost of training, and the type of training.
12. During a December 14, 2012, bargaining session, effects of the employer moving to Canvas were again discussed. The effects discussed were the amount of release time necessary for training and if learning a new LMS is part of the faculties’ professional obligation.
13. In January 2013, at the beginning of winter quarter, the employer provided both LMS programs Angel and Canvas free of cost and with technical support. Faculty were also allowed to use their own LMS program if they chose.
14. During a January 18, 2013 bargaining session, the parties bargained over stipends and retroactive compensation for learning Canvas.
15. During a February 1, 2013 bargaining session, the parties bargained over the use of stipends for training on Canvas.
16. On February 12, 2013, Karen Strickland wrote a letter to the employer requesting to bargain the “details” of the working conditions impacted by the transition from Angel to Canvas. Charles Sims, the employers chief human resources officer, agreed to meet to discuss the effects of the transition but expressed that he was confused by the request because it had been the employer’s understanding that the parties had been bargaining over the effects of the transition for several months in contract negotiations for the parties next CBA.
17. On March 20, 2013, the parties met and bargained over the training requirement and the possibility of a stipend for training on the new Canvas.
18. In June 2013, the parties agreed to terms of the 2013-2016 CBA.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 28B.52 RCW and Chapter 391-45 WAC.
2. As described through the actions in the Finding of Facts above, the employer did not refuse to bargain in violation of RCW 28B.52.073(1)(e) by its unilateral decision to change the Learning Management System.
3. As described through the actions in the Finding of Facts above, the employer did not refuse to bargain and fulfilled its effects bargaining obligation regarding the employers decision to change Learning Management Systems pursuant to RCW 28B.52.073(1)(e).
ORDER
The complaint charging unfair labor practices filed in the above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 21st day of March, 2014.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CASEY KING, 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.