STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
PUBLIC SCHOOL EMPLOYEES OF BATTLE )
GROUND, an affiliate of PUBLIC )
SCHOOL EMPLOYEES OF WASHINGTON, ) CASE NO. 5694-U-85-1048
)
Complainant, ) DECISION 2449-A - PECB
)
vs. )
)
BATTLE GROUND SCHOOL DISTRICT, ) DECISION OF COMMISSION
)
Respondent. )
)
_____________________________________)
Weber and Nordlof, by Eric T. Nordlof, Attorney at Law, appeared for the complainant.
Bischof and Hungerford, by Bruce Bischof, Attorney at Law, appeared on behalf of the respondent at hearing. Kane, Vandeberg, Hartinger & Walker, by William A. Coats and Shawn A. Flood, Attorneys at Law, appeared for the respondent in the proceedings before the Commission.
Battle Ground School District has petitioned for review of the Findings of Fact, Conclusions of Law and Order issued in this matter by Examiner Katrina I. Boedecker, wherein the examiner found that the employer had violated RCW 41.56.140(4) and (1), and ordered remedies. Public School Employees of Battle Ground, an affiliate of Public School Employees of Washington (PSE), has cross-petitioned for review, contending that the remedies ordered by the examiner were insufficient. Both parties have filed briefs for consideration by the Commission.
BACKGROUND
PSE is the exclusive bargaining representative for a bargaining unit of custodial, maintenance, grounds, secretarial, aide, library aide, special education assistant and food service workers employed by Battle Ground School District. PSE and the employer had a collective bargaining agreement effective from September 1, 1981, through August 31, 1984. A rival union filed a timely petition for investigation of a question concerning representation, which caused a suspension of bargaining for a time. PSE retained its certification, however, and bargaining resumed in October, 1984.
The employer operates a lunch program for its students. Saga Food Corporation managed the employer's food service program during the 1984-85 school year, although the cafeteria workers remained employees of the school district and members of the bargaining unit represented by PSE.
This case involves the hiring of high school students to serve food in the cafeteria lines at Prairie High School and at Battle Ground High School. Prior to January, 1985, food service work was generally performed by bargaining unit personnel, with only limited use of student help as follows:
- At Prairie High School, ten to twelve students worked in the cafeteria each day. Six assisted in the kitchen during lunch hour, for which they received school credit as well as a free lunch. The others worked for fifteen minutes of their one-half hour lunch period serving food to other students, for which they received a free lunch.
- At Battle Ground High School, approximately three students helped in the kitchen one hour per day, for which they received school credit and a free lunch. The students were only rarely requested to serve food in the cafeteria lines during the lunch hour.
Saga developed a new food program, known as "The Grand Marketplace", for students of high school age. This program added several food lines for students to choose from. But for the "extra hands" represented by the student food service workers at issue in this case, it would have been necessary for the employer to either increase the work hours of existing bargaining unit employees or hire more bargaining unit food service workers to do this type of work. Saga officials theorized that it would be difficult to get an adult to come to work for fifteen minutes, be off work for one hour, and then return to work for fifteen more minutes. No attempt was made, however, to employ adults as servers in the enhanced food service program.
Beginning in January, 1985, students were employed as food servers in the cafeteria lines at both of the high schools. Students were scheduled to work fifteen (15) minute blocks, at a pay rate of $3.35 per hour, or a free lunch.[1] At Prairie High School, it appears that a cash payment option was made available for the first time. At Battle Ground High School, the work was offered initially to school clubs as a fundraising venture. Club members would serve in the food lines and their wages would be credited directly to the club's treasury. By March 1985, however, the clubs' interest had waned. Thereafter, serving jobs were offered to any students. At least ten (10) students working as food servers at Battle Ground High School opted for the money instead of the free lunch.
Since the institution of the Grand Marketplace program, there has been an increase in the usage of the school district's high school cafeterias. Saga officials attributed the increase to the types of food now offered, the attractiveness of the service and faster movement through the food lines due to the use of student servers.
In the meantime, the parties were engaged in collective bargaining negotiations where the employer claimed that the food service program was losing money and sought a ten percent (10%) wage concession by the food service members of the bargaining unit. During those negotiations, the district also discussed the possibility of subcontracting the entire food service operation (as opposed to just the management of the program). Mediation was requested in December, 1984.
On February 21, 1985, PSE filed this unfair labor practice case against the employer, alleging violations of RCW 41.56.140(4) and (1), in connection with the unilateral removal of food service work from the bargaining unit, thus intimidating employees in the course of bargaining.
Agreement was reached on a new contract in March, 1985, and a collective bargaining agreement was signed, after ratification, in May, 1985. In that agreement, wages of food service personnel were frozen at their 1983-84 wage levels, with the addition of an incentive program for wage increases based on increases in the number of lunches sold. The other members of the bargaining unit received a $.48 per hour "across-the-board" wage increase, retroactive to January 1, 1985.
The unfair labor practice charges in this matter were reviewed by the Executive Director pursuant to WAC 391-45-110. In a preliminary ruling issued on March 8, 1985, the Executive Director noted that an unfair labor practice violation could be found on the facts alleged, and an examiner was assigned.[2]
A notice of hearing was issued by the examiner on March 25, 1985, setting a hearing for May 17, 1985 and setting May 1, 1985 as the due date for the filing of an answer. That notice set forth the effects of a failure to answer in terms consistent with WAC 391-45-210.
No timely answer was filed by the employer. On May 10, 1985, PSE filed a motion for default.
On May 13, 1985, the employer filed an answer in the form of a general denial, with no affirmative defenses. In a letter dated May 10, 1985 covering transmittal of the answer, the original attorney for the employer stated:
Please find enclosed the original and three copies of the Respondent's Answer with respect to the above captioned matter. A review of the Notice of Hearing reflects that the Answer was due on or before May 1, 1985. This letter shall also serve as the Respondent's explanation for filing the Answer subsequent to the May 1, 1985 date. As attorney-of-record for the Battle Ground School District with respect to all labor relations matters, I was not served a copy of the lawsuit by the Commission. My client received the Notice of Hearing on March 27, 1985. Due to Spring Vacation, changes in the personnel office, et cetera, I did not receive a copy of the Notice of Hearing until after the May 1st date. Therefore, the Answer is being forwarded to the Commission by Express Mail with a copy being served on Edward A. Hemphill, representing the Complainant.
Since the Respondent is denying each and every allegation of the Complaint, the Union will not be confronted with any surprise motions or affirmative defenses. I will also notify the Complainant's attorney by telephone today advising him of the District's general denial. ...
(emphasis supplied[3])
The examiner denied the pre-trial motion for default, and the hearing was commenced on May 17, 1985, before the examiner.
Although PSE renewed its motion for default at the hearing, it was unable to satisfy the examiner that it had sustained any prejudice by the reason of the untimely answer. The examiner offered PSE a continuance, but PSE declined.
At the hearing, the employer presented some evidence in support of an affirmative defense of "economic necessity" for its transfer of bargaining unit work outside of the bargaining unit. PSE was granted a continuing objection to any evidence tending to support such an affirmative defense.
In her Findings of Fact, Conclusions of Law and Order, the examiner resolved the procedural issues presented as follows: (1) The motion for default was again denied by the examiner, relying on the provisions of WAC 391-08-003 (which permit an examiner to waive any rule in the absence of prejudice); and (2) The employer was barred from asserting any affirmative defenses and the union's continuing objection was sustained by the examiner, relying on the waiver contained in the letter of the employer's original attorney covering transmittal of its "general denial" answer.
On the substantive issues, the examiner ruled that: (1) The serving of food in the employer's cafeterias was bargaining unit work; (2) There was no reason a student could not be considered a public employee or included in a bargaining unit; (3) The use of students as wage earning servers, without bargaining to agreement or a good faith impasse, was a unilateral transfer of bargaining unit work to employees outside of the bargaining unit and, therefore, a refusal to bargain violative of RCW 41.56.140(4); (4) The practice had an intimidating and coercive effect on the bargaining unit, in that it influenced the food service workers to accept a wage freeze when they actually desired the same raise as the remainder of the bargaining unit personnel; and (5) The action interfered with the public employee's rights under Chapter 41.56 RCW.
In fashioning a remedy, the examiner declined to impose a retroactive wage increase of $.48 per hour (as was negotiated for the bargaining unit members other than the food service workers). However, she did order back pay in accordance with a formula set forth in her decision. She denied PSE's request for costs and attorneys fees, finding no pattern of intentional disregard by the employer of its bargaining obligations. She further ordered that the bargaining unit work should be restored and that the employer should cease and desist from such actions in the future.
DISCUSSION
For the reasons set forth herein, we affirm the examiner's conclusion that an unfair labor practice has been committed, and we specifically affirm the remedies ordered.
Default and Exclusion of Affirmative Defenses
Unfair labor practice proceedings before the Public Employment Relations Commission are formal administrative proceedings. They are conducted pursuant to duly adopted rules set forth in Chapter 391-45 WAC. Those rules include answer procedures which have been affirmed by the courts as a valid exercise of administrative authority. City of Benton City, No. 78-1322, WPERR CD-343 (Benton County Superior Court, 1979), affirming City of Benton City, Decision 436-A (PECB, 1978). The effects of a failure to answer are set forth in WAC 391-45-210. In addition to its presumed knowledge of the rules, the notice of hearing issued by the examiner in this case reiterated the text of WAC 391-45-210, as follows:
An answer filed by a respondent shall specifically admit, deny or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. The failure of a respondent to file an answer or the failure to specifically deny or explain in the answer a fact alleged in the complaint shall, except for good cause shown, be deemed to be an admission that the fact is true as alleged in the complaint, and as a waiver of the respondent of a hearing as to the facts so admitted.
The rule has been enforced. Thus, default judgments have been entered in response to a variety of excuses: Benton City, supra, [mayor "overlooked" notice of hearing and did not pass it along to counsel in time for answer]; City of Wenatchee, Decision 780 (PECB, 1980), [union which had signed contract waiving "scope of bargaining" issue underlying unfair labor practice charge decided to "concede" employer position on case out of concern for expense of litigating]; City of Vancouver, Decision 808 at note 2 (PECB, 1980), [city, without good cause, failed to file a timely answer]; Pasco School District, Deci-sion 1053 (EDUC, 1980) [employer failed, without good cause, to file timely answer and then, after tendering answer at outset of hearing, absented itself from the hearing] and Seattle Public Health Hospital (American Federation of Government Employees), Decision 1781 (PECB, 1983) [union claimed unfamiliarity with PERC procedures and press of other business].
PSE has claimed throughout these proceedings that it was entitled to an order of default. We agree with the examiner's denial of the motion for default. In the context of the explanation and general denial put forth by the respondent and the offered continuance, PSE was able to show no prejudice.
To preserve the record, the examiner allowed the employer to present its evidence of the case at hearing in spite of its general denial. PSE was able to show no prejudice, and expressly declined an offered continuance of the hearing in order to have sufficient time to rebut the employer's affirmative defenses.
Having exercised discretion to rule against the employer on the availability of its affirmative defenses, the examiner proceeded in her footnote 2 to consider those defenses. Taking the affirmative defenses into consideration, she indicated that she would still rule against the employer on the merits. We concur with the propriety of such an approach in this case, and embark on a similar process.[4] Accordingly, we too have considered all of the evidence presented by the employer at the hearing.
The Union's Unit Work Claim
The primary issue in this case is whether there was a unilateral transfer of bargaining unit work to persons outside the bargaining unit. Subsidiary questions, under the umbrella of this over-all issue, include the following: (1) Although no bargaining unit member lost "work", did the bargaining unit or its members lose the opportunity for additional work? and (2) Did the employer prove an established past practice of using students in the food service, sufficient to prove a waiver of bargaining rights by the union?
We have previously held that contracting out of work which has been done or which may be done by bargaining unit employees is a mandatory subject of bargaining. City of Kennewick, Decision 482-B (PECB, 1980), citing Westinghouse Electric Corp., 150 NLRB 1574 (1965) and Fibreboard Paper Products Corporation., 138 NLRB 550 (1962), affirmed 379 U.S. 203 (1964), and Town and Country Manufacturing Company, 136 NLRB 1022 (1962). See, also, City of Vancouver, Decision 808 (PECB, 1980).
It is also clear that a public employer owes a duty of notice to and good faith bargaining with the exclusive bargaining representative of a unit of public employees from which work will be removed for transfer to employees of the same employer who are outside of the bargaining unit ("skimming" of unit work). South Kitsap School District, Decision 472 (PECB, 1978); Lakewood School District, Decision 755-A (PECB, 1980); City of Mercer Island, Decision 1026-A (PECB, 1981).
The change in the type of service to the "Grand Marketplace" approach was certainly within the employer's management rights or prerogatives, because it involved a fundamental decision concerning the product or service to be offered in the food service program. Federal Way School District, Decision 232-A (EDUC, 1977). Even where a management decision is not a subject of bargaining, however, the effects of implementing that decision may give rise to a mandatory duty to bargain. Entiat School District, Decision 1361-A (PECB, 1982).
While the employer had made some use of students in the past, we do not find that there was an established past practice to the degree required to avoid a finding that there was a unilateral change in working conditions. The previous help by students was limited and was not compensated with cash wages. Such a "past practice", if it may truly be referred to as such, cannot be compared with the significant change in operations effected by the employer without bargaining but during the course of collective negotiations.
The facts in the record do appear to establish that no bargaining unit member actually lost hours of work or pay because of the change in the operation of the food service program. We find, however, that actual loss of work is not, and should not be, the yardstick by which "skimming" of bargaining unit work is to be measured. When an employer, for reasons of its own, expands or intensifies a program so as to need additional hours of work performed or additional workers to perform the work, the work will normally be performed by or accreted to the bargaining unit of employees already performing similar work and the exclusive bargaining representative of the employees doing that type of work will have a claim of work jurisdiction. The situation at hand is analogous to that in Howmet Corp., 197 NLRB 471, enf. 495 F.2d 1375 (7th Cir. 1974) where, after certification of a union, an employer which had historically subcontracted portions of its tool room work increased the volume of subcontracted work and reassigned other duties, resulting in several bargaining unit employees being laid off. The decision was made without notice or opportunity to bargain about the decision or its effects on the bargaining unit, and the NLRB held that the substantial alteration of the subcontracting "in quantity and kind" was a unilateral change in terms and conditions of employment. The failure to bargain was held to be a violation of Section 8(a)(5) of the National Labor Relations Act. With the change in basic operations, but without an opportunity for bargaining, the employer increased both the amount and type of work to be performed by student employees. The only distinction here is that no bargaining unit employee was laid off.
Waiver
An issue has been raised as to whether the union waived its bargaining rights by not demanding bargaining. The employer's acknowledged concerns about the historical losses in its food service program, and its evident zeal for implementing the Grand Marketplace schema, did not excuse it from its duty to give notice to the union and afford an opportunity for bargaining prior to the implementation of the use of paid student servers. Under these facts, we find that the union did not have to demand bargaining and did not waive its bargaining rights, because it was faced with a fait accompli. The unilateral implementation of use of paid student servers in the cafeteria lines, without bargaining, constituted a refusal to bargain on a mandatory topic.
The Interference Violation
There was sufficient evidence for the examiner to find that the refusal to bargain and unilateral change in conditions had an intimidating and coercive effect on bargaining unit members.
Therefore, the derivative interference violation found by the examiner is also sustained.
Remedy
The members of the bargaining unit are entitled to a remedy, even though no member specifically lost hours of work. As in Grandview School District, Decision 1893 (PECB, 1984), we find that the relatively minor financial impact of these changes pales in importance when compared to the underlying effect on the bargaining unit.
We agree, however, with the limited remedies ordered by the examiner. We cannot find that the food service members of the bargaining unit would necessarily have been successful in negotiating a $0.48 per hour raise. We therefore decline to order retroactive back pay for that difference, as requested by the union.
We do not find the employer's defenses to be frivolous, but rather fairly debatable. The employer's economic necessity defense and its reliance upon past practices, while not sustained here, can hardly be deemed "meritless". See, Christiansburg Garment Company v. Equal Employment Opportunity Commission, 434 U.S. 412 (1978). There was not a sufficient showing of bad faith or intentional disregard of the bargaining obligation to warrant an extraordinary remedy under Lewis County, 31 Wn.App 853 (Division II, 1982). As stated in State v. Board of Trustees, 93 Wn.2d 60, 67 (1980), the parallel remedial provision in the National Labor Relations Act authorizes awards of attorneys fees to effectuate the policy of the Act. We follow the Board's decision in Heck's, Inc., 215 NLRB 765 (1974). Therefore, we uphold the examiner's denial of attorneys fees and costs.
The findings of fact and conclusions of law issued by the examiner adequately describe the situation and the violations found, without making specific reference to the exclusion of evidence by the examiner. Based upon the foregoing discussion of the issues, we affirm the findings of fact, conclusions of law and order issued by the examiner.
ISSUED at Olympia, Washington, this _____ day of __________, 1986.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
JANE R. WILKINSON, Chairman
MARK C. ENDRESEN, Commissioner
JOSEPH F. QUINN, Commissioner
[1] There is no reference to students receiving school credit for such work.
[2] The preliminary ruling letter was directed to PSE and to the superintendent of the Battle Ground School District. The complaint had listed "unknown" in the space provided on the form for information concerning a consultant or attorney to the employer/respondent. The notice of case filing issued by the Commission on the day the case was filed listed only the superintendent as representing the employer. That same notice indicated that correspondence, notices and orders would be served only on the persons on file with the Commission, but invited the parties to supply additions or corrections.
[3] The Commission's rules provide, at WAC 391-45-030, for initial service of an unfair labor practice complaint (by the party filing the complaint) "on each party named as a respondent". The employer does not claim a lack of initial service on it. WAC 391-08-120 calls for service of papers "upon all counsel and representatives of record". The Commission does not purport to maintain an ongoing list of attorney/ client relationships involving employers or unions subject to its jurisdiction, nor does it presume to list attorneys as "of record" on cases in the absence of information forthcoming from the parties. Such information is solicited in the notice of case filing produced by the Commission's computerized case docketing system. So far as it appears from the docket records of the Commission, the letter filed on May 13, 1985 was the first notice of appearance by Mr. Bischof as counsel of record on this case.
[4] The exercise of discretion is to be underscored. WAC 391-45-230 permits amendment of an answer in the discretion of the examiner or commission. When justice requires, and particularly in the absence of any showing of prejudice, a party may be permitted to proceed with those defenses it has developed prior to the day of the hearing. Fairness and the prevention of surprise can be maintained in many cases, as here, by the offering of a continuance to the other party. Such a policy serves the preference for disposition of cases on their merits, as opposed to decisions based upon the technicalities of rules, but does not guarantee every tardy party a continuance where the commission and other party have met their obligations and have incurred the expenses of preparation and attendance. By analogy, Superior Court Civil Rules 15(a) and (b) allow amendments of pleadings to conform to the evidence where issues not raised by the original pleadings are tried by express or implied consent of the parties. The affirmative defenses asserted at hearing in this case were not raised by the answer nor tried with PSE's consent.