Ben Franklin Transit, Decision 13190 (PECB, 2020)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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Teamsters Local 839, Complainant, vs. ben franklin transit, Respondent. |
CASE 131321-U-19 DECISION 13190 - PECB Findings of Fact, |
Jack Holland, Attorney at Law, Reid, McCarthy, Ballew & Leahy, L.L.P., for Teamsters Local 839.
Shannon E. Phillips, Attorney at Law, Summit Law Group PLLC, for Ben Franklin Transit.
On February 22, 2019, Teamsters Local 839 (union), representing a unit of employees generally classified as coach operators employed by Ben Franklin Transit (employer), filed a complaint with the Public Employment Relations Commission (Commission). A preliminary ruling was issued on March 5, 2019, finding a cause of action. A hearing was held on January 23, 2020, in Richland, Washington, before the undersigned examiner. The parties filed briefs on March 13, 2020, to complete the record.
Issues
The issue as framed by the preliminary ruling involves:
Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the practice of allowing union stewards access to the dispatch office without providing notice and an opportunity for bargaining.
Background
The employer provides regional bus service throughout Benton and Franklin counties in Washington State. Those services include what are referred to as fixed-route operations (where buses travel through preestablished routes and during preset intervals of time) as well as Dial‑a‑Ride service (where community members can request bus service at a designated location and time). The union represents three different bargaining units at the employer including coach operators in fixed route, Dial-a-Ride drivers and schedulers, and a group of maintenance employees. The fixed-route coach operator bargaining unit, which is at issue in this complaint, contains three separate job classifications: Coach Operators, Coach Operator/Dispatchers, and Coach Operator/Trainers.
The union has been the exclusive bargaining representative of the coach operator bargaining unit since 2010. Ben Franklin Transit, Decision 10816 (PECB, 2010). The most recent collective bargaining agreement between the parties was for a period from June 1, 2016, through May 31, 2019. Under the Management Rights article of that agreement, the employer has “[t]he right to establish and institute any and all work rules and procedures upon reasonable notice to bargaining unit members.” In the Grievance Procedure article, the parties “established a relationship based on a willingness to resolve issues in a manner that promotes the opportunity for teamwork, collaborative problem solving and new agreements.” To that end, the agreement encourages employees to first contact a union steward/business agent to raise issues of concern and promote “understanding and resolution in collaboration with the employee, union and employer.”
Dispatchers
Pertinent to this proceeding is a group of non-represented employees classified as Dispatcher working with fixed-route operations. The fixed-route dispatchers perform a number of essential functions for the employer and serve as a central hub for many of the fixed-route coach operations. Included within those duties are responsibilities to assign operators to different routes on a daily basis and to serve as a communication link between those operators and the employer. The dispatchers use radios to communicate with drivers and, since approximately 2017, have utilized an Intelligent Transportation System (ITS) that allows for an array of electronic communications between drivers and dispatchers, including a messaging and location system.
The dispatchers are also responsible for managing a series of detailed processes associated with assigning coach operators to routes, much of which is controlled by the parties’ collective bargaining agreement. Those processes include (1) making regular assignments for the various fixed routes, (2) assigning overtime, (3) processing sick calls, (4) managing time off requests, (5) processing payroll records, and (6) assisting with operators’ needs out in the field. To manage these processes, the dispatchers are required to maintain a detailed understanding of the current labor agreement between the parties as well as associated agency policies.
Over the past several years, the number of full-time dispatchers in fixed-route operations has ranged from about three to the current number of five dispatchers. To help with coverage needs in dispatch, the employer has also historically maintained a job classification of Coach Operator/Dispatcher, which is a represented position. Employees in this classification will generally be assigned to drive a fixed route but can be utilized in dispatch to assist with coverage needs. Coach operator/dispatchers can work in dispatch for varying periods of time, including up to several consecutive months at a time.
In conjunction with the above-described duties, the fixed-route dispatchers are responsible for maintaining an array of official employer records. Some of this information is now maintained electronically on the employer’s computer network, but much of this information is still physically located in a series of notebooks and filing cabinets housed within the dispatch office. Included within these records is what is referred to as an overtime box, where all operators have cards identifying regular days off and seniority, which is used to make overtime assignments. The dispatch office also physically stores (1) the daily sign-in sheets, where operators sign in and out for daily shifts; (2) the sick-call book, where records of sick leave requests are maintained; (3) the day book and pending book, which allow drivers to sign up for additional time off; and (4) the vacation book, where operator vacation periods are maintained. The dispatch office also houses records referred to as the “A board,” “B board,” and “C board,” which document the various biddable or open runs that operators can request for different periods of time.
The dispatch office is comprised of three interconnected rooms in the corner of the employer’s main operations building. The largest of the three rooms contains a series of workstations for the dispatchers and is where many of the abovementioned notebooks are maintained. There is a walk‑up window and shelf where operators and other employees can access such items as the daily sign-in sheets. Next to the walk-up window is a doorway with a half-door, the top of which can open and allow those inside the dispatch office to communicate face-to-face with someone on the other side of the doorway. A second room in the dispatch office also has a similar half-door and serves as an additional work space for dispatchers. The third room is utilized mainly to store various records.
Dispatch Office Access
There is a clear historical record demonstrating that coach operators, and in particular shop stewards, were permitted to access the interior of the dispatch office for many years. Operators and stewards, however, generally did not have free reign to access the dispatch office; rather, the practice was to request access from one of the dispatchers, who would then open one of the doors and invite the individual into the office. The record demonstrated that such requests from stewards or operators were routine and regularly granted.
When inside the dispatch office, neither operators nor shop stewards had free reign to, for instance, review any materials at will or without dispatcher involvement. The typical practice was for an operator or steward to request, through a dispatcher, to review a particular file, document, or notebook. The available dispatcher would respond to the request in one of three ways: (1) retrieve the relevant document and review it with the operator or shop steward; (2) ask the individual to come back at a later time if the dispatchers were busy and then provide the information at a later time or; (3) for certain materials deemed sensitive, indicate that the dispatchers would have to check with a supervisor before releasing such information and, subsequently, follow up after receiving direction.
In order to verify that the processes associated with assigning operators to routes or granting time off are properly administered, the union demonstrated an important need for shop stewards to regularly access much of the information maintained about operators that is located in the dispatch office. The dispatchers are responsible for administering a series of complex processes, on a daily basis, related to operator assignments, leave requests, absences, and overtime opportunities, much of which is dictated by the parties’ collective bargaining agreement. On balance, the dispatchers perform these tasks exceptionally well. However, mistakes in administering the procedures in the collective bargaining agreement do occur, which is where the shop stewards have historically played an important role in ensuring proper administration of that agreement.
For instance, Lisa Stewart and Jeff Lahti, two current shop stewards, testified to the fact that they regularly review records to ensure the seniority system is properly followed for route or overtime assignments and that driver hours and pay are entered correctly. Based on this follow up and review by shop stewards, mistakes have been identified and remedied either informally or through the grievance process. Stewart also testified to her belief that there is a benefit to reviewing this information inside the dispatch office to avoid interruption or being overheard by other parties in the hallway when discussing potentially sensitive employee information.
Dispatch Office Restrictions
During the past decade the employer has made several efforts to limit access to the dispatch office and keep operators from congregating inside. In 2014, Barb Hayes, the director of operations at the time, sent an email to the dispatchers requesting that operators generally be kept outside the office and for records to be reviewed at the half-door. Later, in 2016, Katherine Ostrom, a manager, sent a memo to all operations staff noting that the split door in the dispatch office was to remain closed at all times and that operators should not be in the dispatch office except in limited circumstances. The uncontroverted testimony produced at hearing, however, indicated that shortly after these directives were issued a certain degree of “drift” was allowed such that operators would again tend to enter, and congregate in, the dispatch office and not be asked to leave.
On July 27, 2018, Ken Hamm, the current director of operations, issued a new memo to the coach operators regarding access to the dispatch office. The memo indicated that the doors into the dispatch office would be locked at all times effective August 1, 2018, and that any business between operators and dispatchers should occur at the window or half-door. Hamm stated that the reason for the memo was because he had three new dispatchers at this time and noticed that there were a number of ongoing errors being made. In seeking to understand the errors, Hamm learned that the dispatchers felt all the people coming and going through the dispatch office was interrupting their ability to concentrate. Hamm testified that, at other transit agencies where he previously worked, dispatch offices were generally closed off to just dispatchers and managerial staff.
Testimony from various dispatchers demonstrated that throughout the course of each workday there are extended blocks of time that require the full attention of dispatchers with as little disruption as possible. At the beginning of each day, dispatchers are often acutely focused on making sure all the buses are on route and addressing sick calls from various operators. Later in the day, typically from approximately 11:00 a.m. until 1:00 or 2:00 p.m., there is an intensive scheduling process for the next day’s work assignments. As stated by one of the current supervisors (and former dispatcher), Jorge Velasco, this time period requires “our 100 percent” of attention.
The July 27, 2018, memo from Hamm was addressed to all coach operators and did not specifically identify or discuss shop stewards or other union officials in relation to their ability to access the dispatch office. Hamm testified that prior to issuing this memo he did not notify or consult with anyone from the union. He also testified that immediately after the memo was sent he did not receive any objection or request to bargain from the union. An objection and a demand to bargain was subsequently made by the union in January 2019.
The union’s two shop stewards, who are also coach operators, testified that after Hamm’s memo of July 27, 2018, they continued to be able to access the dispatch office for several more months to conduct union business as had been the case for several years prior. This changed following an incident on January 24, 2019. On this date, Stewart was inside the dispatch office to investigate a potential issue regarding pay for one of the operators. While inside, she met with Andrea Benson, an on-duty dispatcher. While waiting on Benson to pull a particular file, Hamm arrived at the dispatch office and told Stewart to leave the office. Stewart objected, noting that she was there on union business, but Hamm indicated she was still required to leave the office. Stewart complied with the directive and left.
Both Stewart and Lahti testified that since the incident between Stewart and Hamm on January 24, 2019, they are no longer able to access the interior of the dispatch office. On January 25, 2019, Lahti attempted to enter the dispatch office and was informed by dispatcher Jewels Wicks that operators, including shop stewards, are not allowed to access the dispatch office. Lahti was not permitted to access the dispatch office on January 25, which has remained the case through the time of the hearing.
Since being denied access to the dispatch office in January 2019, both Stewart and Lahti testified that their ability to obtain information about possible grievances has also been hampered by a separate directive that all such requests now have to be emailed to management for review. According to Stewart and Lahti, the alleged directive to contact management with any information request has slowed or inhibited their ability to verify events and process potential grievances because management is slow to respond, does not respond at all, or does not provide all the requested information. They testified that this alleged restriction has inhibited their ability to address potential contract violations or to at least do so in a timely fashion.
Notwithstanding this testimony, the evidence on the whole does not support a finding that the employer altered the policies for requesting or receiving information out of dispatch other than to physically restrict access to the office. Stewart testified that several dispatchers told her that she would need to direct her requests to management, but Stewart offered no specific details around when an alleged directive was issued or who issued it. Lahti specified that he believes he received such a directive during a grievance meeting with Hamm, but he was unable to detail any specifics around when this meeting occurred or the nature of the grievance. Hamm testified that he never gave any such directive. On cross-examination, Stewart and Lahti admitted that since the January 2019 incident there were times when they asked, and received, information directly from the dispatchers, which appears to contravene this alleged directive. A current dispatcher testified that information is still provided directly to the shop stewards when requested unless it is a sensitive matter for which they need management approval, which is consistent with the historical practice. No other documents were admitted into the record (such as an email or memo) with any written directive from Hamm or other members of the management team, specifying that all requests for information have to be routed through a manager or Hamm.
Analysis
Applicable Legal Standards
Duty to Bargain
A public employer has a duty to bargain with the exclusive bargaining representative of its employees over mandatory subjects of bargaining. RCW 41.56.030(4). Whether a particular subject of bargaining is mandatory is a mixed question of law and fact for the Commission to decide. WAC 391-45-550. To decide, the Commission balances “the relationship the subject bears to [the] ‘wages, hours and working conditions’” of employees and “the extent to which the subject lies ‘at the core of entrepreneurial control’ or is a managerial prerogative.” International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission (City of Richland), 113 Wn.2d 197, 203 (1989).
While the balancing test calls upon the Commission and its examiners to balance these two principal considerations, the actual application of this test is more nuanced and is not strictly black and white. Subjects of bargaining fall along a continuum. At one end of the spectrum are grievance procedures and “personnel matters, including wages, hours and working conditions,” also known as mandatory subjects of bargaining. RCW 41.56.030(4). At the other end of the spectrum are matters “at the core of entrepreneurial control” or management prerogatives, which are permissive subjects of bargaining. City of Richland, 113 Wn.2d at 203. In between are other matters that must be weighted on the specific facts of each case. One case may result in finding that a subject is a mandatory subject of bargaining, while the same subject under different facts may be considered permissive. The decision focuses on which characteristic predominates. Id.
Unilateral Change
The parties’ collective bargaining obligations require that the status quo be maintained regarding all mandatory subjects of bargaining, except when any changes to mandatory subjects of bargaining are made in conformity with the statutory collective bargaining obligation or terms of a collective bargaining agreement. City of Yakima, Decision 3503-A (PECB, 1990), aff’d, City of Yakima v. International Association of Fire Fighters, Local 469, 117 Wn.2d 655 (1991); Spokane County Fire District 9, Decision 3661-A (PECB, 1991). As a general rule, an employer has an obligation to refrain from unilaterally changing terms and conditions of employment unless it gives notice to the union; provide an opportunity to bargain before making a final decision; bargain in good faith, upon request; and bargain to agreement or to a good faith impasse concerning any mandatory subject of bargaining. Port of Anacortes, Decision 12160-A (PORT, 2015); Griffin School District, Decision 10489-A (PECB, 2010) (citing Skagit County, Decision 8746-A (PECB, 2006)). For a unilateral change to be unlawful, the change must have a material and substantial impact on the terms and conditions of employment. Kitsap County, Decision 8893-A (PECB, 2007) (citing King County, Decision 4893‑A (PECB, 1995)). Where an unfair labor practice is alleged, the complainant has the burden of proof. WAC 391‑45‑270.
In Snohomish County, Decision 9291-A (PECB, 2007), the employer, a correctional facility, moved an employee break room after opening a new facility, which was determined to constitute a managerial prerogative. Historically, the corrections officers gained access to the break room by entering one secure door and riding down an elevator. Later, the employer opened a new facility that housed the new break room. When the employer moved the break room, it required corrections officers to enter through the new security doors, which increased the travel time significantly. The examiner stated that “break rooms are an important resource which promotes employee safety, rejuvenation, and health. Thus, in general, access to a break room and those things which affect that access are mandatory subjects of bargaining.” When the examiner balanced impacts from the employer’s changes to working conditions against the managerial prerogative of security, he found that the managerial prerogative outweighed any impact the new security features had on bargaining unit employee’s working conditions. He specifically pointed to the fact that the employer had a duty to contain and control inmates, and the security features affecting the correction officers’ use of the break room would assist the employer in carrying out that duty. The impact on the corrections officers was only slight because the time to reach the break room was improving significantly, and there were multiple options for spaces where employees could take breaks. Therefore, the examiner found with that particular set of facts, the managerial prerogative outweighed the impact to employees’ working conditions.
In City of Everett (International Association of Fire Fighters, Local 46), Decision 12671-A (PECB, 2017), aff’d, City of Everett v. Public Employment Relations Commission, 11 Wn. App. 2d 1 (2019), the Commission determined that the balancing analysis may factor in the interests of the public alongside both the employer’s and the union’s interests in the topic at hand. The case involved a question over whether the union’s proposal during bargaining to increase the minimum staffing levels constituted a permissive subject of bargaining. At hearing, the union introduced a wide array of evidence documenting how low staffing levels were impacting the health, safety, and workloads of the firefighters in the bargaining unit. The employer argued that staffing levels have historically been deemed a managerial prerogative. In balancing these interests, the Commission discussed the fact that the “balancing test must necessarily consider the employer’s interest in determining the size of its workforce, the union’s interests in workload and safety, and the public’s interest in receiving effective services.” Id. The public’s interest in safety weighed heavily in the Commission’s analysis leading to a conclusion that the union’s proposal on minimum staffing was, in fact, a mandatory subject of bargaining.
Application of Standards
For the following reasons, I find that the complaint must be dismissed. Application of the City of Richland balancing test necessitates a determination that, on balance, the issue of physical access to the dispatch office constitutes a managerial prerogative and is permissive in nature. The union has demonstrated an important interest related to employee wages, hours, and working conditions tied to its ability to access materials in the dispatch office for purposes of enforcing the collective bargaining agreement. Any interest in physically accessing the dispatch office itself, however, is far more tenuous in terms of the connection to employee personnel matters. Coupled with the employer’s managerial rights to run its operations, minimize disruptions for its workforce, and control access to its facilities, these factors outweigh the competing employee interests. In classifying access to the dispatch office as a permissive subject of bargaining, the employer was not obligated to discharge its statutory bargaining obligations with the union before altering its access policy to the dispatch office. Consequently, by definition, there can be no unilateral change in violation of RCW 41.56.140(4).
Union Interests to Access Dispatch Office
The union has a number of important interests in this matter that bear on employee wages, hours, and working conditions, but it is important to distinguish the interests on this subject between the ability to access the information contained within the dispatch office and physical access to the office itself. With respect to the former, the dispatch office operates as the central hub of the employer and physically maintains an array of official employee records. Those records are critically important for purposes of verifying compliance with various facets of the collective bargaining agreement between the parties, including provisions on seniority, hours of work, vacation leave, and sick leave for the coach operators. Testimony from various dispatchers who have worked in the office documented the fact that mistakes in administering the contract with respect to operator assignments and leave requests can happen, as there is some complexity within each of those systems and they must be reapplied on a daily basis. The union’s shop stewards represent an important link between those operators who believe an error may have occurred and the ability to verify what, in fact, happened—in order to potentially remedy a past situation or correct a broader issue moving forward. That relationship is memorialized in the parties’ collective bargaining agreement, which encourages collaboration between employees, the union, and the employer, with shop stewards representing an important bridge.
Proper application of the procedures in the collective bargaining agreement and the ability to verify such procedures were done bears directly on employee wages, hours, and working conditions. For example, if a seniority list is not properly followed, an eligible operator could accidentally be skipped over for an overtime assignment or denied the ability to pick up a certain route. Incorrectly bypassing an employee for an overtime assignment would have a direct and negative impact on employee compensation. Similarly, an error in assigning routes to various operators could directly impact an employee’s hours of work and working conditions. The record in this case makes clear that the most direct and effective way to verify events in the above examples is to review the various records maintained by the dispatchers in the dispatch office. The ability to access these materials, therefore, clearly has a close relationship to employee wages, hours, and working conditions.
Nevertheless, the need to physically access the dispatch office itself is a different issue and one in which the relationship to employee wages, hours, and working conditions is far more tenuous. Historically, shop stewards have enjoyed the privilege of physically being able to enter the dispatch office, request a certain record from one of the available dispatchers, and then review that record (in the presence of the dispatcher). Even within the historical practice of physical entry into the dispatch office, however, the record clearly established that stewards would make requests of the dispatchers to review particular records. On the whole, those dispatchers would subsequently retrieve the relevant records and review those contemporaneously with the steward. Thus, on a historical basis, the dispatchers have consistently maintained control of the records and any review of such documents typically occurred through one of the dispatchers.
The evidence submitted at hearing demonstrated that even after Hamm’s July 2018 memo, which limited access to the office itself, the shop stewards still have the ability to review the records maintained therein. Testimony from the stewards and one of the current dispatchers confirmed that dispatchers are still providing information directly to the stewards. The main difference was that now a review of any documentation has to take place at the service window or at one of the half‑doors between the dispatch office and outside hallway. There was some testimony that there was an advantage to being inside the dispatch office when reviewing this information to help protect employee privacy or confidentiality. Nevertheless, the evidence does not clearly establish that there is a material detriment by requiring such review (and potential discussion) to occur at one of the half-doors. And a second half-door further from the main service window could provide some added privacy. No additional evidence was submitted into the record demonstrating how the ability to review any employee records inside the dispatch office itself materially implicates an impact on wage, hour, or working conditions.
Employer Interests to Limit Access to Dispatch Office
The employer has articulated a number of important managerial prerogatives touching on the issue of physical access to the dispatch office. Chief among those is its overall ability to manage its operations and establish necessary work rules to carry out its mission. As a general matter, decisions around access to the employer’s property, including within certain facilities or rooms, is a right reserved to the employer. This fact is memorialized in the parties’ collective bargaining agreement under the Management Rights article. To the extent such access bears directly on wages, hours, or working conditions, the provisions of chapter 41.56 RCW may modify this historical managerial prerogative. But, as a default position, access to employer property is a right historically reserved to management.
In this particular situation, there are important reasons to minimize the number of personnel who can access the dispatch office itself. The evidence produced at hearing was nearly universal in establishing the fact that the dispatchers are responsible for managing a large number of complex systems for the employer. It goes without saying that when the complexity and scope of work increases, a higher level of concentration among those performing such work is necessary. Common knowledge suggests that as distractions increase, from whatever source, there is a negative correlation with concentration levels. The number of distractions that dispatchers will be subjected to will invariably decrease if the number of people who can physically enter the office is meaningfully reduced.
Such an effect is not merely speculative, as Hamm cited the volume of distractions as one of the main reasons for issuing the July 2018 memo. Prior to this memo, he and some managers noticed an increase in the number of mistakes being made by the dispatchers, which had financial and operational repercussions for the employer. Upon investigation, Hamm represented that he was informed by some dispatchers that part of the problem was all the distractions they endured with operators regularly coming in and out of the office. Combined with the fact that, at the time, there were several relatively new dispatchers who were less familiar with the employer’s systems, the need to minimize those disruptions became even more compelling. Additionally, these concerns do not appear to be a new phenomenon or unique to current circumstances; on at least two prior occasions, previous directors or managers issued similar directives. From the employer’s vantage point, this has been an ongoing concern for a considerable period of time.
Balancing of Interests
With these competing interests in mind, it is important to note that the analysis herein is limited by scope of the preliminary ruling, pursuant to WAC 391-45-110, which frames the issue in this case. As specified in that ruling, the legal question in this case is limited to a determination as to whether access to the dispatch office is, in and of itself, a mandatory subject of bargaining for which the employer could not implement a unilateral change. During the hearing and in its post‑hearing brief, the union advanced arguments around a broader question concerning the overall procedures by which union officials can request, access, and review operational and pay information for the operators. The union, however, never clarified the preliminary ruling, pursuant to WAC 391-45-110(2)(b), nor did it make a motion to conform the pleadings to the evidence at the hearing, pursuant to WAC 391-45-070(2)(c). As such, any broader question regarding whether the overall process by which the union can request and receive information housed in the dispatch office is not an issue in front of the undersigned examiner.
On balance, the scales tip in favor of classifying access to the employer’s dispatch office as a permissive subject of bargaining. There are, undoubtedly, interests on both sides of this equation that necessitate a determination of which interests predominate. Within the more narrow question of the ability of union officials to access the dispatch office itself, the managerial prerogatives around determining who can access its facilities and the need to conduct its operations as efficiently and cost-effectively as possible outweigh the added level of convenience the union historically enjoyed by being able to gain physical access to the dispatch office. The employer identified a problem in running vital services related to its operations. It further determined that the problem related to allowing free access to the dispatch office. Historically, managerial prerogatives have included the ability to establish work rules and determine methods to run its operations, and these rights are captured in the parties’ collective bargaining agreement.
For all intents and purposes, what changed in this situation is where the dispatchers and union stewards physically stand when reviewing records. Prior to Hamm’s July 2018 memo, record reviews would take place inside the dispatch office itself. Admittedly, there was some minimal advantage in permitting such document review (and corresponding discussion) to occur inside the office and not in the general hallway where employee foot traffic is likely greater. Nevertheless, and even under the new guideline, any document review and corresponding discussion can still take place on a face-to-face basis, with the only difference being that the dispatcher and steward are now standing at either the walk-up window or at one of the two-half doors at the entryway to the dispatch office. The physical situs where these reviews take place has, at best, a tangential connection to employee wages, hours, and working conditions. Any minimal connection is, in turn, outweighed by the important managerial interests in this topic, as articulated above.
Finding that the balance analysis weighs in favor of the managerial prerogative is further influenced by the public’s interest in the efficient operation of public transit services in this region. It is a matter of public record that in regions that develop a public transit system, members of the public come to rely on the efficient delivery of such services for, among other things, the ability to travel to and from jobs, travel to healthcare appointments, and pick up or drop off children at daycare providers or schools. Based on City of Everett, the public’s interest in this matter must be weighed. As discussed throughout this decision, the dispatch office operates as the central hub of the employer. The efficiency and efficacy by which dispatchers do their jobs can impact the daily delivery of transit services throughout Benton and Franklin counties and, in turn, the public’s ability to tend to important daily activities. The unrefuted testimony demonstrated that the more people that come and go from inside the dispatch office, the more distractions that are present. A greater number of distractions can result in more mistakes and, subsequently, a negative impact on transit services and the public at large.
This decision is limited to the question of access to the dispatch office and does not offer any legal conclusions on the broader topic of the procedures and methods by which the union can gain access to the information that is maintained by the dispatchers and housed within the dispatch office itself. As noted above, the legal question in this case, as framed by the preliminary ruling, is centered on whether access to the dispatch office by union officials constitutes a mandatory subject of bargaining that the employer must bargain over before changing. With respect to that question, the complaint must be dismissed as there cannot be a unilateral change with respect to a permissive subject of bargaining.
Conclusion
The union has not carried its burden of proof that the employer refused to bargain by unilaterally changing the ability of union officials to access the dispatch office. Under the City of Richland balancing test, the issue of access to the dispatch office by employees and union officials is a managerial prerogative and constitutes a permissive subject of bargaining. As a permissive subject, the employer is not obligated to discharge its ordinary statutory bargaining obligations with respect to changes in personnel matters, including wages, hours, and working conditions. Therefore, there was no unilateral change violation, necessitating dismissal of the complaint.
In its answer and post-hearing brief, the employer advanced a number of affirmative defenses that are not addressed in this decision. Based on a determination that the subject of bargaining at issue in this case was permissive, the employer’s affirmative defenses are moot and not addressed herein.
Findings of Fact
1. Ben Franklin Transit is a public employer as defined by RCW 41.56.030(12).
2. Teamsters Local 839 is a bargaining representative within the meaning of RCW 41.56.030(2) and represents a bargaining unit of Coach Operators, Coach Operators/Dispatchers, and Coach Operator/Trainers.
3. The parties’ most recent collective bargaining agreement was for a period from June 1, 2016, through May 31, 2019.
4. Ben Franklin Transit provides regional bus service throughout Benton and Franklin counties in Washington State. Those services include what are referred to as fixed-route operations (where buses travel through preestablished routes and during preset intervals of time) as well as Dial‑a‑Ride service (where community members can request bus service at a designated location and time).
5. Inside the employer’s main operations building is the dispatch office for fixed-route operations, which is comprised of three interconnected rooms. The dispatch office is the primary workplace for a group of non-represented employees classified as Dispatcher. Historically, between approximately three and five dispatchers have been assigned to work in the dispatch office as their primary work location. The largest of the three rooms making up the dispatch office contains a series of workstations for the dispatchers as well as storage and filing cabinets for various employment records. There is a walk-up window and shelf that operators and other employees can access and utilize to speak with a dispatcher. Next to the walk-up window is a doorway with a half-door, the top of which can open and allow those inside the dispatch office to communicate face-to-face with someone on the other side of the doorway. A second room in the dispatch office also has a similar half-door and serves as an additional work space for dispatchers. The third room is utilized mainly to store various records.
6. The fixed-route dispatchers perform a number of essential functions for the employer and serve as a central hub for many of the fixed-route operations. Included within those duties are responsibilities to assign operators to different routes on a daily basis and to serve as a communication link between those operators and the employer. The dispatchers use radios to communicate with drivers and, since approximately 2017, have utilized a system called ITS, which allows for an array of electronic communications between drivers and dispatchers, including a messaging and location system.
7. The dispatchers are also responsible for managing a series of detailed processes associated with assigning coach operators to routes, much of which is controlled by the parties’ collective bargaining agreement. Those processes include (1) making regular assignments for the various fixed routes, (2) assigning overtime, (3) processing sick calls, (4) managing time off requests, (5) processing payroll records, and (6) assisting with operators’ needs out in the field. To manage these processes, the dispatchers are required to maintain a detailed understanding of the current labor agreement between the parties as well as associated agency policies.
8. In addition to executing these work processes for coach operators, dispatchers are also responsible for maintaining an array of official employer records. Some of this information is now maintained electronically on the employer’s computer network, but much of this information is still physically located in a series of notebooks and filing cabinets housed within the dispatch office. Included within these records is what is referred to as an overtime box, where all operators have cards identifying regular days off and seniority, which is used to make overtime assignments. The dispatch office also physically stores (1) the daily sign-in sheets, where operators sign in and out for daily shifts; (2) the sick‑call book, where records of sick leave requests are maintained; (3) the day book and pending book, which allow drivers to sign up for additional time off; and (4) the vacation book, where operator vacation periods are maintained. The dispatch office also houses records referred to as the “A board,” “B board,” and “C board,” which document the various biddable or open runs that operators can request for different periods of time.
9. Historically, access to the fixed-route dispatch office was not limited to just dispatchers and management; coach operators and shop stewards also were permitted to access the interior of the dispatch office. Operators and stewards, however, generally did not have an unlimited opportunity to access the dispatch office. Rather, the practice was to request access from a dispatcher, who would then open a door and invite the individual into the office. Such requests were routine and regularly granted.
10. When inside the dispatch office, neither operators nor shop stewards had free reign to, for instance, review any materials at will or without dispatcher involvement. The typical practice was for the operator or steward to request, through a dispatcher, to review a particular file, document, or notebook. The available dispatcher would respond to the request in one of three ways: (1) retrieve the relevant document and review it with the operator or shop steward; (2) ask the individual to come back at a later time if the dispatchers were busy and then provide the information at a later time or; (3) for certain materials deemed sensitive, indicate that the dispatchers would have to check with a supervisor before releasing such information.
11. In order to verify that the processes associated with assigning operators to routes or granting time off are properly administered, the union demonstrated an important need for shop stewards to regularly access much of the information maintained about operators that is located in the dispatch office. The dispatchers are responsible for daily administering a series of complex processes related to operator assignments, leave requests, absences, and overtime opportunities, much of which is dictated by the parties’ collective bargaining agreement. Due to the scope, complexity, and repetitive nature of these tasks, mistakes can occur at times, and the shop stewards have historically played an important role in ensuring proper administration of that agreement. Evidence derived from the testimony of the union’s two current shop stewards, Lisa Stewart and Jeff Lahti, demonstrated that they regularly review records to ensure the seniority system is properly followed for route or overtime assignments and that driver hours and pay are entered correctly. Based on this follow up and review by shop stewards, mistakes have been identified and remedied either informally or through the grievance process. The evidence also established a minimal benefit to reviewing this information inside the dispatch office to avoid interruption or being overheard by other parties in the hallway when discussing potentially sensitive employee information.
12. During the past decade the employer has made several efforts to limit access to the dispatch office and keep operators from entering or congregating inside. In 2014, Barb Hayes, the director of operations at the time, sent an email to the dispatchers requesting that operators generally be kept outside the office and for records to be reviewed at the half-door. Later, in 2016, Katherine Ostrom, a manager, sent a memo to all operations staff noting that the split door in the dispatch office was to remain closed at all times and that operators should not be in the dispatch office except in limited circumstances. Shortly after each of these directives was issued, however, enforcement of the directives was not closely adhered to and operators would again tend to enter, and congregate in, the dispatch office and not be asked to leave.
13. On July 27, 2018, Ken Hamm, the current director of operations, issued a new memo to the coach operators regarding access to the dispatch office. The memo indicated that the doors into the dispatch office would be locked at all times effective August 1, 2018, and that any business between operators and dispatchers should occur at the window or half‑door. The July 27, 2018, memo from Hamm was addressed to all coach operators and did not specifically identify or discuss shop stewards or other union officials in relation to their ability to access the dispatch office.
14. The evidence established that prior to issuing this memo, Hamm did not notify or consult with anyone from the union. It was not until sometime in January 2019, approximately six months after Hamm initially issued the memo, that an objection was raised by the union and a formal demand to bargain was made to the employer.
15. The record demonstrates that the employer’s reason for the July 27 memo was because three new dispatchers began work around this time, and Hamm noticed that there were a number of ongoing errors being made. In seeking to understand the errors, Hamm learned that the dispatchers felt all the people coming and going through the dispatch office was interrupting their ability to concentrate. Hamm testified that, at other transit agencies where he previously worked, dispatch offices were generally closed off to dispatchers and managerial staff.
16. Testimony from witnesses who currently work in the dispatch office or have previously worked there established that there are extended blocks of time within each workday that require the full attention of dispatchers with as little disruption as possible. At the beginning of each day, dispatchers must focus on ensuring that all the buses are on route and addressing sick calls from various operators. Later in the day, typically from approximately 11:00 a.m. until 1:00 or 2:00 p.m., there is an intensive scheduling process for the next day’s work assignments, which requires close attention to detail for extended periods of time.
17. Following Hamm’s memo of July 27, 2018, shop stewards continued to access the dispatch office consistent with the historical practice. This changed following an incident on January 24, 2019. On this date, Stewart was inside the dispatch office to investigate a potential issue regarding pay for one of the operators. While inside, she met with Andrea Benson, an on-duty dispatcher. While waiting on Benson to pull a particular file, Hamm arrived at the dispatch office and told Stewart to leave the office. Stewart objected, noting that she was there on union business, but Hamm indicated she was still required to leave the office. Stewart complied with the directive and left. On January 25, 2019, Lahti attempted to enter the dispatch office and was informed by dispatcher Jewels Wicks that operators, including shop stewards, are not allowed to access the dispatch office.
18. Since the January 24, 2019, incident between Stewart and Hamm, shop stewards have not been able to access the interior of the dispatch office.
19. Determining who may access the employer’s dispatch office for coach operations bears more directly on traditional managerial prerogatives to establish work rules and maintain control over access to its facilities. The employer also has a strong interest in creating a work environment for its dispatchers that minimizes disruptions and distractions in order to effectively carry out its operations of providing regional bus service in Benton and Franklin counties.
20. The union did not carry its burden that the issue of access to the dispatch office bears more directly on employee personnel matters, including wages, hours, and working conditions and, as such, outweighs the important managerial prerogatives with respect to this topic.
Conclusions of Law
1. The Public Employment Relations Commission has jurisdiction in this matter under chapter 41.56 RCW and chapter 391-45 WAC.
2. As described in findings of fact 4–20, the employer did not commit a refusal to bargain violation under RCW 41.56.140(4), or derivatively interfere in violation of RCW 41.56.140(1), by unilaterally changing the practice of allowing union stewards access to the dispatch office at Ben Franklin Transit.
Order
The complaint charging unfair labor practices filed in the above-captioned matter is DISMISSED.
ISSUED at Olympia, Washington, this 21st day of April, 2020.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
Christopher J. Casillas, 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.