Washington State Department of Social and Health Services, Decision 13657 (PSRA, 2023)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
washington federation of Complainant, vs. Washington state department of social and health services, Respondent. |
CASE 135416-U-22 DECISION 13657 - PSRA findings of fact, |
Edward Earl Younglove III, Attorney at Law, Younglove & Coker, P.L.L.C., for the Washington Federation of State Employees.
Sara L. Wilmot, Assistant Attorney General, Attorney General Robert W. Ferguson, for the Washington State Department of Social and Health Services.
On July 29, 2022, the Washington Federation of State Employees (union or WFSE) filed an unfair labor practice complaint against the Washington State Department of Social and Health Services (employer or DSHS). A preliminary ruling issued August 11, 2022, finding the complaint stated a cause of action for employer refusal to bargain under RCW 41.80.110(1)(e) by removing the Investigator 2 positions from the bargaining unit without providing the union an opportunity for bargaining.[1] The parties waived their right to an evidentiary hearing and stipulated to facts regarding this issue. See State – Employment Security, Decision 12913 (PSRA, 2018) and Green River College, Decision 12611 (PSRA, 2016) (demonstrating parties stipulated to facts and examiner‐issued conclusions of law and order).
Issue
Did the employer refuse to bargain in violation of RCW 41.80.110(1)(e) by removing James Bachmeier and Brittany Barber from their bargaining unit positions as Investigator 2s and reallocating them and their positions to non-represented Investigator 3 positions without first providing the union notice or an opportunity to bargain?
Based on the stipulated facts, the employer refused to bargain by unilaterally changing the working conditions of Bachmeier and Barber without first providing notice or giving the union an opportunity to bargain before the employer implemented these changes.
Background
The union represents a bargaining unit of approximately 5,000 civil service employees who work for DSHS. The union has a collective bargaining agreement with the State of Washington that is effective from July 1, 2021, through June 30, 2023.
The parties wrote and jointly submitted a stipulated statement of facts and suggested remedies on February 6, 2023, and agreed to waive a hearing and briefing.
Stipulated facts:
Stipulated remedies:
a. Benefits including a lost personal day have been restored to Mr. Bachmeier and Ms. Barber. No monetary or other damages were claimed by the WFSE in this matter.
b. An order should be entered in PERC Case No. 135416-U-22 finding DSHS committed an unfair labor practice in violation of RCW 41.80.110(1)(a) and (e) by removing Mr. Bachmeier’s and Ms. Barber’s positions from the WFSE Institutions Bargaining Unit of DSHS employees while bargaining was ongoing and requiring the order with the stipulated finding be read into the minutes at the next regular meeting of the Development Disabilities Administration Superintendents Leadership Team.
c. DSHS will refrain from removing bargaining unit members from the WFSE Institutions Bargaining Unit of DSHS employees while bargaining is underway, absent an agreement by parties.
Analysis
Applicable Legal Standards
Refusal to Bargain
The duty to bargain requires a public employer and the exclusive bargaining representative to bargain in good faith over grievance procedures, wages, hours, and working conditions. RCW 41.80.110(1)(e). The obligation to bargain in good faith encompasses a duty to engage in full and frank discussions on disputed issues and a duty to explore possible alternatives that may achieve a mutually satisfactory accommodation of the interests of both the employer and the employees. University of Washington, Decision 11414-A (PSRA, 2013).
In determining whether an unfair labor practice has occurred, the totality of the circumstances must be analyzed. Walla Walla County, Decision 2932-A (PECB, 1988); City of Mercer Island, Decision 1457 (PECB, 1982). A party that fails or refuses to bargain in good faith on a mandatory subject of bargaining commits an unfair labor practice. RCW 41.80.110(1)(e) and (a) and RCW 41.80.110(2)(d) and (a). A finding that a party has refused to bargain in good faith is predicated on a finding of bad faith bargaining in regard to mandatory subjects of bargaining. See Spokane School District, Decision 310-B (EDUC, 1978). What may be reasonable conduct in one case may not be reasonable in another. City of Clarkston (International Association of Fire Fighters, Local 2299), Decision 3246 (PECB, 1989).
The Commission focuses on the circumstances as a whole and on whether an opportunity for meaningful bargaining existed. Washington Public Power Supply System, Decision 6058-A (PECB, 1998). If the employer’s action has already occurred when the employer notifies the union (a fait accompli), the notice would not be considered timely, and the union will be excused from the need to demand bargaining. Id. If the union is adequately notified of a contemplated change at a time when there is still an opportunity for bargaining that could influence the employer’s planned course of action and the employer’s behavior does not seem inconsistent with a willingness to bargain, if requested, then a fait accompli will not be found. Washington Public Power Supply System, Decision 6058-A (citing Lake Washington Technical College, Decision 4721-A (PECB, 1995)).Unilateral Changes
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; provides an opportunity to bargain before making a final decision; bargains in good faith, upon request; and bargains 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)).
To prove a unilateral change, the complainant must prove that the dispute involves a mandatory subject of bargaining and that there was a decision giving rise to the duty to bargain. Kitsap County, Decision 8292-B (PECB, 2007). A complaint alleging a unilateral change must establish the existence of a relevant status quo or past practice and a meaningful change to a mandatory subject of bargaining. Whatcom County, Decision 7288-A (PECB, 2002); City of Kalama, Decision 6773‐A (PECB, 2000); Municipality of Metropolitan Seattle (Amalgamated Transit Union, Local 587), Decision 2746-B (PECB, 1990). 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)).
Application of Standards
The facts suggest that on August 18, 2021, the employer notified the union that it would be reallocating Bachmeier and Barber and their positions as Investigator 2s to Investigator 3s, which became effective on that date. Investigator 2s are bargaining unit members, while Investigator 3s are not in the bargaining unit.
On September 10, 2021, the union filed a demand to bargain. The employer responded to the union’s request to bargain, and on or about December 1, 2022, the parties agreed that the two employees would remain in the bargaining unit until negotiations were complete. However, the employees were not returned to the bargaining unit until March 18, 2022.
Even though the employer later returned the employees to their status quo positions, the employer made this change to Bachmeier and Barber’s working conditions without first giving the union notice and an opportunity to bargain, constituting a unilateral change. It is an unfair labor practice for the employer to present a change to a mandatory subject of bargaining as a predetermined decision, or fait accompli. City of Issaquah, Decision 12963 (PECB, 2019) (citing City of Edmonds, Decision 8798-A (PECB, 2006)); Washington Public Power Supply System, Decision 6058‐A.)
This change in working conditions involved a mandatory subject of bargaining as the employer moved the bargaining unit work from the Investigator 2s and gave it to a non-bargaining unit position, Investigator 3s. See King County, Decision 12632-A (PECB, 2017). The move from Investigator 2s to Investigator 3s created a material and substantive change to the terms and conditions of employment for the Bachmeier and Barber by changing their working conditions. Kitsap County, Decision 8893-A (citing King County, Decision 4893‐A).
Conclusion
The employer committed a refusal to bargain unfair labor practice by unilaterally changing the working conditions of James Bachmeier and Brittany Barber without first providing notice or giving the union an opportunity to bargain before the change was implemented. The stipulated facts describe a refusal to bargain unfair labor practice in violation of RCW 41.80.110(1)(e).
Remedy
Washington State law grants the Commission and its examiners the authority to issue appropriate orders to remedy unfair labor practices. RCW 41.80.120. The standard remedy for an unfair labor practice violation includes ordering the offending party to cease and desist and, if necessary, to restore the status quo; post notice of the violation; and publicly read the notice. State – Corrections, Decision 11060-A (PSRA, 2012); City of Anacortes, Decision 6863‐B (PECB, 2001).
I will apply the standard remedies in this case. The remedy will provide that DSHS refrain from removing bargaining unit members from the WFSE Institutions Bargaining Unit of DSHS employees without first giving the union notice and an opportunity to bargain. In addition, the employer will restore one personal day for Bachmeier and Barber.
The employer will restore the status quo ante by reinstating the wages, hours, and working conditions that existed for Bachmeier and Barber prior to the unilateral change found unlawful when the employer moved Bachmeier and Barber outside the unit.
The employer will read the notice provided by the compliance officer into the record at a regular public meeting of the Development Disabilities Administration Superintendents Leadership Team of the Department of Social and Health Services[2] and permanently append a copy of the notice to the official minutes of the meeting where the notice is read.
Findings of Fact
1. The Washington State Department of Social and Health Services (DSHS) is a public employer under RCW 41.80.005(8).
2. James Bachmeier and Brittany Barber are employees of the employer under RCW 41.80.005(6).
3. The Washington Federation of State Employees (WFSE) is an employee organization under RCW 41.80.005(7) and represents a bargaining unit of employees that includes the Investigator 2 positions.
4. The union represents a bargaining unit of approximately 5,000 civil service employees who work for DSHS.
5. The union has a collective bargaining agreement with the State of Washington that is effective from July 1, 2021, through June 30, 2023.
6. On August 18, 2021, DSHS Human Resources notified WFSE it was reallocating James Bachmeier and Brittany Barber and their positions as Investigator 2s to that of Investigator 3s, which removed them from the WFSE Institutions Bargaining Unit of DSHS employees.
7. The parties agree that as Investigator 2s the employees were members of the WFSE Institutions Bargaining Unit of DSHS employees.
8. On September 10, 2021, WFSE submitted a timely demand to bargain the reallocation and bargaining between the parties commenced.
9. On or about November 16, 2021, Mr. Bachmeier and Ms. Barber told WFSE that as Investigator 3s they were no longer in the Institutions Bargaining Unit of DSHS employees.
10. On or about December 1, 2021, DSHS agreed the two employees would remain in the bargaining unit until bargaining was complete.
11. On March 17, 2022, WFSE learned Mr. Bachmeier and Ms. Barber had not yet been restored to the bargaining unit.
12. On March 18, 2022, DSHS Human Resources restored Mr. Bachmeier and Ms. Barber to the WFSE Institutions Bargaining Unit of DSHS employees while bargaining [continued].
13. While temporarily removed from the unit, the employees, and Mr. [Bachmeier’s] temporary [backfill] (another Investigator 2) continued to do some of the same work out of the bargaining unit that they had previously done as members of the bargaining unit.
Conclusions of Law
1. The Public Employment Relations Commission has jurisdiction in this matter under chapter 41.80 RCW and chapter 391-45 WAC.
2. By its actions described in findings of fact 6–13, the employer committed a refusal to bargain unfair labor practice by unilaterally changing the working conditions of James Bachmeier and Brittany Barber without first providing notice or giving the union an opportunity to bargain before the change was implemented.
Order
The Washington State Department of Social and Health Services, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:
1. CEASE AND DESIST from:
a. Removing bargaining unit members from the union’s Institutions Bargaining Unit without first providing notice and an opportunity to bargain.
b. Interfering with, restraining, or coercing its employees in the exercise of their collective bargaining rights under the laws of the State of Washington.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of chapter 41.80 RCW:
a. Restore a lost personal day to Bachmeier and Barber.
b. Restore the status quo ante by reinstating the wages, hours, and working conditions for Bachmeier and Barber prior to the unilateral change found unlawful in this order when the employer moved Bachmeier and Barber outside the unit.
c. Give notice to and, upon request, negotiate in good faith with the Washington Federation of State Employees before transferring bargaining unit work outside the bargaining unit.
d. Contact the compliance officer at the Public Employment Relations Commission to receive official copies of the required notice for posting. Post copies of the notice provided by the compliance officer in conspicuous places on the employer’s premises where notices to all bargaining unit members are usually posted. These notices shall be duly signed by an authorized representative of the respondent and shall remain posted for 60 consecutive days from the date of initial posting. The respondent shall take reasonable steps to ensure that such notices are not removed, altered, defaced, or covered by other material.
e. Read the notice provided by the compliance officer into the record at a regular public meeting of the Development Disabilities Administration Superintendents Leadership Team of the Department of Social and Health Services and permanently append a copy of the notice to the official minutes of the meeting where the notice is read as required by this paragraph.
f. Notify the complainant, in writing, within 20 days following the date of this order as to what steps have been taken to comply with this order and, at the same time, provide the complainant with a signed copy of the notice provided by the compliance officer.
g. Notify the compliance officer, in writing, within 20 days following the date of this order as to what steps have been taken to comply with this order and, at the same time, provide the compliance officer with a signed copy of the notice the compliance officer provides.
ISSUED at Olympia, Washington, this 3rd day of May, 2023.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
Elizabeth Snyder, Examiner
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.
[1] Although the Investigator 3 position was included in the preliminary ruling, this position was not in the bargaining unit.
[2] If there is no regular public meeting of the Development Disabilities Administration Superintendents Leadership Team of the Department of Social and Health Services, the parties must contact the compliance officer at the Public Employment Relations Commission for further processing.