By Therese Norton
Unions have a legitimate interest in preserving work that their bargaining units historically perform. Thus, it can be an unfair labor practice for an employer to refuse to bargain any decision to transfer or ”skim” bargaining unit work. Recently, Everett Community College challenged the Commission’s ruling that it committed an unfair labor practice when it skimmed bargaining unit work previously performed by full-time counselors, without providing an opportunity for bargaining. Everett Community College, Decision 11135-C (CCOL, 2013)
The College had appealed to Snohomish County Superior Court which, on appeal, remanded the initial decision to the Commission directing it to enter more detailed findings of fact.
Back in 2010, Everett Community College restructured the way it delivered counseling services to its students in an effort to reduce costs. The restructuring plan included educational planners who were to perform arguably the same work the full-time counselors in the bargaining unit had previously done. The Examiner found, and the Commission affirmed Everett Community College, Decision 11135-B (CCOL, 2012), that the employer committed an unfair labor practice by skimming bargain unit work, and that it did not notify and provide the union with an opportunity to bargain before deciding to remove counselor work from the bargaining unit.
The 2012 Commission decision was appealed to Superior Court which remanded it back to the Commission. On remand, the Commission provided a detailed analysis of the five factor balancing test used to evaluate a skimming claim. If the work at issue is bargaining unit work, then the Commission balances five factors to determine whether a duty to bargain exists. The five factors are: 1) previous practice; 2) whether the transferred of work significantly harms unit member; 3) whether employer’s motive is solely economic; 4) whether there was an opportunity to bargain; and 5) whether the transferred work is fundamentally different. See City of Snoqualmie, Decision 9892-A (PECB, 2009)
In this case, the fact that educational planners were performing historically bargaining work; unit members suffered “significant detriment”; the employer’s motivation was economic; the employer did not provide the union with an opportunity to bargain; and, the work of the educational planner is not fundamentally different than counselors. The Commission concluded that no one factor has more weight and “ultimately, the balance tips to requiring the employer to bargain the decision to remove work from the bargaining unit.”
