By Therese Norton
I
n Washington State University, the Public Employment Relations Commission upheld an appeal by a union that WSU committed an unfair labor practice, reversing the Hearing Examiner. The union alleged that WSU unlawfully contracted out a roof repair project and breached its good faith bargaining obligation in the manner in which the employer invoked a contractual time limit for bargaining. With one Commissioner absent, the divided remaining two commissioners were split on the “skimming” charge, so the Examiner decision that no skimming occurred stands. But, the Commission determined that 13 other pending bargaining demands were improperly ignored by WSU.
PERC Hearing Examiner Jamie Siegel had dismissed the union’s bad faith bargaining allegation because she found that WSU had no obligation to bargain its decision to contract out work that was not bargaining unit work.
The Commission reached a different conclusion due to the employer’s approach and reversed the Examiner’s decision. The CBA at issue contained an unusual time limit on when bargaining would be completed:
Where required by law, and where there has been no waiver of bargaining requirement, the University will satisfy its collective bargaining obligation before changing a matter not referred to or covered by this Agreement. The University will notify the Union of these changes, and the Union may request discussions about and/or negotiations on the impact of these changes on Employee’s working conditions. In the event the Union does not request discussions and/or negotiations within fourteen (14) calendar days of receipt of the notice, the University may implement the changes without further discussions and/or negotiations. Upon completion of negotiations but no later than forty-five (45) calendar days following request to bargain from the Union, the University may implement its proposal. There may be emergency or mandated conditions that are outside of the University’s control requiring immediate implementation, in which case the University will notify the Union as soon as possible, and may implement if needed prior to the completion of negotiations. If the Union does not withdraw the demand to bargain, the parties will agree to the location and time for the discussions and/or negotiations. Each party is responsible for choosing its own representatives for these activities.
The Commission found that the manner in which WSU had bargained was in bad faith because the employer gave no indication that it would not bargain demands that were made outside of the contractual time limit. The Commission stated, “’Gotcha’ has no place in labor relations and is not conducive to the public interest in stable public sector labor relations.”
The Commission citied a number of factors for its decision: WSU had not previously invoked the contractual time limit, and then a few days before it was to meet with the union, the employer decided to invoke the contract term. Also, at no time did WSU raise its concerns about the aging subjects of bargaining, and the delay was caused by difficulties in scheduling time to bargain. The Commission explained:
It is incumbent on the parties to a collective bargaining agreement to communicate. The employer waited until a very late hour to communicate to the union that it would not bargain….The employer’s actions amount to “gotcha” and frustrated the bargaining process.
Examiner Siegel had also dismissed the union’s refusal to bargain allegation finding that the union had failed to prove that the disputed roof repair project was bargaining unit work; and thus, the employer did not refuse to bargain when it contracted out the project.
Contracting out occurs when bargaining unit work is contracted to be performed by employees of another employer. But first, the union must prove that the work in question is bargaining unit work, or work that bargaining unit employees have historically performed.
On appeal, the Commission was unable to agree on the contracting out issue and whether the disputed repair project was bargaining unit work historically performed by members of the roofers union. (Commissioner Thomas W. McLane did not participate in decision so there was no tie-breaker vote.) In such cases where the members of the Commission cannot agree, under PERC procedure, the Examiner’s conclusion on that issue stands.
