By Therese Norton
In a recent decision, the Washington Court of Appeals reinforced the fundamental right state employees have in Washington “to bargain collectively through representatives of their own choosing” and not one unilaterally imposed by the employer. Division One Court of Appeals affirmed the Public Employee Relations Commission’s ruling that the University of Washington committed an unfair labor practice when it insisted on moving a group of hospital employees to a bargaining unit represented by a different union as a condition of reallocating them to a position with a higher pay grade.
The dispute over the reallocation of these positions has a long and tumultuous history beginning over over a decade ago. The University had two groups of hospital employees who were doing the same jobs under different job classifications, at different rates of pay. The University tried to fix the pay disparity by reallocating the employees. In 2003, PERC found that the reallocation was an unfair labor practice and ordered a return to the status quo ante for Washington Federation of State Employees (WFSE) bargaining unit members.
In 2008, the issue arose again and the University continued to insist that the jobs be reallocated. This time the reallocation would move the employees from WFSE to a different bargaining unit, SEIU. WFSE again objected to the reallocation and proposed that the employees in the WFSE bargaining unit be given their own job code. The University rejected WFSE’s proposal for efficiency reasons.
WFSE filed a complaint with PERC. The matter was appealed through the agency, to the Superior Court, and then up to the Court of Appeals.
In its decision, the Court of Appeals addressed three issues. First, the court affirmed the Commission’s conclusion that the University was attempting to bargain the configuration of bargaining units. The court reasoned that, “The foreseeable effect of the proposal the University was insisting on would be to remove work from the Federation’s Harborview bargaining unit and add it to the SEIU bargaining unit.”
On the second issue, the Court affirmed the Commission’s conclusion that it was an unfair labor practice for the University to insist that employees be transferred out of their existing union. The court explained that it is the sole authority of the Commission to configure collective bargaining units and any question regarding the configuration should be directed to the Commission in a unit clarification petition. The University had been untimely in filing its unit clarification petition and that issue was not part of this appeal.
Next, the court reviewed a similar case under the National Labor Relations Act and found that it supported the Commission’s conclusion.
What concerned the Commission was that the University was unyielding in its position that reallocation of the employees had to be accompanied by transferring their work to SEIU. The purpose of reallocating the positions was to increase the pay of the affected employees at Harborview. By joining reallocation to reconfiguration, the University effectively made reconfiguration of the bargaining unit a condition of higher pay. This conduct violated the fundamental principle embodied in Boise Cascade: an employer may not force upon employees its own choice of who should be their collective bargaining representative.
The court reconciled the Commission’s findings by distinguishing between the Commission’s finding pertaining to the reallocation of the positions and the reconfiguring of the bargaining units. The court explained that the difference is that reconfiguring bargaining units deals with the “scope of the bargaining unit” that is within the sole authority of the Commission. Although the concept of “scope” is not easy to define, “it is clear that an employer may not alter the composition of the bargaining unit under the guise of the transfer of unit work.”
On the third issue, the Court concluded that even though the issue of reconfiguring the bargaining unit had not been specifically identified in the preliminary ruling, the University had adequate notice of the issue. The University was put on notice by the Federation’s “lengthy complaint” and in its appeal of the examiner’s decision. The Commission, the court concluded, did not deny the University of an opportunity to be heard.
Ultimately, the Superior Court’s decision was reversed and the Commission’s decision was reinstated. The University was ordered to cease and desist from attempting to bargain the configuration of the bargaining units that the WFSE represents, and to stop interfering with its employees in the exercise of their collective bargaining rights.
