By Therese Norton
In Kittitas County Public Hospital District 1, PERC Examiner Page Garcia dismissed the Washington State Nurses Association’s complaint that Kittitas Valley Healthcare refused to bargain in violation of state labor law by making a unilateral change to the past practice of allowing the Association to post its materials at the hospital. Decision 11992 (PECB, 2014). Generally, union use of bulletin boards has been found to constitute a mandatory subject of bargaining, and in this case, the Examiner again determined that any change in how bulletin boards were used at the hospital would have to be bargained with the union. Ultimately, however, Examiner Garcia ruled that the Association failed to establish the existence of a past practice to post materials at all department break room bulletin boards, in addition to the single union designated bulletin board. As a result, the union could not carry its burden that a unilateral change violation had occurred.
The issue with flyers arose in the context of protracted contract negotiations between the hospital and the nurses association. The union posted yellow flyers which stated “Support KVCH Nurses” throughout the hospital, including on multiple bulletin boards throughout various break rooms. Since 2004 the hospital maintained a policy regarding the posting of material on bulletin boards in the hospital that required advance approval from HR. The only exception was for a single bulletin board that was designated solely for the union’s use. Citing a violation of its policy, management removed the union’s flyers from all bulletin boards other than the union board.
In balancing the competing interests, Examiner Garcia concluded that the union’s use of bulletin boards throughout the hospital would constitute a mandatory subject of bargaining. To prevail in their case, however, the union had to show that in not allowing it to post materials on various bulletin boards throughout the facility, the employer unilaterally changed a past practice allowing such activity. On this issue, there was conflicting testimony regarding the past practice. Ultimately Examiner Garcia relied on the employer’s policy and undisputed testimony that the union did not seek advance approval for posting the flyer. Therefore, Examiner Garcia found that union did not carry its burden of proof to establish a change in the past practice. Examiner Garcia explained:
“Even if the union materials in this case ‘ occasionally appeared’ … the past practice here…is that the employer provides one bulletin board for the exclusive use of the union. The union did not establish a consistent practice which would create any kind of enforceable expectation of the parties. As such, the Examiner finds the union has not established a past practice of: (1) a prior course of conduct allowing the union to post materials on employer bulletin boards; and (2) an understanding by the parties that such conduct is a proper response to the circumstances.
During the hearing and again in its post-hearing brief, the union attempted to add other claims of employer interference and discrimination in addition to the unilateral change claim. The examiner declined the union’s request stating that the union could bring those issues in a separate case. The union filed a separate complaint, and in a recent decision, PERC ULP Manager Gedrose dismissed that complaint as untimely because the union knew or should have known of the employer’s posting policy more than six months before filing its complaint. Kittitas Public Hospital District 1, Decision 11979 (PECB, 2014)
