By Therese Norton
An Employer may not unilaterally change disciplinary procedures without first notifying the Union and, if requested, bargain the change. In City of Seattle, Public Employment Relations Commission (PERC) Examiner Jessica Bradley found that Seattle City Light Department refused to bargain with the International Brotherhood of Electrical Workers, Local 77, in violation State collective bargaining laws by unilaterally implementing a second disciplinary process in conflict with the disciplinary procedure contained in the party’s collective bargaining agreement.
The City of Seattle and City Light have a separate ethics commission called the Seattle Ethics and Elections Commission (SEEC) that can investigate confidential whistleblower complaints. The bargaining unit member at the center of this unfair labor practice’s charge was a journeyman line worker at the City of Seattle and an instructor in the city’s apprenticeship program. The City received a complaint alleging that the Employee had solicited alcohol from participants in the apprenticeship program.
The City Light Superintendent suspended the Employee without pay for 20 days and prohibited him from working out of class or being promoted for a one year. Subsequently, the SEEC initiated an investigation against the Employee and threatened monetary fines. The issue in this case, therefore, was not whether there was just cause for the original discipline; rather, whether the Employer unilaterally changed its disciplinary procedure when the SEEC initiated its investigation after the Employer had already given the Employee a 20 day unpaid punishment for the same ethics violation and misconduct.
Disciplinary procedures are a mandatory subject of bargaining. A change to disciplinary procedures without notice and opportunity to bargain to the Union is an unfair labor practice.
The Examiner reviewed the parties bargaining history and past practice. During bargaining, City Light had proposed adding a provision for a separate ethics commission and the IBEW did not agree to the proposed language.
City Light argued that the SEEC is a quasi-policing agency and thus cannot be treated as an extension of management for the purposing of evaluating whether there has been a unilateral change in disciplinary procedures. The Examiner disagreed, determining that the SEEC’s ability to investigate Employee ethics violations comes from the Employee’s employment relationship with the Employer. The Employer is ultimately liable for actions taken by the SEEC. The Examiner explained:
“Disciplinary recommendations and fines that can be levied against a person because of their employment status relate to wages, hours, and working conditions making them mandatory subject of bargaining. In this case the employer had an obligation to notify the union and provide an opportunity to bargain before making changes to the disciplinary process contained in the CBA.”
City Light also argued that IBEW waived its right to bargain in their CBA. In order to be valid, a waiver by contract can only occur if it is clear and unmistakable. In this case, the language was deemed to be vague and did not constitute a clear and unmistakable waiver. The Examiner noted that the City recognized that a clear, specific waiver was necessary in a number of CBAs with other bargaining units, but not with this bargaining unit. Thus, the Examiner concluded that IBEW did not agree to a waiver to allow a separate and distinct investigation and possibility of fines by the SEEC.
The Examiner ordered City Light to restore this status quo ante by reinstating the disciplinary procedure, bargain with IBEW over the issue, and closing the SEEC investigation into the Employee’s conduct.
