By Chris Casillas and Jordan Jones
In Port of Anacortes, the Commission reversed an Examiner’s decision that the Employer did not unilaterally change working conditions by ending the use of a light duty assignment without providing notice to the Union and an opportunity to bargain. The Commission held that the Examiner incorrectly analyzed the issue as to whether the Employer unilaterally changed a past practice. The Commission stated that in cases involving newly organized bargaining units who had not finished negotiating their first CBAs, the issue is whether the Employer unilaterally changed the status quo without bargaining.
In this case, maintenance mechanic David Bost was working a light duty assignment for a workplace injury when he suffered a non-work related illness. The Employer subsequently determined that the light duty assignment was not available for Mr. Bost’s non-work related illness. At the time that the Employer decided to unilaterally end the light duty assignment for its employee, the Port of Anacortes and the Union were in negotiations over their initial CBA.
In this case, the issue was whether the Employer unilaterally changed the status quo without bargaining. Citing its decision in Tacoma-Pierce County Employment and Training Consortium, the Commission stated that:
When an [E]mployer and a [U]nion are negotiating a first collective bargaining agreement, an [E]mployer is not free to change or initially establish policies concerning mandatory subjects of bargaining without first providing notice, an opportunity to bargain, and bargaining to an agreement or a good faith impasse.
The Commission stated that light duty assignments were mandatory subjects of bargaining and found that the Employer made decisions regarding whether to grant or deny light duty assignments on a case-by-case basis. In this situation, there was no established policy or practice concerning light duty assignments for workers injured off-the-job; however, in denying Mr. Bost’s request, the Employer unilaterally established a new policy. Since this was a new union negotiating its first CBA, initial policies concerning mandatory subjects of bargaining cannot be unilaterally established. The Commission held that before the Port of Anacortes could grant or deny a request for a light duty assignment for an off-duty injury, it was required to give notice to the Union and provide an opportunity to bargain, the failure of which constituted a ULP.
