By Christopher J Casillas and Jordan L Jones
In Central Washington University, the Commission concluded that the existing standard for determining whether an employer had a duty to bargain a decision to contract out bargaining unit work, was confusing and adopted a new standard. The Commission also affirmed the Examiner’s decision that (1) the employer contracted out bargaining unit work and (2) that the employer failed to provide requested information. The Commission reversed the Examiner’s decision and found that the employer circumvented the union and modified the remedy to include a monetary remedy for the employer’s failure to bargain the decision to contract out bargaining unit work.
In this case, the union alleged that Central Washington University refused to bargain by contracting out bargaining unit work, circumvented the union, and refused to provide relevant information. The Examiner found that although the employer unlawfully contracted out bargaining unit work and failed to provide information, CWU did not circumvent the union.
The union subsequently appealed the circumvention ruling and CWU cross-appealed the conclusion that the employer unlawfully contracted out bargaining unit work and failed to provide requested information.
Until this decision, when PERC was determining whether a given employer had violated its CBA obligation by contracting out bargaining unit work, a two-step analysis was applied.
First, it must determine that the work in question is bargaining unit work. City of Snoqualmie, Decision 9892-A (PECB, 2009). Bargaining unit work is work that bargaining unit employees have historically performed. Washington State University, Decision 11498-A (PSRA, 2013). If the work in question is bargaining unit work, then the Commission historically balances five factors to determine whether a duty to bargain existed.
The Commission noted that both parties examined the shortcomings of the current standard and proposed possible adjustments to the standard. The Commission noted that the five-factor analysis was redundant and has been inconsistently applied and that some of the factors have been applied in a contrary way to the federal precedent.
PERC held that the new standard is two-fold. First, an examiner must determine “whether the work that was contracted out is bargaining unit work.” If the work is not bargaining unit work, then the analysis would stop and the employer would not have had an obligation to bargain its decision to contract out work. “If the work was bargaining unit work, then the City of Richland balancing test should be applied to determine whether the decision to contract out bargaining unit work is a mandatory subject of bargaining.” The City of Richland test weighs the “competing interests of the employees in wages, hours, and working conditions against ‘the extent to which the subject lies ‘at the core of [the employer’s] entrepreneurial control’ or is a management prerogative.”
PERC held that going forward the City of Richland test will be used in deciding whether bargaining unit work was unlawfully contracted out.
The Commission’s new standard for evaluating claims of skimming or contracting out is likely to help both employers and unions with a clearer and more parsimonious test for determining if a bargaining obligation exists. The previous five-factor test indeed contained some redundancies, and the application and weight to be given each of the factors was never clearly understood. In its place, a simpler approach of first determining whether the work is bargaining unit work, and if so, then applying the traditional balancing analysis to determine the bargaining obligation has been substituted as the new approach. This will likely offer some important clarity, however, it is likely that at least some of the factors previously within the five-factor test will still have some bearing on evaluating the question of whether the work is to be considered bargaining unit work. The Commission has not indicated herein which of those factors may still apply and what weight they should be given in the analysis, and it will likely be necessary in future decisions for the agency to more fully develop this new approach.
