By: Chris Casillas and Sarah E. Derry
In Green River College, PERC Examiner Jamie Siegel held that the employer, Green River College, a college in Auburn, Washington, did not commit an unfair labor practice when it implemented a new “Program Prioritization Process” (PPP) without bargaining. Examiner Siegel determined that the new program was not a mandatory subject of bargaining, so the employer was not obligated to negotiate its decision prior to implementation.
In 2015, the employer realized it would be facing a 4 million dollar budget shortfall for the 2016-17 academic year. In response, the employer sought to adopt a new PPP. As part of the new PPP, faculty members were asked to volunteer for committees, which reviewed each program at the college using certain objective criteria. The Faculty Coalition (union) believed that this new PPP was a mandatory subject of bargaining, in part because the union reasoned the new PPP would replace the “Program Assessment and Improvement” (PA&I) process, which was described in the parties’ CBA. The employer did not believe that the new PPP was a mandatory subject of bargaining, and instead sent the union a letter inviting them to bargain the program’s effects. The union, however, demanded to bargain the new PPP itself. The parties met several times — meetings which the employer later viewed as bargaining sessions, a characterization with which the union fundamentally disagreed.
The union also raised concern about whether the new PPP would result in layoffs, and each party blamed the other for refusing to bargain any potential layoffs. Examiner Siegel noted that at the time of the hearing no layoffs had occurred, but they were scheduled to occur the week after the hearing. She heard testimony about the extent to which the PPP would be used in determining layoffs, but the union did not move to reopen the record in response to any layoffs that occurred.
First, Examiner Siegel determined that the CBA’s PA&I process was not replaced with the new PPP, a determination she primarily based on the employer’s testimony that it was continuing the PA&I into the future, although it had not occurred for several years. Second, she determined that the PPP was not a mandatory subject of bargaining. Applying PERC’s balancing test, Examiner Siegel noted that the PPP impacted work hours and raised concerns about job security. However, she ultimately found that participation in the new PPP was voluntary. And while she appeared to share the union’s concern with future layoffs, this was not the issue before her:
The issue in the union’s demand to bargain, however, was not program reduction, program elimination, or layoffs, and this decision does not address whether those issues would be mandatory subjects of bargaining under the facts of this case. When the record in this case closed, the employer had announced no reorganizations, program reductions, program eliminations, or layoffs. …
The fact that the employer may use PPP results in making decisions which could potentially be mandatory subjects of bargaining does not convert implementation of the PPP into a mandatory subject of bargaining.
She also reasoned that the new PPP related to “core entrepreneurial control,” which is a management prerogative. She reasoned:
For decades the Commission has consistently concluded that employers maintain the prerogative to determine their budgets and decide what services and programs to offer, including educational programs. …
Employers maintain the managerial prerogative to collect and analyze data about their programs and services in anticipation of making decisions about what programs and services to offer.
After determining the program was not something the employer needed to bargain, she turned to whether the employer should have bargained the effects of the PPP with the union. She concluded that the parties had actually bargained the effects by meeting several times, and that the union had simply refused to put forward any proposals. She noted that the union became stuck on the idea that the PPP was a mandatory subject of bargaining:
This case highlights the challenges parties face when a union demands to bargain an employer decision and the employer agrees to bargain the effects of the decision but not the decision itself. It can be difficult for the union to set aside its view that the employer has an obligation to bargain its decision, essentially accept the decision, and engage in bargaining over the effects.
Examiner Siegel ended her analysis with some additional commentary about the nature of bargaining, concluding that:
Both parties would be better served by viewing themselves as bargaining partners and working together to resolve the points of concern.
Editor’s Note: While reasonable minds may differ as to whether the decision to implement the new PPP was itself negotiable, the Examiner did reasonably apply the balancing analysis in this case to conclude that the scales tipped in favor of seeing the actual program as a managerial prerogative.
With that said, the union did not do itself any favor in characterizing its bargaining demand. Rather than focusing on the implementation of the program itself, should the outcome of the program be a reduction or elimination of programs, layoffs, or a reorganization of the departments, those issues were truly the concern and decisions that likely would have been viewed as mandatory subjects of bargaining. For instance, should the outcome of the new PPP be that certain staff would be laid off to reduce costs, that decision would be bargainable and should be the true focus of any demand to bargain.
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