By Jim Cline
In Washington State Department of Social and Health Services, Examiner Elizabeth Snyder found that the Washington State Department of Social and Health Services (Employer) unilaterally changed working conditions for two Washington Federation of State Employees (Union) employees when it removed their new positions from the bargaining unit. The Employer’s unilateral change constituted a refusal to bargain because it changed the conditions of the employees’ employment and impacted working conditions, which are a mandatory subject of bargaining.
Two employees, James Bachmeier and Brittany Barber, worked as Investigator 2s for the Employer. Investigator 2s are members of the WSFE represented bargaining unit. In August 2021, the Employer notified Bachmeier and Barber that they were immediately reallocated to Investigator 3s, which are not members of the bargaining unit. The Union demanded to bargain the reallocation of the employees.
Bachmeier and Barber were notified that they were no longer in the bargaining unit, and in December 2021, the Union and Employer agreed to keep the two employees within the bargaining unit until bargaining talks were complete. However, the employees were not restored to the bargaining unit until March 2022, although they had continued completing work for the bargaining unit.
The Union had timely demanded to bargain the restructuring of the employees’ positions, through which the Union and Employer eventually agreed that Bachmeier and Barber would remain in the bargaining unit until negotiations were complete. However, for several months, neither employee was returned to the bargaining unit.
Although the employees were eventually returned to their prior positions within the bargaining unit, the Employer nonetheless made a unilateral change in Bachmeier’s and Barber’s working conditions. The change was made without providing notice to the Union nor an opportunity to bargain before the decision went into effect. The change materially and substantively changed the terms and conditions of the employees’ employment and impacted their working conditions, which have consistently been defined as a mandatory subject of bargaining.
Examiner Snyder found that the Employer unilaterally changed Bachmeier’s and Barber’s working conditions without giving the Union notice or an opportunity to bargain prior to implementing the change. As such, the Employer committed a refusal to bargain unfair labor practice.
PERC decisions in this area have been riddled with confusion. Certainly, skimming work from a bargaining unit is typically found to be a ULP. On the other hand, however, PERC has at times stated employers have discretion to reclassify positions, which is what triggered this change.
In this case, the Examiner reached the logical and supportable conclusion of those two clashing principles. She recognized that the direct and immediate impact of this change was that it substantially affected employee working conditions, which here included the right to continued representation by the existing bargaining representative.
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