By Jim Cline and Peter Haller
In WA Interpreters v. PERC and Dept of Labor & Industries, the Washington State Court of Appeals affirmed a PERC decision which ruled that the bargaining rights of interpreters were not violated when the Department of Labor and Industries (L&I) implemented a new policy during the pendency of a representation petition. The policy at issue related to working conditions as it controlled how the interpreters could schedule appointments and receive payments.
In 2018, Washington State Legislature passed a bill that required L&I to purchase language interpretation services directly from the interpreters themselves, and not through interpreter agencies. L&I then began work on developing and implementing a system that would accomplish the purpose of the statute. Up until the implementation of the new system in 2021, interpreters could book appointments through an interpreter agency. The new system was unpopular with interpreters because they found it confusing, and it led to delays in payments.
The new system was implemented while a representation petition requesting certification of WA Interpreters as the exclusive bargaining unit for interpreters was pending. After the implementation of the new system in 2021, WA Interpreters filed a ULP complaint against L&I. The complaint alleged that L&I failed to maintain the status quo related to the working conditions of interpreters as is generally required when a representation petition is pending.
L&I argued that the change in working conditions was justified under the doctrine of “dynamic status quo.” Under this doctrine, previously decided but not yet implemented changes are considered part of the dynamic status quo. The rationale behind this doctrine is that such changes are to be expected by bargaining units so long as they are clearly communicated. The PERC Examiner agreed that L&I’s actions were justified, stating,
“Although it cannot be said that every LAP [interpreters] received each and every one of these messages, L&I’s efforts to disperse the information were abundant. L&I’s efforts were sufficient to satisfy the ‘clearly communicated’ necessity under the dynamic status quo doctrine.”
As earlier noted by the Examiner, the status quo is based on the date of the filing of the representation petition. L&I began announcing the impending change almost two years prior to the filing of the representation petition. L&I took steps extensive steps to update interpreters on the status of the change, and even invited interpreters to participate in a usability study before implementation. Further, WA Interpreter representatives admitted in their testimony to being aware of the impending changes. Thus, because the bargaining unit was clearly aware of the impending change in working conditions before it filed its representation petition, the PERC Examiner dismissed the unfair labor practice complaint.
It is a ULP for an employer to unilaterally change working conditions (that are bargainable subjects). This obligation to maintain the “status quo” comes into play during petitions to acquire or change representation. The question that sometimes arises — as here — is how an employer maintains the status quo when it has already announced that the status quo will be changing. To answer that question, PERC has adopted a “dynamic” status quo doctrine.
The doctrine arises from looking at the underlying purpose of the law, including the right to acquire representation. If an employer could change working conditions anytime the employees filed for representation, it would undermine those employees’ collective bargaining rights. So, PERC has required that employers recognize those bargaining rights by freezing working conditions but also has recognized that those rights aren’t eroded when the employer is simply implementing something already decided before the petition was filed.
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