By Jim Cline and Sam Hagshenas
In University of Washington, Examiner Bradley ruled that University of Washington (UW) changing bargaining unit employees’ overtime eligibility status to comply with Washington State Department of Labor and Industries (L&I) rules was not a unilateral change to a mandatory subject of bargaining.
Research Scientists and Engineers (RSEs) at UW are represented by United Auto Workers Local 4121. The Union was in the process of negotiating an initial CBA with UW. In 2019, L&I issued new rules governing overtime exemptions that gradually raised the minimum salary threshold to be exempt from overtime pay requirements. In response to these rules, UW communicated to the Union and affected employees in November 2022 that they intended to convert RSEs whose salary rates fell below the new 2023 state overtime threshold from overtime exempt to overtime eligible.
The Union sent UW a demand to bargain on the decision to change the bargaining unit pay structure and associated benefits. UW and the Union met 5 times in December of 2022, with the Union seeking to raise the salary of all RSEs to bring them above the overtime eligibility threshold. The parties failed to reach an agreement on this issue, and UW implemented the overtime eligible conversions.
The Union argued that a unilateral change to a mandatory subject of bargaining had occurred. The Union cited the City of Spokane, Decision 13353, in which the examiner found that “the employer’s act of changing the status quo of employees who were previously overtime exempt and entitled to the partial leave benefit negotiated in the parties CBA without first engaging in a good faith bargaining constituted an unlawful unilateral change to a mandatory subject of bargaining.”
The Examiner concluded that the situation at hand was distinguishable, as the Union and UW were still bargaining on an initial CBA and thus had an obligation to maintain the relevant status quo in the meantime. Each time there had been an overtime eligibility threshold change in the past, UW had notified relevant employees and maintained the status quo wages. The Examiner concluded with this quote:
“Public employers, including those with represented employees, are required to comply with L&I wage and hour laws and rules. The employer’s actions were consistent with maintaining the relevant status quo and complying with the annually implemented overtime salary threshold adjustments set by L&I.”
Thus, the Examiner ruled that without a relevant CBA with impacted provisions, UW did not commit an unfair labor practice by applying the new L&I’s overtime requirements.
This ruling is consistent with past PERC rulings where a law or binding regulation relates to a term of the contract. Employer are obligated to maintain the status quo on all “wages, hours, and working conditions during the period of negotiations, including the initial contract where there is no CBA. But employers must also follow legal mandates. PERC has consistently ruled that the duty to maintain the status quo must give way to the requirement to follow the law.
That said, there still may be and often is a duty to negotiate the impacts of the change. That was not an issue discussed in this case, but here for example, the loss of the flexibility associated with FLSA exempt status, which was the cause of the union complaint, would be something that the employer would have to discuss with the union. But such “impact” negotiations would not delay the implementation of changes to comply with the new regulation.
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