By Therese Norton
Regressive bargaining occurs when one party at the bargaining table in some manner attempts to make a proposal that is less attractive than the proposals it had previous advanced. In City of Tacoma, PERC Hearing Examiner Claire Nickleberry found that the City breached its good faith bargaining obligation by making a regressive wage proposal.
IBEW Local 483 represents a bargaining unit in the City-owned cable company employees and was negotiating for a successor collective bargaining agreement with the City. During bargaining over the previous CBA, the parties had discussed establishing a “market” for a wage adjustment for the employees. They were not able to agree on “comparables” so the market adjustment was deferred.
On a number of occasions in negotiations, the City’s negotiator referenced positioning pay in or around the 70th percentile of comparable market rate employers. At one point it made a wage proposal for “no increase for 2012; 2013 – place at market; 2014 – 100% of CPI.” Later, the City adjusted the “market” down from the 70th percentile and indicated they now wanted to set wages up to the 60th percentile of the market.
When no agreement was then reached, the IBEW filed a ULP. At the hearing, the City argued that during bargaining about the wages there was no “meeting of the minds regarding setting the market at the seventieth percentile” and that it had not made such a proposal in writing.
Examiner Nickleberry closely examined the bargaining notes of each party and rejected the City’s arguments because throughout the bargaining process, the City had consistently referenced the 70th percentile when discussing wages. Based on the totality of the circumstances, Examiner Nickleberry found that the City violated its good faith bargaining obligation and that the conduct of the employer demonstrated an intention to impede bargaining.
The Examiner wrote:
“The employer continued down a path to resolution for 17 months knowing the whole time that the union believed they were bargaining the wage market to the seventieth percentile of the comparable employers. And, if the employer didn’t know that all along, as it claims, the employer certainly knew it when the union’s proposal reflected the seventieth percentile and yet the employer did nothing to identify or clarify its position.”
In essence, the Examiner based her finding that the City breached its good faith bargaining obligation on the months of negotiation during which the wage proposals were for the seventieth 70th percentile.
“A party is guilty of regressive bargaining when it attempts to make a proposal less attractive. In this case the employer provided documents and examples verbally and written on the key issue of wages, to set the market at the seventieth percentile for at least 17 months before making a regressive proposal of the sixtieth percentile. This was done even while the employer’s Compensation Philosophy of setting the market from the sixty-fifth percentile to the seventy-fifth percentile was still in place.
The employer’s regressive sixtieth percentile wage proposal…after 17 months of numerous wage proposals for the seventieth percentile, demonstrates the employer’s intent to frustrate or avoid reaching an agreement with the union.”
