What’s Up At PERC?

1. What’s Up At PERC? Marvin L. Schurke Executive Director

2. SIGNIFICANT UNFAIR LABOR PRACTICE DECISIONS

3. Interference with Employee Rights • Employer had the right to limit both the location and time for posting of campaign materials for union officer election. • Burden was on complaining individual employee to demonstrate that the rules for campaigning on the employer’s premise interfered with employee rights. King County, Decision 8630-A (PECB, 2005)

4. Interference with Employee Rights • Unions can be held responsible for actions of employees who assist the union in organizing a bargaining unit. • Local union officers owed a duty of loyalty to the union they were elected to lead. • Local union officers who changed loyalties should have resigned before using their offices to assist a rival union in organizing the unit. Community College District 13, Decision 8117-B (PSRA, 2005).

5. Interference Senior official of public employer committed “interference” violation when he told unit members that the public body rejected a tentative agreement because the union issued subpoenas for a PERC unfair labor practice hearing. Grant County Public Hospital Dist. 1, Decision 8378-A (PECB, 2004)

6. Interference “Weingarten” rights (right to union represen- tation at an investigatory interview) belong to the individual employee, not to the union, so employer did not commit an unfair labor practice by rejecting union request for additional observers. Methow Valley SD, Decision 8400-A (PECB, 2004)

7. Refusal to Bargain • PERC applies an objective manifestation test in construing the words of collective bargaining agreements, and will interpret all words of the agreement. • A management rights clause that unequivocally granted the employer the right to make a unilateral change was interpreted as granting that right. City of Wenatchee, Decision 8802-A (PECB,2006)

8. Refusal to Bargain • Employer that refused to bargain effects of canceling EAP found guilty of unfair labor practice. • Union that only asked to bargain “effects” (and not the decision) to cancel EAP was not entitled to remedy reinstating the EAP. Grays Harbor County, Decision 8044-A (PECB, 2004)

9. Refusal to Bargain • Parity Clauses are not automatically (per se) illegal, and PERC declined to adopt an approach that would deprive it from deciding cases individually, based upon their particular facts. • Complainants have the burden of proof in unfair labor practice cases, so it was up to the union complainant to prove that the parity clause the employer negotiated with another union adversely impacted its bargaining. Whatcom County, Decision 8512-A (PECB, 2005)

10. Good Faith Bargaining • Collective Bargaining requires employers and unions to have full and frank discussions, and to explore options. • Communications at the bargaining table about the consequences of a failure to agree are appropriate discussions between the parties. City of Wenatchee, Decision 8802-A (PECB, 2006)

11. Refusal to Bargain PERC determines if parties have bargained to an “impasse” that suspends (but never terminates) the duty to bargain. PERC examines: • The bargaining history • Whether the parties bargained in good faith • The importance of the issues • The contemporaneous understanding of the parties as to the state of negotiations. Skagit County, Decision 8746-A (PECB, 2006)

12. Unfair Labor Practice Procedure • Parties must perfect “service of process” on other parties. • PERC strictly enforces its rules that require parties filing papers with PERC to serve copies on all counsel and representative of record. City of Kirkland, Decision 8822-A (PECB,2005)

13. Suspension of Bargaining • WAC 391-25-140(4) requires an employer and incumbent union to suspend bargaining while a representation case is pending. • WAC 391-25-140(4) remained in force until a final order was issued affirming dismissal of the underlying representation case. Whatcom County, Decision 8245-A PECB, 2004)

14. SIGNIFICANT REPRESENTATION CASE DECISIONS

15. Qualifications of Bargaining Representative • In disputes about whether an organization is qualified for certification, the organization has the burden to prove it is a lawful organization with the primary purpose of representing employees in their relations with employers. • A social organization, whose membership is open to supervisors and managers was not a labor organization for purposes of the Act. Snohomish Fire District 4, Decision 8816-A (PECB, 2005)

16. Showing of Interest Requirement is Jurisdictional • Once PERC determines a representation petition is not supported by the proper showing of interest, the petition must be dismissed without rulings on other issues raised in the case. State – Labor and Industries, Decision 9052 (PSRA, 2005)

17. However… • A party who asserts that it was prevented from collecting its showing of interest by the actions of another party may file an unfair labor practice complaint, and may be entitled to a remedy through that process. State – Labor and Industries, Decision 9052 (PSRA, 2005)

18. Unit Determination Criteria • All relevant facts must be considered in making unit determinations. • The fact that employees in different job classes work side-by-side, does not compel a conclusion that they have a community of interest. • Interactions between employees in different job classes does not equate to an interchange of function. Community Transit, Decision 8734-A (PECB, 2005)

19. Employee Eligibility Lists • Employer errors in lists supplied to PERC for representation cases may be a basis to overturn election results on timely objections. • PERC has no independent source of information about the workforce of employers under its jurisdiction, and must rely upon the employers to provide that information. Community College District 3, Decision 8960-B (PSRA, 2005)

20. Blocking Charges • The Executive Director has the authority to suspend processing an election due to a related unfair labor practice case. • The Executive Director’s decision on a “blocking charge” cannot be appealed to the Commission prior to issuance of a tally sheet. State – Ecology, Decision 9034-B (PSRA, 2005)

21. An exclusive bargaining representative was certified at Western Washington University, making it the third of the six FCBA institutions to organize. Western Washington University, Decision 8871-B (FCBA, 2006)

22. Significant Cases Interpreting Personnel System Reform Act of 2002 (the PSRA)

23. PERC’s Uniformity Mission • PERC was created under charter to be “uniform and impartial . . . efficient and expert” • Without any indication that the Legislature intended otherwise, PERC precedents under other laws are used to decide PSRA cases. State – Natural Resources, Decision 8458-B (PSRA, 2005)

24. PERC Recognizes Statutory Differences • The PSRA exclusion of “internal auditors” must be given effect. • Applying the plain meaning of the term, “internal auditors” was limited to employees who examine books and accounts to ensure that other state employees are using proper internal procedures and accounting practices. State – Transportation, Decision 8317-B (PSRA, 2005)

25. PERC honors the statute . . . PERC enforced the “historical units are appropriate” precept in RCW 41.80.070(1) to preserve units that had been created by predecessor agencies, even though the employer argued those same units would not be approved if they were coming before PERC for the first time. Western Washington University, Decision 8704-A (PSRA, 2005)

26. Exempt Employees Excluded • Only “classified” employees covered by Chapter 41.06 RCW are eligible for collective bargaining rights under PSRA. • Employees who are “exempt” from civil service under Chapter 41.06 RCW are therefore excluded from PSRA collective bargaining rights. Community College District 10, Decision 8751-A (PSRA, 2005)

27. Significant Legislation Affecting PERC and its Clientele

28. House Bill 2353 – Access to Quality Family Child Care Act (gives collective bargaining rights to @ 10,000 child care providers) – Signed into law 3/15/2006 and SEIU Local 925 filed representation petition the same day. • House Bill 2475 – Individual Providers under Home Care Quality Authority (gives @26,000 home care workers right to collective bargaining on DSHS policies and rules) – Signed into law 3/17/2006.

29. House Bill 2780 – Payroll deductions (allows PAC contributions by state employees) – Awaiting Governor • House Bill 2898 – Communications with State Employees (amends state ethics law to permit union communications with bargaining unit members) – Awaiting Governor • House Bill 3178 – Washington State Ferry System bargaining (aligns bargaining under Marine Employees Commission with pre-budget bargaining process under PSRA) – Awaiting Governor

30. More Legislation . . . • Senate Bill 6411 – Relating to Collective Bargaining Agreements (allows 6-year contracts) – Awaiting Governor • Senate Bill 6787 – Passenger-only Ferries (allows state to sell 2 passenger-only boats to local ferry districts that will be under PERC jurisdiction) – Awaiting Governor

31. PERC RULES REVIEW PROCESS IS ONGOING • Five meetings have been held, covering all PERC rules • Focus group members are reviewing first drafts of rule amendments on several subjects

32. Some “housekeeping” rules (agency office addresses, changes of statute references, and repeal of transition rules) • Some standardization of “appeal” rules (amicus briefs, page limits on briefs, no appeals from “interlocutory” orders, etc.) • Some omissions cured (embracing the ALRA/FMCS code of ethics for mediators, matching the NAA/FMCS code of ethics for arbitrators)

33. Some new developments (greater use of settlement conferences in unfair labor practice cases, separate docketing of settlement conferences and IBB training, allowing parties to pre-file collective bargaining agreements to avoid having to file them with each new case) • Filling some gaps (rules for factfinding under the PSRA and special rules for nonassociation under the PSRA)

34. Some Ongoing Debates. . . • Should the employer and incumbent be able to resume bargaining while dismissal of a representation petition is pending on appeal to the Commission? • Should an employer and/or union be able to make changes on some critical or global issues while a representation case is pending?

35. More ongoing debates . . . More ongoing debates? • Should the preliminary ruling limit the theories that can be advanced in an unfair labor practice case? • Should PERC allow more (or unlimited) use of discovery in unfair labor practice cases?

36. What’s in the Pipeline? • “Refusal to provide information” case from City of Wenatchee (novel issue on duty to gather information from subordinate entities) • “Union release time” case from Kitsap County (this problem dates back to Enumclaw SD, Decision 222, but lots of people were excited about the Examiner’s decision in this case)

37. More in the pipeline . . . • Is employer-paid “deferred compensation” a mandatory subject for employees covered by LEOFF? Snohomish County • Are there limits on union discipline of its members? Seattle SD (IUOE 609) • Does a union owe non-members notice if it gives them a right to vote on contract ratification? (3 PSRA cases before the Commission with more before the staff)