Whats Up At PERC

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Whats Up At PERC?

• Marvin L. Schurke
• Executive Director

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SIGNIFICANT UNFAIR LABOR PRACTICE DECISIONS
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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
  employers premise interfered with employee
  rights.
• King County, Decision 8630-A (PECB, 2005)

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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).

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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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)

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• SIGNIFICANT
• REPRESENTATION CASE
• DECISIONS

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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)

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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)

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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)

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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)

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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)

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Blocking Charges

• The Executive Director has the authority to
  suspend processing an election due to a related
  unfair labor practice case.
• The Executive Directors 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)

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• 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)

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

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PERCs 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)

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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)

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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)

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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)

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• Significant Legislation
• Affecting PERC
• and its Clientele

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• House Bill 2353 Access to Quality Family Child
  Care Act (gives collective bargaining rights to
  _at_ 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 _at_26,000 home care
  workers right to collective bargaining on DSHS
  policies and rules) Signed into law 3/17/2006.

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• 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

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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

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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

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• 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)

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• 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)

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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?

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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?

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Whats 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
  Examiners decision in this case)

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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)