Understanding the Public Employee Relations Commission Process

1. Understanding the Public Employee Relations Commission Process WCMA 2005 Summer Conference

2. PERC Overview • State agency that administers and enforces the Public Employees Collective Bargaining Act, Chapter 41.56 RCW • The Act applies to the state, counties and municipal corporations, as well as any political subdivision of the State of Washington, including district and superior courts • PERC’s jurisdiction grew to include home health care workers and state employees in last 3 years – a ballooning workload that added to delays in case processing

3. PERC OVERVIEW • Created in 1975 – replaced Labor & Industries as the state agency responsible for administering collective bargaining act • Headed by 3 commissioners serving 5 year terms • Commissioners are appointed by the Governor with advice and consent of the state senate • Current Commissioners: • Marilyn Glenn Sayan, Chair • Pamela G. Bradburn • Douglas Mooney

4. PERC Staff • Executive Director – Marvin Schurke • Approximately 22 Labor Relations Adjudicators/Mediators • Of those, approximately 15 are relatively new • Effective case load approx. 26.8 cases/staff member • Substantial increase in PERC’s jurisdiction in last 3 years

5. Understanding the Act • Provides rights to public employees to join labor organizations of their choosing and to be represented by such organizations in matters concerning their employment relations with public employers. • Prohibits public employers from directly or indirectly interfering with, restraining, coercing or discriminating against any public employee or group of public employees who choose to organize for purpose of collective bargaining

6. Who is Covered by the Act? • Definition of public employee is broad – covering everyone but: • Elected officials • Appointees where such positions are for a specified term of office • Confidential employees • Personal assistant to a district court judge or court commissioner (See RCW 41.56.030(2))

7. What is “Collective Bargaining” • Mutual obligation on public employer and the union to: • Meet at reasonable times • To negotiate in good faith • If agreement is reached, to execute a written document setting forth wages, hours of work and other working conditions. • Does not require either side to agree on a specific proposal or to make a concession, so long as they are negotiating in good faith.

8. PERC’s Responsibilities • Unit determination and unit clarification • Administering certification procedures • Deciding if an unfair labor practice has been committed and if so, what is the appropriate remedy • Impasse resolution – mediation, certification of issues for interest arbitration • Provides fact-finding, training, grievance mediation and arbitration services as well

9. Representation Issues • Once a union has received authorization cards from at least 30 percent of the members of a proposed bargaining unit, the union has the right to file a petition with PERC to conduct a representation election or card check. • While PERC processes representation petition, employer must maintain status quo (See WAC 391-25-140(2)) • If there is a dispute in who should be in the bargaining unit, who should be the representative – EXPECT DELAY

10. What does “no change to status quo” really mean? • No changes to mandatory bargaining subjects – which include changes in: • Health care plans (e.g., increase in co-pays, deductibles); • Pay schedule • Parking • Employee Assistance Programs • Physical fitness equipment • Even if initial grant of benefit had been unilateral and isn’t in writing

11. Opportunity for Change • PERC is inviting labor and management volunteers to participate in a focus group process to assist the Commission in looking at the maintenance of status quo while a representation case is pending • If interested in having input, contact Ken Latsch at 360-570-7320 or having staff provide written comments by letter or e-mail.

12. Recommendations • Statewide: Ask PERC to speed up representation petition processing, akin to NLRB (which makes initial scheduling and hearing of representation cases high priority) • Case-by-case: If your agency is faced with a representation petition, carefully evaluate the proposed bargaining unit’s composition – if dispute inclusion of certain positions, challenge them. In scheduling hearing on issues, ensure PERC reserves sufficient days to hear case in 1 block.

13. AFL-CIO Split – will it affect us? • May lead to more raids, representation petitions filed between unions previously in AFL-CIO • Employer may not take sides on who is appropriate representative, but can assert objections on proposed bargaining unit’s appropriateness

14. The duty to bargain in good faith • PERC will determine if the parties have bargained in good faith regarding mandatory bargaining subjects and/or the impacts of changes to non-mandatory bargaining subjects. • Bargaining obligation can be fulfilled by notice + opportunity to bargain if Union then waives right to bargain through inaction or agreement • If determines a party has engaged in bad faith bargaining, PERC has broad authority to fashion a remedy • trend is to require more than posting of notices

15. Example of Remedies Imposed • Skagit County, Decision 8746 (PECB, 2004) • Backpay not enough to restore status quo • Employer also required to immediately substitute the schedule change proposed by the Union and begin bargaining any changes it wished to impose. • Employer also required to go to interest arbitration (normally not available to this bargaining unit) in order to achieve a change to the schedule if the Union did not agree

16. Examples continued • City of Redmond, Decision 8879 (PECB, 2005) • Employer required to reinstate its previous, higher wage offer; • If Union accepted the offer, employer was “ordered to act in good faith as necessary to implement the resulting agreement.” [meaning city council has no right to approve/not approve cba?]

17. Other remedies • Grant County Public Hospital District No. 1, Decision 8460 (PECB, 2004): • Found employer prematurely declared impasse and thus improperly unilaterally imposed its last, best and final offer. • Normally, would revert to status quo existing before unilateral change. In this case, all of the changes benefit the employees. • PERC required employer to maintain the changes, go back to bargaining and changes would now constitute “new floor for bargaining.”

18. Some suggestions for surviving ULP process • Appeal when appropriate • Consider filing unfair labor practice charges where appropriate • Involve labor relations/human resources staff in strategic planning early – not as an afterthought • Encourage attendance at annual Labor Relations Institute, participation in WAPELRA

19. Legislative fix? • Encourage adoption of NLRB case-handling rules – where PERC is required to up front investigation of complaint to determine if ULP committed. • May save time and then puts onus of proving ULP at hearing stage on PERC as moving party.

20. Mediation services – how to survive with your bottom line intact • In advance of mediation, work with union to jointly request seasoned mediator for tough contracts • Be reserved at sharing your bottom line • Be creative with mediator on “what if” proposals and mediator proposals that may provide a creative alternative out of impasse

21. Avoid PERC altogether • FMCS • Alternative dispute resolution agencies • Be creative