Bad Faith Bargaining: Union Fails To Communicate With Employer's Designated Collective Bargaining Rep

OCTOBER 23, 2013 by ADMIN

PERC Examiner Finds that Union’s Refusal to Communicate with Employer’s Designated Collective Bargaining Rep is a ULP

By Therese Norton

LINK

Both unions and employers have the right to designate who represents them in the collective bargaining process. In Kiona Benton School District, PERC Hearing Examiner Guy Coss ruled, without a hearing, after a motion for “summary judgment”, that the Kiona Benton Education Association breached its duty to bargain in good faith by refusing to bargain with the School District’s designated collective bargaining representatives.

In this case, the District notified the union twice, and in writing, who it designated as its collective bargaining representatives. The union responded that it would only communicate with the superintendent and the union would “no longer” communicate with the employer’s designated representatives. The union argued that the employer essentially waived its right to designate a collective bargaining representative because it did not only use its designated representatives for collective bargaining purposes. The union also argued that the employer had been uncivil and difficult to deal with.    

Examiner Coss rejected both arguments explaining that the union’s refusal was “clear and unequivocal”: the union refused to “evercontact the employer’s designated representatives for any reason whatsoever;” and the union unilaterally “dictate[d] who the employer’s representative would be.”  The Examiner also explained that the uncivil behavior of the employer was “not material” because if the union had any complaints about the employer, the proper course of action would be for the union to file a complaint with PERC. Based on these reasons, the Examiner granted the employer’s motion for summary judgment.

The Examiner reiterated that the right to choose a representative extends equally to both the union and the employer.

“It is clear that both unions and employers have an important, though not absolute, right to designate those representatives that they feel are best qualified and positioned to represent them in collective bargaining.”

He continued by explaining,

“The Commission’s rules do not require parties’ representatives to be licensed attorneys or to hold any other license, training, or experience. It is up to each party to choose their own representatives based on the level of knowledge (legal or otherwise, experience, and training they feel is necessary to represent them.”

FILED UNDER: BAD FAITH BARGAINING, DUTY TO BARGAIN, PUBLIC SECTOR COLLECTIVE BARGAINING RIGHTS

 

Bad Faith Bargaining: Kiona Benton Education Association Breached Its Good Faith Bargaining Obligation

 

AUGUST 29, 2014 by ADMIN

PERC Affirms Ruling Union Improperly Circumvented Employer’s Designated Collective Bargaining Rep

By Therese Norton
LINK

In Kiona Benton School District, the Public Employee Relations Commission affirmed Examiner Coss’s finding that the Kiona Benton Education Association, the Union that represents certain teachers in the School District, breached its good faith bargaining obligation under State collective bargaining laws by refusing to communicate with the District’s designated collective bargaining representatives.

Twice, the District sent emails notifying the Association of its two designated representatives and, if those individuals were not available, that the Association could contact the Superintendent of the District. The Association responded by email to one of the designated representatives indicating that the Union’s representative would not contact the designated point of contact and would only communicate with the Superintendent.

On Appeal, the Association argued that it did not commit a refusal to bargain unfair labor practice, because the District had repeatedly departed from its direction and a different Employer representative communicated directly with the Association regularly.  The Association also argued that the two designated individuals were unavailable or unqualified to respond when the Association contacted another Employer representative.

The Commission was not persuaded and found that the Association’s arguments were “attempts to justify” its actions.  The Commission reasoned that regardless of the Union’s explanation, the fact remains that the Union representative put in writing his refusal to communicate with the Employer’s designated representative.  The Commission determined that the response from the Union was “a clear refusal to communicate with the employer’s designated collective bargaining representative.” Therefore, the Commission concluded that the Union’s refusal interfered with the Employer’s right to select its representative for collective bargaining.

The Commission distinguished between Union officials’ right to lobby public officials on public issues and when a Union official commits an unfair labor practice by circumventing the Employer’s chosen bargaining representative.  In this case, the Commission explained that the District had designated a primary representative and the Association crossed the line into an unfair labor practice when it specifically informed the District that it would not communicated with that designated individual.

For a more about this case, please refer to our previous blog article.

Editor’s Note [Chris Casillas]: This case should not be viewed as prohibiting or limiting the ability of a union to directly contact and petition the elected representative(s) of an Employer.  In fact, PERC reaffirms in this case that Unions have such a right.  What set this case apart was that the Union officials repeatedly refused to funnel their communications through the Employer’s designated bargaining representatives, and instead sought to contact the School Superintendent directly on matters of collective bargaining.  While both sides have to respect who the other side has designated as their bargaining representatives, this does not mean that the Union is prohibited from seeking out and petitioning their elected officials to lobby on behalf of their members.

FILED UNDER: BAD FAITH BARGAINING

 

In Washington State, PERC Examiner Finds Bad Faith Bargaining

PERC finds Deputy Sheriff’s Association Bargained Regressively on Eve of Interest Arbitration

By Therese Norton

LINK

Both employer and union can violate their good faith bargaining obligations under the state collective bargaining laws when one party advances proposals prior to interest arbitration that are regressive from proposals made earlier in negotiations. In Spokane County (Spokane County Deputy Sheriff’s Association), PERC Examiner Stephen W. Irvin found, and the Commission affirmed, that the Spokane County Deputy Sheriff’s Association breached its good faith bargaining obligations by submitting a regressive wage proposal after impasse and shortly before the parties’ scheduled interest arbitration hearing.

The Association had initially tied its wage proposal to the Consumer Price Index (CPI); however, the Examiner had concluded that prior to arbitration the Association severed the tie to the CPI when conveying its wage proposal to the interest arbitration panel, resulting in an escalated wage demand.

The Association argued that it never intended to tie its wage proposal to CPI-U, because its proposal was meant to offset the potential of significantly higher out-of-pocket medical costs. The examiner evaluated the union’s overall bargaining behavior and concluded, “Despite the employer’s insistence on a wage freeze for 2012 and 2013, the possibility existed that the parties could have reached a settlement on the courthouse steps prior to interest arbitration.  The window of opportunity for a negotiated settlement closed abruptly, however, when the union switched courses on its wage proposal following months of bilateral negotiations and mediation in which it consistently maintained its initial proposal to link wage increases to CPI-U.”

Regressive bargaining occurs when one party at the bargaining table in some manner evidences an attempt to make a proposal less attractive. The Commission has determined, and the Washington Supreme Court has affirmed, that interest arbitration represents a continuation of the collective bargaining process and of the parties’ obligation to bargain in good faith. In this case, the union argued that its wage proposal did not infect the bargaining process, because the bargaining process was finished once impasse was declared.  The examiner disagreed, explaining that impasse can and should be broken if possible, even after the Executive Director has certified the matter for interest arbitration. “Offers can be changed after interest arbitration has been invoked, particularly when there is an apparent attempt to narrow the parties’ differences.”

The examiner explained the impact of the Association’s behavior. “Instead of narrowing the parties’ differences, the union frustrated the collective bargaining process by making its wage proposal less attractive to the employer and making it less likely that the parties would be able to reach agreement.”

Examiner Irvin also rejected the union’s argument that the employer’s complaint was not timely. The examiner determined that it was reasonable for the employer to conclude that the union’s subsequent email regarding its wage proposal was tied to CPI-U as it had been in its initial proposal. Therefore, the examiner determined that the employer knew of the change in the union’s position and filed its complaint within the six months statute oflimitation.

As a remedy, Examiner Irvin ordered the union to cease and desist from its illegal activity, to post appropriate notices, and to enter the interest arbitration hearing with the initial wage proposal it provided to the employer in which the wages were tied to CPI.

Editor’s Note (Chris Casillas): This case is a good reminder that the good faith bargaining obligation does not cease to operate once an impasse is reached and the parties have been certified for interest arbitration.  There is a statutory obligation that all collective bargaining be done in “good faith.”  The interest arbitration process was designed to be a final step in the process to reach a new collective bargaining agreement, but it is still a part of the collective bargaining process as a whole.  As such, both the employer and union must act in a manner that each side would reasonably believe could bring the parties closer to a deal rather than escalating any demands, and such an obligation continues through the arbitration process.  

FILED UNDER: BAD FAITH BARGAINING