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
• PERCs 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 PERCs 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
PERCs 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 isnt 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 units 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 units appropriateness

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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?

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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.

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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