Puyallup School District, Decision 12814 (PECB, 2018)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

PuBLIC SCHOOL EMPLOYEES OF WASHINGTON,   Complainant,   vs.   PUYALLUP SCHOOL DISTRICT,   Respondent.

CASE 128580-U-16   DECISION 12814 - PECB     FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

 

Elyse B. Maffeo, Attorney at Law, for the Public School Employees of Washington.

 

Charles W. Lind, Attorney at Law, Patterson Buchanan Fobes & Leitch, Inc., P.S., for the Puyallup School District.

 

The Public School Employees of Washington (union)[1] filed a complaint against the Puyallup School District (employer) on November 29, 2016.  Causes of action for three allegations of employer refusal to bargain in violation of RCW 41.56.140(1) and (4) were found in a preliminary ruling issued on December 6, 2016, all based on the employer’s decision to stop paying salary step increases upon expiration of the parties’ 2014-16 collective bargaining agreement.  Examiner Andrew G. Lukes conducted a hearing on July 17, 2017.  Both parties filed briefs on October 2, 2017, to close the record.

ISSUES

The issues for determination in this case concern three alleged violations of RCW 41.56.140(4) and (1) as follows:

 

1.                  Did the employer violate RCW 41.56.123(1) when it stopped paying salary step increases upon the expiration of the parties’ collective bargaining agreement?

2.                  Did the employer unilaterally alter the dynamic status quo when it stopped paying salary step increases, without bargaining, upon the contract’s expiration?

3.                  Did the union meet its burden to prove that the employer “conditioned” routine salary step increases on the finalization of a successor collective bargaining agreement?

 

For the reasons discussed below, I find that the employer violated RCW 41.56.123(1) and committed a unilateral change violation by withholding salary step increases upon the contract’s expiration without bargaining.  The employer did not condition routine salary step increases on the finalization of a successor collective bargaining agreement.

BACKGROUND

The employer is a public school district in Pierce County, Washington.  The union is the exclusive bargaining representative for the employer’s secretaries.  Un. Ex. 1, Art. 1, Sec. 1.1.[2]  The parties have shared a collective bargaining relationship for decades.  The dispute in this case revolves around the employer’s decision to stop paying salary step increases upon the expiration of the parties’ collective bargaining agreement, which was effective September 1, 2014, through August 31, 2016.  Un. Ex. 1.

 

The agreement states, “Salaries for employees subject to this Agreement are contained in Schedule A attached hereto and by this reference incorporated herein.”[3]  Un. Ex. 1, Art. XIV, Sec. 14.1.  Schedule A consists of the three pages following the agreement’s signature page.  Each page has a date range at the top corresponding with the school year it applies to (“September 1, 2013 – August 31, 2014,”[4] “September 1, 2014 – August 31, 2015,” and “September 1, 2015 – August 31, 2016”).  Each page also contains a salary schedule with five levels and six steps and states, “For each year of service you will be moved up one step . . . .”  The wage rates in the salary schedules get progressively higher on each of the three pages.

 

Upon expiration of the 2014-16 agreement, a successor agreement had not been reached, and the employer stopped advancing employees to the next salary step according to their years of service.  The union president, Carrie Burrus, e-mailed one of the employer’s human resources professionals, Tina Konsmo, on September 27, 2016, and inquired whether employees would be advanced salary steps based on their years of service for the 2016-17 school year.  On September 28, 2016, Konsmo replied, “In years where we don’t have a settled salary schedule, the step increment will be given when the rest of the schedule is finalized and implemented.”  Er. Ex. 2.[5]

 

Burrus shared Konsmo’s response with Kris Mott, the union field representative assigned to the secretaries bargaining unit.  Mott responded by e-mailing Amie Brandmire, the employer’s Chief Human Resources Officer, on September 28, 2016.  Er. Ex. 1.  In the e-mail, Mott objected to the employer’s intention to stop paying salary step increases.  Mott stated, “[T]his is a clear violation [of] the contract whether we are bargaining or not.”  Er. Ex. 1.  Mott testified that the union representative who preceded him had told him that the employer had paid salary step increases in the past.

 

Brandmire responded to Mott’s e-mail on September 29, 2016, by stating, “I’m not sure what change you’re referring to, as we don’t have a history of ever implementing COLA [cost of living adjustments] or step increments before a new Schedule A has been established.  Is there a certain section of the CBA [collective bargaining agreement] you’re referring to that I can review?”  The parties had no more communication about this issue.  Mott testified, “I thought it would be futile to keep going because Ms. Brandmire had made a decision that they’re not going to . . . implement the step increases.”  Tr. 26.

 

After being served with the complaint on November 29, 2016, Brandmire e-mailed Mott on December 20, 2016.  Brandmire said it would have been beneficial to discuss salary step increases further before the union filed its complaint.  She explained that the employer had agreed to pay salary step increases after contract expirations for other bargaining units and would have been willing to do the same for the secretaries bargaining unit.  Brandmire said she assumed from the complaint that the union was in agreement to pay salary step increases retroactive to September 1, 2016, and that she had authorized payroll to do so in the January payroll cycle because it was too late to make the changes on the December 2016 paychecks.  The employer implemented the salary step increases retroactive to September 1, 2016, in the January 2017 paychecks, thereby making employees financially whole.

 

Brandmire testified that her actions in withholding salary step increases were based on her understanding of what had been done historically.  She has worked in the employer’s human resources department for 18 years.  She has been on the employer’s bargaining team for that entire time and has been chief negotiator since 2008.

 

She testified that bargaining with the secretaries bargaining unit had continued past contract expiration twice in the last decade, in 2007 and 2014.  In both of those years, salary step increases were not paid from the time the previous contract expired to the time a new contract was ratified.  Upon ratification, the salary step increases were paid retroactively to the start date of the new contract.

 

According to Brandmire’s testimony, salary step increases were not consistently withheld after contract expirations prior to 2007.  A variety of things were done, such as granting step increases or granting “partial percentage increase[s].”  Tr. 64.

ANALYSIS

Applicable Legal Standards

Duty to Bargain

The Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, governs the relationship between the union and the employer.  RCW 41.56.030(4) defines collective bargaining and requires parties to engage in good faith negotiations over mandatory subjects of bargaining.  The duty to engage in good faith negotiations over mandatory subjects is enforced through the unfair labor practice provisions in RCW 41.56.140 and .150 and Chapter 391-45 WAC.

 

The Commission generally finds that any employer refusal to bargain violation under RCW 41.56.140(4) inherently interferes with the rights of bargaining unit employees.  Thus, the Commission routinely finds a derivative interference violation under RCW 41.56.140(1).  Skagit County, Decision 8746‑A (PECB, 2006).  Therefore, an employer violates RCW 41.56.140(1) and (4) if it implements a unilateral change on a mandatory subject of bargaining without having fulfilled its bargaining obligation.

 

Unilateral Change

To prevail on a claim of unilateral change, the union must prove four elements:

1.         The existence of a relevant status quo or past practice.

2.         That the relevant status quo or past practice was a mandatory subject of bargaining.

3.         That notice and an opportunity to bargain the proposed change was not given, or that notice was given but an opportunity to bargain was not afforded or the change was a fait accompli.

4.         That there was an actual change to the status quo or past practice.

 

City of Tukwila, Decision 10536-A (PECB, 2010).

Burden of Proof

Where an unfair labor practice is alleged, the complainant bears the burden of proof and must prove, by a preponderance of the evidence, that the complained-of allegation occurred.  WAC 391‑45-270(1)(a); Cowlitz County, Decision 7007-A (PECB, 2000).  The respondent is responsible for the presentation of its defense and bears the burden of proof as to affirmative defenses.  WAC 391‑45-270(1)(b); Whatcom County, Decision 8512-A (PECB, 2005).

RCW 41.56.123

RCW 41.56.123(1) states that all terms and conditions of a collective bargaining agreement shall remain in effect until a successor agreement is reached, not to exceed one year from the collective bargaining agreement’s expiration.  Thereafter, the employer may unilaterally implement according to law.

 

However, RCW 41.56.123(2) contains an exception to this general rule.  It specifically states that RCW 41.56.123(1) “does not apply to . . . provisions within the collective bargaining agreement with separate and specific termination dates.”

Dynamic Status Quo

While some situations involve a “static” status quo, Commission precedent recognizes that in other situations employers are required to maintain the “dynamic” status quo.  Central Washington University, Decision 10967-A (PECB, 2012).  The current terms and conditions of employment which are part of the status quo or dynamic status quo include both those which currently exist as well as previously scheduled changes.  City of Anacortes, Decision 9004-A (PECB, 2007), citing Val Vue Sewer District, Decision 8963 (PECB, 2005).  Although dynamic status quo issues typically arise in representa­tion settings, similar principles can be applied to situations where an employer is required to maintain the terms and conditions following the expiration of an agreement.  City of Anacortes, Decision 9004-A, citing Val Vue Sewer District, Decision 8963.

 

For example, while general cost-of-living increases have not been considered part of the status quo because they do not follow a fixed formula, salary step increases are part of the dynamic status quo because the employer has no discretion about granting the annual award.  Lewis County Public Utility District, Decision 7277-A (PECB, 2002).

Past Practice

The past practices of the parties are properly utilized to construe provisions of an agreement that may be rationally considered ambiguous or where the contract is silent as to a material issue.  Kitsap County, Decision 8292-B (PECB, 2007).  A past practice may also occur where, in the course of the parties’ dealings, a practice is acknowledged by the parties over an extended period of time, becoming so well understood that its inclusion in a collective bargaining agreement is deemed superfluous.  Whatcom County, Decision 7288-A (PECB, 2002), citing City of Pasco, Decision 4197‑A (PECB, 1994).

 

For a past practice to exist, two basic elements are required: (1) a prior course of conduct and (2) an understanding by the parties that such conduct is the proper response to the circumstances.  Whatcom County, Decision 7288-A (finding no unilateral change violation where employer lacked knowledge of past practice).  To constitute an unfair labor practice, a change in the status quo must be meaningful.  City of Kalama, Decision 6773‑A (PECB, 2000).

Application of Standards

ISSUE 1: RCW 41.56.123(1) required the employer to maintain all of the terms and conditions specified in the collective bargaining agreement, including salary step increases, for one year after expiration.

The employer argued that RCW 41.56.123(1) did not require it to continue paying salary step increases for one year after the contract’s expiration.  The employer contended that each page comprising Schedule A “contained a specific and separate expiration date” and therefore the exemption in RCW 41.56.123(2) was met.  For the reasons discussed below, I find that the exemption was not met, and the employer was required to maintain the terms of the contract, including salary step increases, for one year after its expiration.

 

There is only one decision in Commission precedent finding the exemption regarding expiration dates in RCW 41.56.123(2) to be met.  That is San Juan County, Decision 12300 (PECB, 2015).  There, the union alleged the employer committed a unilateral change violation by discontinuing health savings account contributions upon the contract’s expiration.  The contract contained the following language:

 

B.         Beginning January, 2012 through December 31, 2014, the County will fund the increased deductible through tax-free contributions to each employee’s Health Savings Account in the following amounts:

 

1.   $1,500 annually for employee-only medical insurance coverage.

2.   $3,000 annually for employee and dependent/spouse medical insurance coverage.

 

The unfair labor practice manager found that this language contained a separate and specific expiration date, satisfying the exemption in RCW 41.56.123(2).  Accordingly, the complaint was dismissed at the preliminary ruling stage for failure to state a cause of action.

 

Unlike the language in San Juan County, the language in this case is far less explicit.  There, the language was expressed as a full sentence, using the words “beginning” and “through” to clearly delineate when the employer’s obligation began and ended.  Here, there are simply date ranges at the top of each page of Schedule A.  The third page, for example, simply says “September 1, 2015 – August 31, 2016.”  These date ranges read more like headings rather than express language that would indicate a meeting of the minds to exempt Schedule A from RCW 41.56.123(1).  There is credence to the union’s argument that these are merely “date[s] of anticipated applicability” and that Schedule A does not contain specific expiration dates.

 

This is even more apparent when the contract is examined as a whole.  Schedule A is referenced extensively in Article XIV.  Section 14.1 says that Schedule A is “by this reference incorporated herein.”  Black’s Law Dictionary defines “incorporation by reference” as “[a] method of making a secondary document part of a primary document . . . .”  Black’s Law Dictionary (3d Pocket Ed. 2006).  Accordingly, Schedule A must be treated not merely as an addendum to the agreement with its own expiration date but, rather, as a part of the agreement itself.  Section 14.6 reiterates Section 14.1 saying, “Bargaining unit members will be paid according to Schedule A.”  Neither Section 14.1 nor Section 14.6 contains a separate expiration date, and both sections must remain in effect for one year after the contract’s expiration according to RCW 41.56.123(1).

 

Other subsections of Article XIV extensively reference Schedule A and wage steps.  For example, Section 14.2 controls what step on Schedule A new employees will be placed at.  It has no separate expiration date and must therefore remain in effect for one year after the contract’s expiration.  Sections 14.2.1 and 14.2.2 dictate advancement on the salary schedule for current employees who earn qualifying education credits.  Neither section contains a separate expiration date.  Section 14.7 lays out a detailed process for reclassification of positions to different levels on the salary schedule.  It does not have a separate expiration date.  These references are indicative of the parties’ intent to incorporate Schedule A into the body of the agreement itself and treat it no differently than any other section of the agreement for the purpose of RCW 41.56.123(1).

 

The agreement also contains a Schedule B, which lays out each job classification in the bargaining unit, what level the classification is paid at on the Schedule A, and how many days the classification is assigned to work per year.  Like Schedule A, Schedule B also has a date range in its heading.  However, the date range is “2013-14.”  Neither party argued that the dates on Schedule B were separate and specific expiration dates, as they clearly were not.  Given the similarities between the two headings, it would be incongruous to interpret the dates at the top of Schedule A differently than the dates at the top of Schedule B.

 

In sum, RCW 41.56.123(1) applied to Schedule A in this case.  The employer was required to maintain the terms and conditions therein, including payment of salary step increases, for at least one year after the contract’s expiration.

 

ISSUE 2: The employer committed a unilateral change violation when it stopped advancing employees on the salary schedule without bargaining.

All four elements of a unilateral change violation are met in this case:

 

Element 1: A relevant dynamic status quo exists.

The Commission has consistently held that salary step increases are part of the dynamic status quo.  See, e.g., Snohomish County, Decision 1868 (PECB, 1984); Val Vue Sewer District, Decision 8963.  As the Commission stated in Central Washington University, Decision 10967-A, “[s]tep increases have been considered part of the dynamic status quo because the employer has no discretion about granting the annual award and the employees expect those increases.”

 

No reason exists here to treat salary step increases any differently than the Commission has treated them in the past.  At the time the contract expired, employees were paid according to the salary schedule on the third page of Schedule A.  That salary schedule, including its wage step increases, represented the dynamic status quo.  Employees reasonably expected to receive salary step increases from year to year.  See King County, Decision 6063-A (PECB, 1998) (“If expected by the employees, changes which are part of a ‘dynamic status quo’ do not disrupt a bargaining relationship . . . .”).  If the employer wished to alter the dynamic status quo, it was required to first satisfy its bargaining obligation.

 

Element 2: Salary step increases are a mandatory subject of bargaining.

The salary step increases in question concern wages, which are a mandatory subject according to statutory and case law.  See RCW 41.56.030(4); City of Seattle, Decision 651 (PECB, 1979); City of Poulsbo, Decision 2068 (PECB, 1984).  The Commission determines mandatory subjects of bargaining on a case-by-case basis by applying the balancing test described in International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission, 113 Wn.2d 197, 203 (1989).  Here, the relationship salary step increases bear “to [the] ‘wages, hours and working conditions’” of employees must be balanced against “the extent to which the subject lies ‘at the core of entrepreneurial control’ or is a management prerogative.”  Id.  I find that salary step increases predominantly relate to wages, hours, and working conditions; are not a management prerogative; and are therefore a mandatory subject of bargaining.

 

Element 3: The union had no notice or opportunity to bargain the withholding of salary step increases.

The union had no meaningful opportunity to bargain in this case.  The employer did not provide notice to the union that it intended to alter the dynamic status quo by withholding salary step increases after contract expiration.  The union first learned that the employer was planning on withholding salary step increases on September 28, 2016.  The first paychecks without routine salary step increases were to be issued on September 30, 2016.

 

Two days’ notice did not provide the union with sufficient time to give any meaningful input into the employer’s decision.  In fact, in her December 20, 2016, e-mail to Mott, Brandmire indicated that a period of 11 days prior to the end of the month was too short to alter payroll.  If a period of 11 days was too short to alter payroll in December, then a period of two days was not enough time to alter payroll in September.  Accordingly, the union had no meaningful opportunity to bargain.[6]

 

Element 4: The employer changed the dynamic status quo by withholding salary step increases.

There is no dispute that the employer actually withheld salary step increases from September 1, 2016, to late January 2017.  This constitutes an actual change to the dynamic status quo and satisfies the fourth and final element to substantiate the union’s unilateral change claim.

 

The employer argued that there was no change to the status quo because its actions were in accordance with past practice.  I reject this argument.  In order for a past practice to be binding, there must be (1) a prior course of conduct and (2) an understanding by the parties that such conduct is the proper response to the circumstances.  See Whatcom County, Decision 7288-A.  Neither of those elements are met here.

 

Brandmire testified that bargaining had continued past contract expiration twice in the last decade, in 2007 and 2014.  In both of those years, salary step increases were not paid from the time the previous contract expired to the time a new contract was ratified.  Upon ratification, the salary step increases were paid retroactively to the start date of the new contract.  Prior to 2007, however, salary step increases were either paid or partially paid.  Tr. 64.

 

Two occurrences in a decade does not create the requisite course of conduct to constitute a binding past practice.  Non-payment of salary step increases after contract expiration did not occur with sufficient regularity to create an understanding by the parties that the proper response to a contract’s expiration is to stop paying salary step increases.  Also, the employer admitted that salary step increases were occasionally paid after contract expirations prior to 2007.  This inconsistency in the alleged practice further undermines the employer’s position.  Accordingly, there was no past practice to stop paying salary step increases after the contract’s expiration.

 

ISSUE 3: The union’s third allegation is dismissed because the union did not prove that the employer conditioned payment of salary step increases on settlement of a successor agreement.

The union did not present sufficient evidence to prove its third allegation.  The evidence presented in support of this claim consisted of Konsmo’s September 28, 2016, e-mail to Burrus and Brandmire’s September 29, 2016, e-mail to Mott.  Konsmo stated, “[T]he step increment will be given when the rest of the schedule is finalized and implemented.”  Brandmire stated, “[W]e don’t have a history of ever implementing COLA [cost of living adjustments] or step increments before a new Schedule A has been established.  Is there a certain section of the CBA [collective bargaining agreement] you’re referring to that I can review?”  Er. Ex. 1.

 

These comments support the unilateral change violation discussed above.  The employer did not tell the union, “Settle the contract or else.”  The employer did not use the threat of denying salary step increases to leverage settlement of the contract.  The parties agree that this issue was not discussed at the bargaining table.  As discussed above, the employer did not disclose its intention to withhold salary step increases.  The union only learned of the employer’s intention once it was too late to have any meaningful input.  These facts do not prove that the employer conditioned payment of salary step increases on contract settlement.

 

It should also be noted that the union’s brief contained no argument about this third charge.  I take this as an acknowledgment from the union that this charge was not supported by the evidence.

CONCLUSION

The union’s first and second allegations are sustained and the third allegation is dismissed.  The first allegation is sustained because RCW 41.56.123(1) required the employer to maintain the salary step increases for at least one year after the contract’s expiration.  The parties’ salary schedules did not include separate and specific expiration dates to meet the exemption in RCW 41.56.123(2).  The second allegation is sustained because the union met its burden to prove that salary step increases were part of the dynamic status quo, that wages are a mandatory subject of bargaining, that the union had no meaningful opportunity to bargain, and that the employer actually withheld salary step increases upon the contract’s expiration.  The third allegation is dismissed because the union did not present sufficient evidence of “conditioning” on the part of the employer.

REMEDY

The standard remedy for a unilateral change violation is restoring the status quo ante; making employees whole for any loss of wages, benefits, or working conditions as a result of the employer’s unlawful act; posting a notice of the violation; and reading that notice into the record at a public meeting of the employer’s governing body.  Kitsap County, Decision 10836-A (PECB, 2011), citing City of Anacortes, Decision 6863-A (PECB, 2000).  The typical order also instructs the employer to cease and desist from making unilateral changes to mandatory subjects of bargaining without first providing the union with notice of proposed changes and an opportunity to bargain over the proposed changes.  Kitsap County, Decision 10836-A.

 

Here, the employer already made the employees financially whole by retroactively paying salary step increases according to the expired 2014-16 collective bargaining agreement.  Accordingly, the remedy is limited to requiring that the employer post a notice of the violation, read the notice into the public record at a meeting of the employer’s governing body, and cease and desist from making unilateral changes to mandatory subjects of bargaining without first providing the union with notice of any proposed changes and an opportunity to bargain over the proposed changes.

FINDINGS OF FACT

1.                  The Puyallup School District (employer) is a public school district in Pierce County, Washington.  The union, the Public School Employees of Washington on behalf of its affiliate the Puyallup Association of Educational Office Personnel, is the exclusive bargaining representative for the employer’s secretaries.  The parties have shared a collective bargaining relationship for decades.

 

2.                  The employer stopped paying salary step increases upon the expiration of the parties’ collective bargaining agreement, which was effective September 1, 2014, through August 31, 2016.

 

3.                  The collective bargaining agreement states, “Salaries for employees subject to this Agreement are contained in Schedule A attached hereto and by this reference incorporated herein.”  Un. Ex. 1, Art. XIV, Sec. 14.1.  Section 14.6 reiterates, “Bargaining unit members will be paid according to Schedule A.”

 

4.                  Schedule A consists of the three pages following the agreement’s signature page.  Each page has a date range at the top corresponding with the school year it applies to (“September 1, 2013 – August 31, 2014,” “September 1, 2014 – August 31, 2015,” and “September 1, 2015 – August 31, 2016”).  Each page also contains a salary schedule with five levels and six steps and states, “For each year of service you will be moved up one step . . . .”  The wage rates in the salary schedules get progressively higher on each of the three pages.

 

5.                  Schedule A and wage steps are extensively referenced in other sections of Article XIV.  For example, Section 14.2 controls what step on Schedule A new employees will be placed at.  It has no separate expiration date.  Sections 14.2.1 and 14.2.2 dictate advancement on the salary schedule for current employees who earn qualifying education credits.  Neither section contains a separate expiration date.  Section 14.7 lays out a detailed process for reclassification of positions to different levels on the salary schedule.  It does not have a separate expiration date.

 

6.                  The agreement also contains a Schedule B, which lays out each job classification in the bargaining unit, what level the classification is paid at on the Schedule A, and how many days the classification is assigned to work per year.  Like Schedule A, Schedule B also has a date range in its heading.  However, the date range is “2013-14.”

 

7.                  Upon expiration of the 2014-16 agreement, a successor agreement had not been reached, and the employer stopped advancing employees to the next salary step according to their years of service.  The union president, Carrie Burrus, e-mailed one of the employer’s human resources professionals, Tina Konsmo, on September 27, 2016, and inquired whether employees would be advanced salary steps based on their years of service for the 2016-17 school year.  On September 28, 2016, Konsmo replied, “In years where we don’t have a settled salary schedule, the step increment will be given when the rest of the schedule is finalized and implemented.”

 

8.                  Burrus shared Konsmo’s response with Kris Mott, the union field representative assigned to the secretaries bargaining unit.  Mott responded by e-mailing Amie Brandmire, the employer’s Chief Human Resources Officer, on September 28, 2016.  In the e-mail, Mott objected to the employer’s intention to stop paying salary step increases.  Mott stated, “[T]his is a clear violation [of] the contract whether we are bargaining or not.”  Er. Ex. 1.  Mott testified that the union representative who preceded him had told him that the employer had paid salary step increases in the past.

 

9.                  Brandmire responded to Mott’s e-mail on September 29, 2016, by stating, “I’m not sure what change you’re referring to, as we don’t have a history of ever implementing COLA [cost of living adjustments] or step increments before a new Schedule A has been established.  Is there a certain section of the CBA [collective bargaining agreement] you’re referring to that I can review?”  The parties had no more communication about this issue.  Mott testified, “I thought it would be futile to keep going because Ms. Brandmire had made a decision that they’re not going to . . . implement the step increases.”  Tr. 26.

 

10.              After being served with the complaint on November 29, 2016, Brandmire e-mailed Mott on December 20, 2016.  Brandmire said it would have been beneficial to discuss salary step increases further before the union filed its complaint.  She explained that the employer had agreed to pay salary step increases after contract expirations for other bargaining units and would have been willing to do the same for the secretaries bargaining unit.  Brandmire said she assumed from the complaint that the union was in agreement to pay salary step increases retroactive to September 1, 2016, and that she had authorized payroll to do so in the January payroll cycle because it was too short of notice to make the payments in the Decmber paychecks.  The employer implemented the salary step increases retroactive to September 1, 2016, in the January 2017 paychecks, thereby making employees financially whole.

 

11.              Brandmire testified that her actions in withholding salary step increases were based on her understanding of what had been done historically.  She has worked in the employer’s human resources department for 18 years.  She has been on the employer’s bargaining team for that entire time and has been chief negotiator since 2008.

 

12.              Brandmire testified that bargaining with the secretaries bargaining unit had continued past contract expiration twice in the last decade, in 2007 and 2014.  In both of those years, salary step increases were not paid from the time the previous contract expired to the time a new contract was ratified.  Upon ratification, the salary step increases were paid retroactively to the start date of the new contract.

 

13.              According to Brandmire’s testimony, salary step increases were not consistently withheld after contract expirations prior to 2007.  A variety of things were done, such as granting step increases or granting “partial percentage increase[s].”  Tr. 64.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391‑45 WAC.

 

2.                  According to the facts described in Findings of Fact 2 through 13, the employer was required to maintain the status quo salary schedule upon the contract’s expiration under RCW 41.56.123(1).

 

3.                  By its actions described in Findings of Fact 2 through 13, the employer refused to bargain in violation of RCW 41.56.140(4) and derivatively interfered in violation of RCW 41.56.140(1) by unilaterally withholding salary step increases from September 1, 2016, through the January 2017 payday.

 

4.                  By its actions described in Findings of Fact 2 through 13, the employer did not refuse to bargain by conditioning bargaining unit employees’ receipt of routine salary step increases on the finalization of a successor collective bargaining agreement.

ORDER

The Puyallup School District, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

 

1.         CEASE AND DESIST from:

 

a.                   Failing to maintain all of the terms and conditions specified in the collective bargaining agreement until the effective date of a subsequent agreement, not to exceed one year from the termination date stated in the agreement as required by RCW 41.56.123.

 

b.                  Making unilateral changes to mandatory subjects of bargaining without first providing the union with notice of any proposed changes and an opportunity to bargain over the proposed changes.

 

            c.         In any other manner interfering with, restraining, or coercing its employees in the exercise of their collective bargaining rights under the laws of the State of Washington.

 

2.         TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter 41.56 RCW:

 

a.         Maintain all of the terms and conditions specified in the collective bargaining agreement until the effective date of a subsequent agreement, not to exceed one year from the termination date stated in the agreement according to RCW 41.56.123.

 

b.         Give notice to and, upon request, negotiate in good faith with the Public School Employees of Washington and/or The Puyallup Association of Educational Office Personnel, before making unilateral changes to mandatory subjects of bargaining without first providing the union with notice of any proposed changes and an opportunity to bargain over the proposed changes.

 

c.         Contact the Compliance Officer at the Public Employment Relations Commission to receive official copies of the required notice posting.  Post copies of the notice provided by the Compliance Officer in conspicuous places on the employer’s premises where notices to all bargaining unit members are usually posted.  These notices shall be duly signed by an authorized representative of the respondent and shall remain posted for 60 consecutive days from the date of initial posting.  The respondent shall take reasonable steps to ensure that such notices are not removed, altered, defaced, or covered by other material.

 

d.         Read the notice provided by the Compliance Officer into the record at a regular public meeting of the School Board of the Puyallup School District, and permanently append a copy of the notice to the official minutes of the meeting where the notice is read as required by this paragraph.

 

e.         Notify the complainant, in writing, within 20 days following the date of this order as to what steps have been taken to comply with this order and, at the same time, provide the complainant with a signed copy of the notice provided by the Compliance Officer.

 

f.          Notify the Compliance Officer, in writing, within 20 days following the date of this order as to what steps have been taken to comply with this order and, at the same time, provide the Compliance Officer with a signed copy of the notice provided by the Compliance Officer.

 

ISSUED at Olympia, Washington, this  2nd  day of January, 2018.

 

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

                                               

 

ANDREW G. LUKES, Examiner

 

 

This order will be the final order of the

agency unless a notice of appeal is filed

with the Commission under WAC 391-45-350.