Washington State Ferries (Marine Engineers’ Beneficial Association), Decision 13027 (MRNE, 2019)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

WASHINGTON STATE FERRIES,   Complainant,   vs.   MARINE ENGINEERS’ BENEFICIAL ASSOCIATION,   Respondent.

CASE 130879-U-18   DECISION 13027 - MRNE     FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Michael R. McCarthy and Jack Holland, Attorneys at Law, Reid, McCarthy, Ballew & Leahy, L.L.P., for the Marine Engineers’  Beneficial Association.

Thomas R. Knoll, Jr. and Gil Hodgins, Assistant Attorneys General, Attorney General Robert W. Ferguson, for the Washington State Ferries.

The Marine Engineers’ Beneficial Association (union) represents a bargaining unit of licensed engineers working for the Washington State Ferries (employer).  The parties’ collective bargaining relationship is governed by Chapter 47.64 RCW.

On August 27, 2018, the employer filed an unfair labor practice complaint alleging the union was unlawfully seeking to submit a nonmandatory subject of bargaining for certification to interest arbitration.[1]  The union’s proposal, Section 26 – Welfare (Welfare), concerns employer contributions to health care benefits for the temporary relief engineers who do not qualify for health insurance benefits administered through the Washington State Health Care Authority (Health Care Authority).  The employer claims that the subject matter of the union’s Welfare proposal is controlled by existing statutes and it is impermissible for the union to attempt to bargain outside that framework.  A preliminary ruling was issued finding the employer’s complaint stated a cause of action and, pursuant to WAC 391-55-265, the issue of the union’s Welfare proposal was suspended from the parties’ interest arbitration proceeding.  On June 13, 2019, Examiner Dario de la Rosa conducted a hearing and the parties submitted post-hearing briefs.

The issue to be decided is whether the union’s Welfare proposal is a nonmandatory subject of bargaining either as a permissive subject or as a subject governed by statute and thus precluded from bargaining.  Although the union’s Welfare proposal, as written, directly relates to employee wages, hours, and working conditions and would otherwise be a mandatory subject, bargaining over this specific Welfare proposal is precluded by the existing statutory scheme.  Accordingly, the union committed an unfair labor practice when it submitted its Welfare proposal for certification to interest arbitration.

BACKGROUND

The employer is the largest ferry system in the United States, serving eight counties in the state of Washington as well as service to Canada.  State and federal regulations require the employees manning the vessels to hold certain licenses.  Additionally, the United States Coast Guard requires all vessels be manned to a certain level.

The union and employer have a longstanding collective bargaining relationship for the licensed engineers that predates this agency’s administration of Chapter 47.64 RCW.[2]  The parties are free to negotiate most mandatory subjects of bargaining applicable to the licensed engineers and in the event the parties are unable to reach agreement on mandatory subjects, those unresolved issues may be submitted to interest arbitration for resolution.  RCW 47.64.300–.320.

Most of the licensed engineers working on the vessels are permanent employees.  The permanent licensed engineers are responsible for maintaining the engines on the vessels operated by the employer.  They work seven consecutive day shifts followed by seven days off and then work seven consecutive night shifts followed by seven days off.  That schedule then repeats itself.[3]

If there are not enough permanent licensed engineers to man the vessels, the employer utilizes temporary relief engineers to fill shift vacancies.  Temporary relief engineers are typically younger engineers who are trying to work as many shifts as possible to gain better dispatch opportunities.  The temporary relief engineers are dispatched to the employer through the union’s hiring hall.  The shortest shift is a single day and the longest is generally seven days, with the typical dispatch being two to three days.  The employer usually provides two to three days’ notice to the hall that a temporary relief engineer is needed, but same day requests could occur due to unexpected vacancies amongst the permanent engineers.  The employer utilized between 500 to 700 person days during the previous biennium.[4]

Health Care Benefits

Since 2010, the amount expended per bargaining unit employee for health care benefits has been negotiated by the state and a coalition of bargaining representatives as required by statute.  See RCW 47.64.120(1) and RCW 41.80.020(3).[5]  The employer and employee contributions negotiated as part of this process pay for the health care benefits administered by the Health Care Authority.  RCW 41.80.020(3); see also Chapter 41.05 RCW (establishing the duties and responsibilities of the Health Care Authority).  The union has not appeared at the table with the coalition of bargaining representatives despite the fact that the permanent licensed engineers are subject to the contribution provisions negotiated by the state and coalition.  Although the state is required to negotiate the contribution rates for health care benefits with the coalition of bargaining representatives, the parties are precluded from submitting unresolved issues concerning those contribution rates to interest arbitration.  RCW 47.64.320(1).

In order to qualify for the state administered health care benefits, an employee is anticipated to work an average of at least eighty hours per month and for at least eight hours in each month for more than six consecutive months.  WAC 182-12-114(1)(a).  If an employee does not meet these requirements, that employee is not eligible for benefits administered through the Health Care Authority.  If the employer anticipates that a part-time or temporary employee will meet these standards, it will enroll that employee for benefits.

Full-time licensed engineers qualify for the health care benefits administered by Health Care Authority.[6]  It appears from the parties’ collective bargaining agreement that these are the only health care benefits that the full-time engineers receive.  Temporary relief engineers do not qualify for benefits administered by the Healthcare Authority because they do not work the requisite number of hours, and the employer does not anticipate that they will ever meet the standards set forth in WAC 182-12-114(1)(a).

Since at least 2010, the employer has contributed monies on behalf of the temporary relief engineers to the MEBA Medical and Benefits Plan (MEBA Plan) to secure health care benefits for them.  The MEBA Plan is a Taft-Hartley trust that provides medical benefits to all MEBA‑represented employees throughout the nation in both the public and private sectors.  In order to qualify for MEBA Plan benefits, an engineer must work 30 days within a six-month period.  Once an employee works more than 30 days, the employee is eligible for a full year of benefits.  To maintain benefits eligibility, the employee must then work 60 days within a six-month period.

Section 26 of the parties 2017–19 collective bargaining agreement, states:

See Appendix B, Health Care Benefits Amounts

The Employer agrees to maintain participation in the MEBA Medical and Benefits Plan for Temporary Relief Engineers.  The Employer shall contribute $54.00 per day for each day a Temporary Relief Engineer works or is on vacation under this Agreement to the MEBA Medical and Benefits Plan, up to a maximum of $756.00 per month.  During any month, once the Employer has contributed the maximum monthly amount on behalf of an individual Temporary Relief Engineer and such employee continues to be on the Employer’s payroll during the month, the Employer will deduct from the employee’s pay, before taxes, $54.00 (or portion thereof) per day medical contribution to be paid to the MEBA Medical and Benefits Plan.  The Employer will notify the Temporary Relief Engineer that the $54.00 (or portion thereof) per day deduction must be made in accordance with this Agreement.

Union business agent Jeff Duncan testified that ensuring the employer’s participation in the MEBA Plan benefits is important to the temporary relief engineers because this is their only source of health care benefits.

2018 Negotiation Concerning Section 26

During the spring and summer of 2018, the parties conducted negotiations for a 2019–21 collective bargaining agreement.  At the outset of negotiations, neither the employer nor the union proposed changes to Section 26, and it appears that both parties were content to allow the provision to continue as part of the 2019–21 collective bargaining agreement, unchanged and unchallenged.  For example, when the parties met on May 17, 2018, Section 26 was not listed among the items that were discussed.  Nor did the parties discuss Section 26 at their June 14, 2018, bargaining session.  The July 26, 2018, bargaining session notes indicate that Section 26 was “not open,” and there is no evidence that the employer sought to strike the article from the agreement.

The union first proposed changes to Section 26 at the parties’ August 9, 2018, bargaining session.  The union proposed increasing the employer’s contribution rate to the MEBA Plan as follows:

See Appendix B, Health Care Benefits Amounts

The Employer agrees to maintain participation in the MEBA Medical and Benefits Plan for MEBA Temporary Relief Engineers.  The Employer shall contribute $58.00 $54.00 per day for each day a MEBA Temporary Relief Engineer works or is on vacation under this Agreement to the MEBA Medical and Benefits Plan, up to a maximum of $812.00 $756.00 per month.  During any month, once the Employer has contributed the maximum monthly amount on behalf of an individual MEBA Temporary Relief Engineer and such employee continues to be on the Employer’s payroll during the month, the Employer will deduct from the employee’s pay, before taxes, $58.00 $54.00 (or portion thereof) per day medical contribution to be paid to the MEBA Medical and Benefits Plan.  The Employer will notify the MEBA Temporary Relief Engineer that the $58.00 $54.00 (or portion thereof) per day deduction must be made in accordance with this Agreement.

At the August 17, 2018, bargaining session, employer negotiator Ron Stormer informed the union that the employer believed the entirety of Section 26 was not a permissible subject of bargaining because negotiations concerning health care benefits were preempted by RCW 47.64.120(1) and RCW 41.80.020(3).  Stormer also informed the union that the entirety of Section 26 needed to be removed from the current contract.

The parties reached mutual agreement on many issues but were unable to reach agreement on all issues.  Both the employer and the union submitted lists of unresolved issues to this agency for certification.  The union included Section 26 on its list of issues to be certified for interest arbitration.  On August 21, 2018, Executive Director Michael Sellars certified Section 26 to interest arbitration.  The employer filed the instant unfair labor practice complaint and Executive Director Sellars subsequently suspended Section 26 from the interest arbitration proceeding in accordance with WAC 391-55-265.

ANALYSIS

Applicable Legal Standards—Duty to Bargain

The first step in determining whether the union committed an unfair labor practice by submitting Section 26 to interest arbitration is to establish whether the subject matter of the proposal is mandatory in nature, thereby creating a duty to bargain.  RCW 47.64.120(1).  If the subject matter is mandatory in nature, the next step is to determine whether there are statutory provisions that preclude bargaining over the subject.

Whether a particular subject is a mandatory subject of bargaining is a mixed question of law and fact for the Commission to decide.  WAC 391-45-550.  To decide, the Commission applies a balancing test on a case-by-case basis.  The Commission balances “the relationship the subject bears to [the] ‘wages, hours and working conditions’” of employees and “the extent to which the subject lies ‘at the core of entrepreneurial control’ or is a management prerogative.”  International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission (City of Richland), 113 Wn.2d 197, 203 (1989).  The decision focuses on which characteristic predominates.  Id.

While the balancing test calls upon the Commission and its examiners to balance these two principal considerations, the test is more nuanced and is not a strict black‑and‑white application.  Subjects of bargaining fall along a continuum.  At one end of the spectrum are grievance procedures and “personnel matters, including wages, hours and working conditions,” also known as mandatory subjects of bargaining.  RCW 41.56.030(4).  At the other end of the spectrum are matters “at the core of entrepreneurial control” or management prerogatives.  City of Richland, 113 Wn.2d at 203.  In between are other matters, which must be weighed on the specific facts of each case.  One case may result in a finding that a subject is a mandatory subject of bargaining, while the same subject, under different facts, may be considered permissive.

An interest arbitration-eligible party can bargain to impasse and seek interest arbitration of a mandatory subject of bargaining.  City of Bellevue, Decision 11435-A (PECB, 2013).  A party commits an unfair labor practice violation when it bargains to impasse over a permissive subject of bargaining.  Klauder v. San Juan County Deputy Sheriffs’ Guild, 107 Wn.2d 338 (1986).  It is well established that if a subject of bargaining is permissive, parties may negotiate, but each party is free to bargain or not to bargain and to agree or not to agree.  Pasco Police Officers’ Association v. City of Pasco, 132 Wn.2d 450 (1997); Whatcom County, Decision 7244-B (PECB, 2004).  Including a permissive subject of bargaining in a collective bargaining agreement does not render that subject mandatory.  Washington State Ferries, Decision 12134-A (MRNE, 2015), citing Allied Chemical & Alkali Workers of America, Local 1 v. Pittsburgh Plate Glass Company, 404 U.S. 157 (1971).  Agreements on nonmandatory subjects of bargaining “must be a product of renewed mutual consent” and expire with the parties’ collective bargaining agreement.  Klauder v. San Juan County Deputy Sheriffs’ Guild, 107 Wn.2d 338.

Suspension of Interest Arbitration

If a party believes that a nonmandatory subject of bargaining is being advanced to interest arbitration, it may file an unfair labor practice complaint against the party that insisted to impasse on the nonmandatory subject.  The party claiming that a nonmandatory subject of bargaining is being advanced to interest arbitration must have communicated its concern to the other party “during bilateral negotiations and/or mediation.”  WAC 391-55-265(1)(a).

The objecting party must file and process an unfair labor practice complaint prior to the conclusion of the interest arbitration proceedings if the party advancing the proposal has not withdrawn or cured the proposal.  Id.  If a preliminary ruling is issued under WAC 391-45-110, the executive director suspends the certification of the disputed issues for interest arbitration.  WAC 391‑55‑265(1)(c).

The suspension of the issues remains in effect until a final ruling is made on the unfair labor practice complaint.  Id.  If any issues were unlawfully advanced or affected by unlawful conduct, the offending party committed an unfair labor practice by insisting on bargaining nonmandatory issues and the issues shall be stricken from the certification issued under WAC 391‑55‑200.  The party advancing the proposal shall only be permitted modified proposals that comply with the remedial order in the unfair labor practice proceedings.  WAC 391-55-265(2)(a).  If the suspended issues were lawfully advanced, the suspension shall be terminated and the issues shall be remanded to the interest arbitration proceedings for a ruling on the merits.  WAC 391‑55‑265(2)(b).

Application of Standards

Health insurance benefits for the temporary relief engineers are, absent a specific statutory exclusion, a mandatory subject of bargaining because the subject matter of the provision directly touches on personnel matters, including wages, hours and working conditions.  See, e.g., Spokane County, Decision 11627 (PECB, 2013), citing City of Tukwila, Decision 9691-A (PECB, 2008) (health insurance benefits are often considered an alternative form of wages).  Duncan credibly testified that ensuring the employer’s participation in the MEBA Plan benefits is important to the temporary relief engineers because the MEBA Plan is how those employees maintain health benefits.  Finally, the employer presented no evidence demonstrating that, absent a specific statutory exclusion, the employer’s participation in the MEBA Plan to ensure health benefits for the temporary relief engineers was a management prerogative.

The Statutory Scheme Precludes MEBA Plan Bargaining as Proposed by the Union

Having determined that bargaining over the MEBA Plan is a mandatory subject of bargaining, the next step is to determine whether the statutory scheme precluded the union from demanding bargaining over the subject.  RCW 47.64.270(1) does not allow ferry employees to directly bargain over health care benefits except as provided by Chapter 41.80 RCW.  Accordingly, the union committed an unfair labor practice in violation of RCW 47.64.130(2)(c) when it submitted its Welfare proposal for certification to interest arbitration.

Collective bargaining laws are remedial in nature and liberally construed to effectuate their purpose.  See Nucleonics Alliance, Local 1-369 v. Washington Public Power Supply System, 101 Wn.2d 24, 29 (1984).  Accordingly, exceptions to the laws are narrowly confined.  Id.

The words used within a statute must be given the full effect intended by the legislature.  State – Transportation, Decision 8317-B (PSRA, 2005).  A statute’s subject matter and the context in which a word is used must also be considered.  Id.; Chamberlain v. Department of Transportation, 79 Wn. App. 212, 217 (1995).  Statutes must be interpreted and construed so that all the language used is given effect and no portion is rendered meaningless or superfluous.  Whatcom County v. City of Bellingham, 128 Wn.2d 537 (1996).  Absent a specific definition, contrary legislative intent, or ambiguity, words in statutes are accorded their plain and ordinary meaning.  State v. Gonzalez, 168 Wn.2d 256, (2010).  Statutes are not ambiguous merely because different interpretations are conceivable.  State – Transportation, Decision 8317‑B.

The scope of collective bargaining for ferry employees is set forth in RCW 47.64.120.  That statute states, in part:

Except as otherwise provided in this chapter, the employer and ferry system employee organizations, through their collective bargaining representatives, shall meet at reasonable times to negotiate in good faith with respect to wages, hours, working conditions, and insurance, and other matters mutually agreed upon.  Employer funded retirement benefits shall be provided under the public employees retirement system under chapter 41.40 RCW and shall not be included in the scope of collective bargaining.  Except as provided under RCW 47.64.270, the employer is not required to bargain over health care benefits.  Any retirement system or retirement benefits shall not be subject to collective bargaining.

RCW 47.64.120(1) (emphasis added).

The first highlighted clause requires the parties to bargain wages, hours, working conditions, and insurance.  The statute does not define wages, hours, working conditions, or insurance, but a reasonable interpretation of the words used requires the parties to bargain mandatory subjects as these are typically mandatory subjects of bargaining in the public sector.  See generally, Federal Way School District, Decision 232-A (EDUC, 1977).  The second highlighted clause of the statute specifically states that the employer is not required to bargain over “health care benefits” except as provided by RCW 47.64.270.  The statute does not define “health care benefits” but health care benefits are typically mandatory subjects of bargaining.  See, e.g., City of Tukwila, Decision 9691‑A.

In 2010 the legislature amended RCW 47.64.270  to conform and merge the negotiating process for the contribution rates for ferry employees’ health care benefits with the bargaining process used by other state employees.  See Laws of 2010, ch. 283 (HB 3209).  RCW 47.64.270 currently states, in part:

 (1) The employer and one coalition of all the exclusive bargaining representatives subject to this chapter and chapter 41.80 RCW shall conduct negotiations regarding the dollar amount expended on behalf of each employee for health care benefits.

(2) Absent a collective bargaining agreement to the contrary, the department of transportation shall provide contributions to insurance and health care plans for ferry system employees and dependents, as determined by the state health care authority, under chapter 41.05 RCW.

(3) The employer and employee organizations may collectively bargain for insurance plans other than health care benefits, and employer contributions may exceed that of other state agencies as provided in RCW 41.05.050.

 

As explained above, RCW 47.64.270(1) requires negotiations over the dollar amount expended on each employee on “health care benefits” to be conducted through a coalition of bargaining representatives.[7]  While the statute does not explicitly define “health care benefits,” the intent of RCW 47.64.120(1) is not at issue.

RCW 47.64.270(2) governs health care benefits for ferry employees in the absence of a collective bargaining agreement.  The contribution rates for health care benefits for ferry employees not covered by a collective bargaining are set by the Health Care Authority.

RCW 47.64.270(3) allows the parties to negotiate over insurance plans other than health care benefits.  The statute also allows the employer’s contribution rates for insurance plans to exceed the contributions paid by other state agencies as provided by RCW 41.05.050.  The statute does not define what kinds of insurance plans may be negotiated between the parties.

A final, pertinent statute, RCW 47.64.320(1), precludes parties from submitting disputes over “health care benefits” to interest arbitration.  The statute does not explicitly define “health care benefits.”

RCW 47.64.270 Precludes Bargaining over Supplemental Health Care Plans

The Chapter 47.64 RCW statutory scheme clearly envisions that bargaining between the employer and union over health care benefits be limited to negotiations over the amounts the employer and employee contribute to Health Care Authority administered benefits.  RCW 47.64.270(1), which cross references the Chapter 41.80 RCW bargaining process health care benefits applicable to state civil employees, requires all bargaining representatives of state civil service employees and ferry employees to bargain as a coalition the contribution rates.  The legislature specifically precluded these negotiations from being submitted to interest arbitration in order to prevent the coalition’s interest arbitration-eligible bargaining units from utilizing that process to determine the contributions for the coalition – including the non-interest arbitration‑eligible bargaining units.  RCW 47.64.320(1).

The legislative history of RCW 47.64.270 supports the limited scope of negotiations allowed for health care benefits.  Prior to 2010, RCW 47.64.270 stated, in part:

Absent a collective bargaining agreement to the contrary, the department of transportation shall provide contributions to insurance and health care plans for ferry system employees and dependents, as determined by the state health care authority, under chapter 41.05 RCW; and the employer and employee organizations may collectively bargain for other insurance and health care plans, and employer contributions may exceed that of other state agencies as provided in RCW 41.05.050.

Under the first clause of former RCW 47.64.270, if a collective bargaining agreement does not set the contribution rate for health care benefits, the employee contribution rates are set by the Health Care Authority.  This provision operates similarly to the current RCW 47.64.270(2).  However, the second clause of former RCW 47.64.270 allowed the parties to negotiate for “other insurance and health care plans.”  The statute placed no other limitations on the types of insurance or health care plans the parties could negotiate.

There are stark differences between the former and current RCW 47.64.270.  While the former statute granted the parties broad flexibility when negotiating insurance or health care plans, the new language in RCW 47.64.270(1) specifically precludes negotiations over health care plans except for the coalition process described above.  Furthermore, the amendments that created RCW 47.64.270(3) specifically limit the parties’ negotiations to “insurance plans other than health care benefits.”  These changes are not ambiguous and demonstrate a legislative intent to limit the scope of health care benefits negotiations to only the employer and employee contribution rates.

A comparison of RCW 47.64.270 with other collective bargaining statues applicable to state agency employees supports a conclusion that the legislature intended to preclude negotiations over contribution rates for supplemental health care benefits.  As noted above, state civil service employees are precluded from bargaining “other employee insurance benefits.”  RCW 41.80.020(2)(a).  Similarly, the commissioned officers of the Washington State Patrol are precluded from bargaining “other employee insurance benefits.”  RCW 41.56.473(1).  Importantly, RCW 47.64.270(3) demonstrates an intent to allow the employer and union to negotiate greater employer contribution rates for other Health Care Authority administered insurance programs aside from health care benefits.  However, if the legislature had intended to allow supplemental bargaining over insurance benefits outside of the Health Care Authority administered benefits, it would have explicitly done so.

Conclusion

Although Article 26 of the parties’ collective bargaining agreement has existed since at least prior to the 2010 changes to RCW 47.64.270 (and during that time the employer took no visible steps to address the arguments raised by its complaint), the overall purpose and operation of the statute as currently written cannot be ignored.  RCW 47.64.270 specifically precludes this employer and union from engaging in direct negotiations for supplemental health insurance such as those provided by the MEBA Trust.  The union committed an unfair labor practice by submitting its Welfare proposal to interest arbitration.  The Welfare proposal as written clearly envisions the employer directly contributing to supplemental health care benefits for the temporary relief engineers.  The appropriate remedy in this instance is to strike the union’s Welfare proposal from the August 21, 2018, certification and to direct the union to post and read the appropriate notice explaining its unfair labor practice.

Findings of Fact

1.                  Washington State Ferries is a public employer within the meaning of RCW 47.64.011(4).

2.                  The Marine Engineers’ Beneficial Association is a bargaining representative within the meaning of RCW 47.64.011(1), and is the exclusive bargaining representative of licensed engineers.

3.                  The union and employer are parties to a collective bargaining agreement effective from July 1, 2017, through June 30, 2019.

4.                  Most of the licensed engineers working on the vessels are permanent employees.  The permanent licensed engineers are responsible for maintaining the engines on the vessels operated by the employer.

5.                  If there are not enough permanent licensed engineers to man the vessels, the employer utilizes temporary relief engineers to fill shift vacancies.  Temporary relief engineers are typically younger engineers who are trying to work as many shifts as possible to gain better dispatch opportunities.  The temporary relief engineers are dispatched to the employer through the union’s hiring hall.

6.                  Since 2010, the amount expended per bargaining unit employee for health care benefits has been negotiated by the state and a coalition of bargaining representatives as required by statute.  The employer and employee contributions negotiated as part of this process pay for the health care benefits administered by the Health Care Authority.

7.                  Although the state is required to negotiate the contribution rates for health care benefits with the coalition of bargaining representatives, the parties are precluded from submitting unresolved issues concerning those contribution rates to interest arbitration.

8.                  Temporary relief engineers do not qualify for benefits administered by the Healthcare Authority because they do not work the requisite number of hours, and the employer does not anticipate that they will ever meet the standards set forth in WAC 182-12-114(1)(a).

9.                  Since at least 2010, the employer has contributed monies on behalf of the temporary relief engineers to the MEBA Medical and Benefits Plan (MEBA Plan) to secure health care benefits for them.  The MEBA Plan is a Taft-Hartley trust that provides medical benefits to all MEBA‑represented employees throughout the nation in both the public and private sectors.  In order to qualify for MEBA Plan benefits, an engineer must work 30 days within a six-month period.  Once an employee works more than 30 days, the employee is eligible for a full year of benefits.  To maintain benefits eligibility, the employee must then work 60 days within a six-month period.

10.              Section 26 of the parties 2017–19 collective bargaining agreement, states:

See Appendix B, Health Care Benefits Amounts

The Employer agrees to maintain participation in the MEBA Medical and Benefits Plan for Temporary Relief Engineers.  The Employer shall contribute $54.00 per day for each day a Temporary Relief Engineer works or is on vacation under this Agreement to the MEBA Medical and Benefits Plan, up to a maximum of $756.00 per month.  During any month, once the Employer has contributed the maximum monthly amount on behalf of an individual Temporary Relief Engineer and such employee continues to be on the Employer’s payroll during the month, the Employer will deduct from the employee’s pay, before taxes, $54.00 (or portion thereof) per day medical contribution to be paid to the MEBA Medical and Benefits Plan.  The Employer will notify the Temporary Relief Engineer that the $54.00 (or portion thereof) per day deduction must be made in accordance with this Agreement.

11.              Union business agent Jeff Duncan testified that ensuring the employer’s participation in the MEBA Plan benefits is important to the temporary relief engineers because this is their only source of health care benefits.

12.              During the spring and summer of 2018, the parties conducted negotiations for a 2019–21 collective bargaining agreement.  At the outset of negotiations, neither the employer nor the union proposed changes to Section 26, and it appears that both parties were content to allow the provision to continue as part of the 2019–21 collective bargaining agreement, unchanged and unchallenged.

13.              The union first proposed changes to Section 26 at the parties’ August 9, 2018, bargaining session.  The union proposed increasing the employer’s contribution rate to the MEBA Plan as follows:

See Appendix B, Health Care Benefits Amounts

The Employer agrees to maintain participation in the MEBA Medical and Benefits Plan for MEBA Temporary Relief Engineers.  The Employer shall contribute $58.00 $54.00 per day for each day a MEBA Temporary Relief Engineer works or is on vacation under this Agreement to the MEBA Medical and Benefits Plan, up to a maximum of $812.00 $756.00 per month.  During any month, once the Employer has contributed the maximum monthly amount on behalf of an individual MEBA Temporary Relief Engineer and such employee continues to be on the Employer’s payroll during the month, the Employer will deduct from the employee’s pay, before taxes, $58.00 $54.00 (or portion thereof) per day medical contribution to be paid to the MEBA Medical and Benefits Plan.  The Employer will notify the MEBA Temporary Relief Engineer that the $58.00 $54.00 (or portion thereof) per day deduction must be made in accordance with this Agreement.

14.              At the August 17, 2018, bargaining session, employer negotiator Ron Stormer informed the union that the employer believed the entirety of Section 26 was not a permissible subject of bargaining because negotiations concerning health care benefits were preempted by RCW 47.64.120(1) and RCW 41.80.020(3).  Stormer also informed the union that the entirety of Section 26 needed to be removed from the current contract.

15.              Both the employer and the union submitted lists of unresolved issues to this agency for certification.  The union included Section 26 on its list of issues to be certified for interest arbitration.  On August 21, 2018, Executive Director Michael Sellars certified Section 26 to interest arbitration.

Conclusions of Law

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 47.64 RCW and Chapter 391-45 WAC.

2.                  RCW 47.64.270 specifically precludes this employer and union from engaging in direct negotiations for supplemental health insurance such as those described in finding of fact 9.

3.                  Based upon findings of fact 9 through 15 and conclusion of law 2, the union unlawfully submitted to interest arbitration a precluded subject of bargaining in violation of RCW 47.64.130(2)(c).

ORDER

The MARINE ENGINEERS’ BENEFICIAL ASSOCIATION, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

1.                  CEASE AND DESIST from:

a.                   Bargaining to impasse and seeking interest arbitration over the Section 26 supplemental health care benefits for ferry employees, a subject of bargaining precluded by statute.

b.                  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 47.64 RCW:

a.                   Withdraw its Section 26 proposal concerning supplemental health care benefits made during collective bargaining negotiations with the employer. Notify the interest arbitrator in writing that this issue, which was certified for arbitration in a letter dated August 21, 2018, is being removed from the list of issues certified for consideration.

b.                  Contact the compliance officer at the Public Employment Relations Commission to receive official copies of the required notice for 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.

c.                   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.

d.                  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 the compliance officer provides.

ISSUED at Olympia, Washington, this  5th  day of July, 2019.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

Dario de la Rosa, Unfair Labor Practice Manager

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.