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ASSIGNING WORK OUTSIDE THE BARGAINING UNIT-THE PERC’S “NEW” APPROACH

In Central Washington University, Decision 12305-A (PSRA, 2016) the Public Employment Relations Commission (PERC) announced a new test for determining when a public employer’s decision to contract out work is a mandatory subject of bargaining. According to the PERC, contracting out occurs when a public employer contracts with another entity to do the work

The work at issue in the Central Washington University case was replacing a flat roof over a walkway at the residence of the President of the University. The employer claimed that this work was not bargaining unit work and contracted this work to a company that was licensed to install the roofing material chosen for the job.

For many years, the PERC used a two-part test for determining when a decision to contract out work was a mandatory subject of bargaining. Under this test, the PERC first determined whether the work in question was bargaining unit work. The PERC found “[b]argaining unit work [to be] work that bargaining unit employees have historically performed.” Central Washington University, citing Washington State University, Decision 11498-A (PSRA, 2013).

Under the previous test, if the PERC concluded the work in question was not bargaining unit work, the decision to contract the work out was not a mandatory subject of bargaining. However, if the PERC concluded the work in question was bargaining unit work, the PERC would move on to the second part of the test and balance “five factors to determine whether a duty to bargain existed.” Central Washington University.

This historical, two-part test for determining when a decision to contract out work was a mandatory subject of bargaining was also used to determine when a public employer’s decision to “skim” work was a mandatory subject of bargaining. According to the PERC, skimming occurs when the public employer assigns work to non-bargaining unit employees of the employer. Central Washington University.

The PERC decided to use the Central Washington University case “to review the standard for determining when a decision to contract out bargaining unit work is a mandatory subject of bargaining” and see whether a new test should be adopted. After conducting this review, the PERC found that, “[t]he current standard has led to confusion and inconsistent application.”

As a result, the PERC announced a new test for determining when a public employer’s decision to contract out work is a mandatory subject of bargaining. The PERC further announced that new test would also be used to determine when a public employer’s decision to skim work is a mandatory subject of bargaining.

Like the previous test, the new test is a two-part test. The first prong of the new test, like the first prong of the previous test, “is whether the work that was contracted out is bargaining unit work.  If the work is not bargaining unit work, then the analysis would stop and the employer would not have had an obligation to bargain its decision to contract out work.”

If the work that was contracted out is bargaining unit work, the PERC will move on to the second part of the test. However, rather than balancing the five factors it used in the past, the PERC will apply “the balancing test [the PERC uses] in other cases to determine whether a topic is a mandatory subject of bargaining.” That test was first announced “in International Association of Fire Fighters, Local Union 1052 v. PERC (City of Richland), 113 Wn.2d 197 (1989).” According to the PERC:

The balancing test would appropriately fit into the analysis of whether an employer was obligated to bargain because the balancing test weighs the competing interests of the employees in wages, hours, and working conditions against “the extent to which the subject lies ‘at the core of [the employer’s] entrepreneurial control’ or is a management prerogative.” City of Richland, 113 Wn.2d at 203.  Recognizing that public sector employers are not “entrepreneurs” in the same sense as private sector employers, entrepreneurial control should consider the right of a public sector employer, as an elected representative of the people, to control management and direction of government. See Unified School District No. 1 of Racine County v. Wisconsin Employment Relations Commission, 81 Wis.2d 89, 95 (1977). Applying the balancing test to the question of whether a duty to bargain a decision to contract out work existed broadens parties’ ability to make arguments that the decision is or is not a mandatory subject of bargaining.

Applying the new test to the facts of the case, the PERC concluded:

Replacing the roof over the walkway at the president’s residence was bargaining unit work.  Balancing the employer’s interests in obtaining warranties for the work and having the work performed quickly with the union’s interest in preserving bargaining unit work, we determine the employer was obligated to bargain its decision to contract out bargaining unit work.  Only bargaining unit employees had previously worked on the roof over the walkway.  The bargaining unit lost work as a result of the employer contracting out the project.  An opportunity to bargain could have existed if the employer had notified the union that the project was a high priority and that bargaining had to be completed promptly.  The employer was obligated to give notice and provide an opportunity to bargain before contracting out the project.  By failing to do so, the employer violated its duty to bargain.

The case can be found at:  http://perc.wa.gov/databases/ULP/12305-A.htm.