DECISIONS

Seattle School District, Decision 10983-A (PECB, 2012)

 

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

Click here to enter text.INTERNATIONAL UNION OF OPERATING ENGINEERS, local 609,   Complainant,   vs.   seattle school district, Click here to enter text. Respondent.

CASE 23690-U-10-6042   DECISION 10983-A - PECB     FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

 

Schwerin Campbell Barnard Iglitzin & Lavitt, LLP, by Kathleen Phair Barnard, Attorney at Law, for the union.

 

Seattle School District Office of the General Counsel, by Kevin F. O’Neill, Senior Assistant General Counsel, for the employer.

 

The International Union of Operating Engineers, Local 609 (union), filed a complaint on December 15, 2010, against the Seattle School District (employer) alleging employer refusal to bargain in violation of RCW 41.56.140(4) by breach of its good faith bargaining obligations, refusal to provide relevant information requested by the union, circumventing the union, unilateral changes, and skimming. The Commission’s unfair labor practice manager issued a deficiency notice concerning several of the allegations on December 22, 2010.  The union filed an amended complaint on January 10, 2011, withdrawing the skimming allegation and curing some of the original complaint’s deficiencies.  On January 21, 2011, the Commission’s unfair labor practice manager dismissed the amended complaint’s defective allegations and found several causes of action.^[1]   The Commission assigned the case to Jamie L. Siegel who held a hearing on May 4, 5, and 23, 2011.  The parties submitted post-hearing briefs on July 21, 2011. 

 

ISSUES

 

1.                  Did the employer breach its good faith bargaining obligation concerning work hours and meal counts between September 2010 and December 15, 2010?

 

2.                  Did the employer unilaterally change working hours for bargaining unit employees at Hamilton Middle School and Ballard, Rainier Beach, and Roosevelt High Schools without providing an opportunity for bargaining?

 

3.                  Did the employer unilaterally change a mandatory subject by including contracted sites in the meal counts without providing an opportunity for bargaining?

 

4.                  Did the employer refuse to provide relevant information requested by the union concerning meal counts for September and November 2010?

 

5.                  Did the employer circumvent the union through direct dealing with employees represented by the union?   

 

After fully considering the record in this case, I find that the employer did not commit any of the alleged unfair labor practices.

 

APPLICABLE LEGAL STANDARDS

 

Duty to Bargain and Unilateral Change

Chapter 41.56 RCW requires a public employer to bargain with the exclusive bargaining representative of its employees.  The duty to bargain extends to mandatory subjects of bargaining including wages, hours, and working conditions.  RCW 41.56.030(4).  The law limits the scope of mandatory subjects to those matters of direct concern to employees.  International Association of Fire Fighters, Local 1052 v. PERC, 113 Wn.2d 197, 200 (1989) (City of Richland).  Unless a union clearly waives its right to bargain, an employer is prohibited from making unilateral changes to mandatory subjects.  An employer must give a union sufficient notice of possible changes affecting mandatory subjects of bargaining and, upon union request, bargain in good faith until reaching agreement or impasse.  Wapato School District, Decision 10743-A (PECB, 2011).  

 The Commission classifies managerial decisions that only remotely affect terms and conditions of employment as permissive subjects of bargaining.  North Franklin School District, Decision 5945-A (PECB, 1998).  Parties may bargain regarding such subjects but are not required to do so.  If an employer’s decision on a permissive subject of bargaining materially impacts wages, hours or working conditions of bargaining unit employees, the employer must bargain with the union concerning those impacts.  Spokane County Fire District 9, Decision 3661-A (PECB, 1991). 

 

When a union alleges that an employer made a unilateral change, the union bears the burden of establishing that the dispute involves a mandatory subject of bargaining and that the employer’s actions constituted an actual, material change to the status quo.  Kitsap County, Decision 8292-B (PECB, 2007); Snohomish County, Decision 4995-B (PECB, 1996).

  

Waiver by Contract

When negotiating collective bargaining agreements, parties sometimes agree to provisions that waive or alter their statutory bargaining rights. State - Social and Health Services, Decision 9690-A (PSRA, 2008).  For parties to effectively waive statutory collective bargaining rights, they must consciously agree to the waiver.  The waiver must be clear and unmistakable and cannot be implicit.  City of Wenatchee, Decision 8802-A (PECB, 2006).  When a union agrees to a knowing, specific, and intentional contractual waiver, the employer may implement unilateral changes that conform to the contractual waiver. City of Wenatchee, Decision 6517-A (PECB, 1999).  The party alleging a waiver bears the burden of proof.  City of Wenatchee, Decision 8802-A.  WAC 391-45-270(1)(b).

 

Past Practice

Parties to a collective bargaining agreement may maintain a well-established procedure relating to a mandatory subject of bargaining that they do not include in their bargaining agreement. City of Pasco, Decision 9181-A (PECB, 2008). In such situations, if the procedures relating to a mandatory subject of bargaining are so well-understood and implemented by the parties that they constitute a past practice, a party commits an unfair labor practice if it unilaterally changes that past practice without fulfilling its bargaining obligation.  Whatcom County, Decision 7288-A (PECB, 2002).  To establish a past practice, a party must prove the following two basic elements: (1) a prior course of conduct, and (2) an understanding by the parties that such conduct is the proper response to the circumstances.  Kitsap County, Decision 8292-B (PECB, 2007). 

 

Information Requests

The good faith bargaining obligation under Chapter 41.56 RCW includes responding to requests for relevant information that a party needs to properly perform its duties in the collective bargaining process.  This includes information relating to negotiations and the administration of the collective bargaining agreement.  A party that fails to provide such requested relevant information commits an unfair labor practice.  King County, Decision 6772-A (PECB, 1999). 

 

When a party receives an information request, that party must provide the requested information or notify the other party if it does not believe the information is relevant to collective bargaining activities.  Seattle School District, Decision 9628-A (PECB, 2008).  If a party perceives a particular request as irrelevant or unclear, the party is obligated to timely communicate its concerns to the other party.  Pasco School District, Decision 5384-A (PECB, 1996).   Commission decisions emphasize that parties must communicate with each other and bargain over concerns and objections to information requests.  Port of Seattle, Decision 7000-A (PECB, 2000). In Seattle School District, Decision 5542-C (PECB, 1997), the employer claimed that “the union was not necessarily entitled to the information in the form requested.”  The Commission acknowledged that the employer may have been accurate but said “the employer had a duty to make a good faith effort to discuss the requested items with the union, so as to attempt to reach a mutually acceptable compromise or accommodation on the request.”

 

Although the duty to provide information does not compel a party to create records that do not exist, parties maintain an obligation “to make a reasonable good faith effort to locate the information requested.”  Seattle School District, Decision 9628-A; Kitsap County, Decision 9326-A (PECB, 2008).  

 

Additionally, parties must be prompt in providing relevant information.  Delay in providing necessary information can constitute an unfair labor practice.  City of Seattle, Decision 10249 (PECB, 2008), aff’d, 10249-A (PECB, 2009); Fort Vancouver Regional Library, Decision 2350-C (PECB, 1988).  Neither the Commission nor the National Labor Relations Board (NLRB) adopts a bright-line rule defining how quickly a party must respond to a request for information.  The examiners in the cases just cited looked to several factors to determine whether a delay in providing information was an unfair labor practice, including the preparation required for response, the impact of the delay to the party requesting the information, and whether the party responding to the request intended to delay or obstruct the process.  For example, in Port of Seattle, Decision 4989 (PECB, 1995), the examiner concluded that under the facts and circumstances of that case, a delay of a little less than three months was not unreasonable:

 

Although not a response time that should be held up as exemplary, the employer's response to this detailed request in a little less than three months does not seem entirely unreasonable.  Preparation of that response required research into the records of a large and complex employer.  The union presented no evidence that it was unduly handicapped by this delay.  Without such a showing or at least some justification for the need for a shorter return time, an unfair labor practice charge cannot be sustained.

 

Direct Dealing

The good faith bargaining obligation under Chapter 41.56 RCW requires the employer to bargain with the exclusive bargaining representative of the employees.  An employer that circumvents the bargaining representative and negotiates directly with represented employees concerning mandatory subjects of bargaining commits an unfair labor practice.  The law permits employers to communicate directly with represented employees as long as the communication does not constitute bargaining or other unlawful activity.  Grandview School District, Decision 10639-A (EDUC, 2011).

 

BACKGROUND INFORMATION

 

The employer’s Nutrition Services Department (department) operates kitchens that provide meals to students in approximately 90 schools.  The employer receives approximately one million dollars per month in government reimbursements for students who qualify for free and reduced- price meals.  Eric Boutin began work as the employer’s Nutrition Services Director on July 1, 2010.  Boutin’s predecessor, Anita Finch, served in the position from 2005 to 2010.

 

The union represents a bargaining unit of Nutrition Services employees who work in the kitchens, including kitchen managers.  David Westberg serves as the union’s business manager and Mike McBee serves as the union’s recording and correspondence secretary.  At all relevant times, the employer and union were parties to a collective bargaining agreement effective from 2009 through 2013. 

 

Article XII, Section 1 of the collective bargaining agreement provides as follows:  “Hours are assigned based on the number of meals served.  However, hours may be adjusted by the Director of Nutrition Services when justified by program requirements.”

 

Over the years, the parties have negotiated specific “meals per labor hour” (MPLH) standards that generally determine the work hours assigned to the particular type of kitchen (i.e., elementary or secondary school).^[2]  Beginning with the 2009-10 school year, the secondary school kitchens changed from “production” to “bulk” kitchens.  Bulk kitchens require less employee work hours because they receive much of the food already prepared at the central kitchens.  As a result of the change, the parties negotiated a new MPLH standard for secondary bulk kitchens.  According to the employer, the MPLH standard helps to keep the program operational. 

 

From the beginning of his employment, Boutin expressed concern to Westberg about schools that fell significantly below the MPLH standards and sought to work collaboratively with the union to adjust hours.  Beginning in July 2010,^[3] they met in person and communicated extensively by e-mail about Boutin’s concerns and ideas.

 

July Communications

Although not directly at issue, the communications between Boutin and the union in July are relevant to this decision.  By e-mail to Westberg dated July 12, Boutin identified five elementary schools “with very low participation/MPLH,” asked if there had been previous discussion about the schools, and stated:  “These are not sustainable numbers – I would like to touch base with you on thoughts going forward . . . .”  In an e-mail on the same day Boutin wrote:  “Dave, I would welcome your history of our MPLH / site hour assignment process and I will share my perception (based on what I hear here), then I would like to meet (at your convenience) to see where they need clarification.”  

 

According to Boutin, he threw out as a “conversation starter” the idea regarding which months to use for two MPLH evaluation periods.  Westberg responded that Boutin’s approach would not use the strongest months leading to more disruption with possible employee bumping.  The communication continued by e-mail and Westberg encouraged Boutin to work on it when staff was more available at the end of summer and to take changes slowly to give staff time to adjust.  Boutin responded:

 

This unpleasant topic is one I hesitate to postpone.  I would like to envision you and I brainstorming/coming to agreement on a reasonable (set) protocol with regard to MPLH.  However painful at first, once established will give all of us a clear path. 

 

            I am requesting that we meet (or email) to continue discussion.

 

If you would like to do this with staff present, all the better, I might suggest we start by involving the 5 elementary managers as identified or maybe it makes sense to do a sampling of staff from all levels.  I would defer to your preference.

 

On July 15, Boutin e-mailed Westberg indicating that Boutin edited his proposal on which months to use for the evaluation periods based on union concerns and reservations.  Boutin confirmed the intent to formally evaluate MPLH twice per year and identified which months would be used.  He noted that he would share and review exceptions with the union.  Boutin expressed that some kind of split shift was the only viable option for the elementary school kitchen “outliers.”^[4]  He wrote: “We look forward to reviewing the reports with you and an identification of a reasonable approach to addressing.” 

By e-mail dated July 19, Westberg objected to moving forward with split shifts without rebidding positions that had been announced in June.  Neither Westberg nor anyone from the union objected to the months used for the evaluation periods or requested to bargain that issue.  Boutin responded by e-mail on the same day proposing that he and Westberg meet with the five managers to discuss their suggestions:

 

Assuming we can work to identify a reasonable addressment for September, I think we could delay any “split” options until the December review (based on Oct/Nov numbers and implemented January 1).  I might add that “splits” are not our preference, but there is such a discrepancy in hours it is difficult to imagine other equally effective options.

 

He also noted in a subsequent e-mail on the same day:

 

I will add – we will not take any action until we (NS) create a MPLH spreadsheet for March 1 – May 31, 2010.

 

At that point, we’ll evaluate all sites and discuss with you those ‘outliers’ that will need some sort of plan and we can work together to identify an amenable/reasonable approach as best we can. 

 

By e-mail from Boutin to Westberg dated July 27, Boutin attached the March 1 to May 30 MPLH data, indicating that he intended to address larger discrepancies, not discrepancies of one hour or less. Boutin wrote:

 

As you will note, most of the secondary schools are over in hour allocation – our intention is to work with each manager before school starts to make a plan for their participation (we will assume you will also attend).

 

You might wish to give me some guidance as to how at these meetings this issue can (has been) best be approached – at this point, there are 10 secondary schools with 1.2 – 3.7 hours over target MPLH.  We recognize that each one is a bit unique, so we will look at each one and will endeavor to adjust hours to recapture at least part of each discrepancy.  There is one secondary school that may receive additional time based on their MPLH. 

 

At the elementary level, we have 9 schools over target (need hour reduction) and 6 schools under target (need more hours). You will notice several schools are off quite a bit, but the position is already at what we consider the minimum (3.5) for the program we currently wish to deliver and these are not being proposed to cut.

I am still interested in meeting with the five elementary managers (Coe, Hay, Laurelhurst, Loyal Heights, Whittier) individually (with you) to determine how we might best address their situation (our preference is not to make these prepacks, but the hour discrepancy is so great, we need to be creative and perhaps consider split shifts). 

 

The record demonstrates that Boutin initiated contact with at least one kitchen manager to discuss the hours allocated to her school for the next year; after she requested representation, Boutin e-mailed Westberg asking about his availability for the meeting. 

 

August – December Communications

In an August 5 e-mail to the department’s supervisors, with a copy to Westberg, Boutin advised the supervisors and Westberg that the department would work with schools to address MPLH.  Boutin included with the e-mail a draft letter to be sent to the kitchen managers whose schools fell outside the MPLH standard.  The letter included:

 

Our goal is to have reasonable expectations for performance across all schools and to utilize MPLH as a tool to be consistent and fair.  The concept is one most every school district uses for their food services and we (Seattle) have used this ourselves as a tool for hour assignments per site. 

 

The letter discussed the intent to establish two periods to formally evaluate time allocations based on the MPLH standard and identified the months that would be used. The letter advised the kitchen managers that their schools fell outside the MPLH standard and stated:  “We would like to schedule a time when your Supervisor can discuss the possible impact at your school and work with you on the best possible options.”  The record shows that conversations between Boutin and McBee continued on this subject into the second week of August and that Boutin expressed willingness for employees to invite union representation to attend any meetings.  The evidence revealed no union objection to either the employer’s letter to employees or with the employer holding meetings with the kitchen managers to discuss the issues identified in the letter. 

 

On October 6, the union submitted an information request for the September MPLH data.  On October 15, in accordance with a protocol described in more detail below, Boutin e-mailed the data to the employer’s Labor Relations Department for its response to the union.  On the same day, Boutin also e-mailed the MPLH data to the kitchen managers.  The Labor Relations Department did not transmit the data to the union until October 22.  The union also submitted a request for information on December 2.  I discuss both requests in greater detail below under “Requests for Information.”

 

In much of November and December, the department had no secondary supervisor so Boutin, in addition to his director duties, performed the functions of the department’s secondary supervisor. According to Boutin, it was in that role as a secondary supervisor that in December he began having individual communications with four secondary school kitchen managers about the MPLH data and reducing the hours allocated to their kitchens because they were not meeting the MPLH standards. 

 

In response to union opposition, the employer elected not to reduce hour allocations to any school until after completion of the MPLH protocol it was jointly developing with the union.  Boutin’s January 3, 2011 e-mail to Westberg confirmed that the employer, with the union’s consent, increased hour allocations at 16 school kitchens, and made no negative adjustments at any school kitchen:  “We look forward to working with IUOE Local 609 and Labor Relations to cooperatively document a protocol for reviewing MPLH and proceeding with changes based on that protocol.”

 

ISSUE 1: BARGAINING OBLIGATION

 

ANALYSIS

In this section I address the issue of whether the employer breached its good faith bargaining obligation concerning work hours and meal counts between September 2010 and December 15, 2010. 

 

To establish a breach of the employer’s good faith bargaining obligation, the union must establish that the employer had an obligation to bargain a mandatory subject, that the union requested to bargain, and that the employer engaged in specific conduct or a course of conduct designed to frustrate the bargaining process.  Snohomish County, Decision 9834-B (PECB, 2008).

 

The employer does not contest that work hours are a mandatory subject of bargaining.  Rather, the employer argues that the union waived its right to bargain the assignment of hours.  I agree.  The parties negotiated a collective bargaining agreement that requires the employer to assign hours to school kitchens based on the number of meals served while granting the department’s director the authority to make adjustments justified by program requirements.  Article XII, Section 1 states:  “Hours are assigned based on the number of meals served.  However, hours may be adjusted by the Director of Nutrition Services when justified by program requirements.”  As described in the “background information” section above, the parties negotiated how the employer calculates “meals served” as well as the MPLH standard that the employer applies to increase and decrease hours allocated to individual school kitchens.  

 

The collective bargaining agreement clearly establishes that meals served are the standard by which hours are assigned and then unequivocally gives the Director of Nutrition Services the right to adjust hours when justified by program requirements.  These provisions constitute an explicit contractual waiver to bargaining the allocation of hours to schools.  The employer acted consistently with the collective bargaining agreement when it took steps intending to reduce hours allocated to several school kitchens that did not meet the negotiated MPLH standard.  The union waived by contract any right to bargain the reduction of hours allocated to individual school kitchens.^[5]  

 

The union’s position, however, is more nuanced than simply arguing that the employer had an obligation to bargain changes to work hours.  The union argues that the employer maintained an obligation to bargain:  (1) the methodology used to arrive at the MPLH data; and (2) the accuracy of the MPLH data, and the application of the data to individual kitchens.  I address each of these topics in the sections which follow.       

MPLH Methodology

The union does not allege that the employer sought to change the negotiated MPLH standard or how it calculates the number of “meals served.”  Instead, the union focuses on employer adjustments of the months used for calculating changes in hours and redactions.

 

Months Used for Calculating MPLH.  When Finch served as the department’s director, the department generally reduced hours allocated to kitchens twice a year based upon the average MPLH data for specific calendar months.  In July, Boutin proposed maintaining two evaluation periods and adjusting the months used in the calculation.  He communicated his ideas to the union and, in response to feedback from the union, Boutin revised his original proposal.  As described in the “background information” section above, Boutin clearly communicated his revised proposal in several e-mails to Westberg. 

 

I find the record demonstrates that the union raised no disagreement with the revised proposal.  The employer provided the union with ample notice and opportunity for bargaining; the union did not request bargaining.  I conclude the evidence does not establish that the employer committed a refusal to bargain violation. 

 

Redaction.  The redaction process involved excluding a day from the MPLH calculation of a particular school because of some event at that school that may be perceived as adversely impacting student participation in school meals (i.e., early release day, field trips).  The collective bargaining agreement does not address redactions.  The record does not clearly identify a past practice involving redactions.  When Finch directed the department, the union would sometimes ask that a particular day in a particular school be redacted from the MPLH data.  Finch’s testimony reflected skepticism of the value of redacting days.  She testified about a situation when she redacted days at the request of two schools and the schools’ MPLH numbers reflected lower participation than had she not redacted the requested days:  “And for me it makes sense.  If you have less days with which − based on percentages with which to show your numbers, it's not going to help you.” 

 

Like Finch, Boutin appeared skeptical of the value of redacting days from the MPLH calculation.  In a November 22 e-mail from Westberg to Boutin, Westberg forwarded an e-mail from the superintendent in which the superintendent advised staff of the upcoming early dismissal day, and  Westberg commented as follows: “Please ensure that meal counts are adjusted so as to redact Wednesday’s numbers as is established policy.  Managers should note early dismissal on SAP or however else you desire so as to not affect regular meals-per-labor-hour averages.”  (Emphasis supplied).  When the union’s attorney asked about the e-mail, Westberg testified as follows:

 

            Q.  [By Barnard]  What was your purpose, Dave, in sending this e-mail to Eric?

 

                                    A.  [Westberg]  Well, I was on about a four- or five-month journey of trying to help Mr. Boutin understand what and why certain dates would be redacted from numbers so as not to throw off their averages.

 

Several weeks after Westberg instructed him to redact dates for early release days however he desired, Boutin sought information from the kitchen managers via e-mail about which days they wanted to have redacted for the MPLH calculation. 

 

Based upon the evidence presented in this case, I find that the employer did not refuse to bargain about redactions.  The record does not establish a past practice on redactions.  The evidence demonstrates that Boutin asked the kitchen managers about redactions in response to his perception of Westberg’s direction that he obtain redaction information from the kitchen managers.

 

Accuracy of Data and Application to Individual Kitchens

In essence, the union argues that the parties’ past practice requires the employer to take no steps toward reducing the hours allocated to school kitchens until after the employer presents the union with the MPLH data and the union has the opportunity to verify the accuracy of the data and, if necessary, bargain.  The evidence does not support this argument. 

 

The evidence demonstrates a history in which the employer provided the union with MPLH data and offered to discuss the data if the union wished to do so.  The evidence does not establish that the employer engaged in a past practice of providing the data to the union and taking no further action until the union had an opportunity to challenge the data and engage in bargaining.  

 

For example, in a January 8 e-mail to Westberg, Finch wrote:  “You have received the meal equivalents for October and November, and, December will be sent as soon as we have completed the OSPI report.  All schools will be reviewed for hours assigned once we have December counts and any changes will be communicated with you.”  In a follow-up e-mail dated January 25 from Finch to Westberg and McBee, Finch wrote:

 

Attached are the meal equivalents for each school for Oct. Nov. and December.  The supervisory staff have/are meeting with managers to discuss increases and reductions in hours due to standards in meals per labor hour.  I will have a summary sheet reflecting those discussions by mid week.  Once you have reviewed this information and the summary sheet, I am available to discuss any issues you might have.

 

(Emphasis supplied).  Westberg responded by e-mail the next day as follows:  “Since the decreases have been immediate in some cases, shall we assume the increases will be as well?”

 

This example demonstrates that during Finch’s tenure, supervisors sometimes met with kitchen managers about reductions to hour allocations prior to the union having all the relevant data and verifying it, and without bargaining about the MPLH data and application of the MPLH standards to the specific kitchens.^[6]     

 

Without question, the record shows instances in which the union questioned the accuracy of particular MPLH data and instances in which the union advocated for deviations from the MPLH standard based upon unique factors faced by particular kitchens.  At times, the employer agreed not to reduce work hours until they were able to review updated data with the union.  At times, the employer agreed to deviate from the standards based upon the union’s input. 

 

Although the evidence demonstrates some instances of the employer’s willingness to discuss union concerns about the data and deviations from the MPLH standard, I find the record does not support a binding past practice requiring union verification of the accuracy of the data and bargaining before supervisory employees used the data to discuss potential hour allocation reductions with kitchen managers. 

 

Westberg testified unequivocally that the employer maintained a practice of providing the MPLH data and allowing for bargaining prior to meeting with employees about the possibility of hours reductions.  In light of the contradictory evidence, I do not credit his testimony on this point.       

 

ISSUES 2 AND 3: UNILATERAL CHANGE

 

ANALYSIS

In this section I address the issues of whether the employer unilaterally changed work hours for employees at Hamilton Middle School and Ballard, Rainier Beach, and Roosevelt High Schools and whether the employer unilaterally changed a mandatory subject of bargaining through including contracted sites in meal counts without providing an opportunity for bargaining.  The union maintains the burden of establishing that the employer made an actual, meaningful change to a mandatory subject of bargaining. 

 

Work Hours

The union alleges that the employer unilaterally changed work hours at Hamilton Middle School and Ballard, Rainier Beach, and Roosevelt High Schools.  I find the record is undisputed that the employer made no changes to the work hours allocated to the referenced kitchens during the time period relevant to this matter.  Although the employer had announced its intent to reduce hours allocated to the kitchens, the employer deferred reductions until after the parties jointly developed a MPLH protocol.  I find the employer did not commit a unilateral change violation because it did not change work hours. 

 

Contracted Sites 

The preliminary ruling also includes a cause of action for “unilateral change through including contracted sites regarding meal counts, without providing an opportunity to bargain.”  The evidence established that historically, the employer included contracted sites such as the head start and tiny tots programs in the MPLH data; the employer continued to include contracted sites during the time period relevant to this matter.  I find the employer did not commit a unilateral change violation by including contracted sites in the MPLH data.  

 

ISSUE 4: REQUESTS FOR INFORMATION

 

In this section I address whether the employer committed a refusal to provide information unfair labor practice with respect to the union’s October 6 and December 2 information requests.^[7] 

 

BACKGROUND INFORMATION

The parties have litigated numerous information request disputes before the Commission.  The Commission and its examiners have concluded that the employer committed information request violations and have, in several instances, awarded extraordinary remedies.^[8]  As a result, the employer developed a process for bargaining representatives and the employer to use when making and responding to information requests.  By e-mail dated September 24, the employer re-issued information on the process to all bargaining representatives, including the union.  The process requires the union to submit information requests to the Labor Relations Director (LRD) for response. 

 

October 6 Request

On October 6, the union submitted a request to the LRD for the September MPLH data.  Eva Edwards, Senior Human Resource Analyst, responded the same day as follows:  “I estimate within the next 15 days, I will either provide the requested documents or advise you that additional time is needed to locate and assemble the information requested, notify third parties, or determine the applicability of any exemptions.”  McBee responded the same day with the following: “15 days seems a bit long.  Eric [Boutin] tells us he already has the information.  You could get it to us by noon with a simple email.”  Westberg also sent an e-mail questioning the 15 day timeframe.  Edwards replied to McBee as follows:  “In the email I stated within the next 15 days I would provide you with information.  Meaning if I get the information sooner than 15 days, I will make it available to you.  It is my understanding that the information will not be available by noon today.”  McBee replied:  “So we’re somewhere between noon today and 15 days from now.  Got it.” 

 

On October 15, Boutin sent the data responsive to the union’s request to Edwards.  In his e-mail to Edwards, Boutin noted that he omitted the vending data^[9] which would be updated and that “No negative action is intended to be taken with this September data.”  On October 22, Edwards e-mailed Westberg the information.  This was one day later than the 15 days she had estimated.  She testified that the delay was due to her workload issues.  On October 15, the same day that Boutin e-mailed the data to Edwards, he also e-mailed the data to the kitchen managers.  He did not copy the union on either e-mail. 

 

December 2 Request

On December 2, the union submitted a request to the LRD for the November MPLH data, SAP data showing hours worked, and vending data.  On December 10, Westberg learned that Boutin was talking with a kitchen manager about reducing hours allocated to her kitchen based upon MPLH data.  The same day, Westberg e-mailed Howard Pripas, the employer’s Director of Labor and Employee Relations, reporting that he had not received the November MPLH data upon which Boutin was basing threatened hours reductions. 

 

On December 13, Boutin e-mailed the November MPLH data to Edwards noting that he would send SAP data later in the week when it would be available.  The same day, Edwards e-mailed Westberg the November MPLH data noting that Boutin had been waiting for information from the contracted sites and was still waiting for other information:  “Once the District has received the SAP report for the month of November 2010, it will be forwarded to you immediately.” 

 

ANALYSIS

The employer provided the union the September data 16 days after it was requested, one day later than when Edwards indicated it would be available.  The employer provided the November data 11 days after it was requested.  The union argues that the employer’s delay in providing the September and November data constitutes a refusal to bargain violation.  The union asserts that the data was readily available and that Edwards’ workload justification for the delay in providing the September data was not credible because all she had to do was forward Boutin’s e-mail to the union.  The union asserts that the employer failed “to put in place a system that would result in timely responses to information requests.”  I find that the employer’s response time does not constitute an unfair labor practice.  In reaching this conclusion, I applied the following three factors discussed in the “applicable legal standards” section above:

 

Factor 1: Preparation Required.  The union argues that the data was available immediately.  I disagree and credit Boutin’s testimony on this point, which Finch corroborated.  During Finch’s tenure as department director and continuing into Boutin’s tenure, the department spent the first part of the month compiling the necessary data from its system to submit its reimbursement report to the Office of the Superintendent of Public Instruction (OSPI) by a deadline, typically about the tenth of the month.  The department needed to submit the OSPI report by the deadline so that the employer received the approximately one million dollar reimbursement for free and reduced-price meals on time; otherwise, the revenue would be delayed by one month. 

 

Once completed, the department used the OSPI report as a base in preparing the MPLH data.  The department needed to supplement the OSPI report with vending data, contracted site data, and data on employee hours worked.  Some of this data had to be entered manually.  According to Finch’s testimony, because of the deadline for the OSPI report “we could never have our data available until after the 15^th of the month.”   

 

The employer’s process for handling information requests requires the department director to forward information responsive to requests to the LRD, which reviews the information and then submits it to the union.  In the case of the October request, this step in the process added one week.  With the December request, this step in the process added 61 minutes. 

Factor 2: Impact of Delay.  To the extent the employer’s 16-day response time to the union’s October request is considered a “delay,” the record demonstrated little, if any, impact.  Historically, and in this situation, the employer took no action on the September data.  With respect to the union’s December request, several days before the employer responded to the request, Boutin initiated communication with at least one kitchen manager based in part on the November data that the union was seeking.  At least one employee contacted Westberg about a potential reduction in hours allocated to her kitchen before Westberg had received the data.  One of the reasons the union seeks the data is so that it can respond to employee questions about potential cuts or increases. 

 

Factor 3: Intention to Delay or Obstruct.  I find no evidence establishing or even hinting at employer intent to delay providing the union the information it requested or to obstruct the process.  Boutin and Edwards testified credibly about their efforts to provide the data in a timely manner.  The evidence reflects no negative intent on Boutin’s part in e-mailing the September data to the kitchen managers or in initiating the conversations with kitchen managers before the union had the November data. 

 

In looking at the totality of the evidence on this issue, I find that given the preparation required, the impact of any perceived delay, and the lack of an intention to delay or obstruct the process, the employer did not unreasonably delay its responses to the union.  I find the employer did not refuse to bargain in violation of RCW 41.56.140(4) when it provided information requested by the union concerning meal counts for September and November. 

 

ISSUE 5: DIRECT DEALING

 

ANALYSIS

In this section I address whether the employer engaged in direct dealing when Boutin provided MPLH data to kitchen managers as well as when he communicated with kitchen managers about reducing hours allocated to the kitchens based upon the MPLH standard.    

 

Providing Data to Kitchen Managers 

On October 15, Boutin e-mailed kitchen managers the September MPLH data.  His e-mail stated that supervisors would contact the managers with kitchens that were over their MPLH “to review any potential needs for your operation (if they have not already).”  The e-mail also noted that vending data was not yet available. 

 

The record demonstrates that the kitchen managers could access some form of their individual kitchen’s MPLH information on their computers, and that the employer did not have a practice of providing the data to the employees through e-mail or hard copies.  The record shows that the union sometimes provided MPLH data to the kitchen managers. 

 

I find the employer did not engage in unlawful direct dealing when Boutin provided the data to the kitchen managers.  Boutin provided the information and advised the employees that supervisors would contact those who were not meeting the MPLH standard.  The fact that the employer had not previously e-mailed this data to the managers is not relevant.  By e-mailing the data the employer was not engaged in bargaining with represented employees on a mandatory subject.  Additionally, the evidence does not establish that by sending this data the employer was attempting to fulfill the union’s information request, to disparage the union, or to otherwise interfere with union rights. Although the employer had not yet provided the data to the union in response to the union’s information request, I find sending the data to the kitchen managers does not constitute an unfair labor practice.

 

Communicating With Kitchen Managers About Reducing Hours 

In December, Boutin communicated with four secondary school kitchen managers, about the need to reduce work hours allocated to their school kitchens based on the MPLH standard.  Although some communication occurred in telephone calls, most of the communication occurred by e-mail.  On December 13, after having had an earlier telephone conversation, Boutin e-mailed the following to Judi Olson, Ballard High School’s kitchen manager: 

 

Based on your Oct/Nov MPLH, we need to reduce assigned hours at Ballard High School by 3.75 hours.

If there are days in this calculation that need to be redacted, please email me the days and the reason by 2 pm on Wednesday, December 15th (if you need more time, please let me know).

 

I will call you later in this week to see if we can determine and agree on how to best assign the 18.25 hours of assigned time at Ballard to be effective January 3rd, 2011.

 

Thank you.

Eric.

 

On December 14, Boutin and Olson e-mailed about redactions and Boutin redacted the days Olson suggested.  He stated: “Reduction in hours to consider effective January 3rd, 2011 = 1.5 hours.”  

 

On December 14, Boutin e-mailed Gail Davidson, kitchen manager at Hamilton Middle School, asking about redactions and informing her of the need to reduce hours based on the October and November MPLH data.  Several days later, Boutin e-mailed:  “Reduction in hours to consider effective January 3rd, 2011 = 2.75 hours.  I’d like to try to work through what reductions are possible and what they might look like. . . .”

 

Also on December 14, Boutin e-mailed Joyce Trichak, Rainier Beach High School’s kitchen manager, about the possibility of cutting two hours of time.  Later in the day his e-mail concerning redactions included the following:  “Reduction in hours to consider effective January 3rd, 2011 = 2.0 hours.”  Boutin wrote:

 

I’d like to try to work through what reductions are possible and what they might look like. . . .

 

We can touch base on the phone or in a meeting and if you would like representation, we can make those arrangements prior to discussing. 

 

I [sic] mostly interested in hearing what ideas you might have on addressing all or some of the 2.0 hours that Rainier Beach appears to be over allocation, from there we can figure out what might/might not be reasonable/possible.

 

Boutin had similar e-mail communications with Phyllis Duffy, Roosevelt High School’s kitchen manager, in mid-December, 2010.  Boutin made her requested redactions and stated:

 

Reduction in hours to consider effective January 3rd, 2011 = 1.25 hours.

I’d like to try to work through what reductions are possible and what they might look like. . . .

 

We can touch base on the phone or in a meeting and if you would like representation, we can make those arrangements prior to discussing.

 

I find that Boutin’s communications with the kitchen managers were not unlawful direct dealing.  To constitute direct dealing, the employer must negotiate directly with represented employees concerning mandatory subjects of bargaining.  As discussed earlier in this decision, the union waived by contract any right it had to negotiate reductions in hours allocated to individual kitchens.  The contract explicitly authorizes the department’s director to adjust hours based upon program requirements.  Additionally, the evidence reveals a practice of the department’s supervisory staff working with kitchen managers to address the reduction of hours allocated to their kitchens based on the MPLH standards.  By talking with the kitchen managers about how reduced hours could be implemented in their kitchens, I find Boutin acted consistently with the bargaining agreement requirements and the parties’ past practice. 

 

FINDINGS OF FACT

 

1.                  The Seattle School District (employer) is a public employer within the meaning of RCW 41.56.030(12).  The employer’s Nutrition Services Department (department) operates kitchens that provide meals to students in approximately 90 schools.

 

2.                  The International Union of Operating Engineers Local 609 (union) is a bargaining representative within the meaning of RCW 41.56.030(2) and represents Nutrition Services employees working in the kitchens, including kitchen managers.  David Westberg serves as the union’s business manager and Mike McBee serves as the union’s recording and correspondence secretary.

 

3.                   At all relevant times, the employer and union were parties to a collective bargaining agreement effective from 2009 through 2013.  Article XII, Section 1 of the collective bargaining agreement provides as follows:  “Hours are assigned based on the number of meals served.  However, hours may be adjusted by the Director of Nutrition Services when justified by program requirements.”  By the terms of this agreement, the union waived its right to bargain the reduction of hours allocated to individual school kitchens.  By its actions described below, the employer acted consistently with the terms of the agreement.

 

4.                  Eric Boutin began work as the employer’s Nutrition Services Director on July 1, 2010.  Boutin’s predecessor, Anita Finch, served in the position from 2005 to 2010.

 

5.                  Over the years, the parties negotiated specific “meals per labor hour” (MPLH) standards that generally determine the hours assigned to the particular type of kitchen (i.e., elementary or secondary school).  

 

6.                  From the beginning of his employment, Boutin expressed concern to Westberg about schools that fell significantly below the MPLH standards and sought to work collaboratively with the union to adjust hours.  Beginning in July 2010, they met in person and communicated extensively by e-mail about Boutin’s concerns and ideas. 

 

7.                  During the course of discussions in July 2010, Boutin proposed two MPLH evaluation periods and identified which months would be used for each.  Westberg responded that the approach would not use the strongest months leading to more disruption with possible employee bumping.  On July 15, Boutin e-mailed Westberg indicating that Boutin edited his proposal on which months to use for the evaluation periods based on union concerns and reservations.  Boutin confirmed the intent to formally evaluate MPLH twice per year and detailed which months would be used.  The union did not object.  The employer provided the union ample notice and opportunity for bargaining and the union did not request to bargain the months used for the evaluation periods. 

 

8.                  In an August 5, 2010 e-mail to the department’s supervisors, with a copy to Westberg, Boutin advised the supervisors and Westberg that the department would work with schools to address MPLH.  Boutin included with the e-mail a letter to be sent to the kitchen managers whose schools fell outside the MPLH standard.  The letter included:

 

Our goal is to have reasonable expectations for performance across all schools and to utilize MPLH as a tool to be consistent and fair.  The concept is one most every school district uses for their food services and we (Seattle) have used this ourselves as a tool for hour assignments per site. 

 

The letter discussed the intent to establish two periods to formally evaluate time allocations based on the MPLH standard and identified the months to be used.  The letter advised the kitchen managers that their schools fell outside the MPLH standard and stated:  “We would like to schedule a time when your Supervisor can discuss the possible impact at your school and work with you on the best possible options.”  The evidence revealed no union objection to either the employer’s letter to employees or the employer holding meetings with the kitchen managers to discuss the issues identified in the letter. 

 

9.                  In much of November and December 2010, the department had no secondary supervisor so Boutin, in addition to his director duties, performed the functions of the department’s secondary supervisor.  In December 2010, assuming the functions of secondary supervisor, Boutin began having individual communications with four secondary school kitchen managers about the MPLH data, redactions, and reducing the hours allocated to their kitchens because they were not meeting the MPLH standards. 

 

10.              During Finch’s tenure, supervisors sometimes met with kitchen managers about reductions to hour allocations prior to the union having all the relevant data and verifying it, and without bargaining about the MPLH data and application of the MPLH standards to the specific kitchens. 

 

11.              The evidence demonstrates a history in which the employer provided the union with MPLH data and offered to discuss the data if the union wished to do so. 

 

12.              The record shows instances in which the union questioned the accuracy of particular MPLH data and instances in which the union advocated for deviations from the MPLH standard based upon unique factors faced in particular kitchens.  At times, the employer agreed not to reduce work hours until they were able to review updated data with the union.  At times, the employer agreed to deviate from the standards based upon the union’s input.

 

13.              Although the evidence demonstrates some instances of the employer’s willingness to discuss union concerns about the data and deviations from the MPLH standard, the record does not support a binding past practice requiring union verification of the accuracy of the data and bargaining before supervisory employees used the data to discuss potential hour allocation reductions with kitchen managers. 

 

14.              The record does not establish a past practice on redactions.  The evidence demonstrates that Boutin asked the kitchen managers about redactions in response to his perception of Westberg’s direction that he obtain redaction information from the kitchen managers.

 

15.              The employer made no changes to the hours allocated to the kitchens at Hamilton Middle School and Ballard, Rainier Beach, and Roosevelt High Schools during the time period relevant to this matter. 

 

16.              Historically, the employer included contracted sites such as the head start and tiny tots programs in the MPLH data; the employer continued to include contracted sites during the time period relevant to this matter.

 

17.              On October 6, 2010, the union submitted a request to the employer’s Labor Relations Director (LRD) for the September MPLH data.  Eva Edwards, Senior Human Resource Analyst, responded estimating that within 15 days she would either provide the requested documents or advise that additional time was needed. The union questioned the timeframe believing that less time was necessary. 

 

18.              On October 15, 2010, Boutin sent the September MPLH data to Edwards and to the kitchen managers.  On October 22, Edwards e-mailed the data to Westberg.  This was one day later than the 15 days she had estimated.  The delay was due to her workload issues.

 

19.              On December 2, 2010, the union submitted a request to the LRD for the November MPLH data, SAP data showing hours worked, and vending data.  On December 10, Westberg learned that Boutin had talked with a kitchen manager about reducing hours allocated to her kitchen based upon MPLH data.  On December 13, Boutin e-mailed the November MPLH data to Edwards noting that he would send SAP data later in the week when it would be available.  On the same day, Edwards e-mailed Westberg the data noting that Boutin had been waiting for information from the contracted sites and was still waiting for other information. 

 

20.              The employer provided the union the September data 16 days after it was requested, one day later than when Edwards indicated it would be available.  The employer provided the November data 11 days after it was requested.  Given the preparation required, the impact of any perceived delay, and the lack of an intention to delay or obstruct the process, the employer did not unreasonably delay its response to the union.  

 

CONCLUSIONS OF LAW

 

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and Chapter 391-45 WAC.

 

2.                  By its actions described in Findings of Fact 3 and 6 through 16, the employer did not breach its good faith bargaining obligation and did not violate RCW 41.56.140(4) or (1).

 

3.                  By its actions described in Finding of Fact 15, the employer did not unilaterally change working hours for bargaining unit employees and did not violate RCW 41.56.140(4) or (1).

 

4.                  By its actions described in Finding of Fact 16, the employer did not unilaterally change a mandatory subject by including contracted sites in the meal counts and did not violate RCW 41.56.140(4) or (1).

 

5.                  By its actions described in Findings of Fact 17 through 20, the employer did not refuse to provide relevant information requested by the union concerning meal counts for September and November 2010 and did not violate RCW 41.56.140(4) or (1).

 

6.                  By its actions described in Findings of Fact 8 through 14, and 18, the employer did not circumvent the union through direct dealing with employees represented by the union and did not violate RCW 41.56.140(4) or (1). 

 

ORDER

 

The complaint charging unfair labor practices filed in the above-captioned matter is dismissed.

 

ISSUED at Olympia, Washington, this  24th  day of January, 2012.

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

JAMIE L. SIEGEL, 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.