DECISIONS

State – Family Child Care Providers, Decision 12746-A (PECB, 2017)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

Deborah Thurber, for the petitioner, Pacific Northwest Child Care Association.

Gina L. Comeau and Morgan B. Damerow, Assistant Attorneys General, Attorney General Robert W. Ferguson, for the employer, State of Washington.

Robert H. Lavitt, Attorney at Law, Schwerin Campbell Barnard Iglitzin & Lavitt LLP, for the incumbent, Service Employees International Union, Local 925.

On April 27, 2017, the Pacific Northwest Child Care Association (PNWCCA) filed a petition to become the exclusive bargaining representative of the family child care providers bargaining unit.  The Service Employees International Union, Local 925 (SEIU) is the incumbent bargaining representative.  The Executive Director dismissed the petition.  State – Family Child Care Providers, Decision 12746 (PECB, 2017).  The PNWCCA appealed.

When a union files a representation petition, an employer must maintain the status quo for wages, hours, or other terms and conditions of employment while the petition is pending.  WAC 391‑25‑140(2).  When an order of dismissal is issued under WAC 391-25-390(1)(a), the obligation to maintain the status quo is lifted.  WAC 391-25-140(5).  However, if a party files a timely appeal of the order of dismissal with the Commission, the obligation to maintain the status quo remains in effect until a final order is issued by the Commission.  WAC 391-25-140(5)(a).

Any party to the proceeding may petition the Commission to stay the obligation to maintain the status quo.  WAC 391-25-140(5)(b).  The petitioning party must “demonstrate[] a need for a change in terms and conditions of employment due to circumstances that are beyond that party’s control, or where the failure to resume bargaining would substantially harm the petitioned-for employees and leave them without an adequate administrative remedy.”  Id.

On August 7 and 8, 2017, respectively, the State of Washington (employer) and the SEIU filed motions to stay the obligation to maintain the status quo.[1]  On August 14, the PNWCCA filed a response to the motions.

The employer requested the Commission to stay the status quo obligation on three issues: (1) the implementation of an electronic time and attendance system; (2) the development of a market rate survey; and (3) the resolution of a grievance filed by the SEIU over the Early Achievers Level 2 reimbursement payments to family child care providers (providers).

In addition to the three issues identified by the employer, the SEIU also requested the Commission to stay the status quo obligation on a fourth issue: negotiations over the effects of Initiative 1433.

The employer argues that granting its motion and allowing bargaining over the implementation of an electronic time and attendance system will reduce overpayments to providers.  The employer currently tracks time via paper reports, which the State Auditor’s Office found contained errors, resulted in overpayments, and resulted in charges of fraud against providers.  The employer has selected a vendor for the new system.  Allowing the employer and the SEIU to bargain will enable the employer to implement the new system and provide training to providers in a timely manner.

Federal law requires the employer to conduct a market rate survey and the incumbent union to provide input.  The employer and the SEIU will begin negotiating their successor collective bargaining agreement in 2018.  The employer has delayed selection of a contractor from July 2017 to August 2017 to allow for bargaining over the scope of the survey.  The employer argues that without the market rate survey, bargaining for the successor collective bargaining agreement will be hindered.  The SEIU agrees with the employer that implementation of the market rate survey is time sensitive and that delay in bargaining can result in a product that is not useful.

The employer and the SEIU had been attempting to resolve the Early Achievers Level 2 reimbursement grievance at the time the PNWCCA filed its petition.  The SEIU asserts that the employer incorrectly suspended negotiations on the grievance.  Failure to resume bargaining over the grievance will result in providers losing funding and impact their ability to attain a Level 3 rating, which brings more income and prestige.

The SEIU argues that (a) WAC 391-25-140(2) does not suspend an employer’s or a union’s obligations to administer the collective bargaining agreement; (b) the issues are time sensitive; (c) the costs associated with Initiative 1433 could create an economic hardship for providers; and (d) retroactive or belated relief would not help providers if they were temporarily unable to operate due to compliance with the initiative.

The PNWCCA does not object to the employer’s or the SEIU’s motion to stay the status quo obligation and allow the employer and the SEIU to resume negotiations over the implementation of an electronic time and attendance system, the development of a market rate survey, and the resolution of the grievance over the Early Achievers Level 2 reimbursement payments to providers.  Accordingly, we grant the motions on those three issues.

The PNWCCA objects to the SEIU’s motion to stay the obligation under WAC 391-25-140(2) and (4) for purposes of negotiating the effects of Initiative 1433.  The PNWCCA argues that the negative consequences for bargaining unit members would be economic rather than legal; therefore, the administrative remedy mentioned in WAC 391-25-140(5)(b) is not applicable to this case.  The PNWCCA asserts that the SEIU’s active advocacy for Initiative 1433 placed Initiative 1433 within the SEIU’s control.  The PNWCCA argues that the SEIU did not establish that bargaining unit employees would be substantially harmed if the SEIU’s motion were denied.

Based on the evidence before us, we conclude that maintaining the status quo obligation could substantially harm bargaining unit members and leave them without an adequate administrative remedy.  To avoid potential harm to bargaining unit members, we grant the SEIU’s motion to stay the status quo obligation on negotiations over the effects of Initiative 1433.

ORDER

The motions to stay the status quo obligation are granted.  The obligation to maintain the status quo on (1) the implementation of an electronic time and attendance system; (2) the development of a market rate survey; (3) the resolution of a grievance filed by the SEIU over the Early Achievers Level 2 reimbursement payments to providers; and (4) negotiations over the effects of Initiative 1433 is lifted.

ISSUED at Olympia, Washington, this  18th  day of August, 2017.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

                                                MARILYN GLENN SAYAN, Chairperson

                                                MARK E. BRENNAN, Commissioner

                                                MARK BUSTO, Commissioner