PERC Examiner Holds Union Waived Right To Bargain Over University’s Decision To Contract Out Concrete Work

bleachersBy Chris Casillas and Sarah Derry

In Central Washington University, PERC Examiner Kristi Aravena dismissed the Washington Federation of State Employees’ Unfair Labor Practice complaint, holding that although the University had indeed contracted out bargaining unit work, the Union had failed to formally request bargaining.

In 2015, Central Washington University learned it could acquire second-hand bleachers from the Issaquah School District. Installing the bleachers required site preparation, placement of concrete, and assembly. The April 24, 2015 notice of work stated that some of the work would need to be contracted out. On April 28, representatives from the Union and the University discussed the project and agreed Union members would complete the site preparation. The Union stated it would like to also do the concrete work, and the employer apparently “acknowledged” this concern, but did not explicitly agree to allow union members to lay the concrete. On May 18, the Union’s Labor Advocate emailed the University, stating no bargaining was necessary, because the University had agreed that the Union would perform the site preparation and lay the concrete. The University did not reply to the email. Non-bargaining unit members ultimately placed the concrete.

Because the parties agreed that concrete laying was bargaining unit work, Examiner Aravena focused her analysis on whether the Union had demanded to bargain. The April 24 notice stated that some of the work would be contracted out, and the parties’ collective bargaining agreement required the Union to demand to bargain within 21 days of this notice – by May 15. The Union argued that it had demanded to bargain when, at the April 28 meeting, it stated it would like to lay the concrete. Examiner Aravena disagreed, in part because the Union witness testified that on April 28, the University representative had never affirmatively said bargaining members would perform the work.

I find the parties discussed the project and the union’s interests but did not have an agreement regarding the concrete work for the bleacher project following the April 28, 2015…meeting.  No follow-up conversations or e-mail communication occurred between the parties until after the contractual 21-day window period for filing a demand to bargain had expired….The union did not follow up with the employer after the UMCC meeting with an e-mail memorializing the parties’ discussion, as was its past practice, and it did not submit a demand to bargain within the contractual 21-day time frame. 

Nevertheless, the Examiner also noted that while it was not an issue before her, the University should have responded to the Union’s May 18 email:

The employer may have avoided the union’s filing of this complaint if it had responded to [the] May 18, 2015, e-mail declaring the union’s understanding of the agreement reached regarding the concrete work.  A response by the employer would have given the parties an opportunity to discuss the concrete work before it was perceived as a fait accompli….[I]t would be a best practice for both parties to have timely discussions in an effort to avoid miscommunication in the future.

Editor’s Note: The result in this case is questionable and the product of a possible misapplication of the relevant legal standards.  There is no dispute in this case that the concrete work was bargaining unit work and had been contracted out by the employer without agreement by the union.  The Examiner’s analysis focused on whether the union had waived its right to bargain this issue through its inaction.  But, the decision potentially misapplied the waiver by inaction doctrine and failed to include a discussion of the waiver by contract defense, which is actually a more sound basis for not finding a ULP violation in this case.

With respect to the waiver by inaction defense, the Examiner’s analysis misunderstands some important facts.  After receiving notice of the issue on April 24th, the parties met at a UMCC meeting on April 28th, just four days later.  At this UMCC meeting the union made clear its belief that the concrete work was bargaining unit work and that it expected it to remain within the bargaining unit.  While there was certainly no meeting of the minds on this point at this meeting, the employer was clearly on notice that the union expected the work to stay in house and the employer never made clear its intention, at this meeting, to contract out the work.  The subsequent email from the Union on May 18th confirming its belief that there was some resolution on the matter supports the argument that the union felt it had been clear in conveying its intent.  To the extent, at the time of the April 28th meeting, the employer knew it was going to want to contract out the work, then this should have been considered appropriate notice of a desire to bargain.  On the other hand, if the employer still did not know for sure as of April 28th that it would want to contract out the work, then it should have subsequently conveyed that clear intent to the union, which did not happen, and certainly the Union’s May 18th email could again be seen as a source of notice of demand to bargain.  The union in this case was undoubtedly not as clear as it should have been, and in these situations it is always strongly recommended that a clear written demand letter be submitted to the employer in a timely fashion.  But, the Examiner did not give enough credit to their efforts in finding they waived their rights through inaction.

Additionally, the Examiner failed to discuss another employer defense of waiver by inaction.  In this case, in the CBA, the parties had agreed to a standard requiring the union to give notice of its desire to bargain within 21 days.  Ordinarily a union would not necessarily be held to such a rigorous timeline for submitting a demand, which could vary by circumstances.  But, in this case there was an express contractual agreement.  If a clear bargaining demand had not been made within the 21 day timeline then the union could be seen as contractually waiving its right to make a demand to bargain outside those timelines.  There is at least an argument that the union made an earlier demand to bargain at the April 28th meeting, but if that was not found sufficient the subsequent email communication on May 18th was outside the 21-day timeline.  In the absence of this contractual language that would likely not be fatal to their case, but this language potentially creates a waiver of the union’s general rights to a longer response timeline and mandates a 21 day response.  It is not advisable to have such a provision in your CBA creating such a hard and fast restriction.