PERC Examiner Holds Employer Unlawfully Circumvented the Union When It Negotiated Directly With Employees Over Hours of Work

By: Chris Casillas and Sarah E. Derry

In Skagit Regional Health, PERC Examiner Emily K. Whitney held that the employer, which operates a cancer care clinic in Mount Vernon, Washington, improperly circumvented the union when it met with employees to discuss changing their work hours, rather than bargaining the change through the union.

Employers are legally obligated to bargain with unions over specific subjects, including employees’ work schedules. In this case, the director of the clinic held informal monthly meetings with employees. However, in one such meeting, the director talked with the clinic’s nurses about changing their hours to better meet patients’ needs. The director handed out a chart that showed how the clinic wanted to change the nurses’ hours, and asked the nurses for their feedback. The director had several more follow-up meetings with the nurses to incorporate their feedback, and later provided an updated chart that reflected a new hours proposal based on the nurses’ suggestions. At no point did the employer reach out to the union to bargain the changes, nor did the employer notify the union that it was soliciting feedback from the employees. The union filed an unfair labor practice complaint with PERC, alleging that the clinic was engaged in direct dealing with the nurses.

The employer argued that the conversations related to staffing, but Examiner Whitney held that the documents given to the nurses dealt specifically with their hours of work, which is a mandatory subject of bargaining. She noted that employers can communicate directly with represented employees, as long as that communication does not amount to bargaining. The informal meetings with the nurses were bargaining, Examiner Whitney held, because:

Significantly, the director used the information she gathered from employees, without negotiating with the union, to justify changes she made in the second document, which she provided to employees during the third meeting.  This back-and-forth communication between the director and the employees is by definition negotiation with the employees.

Examiner Whitney emphasized that the employer went through several rounds of bargaining, by continuing to have meetings with employees and altering its proposal each time to encompass their feedback. Specifically,

… the employer made changes to its proposal and tried to compromise with the employees based on their feedback without bringing the union into the discussion.

Editor’s Note: This decision helps highlight the important, but often confused, distinction between direct communications and direct bargaining between the employer and employees.  Within certain parameters (such as being truthful) an employer can communicate with its employees about certain topics even if such topics would be considered mandatory subjects of bargaining.  Where an employer runs afoul, as in this case, is when it bypasses the union and meets directly with employees to not only discuss a bargainable topic but to then also use those discussions to modify the employer’s position, policy, or procedure on such a topic.  As noted here, the employer took information provided by the employees about work schedules and then offered a new proposal on work hours without ever involving the union.  That, undoubtedly, crosses the line of simply communicating information to then becoming the very definition of collective bargaining, which necessitates the involvement of the union as the exclusive representative.

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