PERC Examiner Holds Employer Did Not Unilaterally Change Past Practice When It Cancelled Alternate Workers Compensation Program That It Used For Seven Weeks

By: Sarah E. Derry, Chris Casillas

In Vashon Island Fire and Rescue, PERC Examiner Karyl Elinski found that the employer’s decision to end its participation in a program that kept injured workers on salary (“Kept on Salary”) rather than using workers’ compensation was not an unfair labor practice. The employer had adopted the program for only seven weeks before deciding to terminate the program.

The employer, Vashon Island Fire and Rescue, adopted the Kept on Salary program in response to rising L&I costs as more and more employees needed workers’ compensation. Through the program, the employer pays the full cost of the employee’s salary, but because there is no L&I claim, the employer’s premiums do not increase. The program is designed for short term leaves, as a longer absence would be cost-prohibitive for the employer.

The employer first discussed the Kept on Salary program with the union in May 2015 when the union vice president suffered an on-the-job injury. He was enrolled in the program, but the employer switched him to regular workers’ compensation in July when it became cost prohibitive to keep him on. The union did not object to this change. Two other employees were placed on the program for short term absences between May and July. Around the same time that the union vice president was transferred off of the program, the employer met with the union to discuss discontinuing the program altogether, with the possibility of bringing it back in the future. The union filed an unfair labor practice complaint.

Both parties acknowledged that the leave program was a mandatory subject of bargaining. The parties disagreed, however, about what the relevant past practice was. The union argued the past practice was the Kept on Salary program, and that its termination was unlawful. The employer argued that the relevant past practice was the years when only workers’ compensation was offered, and that the Kept on Salary program had only been used in an “experimental” way to test the feasibility. The Examiner agreed with the employer, emphasizing that the union had not objected when the vice president’s participation in the program was ended, which “alone supports an inference that the union acknowledged the program was not a past practice giving rise to the duty to bargain.” The Examiner held:

It would have been wiser for [the employer] to have discussed the KOS program with the union prior to using it for any employee, but his error did not amount to an unfair labor practice violation.  The employer’s limited use of the KOS program for three employees over a seven-week period, the uncertainty of the program’s use for individual absences that were of an indeterminate duration, and the desire of the employer to save money on premiums made the existence and application of the program tenuous at best.  The circumstances did not create a situation for the union to receive a windfall requiring the employer to place all employees who claimed or will claim workers’ compensation benefits on KOS status.  The use of the KOS program failed to rise to the level of a past practice upon which the union could meet its burden.

Although the union also argued in its complaint and its brief that the employer unilaterally adopted the program originally without bargaining, the examiner noted that this was not one of the charges found in the preliminary ruling, so this charge could not be considered.

This case helps illustrate the importance for unions in making formal demands to bargain and executing a formal agreement with an employer concerning a mandatory subject of bargaining.  Undoubtedly the “Kept on Salary” program in this case would be considered a mandatory subject of bargaining.  The issue in this case, however, was that the union could not establish a clear past practice that such a program was an established term or condition of employment. As noted in the opinion, a past practice must be an established course of conduct that is well understood between the parties. The lack of any formal agreement over the program, its sporadic use for a limited duration, and the fact the employer emphasized its experimental nature made it too difficult for the union to carry its burden of establishing a clear past practice that the employer could not unilaterally change. Had the union made a formal demand to bargain and reached some understanding with the employer over the program its unilateral discontinuation of the program would have amounted to a ULP.    

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