By Jim Cline and Amy Liden
In the University of Washington, a PERC Examiner ruled that the University could not withhold merit pay increases from employees during a pending representation processes.
The University had historically given merit pay increases to unrepresented employees. In 2024, the University budgeted a merit pay increase of about 3% for each eligible employee. The University’s HR department developed a process guide to determine eligibility requirements and how the money would be divided among the pool of eligible employees. Department Heads were then supposed to distribute the money so that each eligible employee received a 0.5% to 10% raise (with 3% being the average).
The University formalized its decision to give raises to eligible unrepresented employees, outlined the eligibility requirements, and established how the money would be divided. A few weeks later, Service Employees International Union Local 925 filed representation petitions for two groups of employees. After the petitions were filed, the University amended the process guide to exclude petitioned-for employees from eligibility for the raise.
The Union argued the University altered the status quo by changing the requirements for merit pay increases after the representation petitions were filed. It cited PERC case law that requires that the status quo be preserved during the pendency of the petition
The University argued that since the money had not yet been divided among eligible employees, the pay increases were not part of the status quo. Therefore, they needed to remove the petitioned employees from eligibility for the merit pay increases to maintain the status quo while the petition was being processed.
The Examiner concluded that the merit pay increase was part of the “dynamic status quo” because the University had formally adopted the budget with the merit pay increases, established eligibility criteria, set parameters for how the funds would be divided, and employees could reasonably expect to receive a merit pay increase before the representation petitions were filed. Since the merit pay increases were part of the status quo and the University was required to maintain the status quo during the representation petitions, it committed an unfair labor practice by withholding merit pay increases from eligible employees. Although the University had not yet decided how the funds would be divided, the Examiner was not persuaded that this removed the merit pay increase from the status quo. The Examiner summed it up best with this quote:
“While the department heads were still left to decide specific percentages to award their pool of eligible employees, the process guide required them to provide eligible employees with no less than a 0.5 percent increase and no more than a 10 percent increase.”
The Examiner found the University committed a ULP and thus ordered the University to retroactively apply a 3% merit pay increase to all eligible, petitioned-for employees.
It is long standing PERC doctrine that during a Representation Petition (including a change in representation) the employer must maintain the status quo. It has also applied both in this context and other, such as an expired CBA, that this duty extends to something it calls the “dynamic status quo.” It recognizes that some terms of employment, such as the merit pay here, involves some level of management discretion in application but is still a recognized work condition that must be maintained.
We’ve described the rules that govern representation petitions in Chapter 2: The Right of Public Safety Unions to Organize Employees – Cline Associates of the Washington Representatives Manual.
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