By Jim Cline and Sam Hagshenas
In King County, the PERC Commission affirmed a prior ruling that found that King County had unilaterally changed the minimum certification requirements for their Railway Electric Workers (REW) position without giving the Union an opportunity to bargain.
The REW position was created in 2007, when King County entered a partnership with Sound Transit to service the upcoming Link light rail system. The Union for these workers, the International Brotherhood of Electrical Workers Local 77, worked with the County regarding minimum certification requirements, and also worked collaboratively to design an REW apprenticeship program in 2019.
Given the expansion of the Link light rail and issues with staffing, the County came to believe that the REW position’s minimum requirements were limiting its ability to recruit for the role. The County communicated to the Union that it was going to update the minimum requirements for the position, to which a Union representative explicitly communicated that this change would need to be bargained. Despite this, the employer hired new employees, including one who lacked the required Washington State Journey Electrician Certificate or Journey Line Worker Certificate, and did not have any high-voltage certifications.
The Union filed an unfair labor complaint, arguing that they had a strong interest in bargaining in this case, as REW workers frequently work on high voltage electrical equipment, with voltages at potentially lethal levels. The presence of unqualified workers near such equipment risked harm not only to the worker, but to their entire work crew. The County countered by noting that employers are not required to bargain minimum qualifications for positions, as hiring new employees is generally considered a core management prerogative.
Although the PERC Commission noted that there was some case law supporting the County’s position, they highlighted the need to weigh the case-specific evidence of the parties against one another. The Commission ruled that the Union’s interest in maintaining worker safety given the potentially lethal hazards in the workplace outweighed the Employer’s interest in increasing recruitment. The Commission’s reasoning is best summarized by this quote from the original decision:
“The closer the safety interest is shown to be to a topic of bargaining, the stronger the employees’ interest in bargaining the topic through their exclusive bargaining representative is.”
The Commission ruled that the parties had to return to the status quo, but in the appeal clarified that the County did not need to terminate unqualified REW workers.
The Commission decision is a bit surprising because hiring qualifications have been presumptively a management right. This case should be understood on the basis of its own facts. The Commission emphasized that the jobs at issue here involved “lethal voltages of electricity” and accepted the union argument that having lesser trained new hires could create risks for coworkers.
This case could open the door to other occupations, including first responders, arguing that employee qualifications had a sufficient safety impact so as to be bargainable. It’s likely to be a challenging argument to make though.
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