City of Seattle, Decision 9173 (PECB, 2005)


                         STATE OF WASHINGTON
                                   
          BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
                                   
                                   
SEATTLE POLICE DISPATCHERS' GUILD, )
                                   )
                    Complainant,   )    CASE 18375-U-04-4684
                                   )
          vs.                      )    DECISION 9173 - PECB
                                   )
CITY OF SEATTLE,                   )    FINDINGS OF FACT, 
                                   )    CONCLUSIONS OF LAW
                    Respondent.    )    AND ORDER
                                   )
___________________________________)


     Cline & Associates, by Christopher J. Casillas, for the 
     union.

     Seattle City Attorney Thomas A. Carr, by Angelique M. 
     Davis, for the employer.


The Seattle Police Dispatchers' Guild (union) represents dispatchers
who work in the City of Seattle Police Department.  It filed an
unfair labor practice complaint with the Public Employment Relations
Commission on April 1, 2004, alleging the City of Seattle (employer)
committed certain unfair labor practices.  The Unfair Labor Practice
Manager issued a preliminary ruling on April 27, 2004, finding
causes of action existed based on allegations that the employer
implemented unilateral changes by: (1) changing employees' use of
vacation and holiday leave, and (2) removing work from the
bargaining unit through use of an automated telephone directory.  If
proven, these actions violate the statute by interfering with
employee rights and refusing to bargain.

In 2003, the employer was threatened with funding withdrawal if it
failed to increase its speed of answer for emergency 911 calls in
the police department Communication Center.  The employer reacted
first by raising the minimum staffing level in the center without
adding more staff.  This had the effect of reducing available time
off for employees.  Then the employer installed an automated
telephone directory to divert non-emergency calls out of the police
department Communication Center.

Examiner Sally B. Carpenter held a hearing on September 28, 2004. 
The parties filed post-hearing briefs on December 29, 2004.

ISSUES

There are two major issues in this case, each of which has multiple 
parts.

ISSUE 1 - Did the employer unlawfully implement a change in staffing
levels which decreased use of leave opportunities?

     Issue 1.1 - Did the employer's increase in minimum staffing
     levels (without notice or bargaining) constitute an unlawful
     unilateral change?  YES.

     Issue 1.2 - Did the union waive its bargaining rights, by
     contract, about staffing levels?  NO.

     Issue 1.3 - Was there a business necessity or emergency which
     required action without an opportunity to bargain?  NO.


ISSUE 2 - Did the employer unlawfully implement an automated
telephone directory system?

     Issue 2.1 - Did the union have a right to effects bargaining
     about work that was mechanized by the automated telephone
     directory?  YES.

     Issue 2.2 - Did the union have a right to effects bargaining 
     about work that was discontinued?  YES.

     Issue 2.3 - Did the employer unlawfully transfer bargaining
     unit work to its employees outside the bargaining unit?  YES. 
     Issue 2.4 - Did the union waive its bargaining rights, by
     contract, about automation?  NO.

     Issue 2.5 - Did the employer have a business necessity or
     emergency which required action without an opportunity to
     bargain?  NO.
     
ISSUE 1.1 - Did the employer's increase in minimum staffing levels
(without notice or bargaining) constitute an unlawful unilateral 
change?

Facts - Leave Time

The employer's Communication Center is an around-the-clock operation
staffed every day of the year in five shifts.  It is part of the
Seattle Police Department, headed by a director of communications
who is a captain in the department.  Call takers are called
"dispatchers."  Uniformed police officers manage the center.  The
bargaining unit consists of approximately 100 employees, most of
whom are dispatchers, and several of whom have non-dispatcher
technical positions.

Funding from E-911 state tax money flows to King County, which then
distributes the money to any jurisdiction in the county operating an
emergency call center. There are thirteen primary Public Safety
Answering Points (E-911 centers) in King County.  The City of
Seattle police department Communication Center is one of those
centers.  The county transmits payments to the City of Seattle
general fund in varying amounts each year.  Receipt of E-911 funds
is conditioned on meeting speed-of-answer standards.(fn:1)  Prior to
2003, the employer received about $540,000 per year for this call
center.  In 2003 and 2004, the employer received a total of about
1.4 million dollars from the county E-911 office.
____________________
fn:1     Standards are set by the National Emergency Number Association
(NEMA) and the Association of Public Safety Officials (APSO).  The
joint standards require calls to be answered 90 percent of the time
within 10 seconds (the 90/10 standard).  For no more than six hours
a day may the 90/10 standard be missed. 
In addition, King County's funding standards permit further
deviation from the national standards. If one quarter does not
qualify, but the next quarter does meet national standards, the
county funds the Communication Center for both quarters.

King County and the police Communication Center debated the center's
speed-of-answer through several years of discussion over how calls
are counted.  Throughout that time period, funding to the employer
was in jeopardy over the speed-of-answer issue.  The employer
installed a new call-counting system in 2002, which ended the
debate; the new system showed the speed-of-answer standard was not
met.  Prior to autumn 2003, for ten out of twelve quarters, the
employer's 911 center failed to answer calls 90 percent of the time
within 10 seconds.

In 2003, the county conditioned continued funding on meeting its
variant of the 90/10 standard.  The employer hired a consultant,
Kimball and Associates, who evaluated the employer's 911 center in
August 2003.

The Kimball report analyzed the number of overtime hours against the
staffing level for the first six months of 2003.  It found that
4,884 overtime hours were accumulated in that period, with the
highest number in months when the staff roster was lowest.  The
report also pointed out that the E-911 center answered non-emergency
calls, as well as 911 calls.

Kimball made three recommendations: 

     -  increase staffing,(fn:2) 
____________________
fn:2     At the time of the Kimball report, the Communication Center
had eleven unfilled positions for dispatchers.

     -  decrease average call durations, and/or 
     -  decrease the overall volume of calls.

The employer increased staffing in October 2003 by increasing the
minimum number of dispatchers working on each of the five shifts
without hiring additional dispatchers.  For one shift, the change
increment was three positions, changing the number from 18 employees
to a minimum of 21 employees required on the shift.  The change
lasted for four months, then the non-emergency calls were diverted
out of the Communication Center.

Before October 2003 there were minimum staffing levels for all
shifts.  The numbers for each shift had minimal and normally
predictable variations.  Some changes were based on seasonal shifts
(more calls in the late summer) and on special events, such as
SeaFair, Fourth of July, or the demonstrations against the World
Trade Organization meeting.  Mondays were a high call volume day,
and were always staffed at a higher level.  Such changes in minimum
staffing could normally be anticipated, were rarely changed by more
than one or two positions, and were a routine past practice in the
Communication Center.

After the employer's increase in minimum staffing level for each 
shift, the opportunity to use accrued leave time for a one day
absence was affected.(fn:3)  This change lasted until the non-emergency
calls were diverted out of the call center about the end of January 
2004.
____________________
fn:3     Practice in the department for use of vacation time is
multi-layered.  First, there is an annual seniority-based bidding
procedure for vacations of ten or more days.  Second, there is a
bidding process for vacations of nine days or less.  Third, there is
a process, which can be used up to the last minute, to seek approval
of leave use which the parties call the "rule of two."  For every
shift, there can be two employees on leave, even if the shift
minimum staffing has to be filled with a person on overtime.  If
both leave slots are taken, and there are more employees on duty
than required by the minimum number for the shift, an additional
person may use leave time.  This third option permits employees to
use accrued leave for one day at a time.

The effect of raising the minimum staffing level is that the minimum
"rule of two" allowed on leave tends to become a "maximum of two"
employees allowed to use leave time when overtime would be incurred.
As an example of how this is applied, the union introduced
documentary evidence that there were eight times on one of the
shifts in the first half of December 2003 when no leave was
available in excess of the "rule of two."  Testimony indicated that
the pattern was repeated on other shifts.

Legal Standards - Leave Time

The duty to bargain requires more than signing a collective
bargaining agreement.  There is a continuing duty to bargain issues
involving any proposed changes in wages, hours and working
conditions.  The statutory framework is:

          RCW 41.56.140  Unfair labor practices for public employer
     enumerated.  
     It shall be an unfair labor practice for a public employer:
          (1) To interfere with, restrain, or coerce public
     employees in the exercise of their rights guaranteed by this 
     chapter;
     . . . .
          (4) To refuse to engage in collective bargaining.

Unfair labor practices are processed under Chapter 391-45 WAC.  The
complainant has the burden of proof.  WAC 391-45-270.  The
determination as to whether a duty to bargain exists is a question
of law and fact.

The scope of mandatory bargaining subjects includes wages, hours and
working conditions, all of which are matters of direct concern to
employees.  City of Anacortes, Decision 6830-A (PECB, 2000) (citing
International Association of Fire Fighters, Local 1052 v. PERC
(Richland), 113 Wn.2d 197 (1989)).  The nature of the impact on the
bargaining unit determines whether an employer has a duty to bargain
the matter.  Spokane County Fire District 9, Decision 3661-A (PECB,
1990).  The duty to bargain arises only from a change that has a
material effect on the employees' wages, hours, or working
conditions.  Seattle School District, Decision 5733-B (PECB, 1998). 
In Seattle School District, one high school's site committee changed
from a two-lunch period to a one-lunch period schedule.  That had
the effect of changing both wages and working conditions of food
service workers at that school.  The Commission held that the
employer had a duty to give notice and to bargain over any proposed
changes.  Wages (including overtime compensation), premium pay and
hours of work (including shift schedules and work opportunities) are
all mandatory subjects of bargaining.  City of Kalama, Decision
6773-A (PECB, 2000); City of Kalama, Decision 6739 (PECB, 1999).

City of Yakima, Decision 3564-A (PECB, 1991), explores leave issues
in depth.  The result in Yakima turned on whether the fire chief's
written confirmation of a former policy was, or was not, a change in
working conditions.  The Commission overruled the examiner's factual
determination that the fire chief's policy was a change, but
strongly reiterated the policy that an actual change in how leave is
available is a mandatory subject of bargaining.

In Community Transit, Decision 3069 (PECB, 1988), the employer
created new bus routes and assigned them to a private contractor. 
The examiner found a violation of the duty to bargain, and noted the
purpose of the bargaining requirement:

     It must be remembered that the collective bargaining process is
     designed to provide the opportunity for labor and management to
     express their relative concerns about a broad range of
     employment issues. Such dialogue is intended to be free and
     unencumbered, and the participants must be placed in relatively
     equal bargaining positions. 

Lake Washington Technical College, Decision 4721-A (PECB, 1995),
summarizes the employer's duty to give notice.  "If the union is
adequately notified of a contemplated change at a time when there is
still an opportunity for bargaining which could influence the
employer's planned course of action, and the employer's behavior
does not seem inconsistent with a willingness to bargain if
requested, then a fait accompli should not be found."  (emphasis
added.)  This notice prior to making a final decision requirement is
intended to meet the "free and unencumbered", "relatively equal
bargaining positions" standards enunciated in Community Transit.  "A
party to a bargaining relationship commits an unfair labor practice
if it fails to give notice of such changes (i.e., presents a party
with a fait accompli), or fails to bargain in good faith upon
request."  Seattle School District, Decision 5733-B (PECB, 1998).

City of Clarkston, Decision 3286 (PECB, 1989), requires the employer
to give notice to the union before making a decision regarding a
leave usage change.  In Clarkston, the employer adopted a modified
work schedule within the hours of the fire fighters' work day.  The
new policy in part added a requirement that employees must give
seven days notice of a request for days off.  Clarkston rules:

     Finally, the employer's contention that it was willing to
     negotiate the changes, and invited the union to do so, is not
     persuasive.  It is well settled that an employer cannot satisfy
     its duty to bargain by first making a change in working
     conditions and then offering to bargain.  The union is entitled
     to influence the decision before it is finalized and
     implemented, and is not obligated to engage in a futile
     negotiations to restore the original conditions.

Clarkston holds that a union is not required to engage in futile
negotiations when faced with an employer's fixed intent to make a
unilateral change.

A fait accompli was found in City of Seattle, Decision 8916 (PECB,
2005).  That case was between the same parties as in this case.  The
examiner notes, "A long line of cases holds that a union presented
with a fait accompli is not required to make a bargaining demand in
order to preserve its rights."  Where an employer does not provide
adequate notice and offer to engage in meaningful bargaining, the
union's failure to request bargaining is not a waiver by inaction. 
Skagit County, Decision 8886 (PECB, 2005).

Analysis - Leave Time

Testimony differed on whether the change had an actual impact on use
of leave time.  The former supervisor in the Communication Center,
Sergeant Robert Robbin, did an analysis of vacation usage before and
after the four-month increase in minimum staffing.  He testified
that, "It appeared that there was no effect on vacation time as far
as the ability to get vacation time off."  Union President Scott
Best produced watch logs and analysis which showed, "When this
change was made, there was a significant decrease in the ability to
take time off."   The difference between the numbers presented by
the employer and those presented by the union seem to be based on
what facts were analyzed.  The union's analysis looked at
shift-by-shift, day-by-day schedules.  I find that the union's
evidence is more directly related to the issue, and thus has
persuasive weight.

The employer did not notify the union.  Employees discovered the
change in shift staffing on their work schedules.  On November 4,
2003, the union requested bargaining of the increased minimum
staffing, writing that, "The impact of this change in working
conditions is that our members do not have the same ability to use
accrued discretionary time because of the increased staffing levels.
. . .  The Guild demands to bargain these impacts." 
 
The employer responded by e-mail stating that, "With respect to your
November 4 letter, it is the City's position that minimum staffing
levels are not a mandatory subject of bargaining."  The employer met
with the union in December 2003.  The union brought a proposal to
change the "rule of two" to a "rule of three" as a compromise to
ameliorate the effects of the change.  The employer explained its
change, but it did not respond to the union's proposal nor did it
make a proposal.  The employer took the position that it had no duty
to bargain.  It explained its decision, but it refused to engage in 
bargaining.

A reduction in the availability of leave use is clearly a change in
a mandatory subject of bargaining.   City of Yakima, Decision
6773-A.  The change as described in the facts above meets the
standard in Seattle School District, Decision 5733-B, for a material
change in  working conditions. The employer had a legal duty to
provide notice before making a change. If requested by the union, it
had a duty to bargain the decision and any impacts.  City of
Clarkston, Decision 3286.  Upon request from the union, the employer
may not implement a decision until bargaining has been completed.

Faced with this fait accompli, the union had no duty to request
bargaining.  It was free to file its unfair labor practice charge. 
But the union did request bargaining; it wrote, "The Guild demands
to bargain these impacts."  The union cannot have a remedy which
restores the status quo when it did not demand decision bargaining. 

There are competing interests which were balanced to reach this
result.  The union interest is to be free to demand bargaining
without passing every word and phrase through a legal sieve so fine
as to choke off its communications to the employer.  The employer
interest is to rely on what the union says it is demanding to
bargain.  In this case, the employer was on notice that effects
bargaining was demanded; the employer had scant notice that decision
bargaining was demanded.  The union may have believed that its
intent was to demand both decision and effects bargaining, but was
unclear in expressing its desire.  The employer needs to know what
is being demanded of it.

Based on the facts in this case, I find that a union faced with a
fait accompli on a mandatory subject of bargaining must either
remain silent and file its unfair labor practice charge, or be
limited in remedies to the specific kind of bargaining requested in
its demand.

Conclusion - Staffing Levels and Use of Leave Time

The employer increased minimum staffing levels for about four months
in late 2003 - early 2004.  That change materially impaired
employees' ability to use accrued vacation time.  The employer's
assertion to the union that this is not a mandatory subject of
bargaining is wrong.  Because the employer's minimum staffing change
impacted use of vacation leave, the employer had a duty to provide
notice to the union well in advance of the proposed change, and to
bargain the decision and any effects of the decision.

Where there is a fait accompli, and a union chooses to demand
bargaining, its bargaining rights and remedies will be limited to
the kind of bargaining it demanded.

Issue 1.2 - Did the union waive its bargaining rights, by contract,
about staffing levels?

Affirmative Defenses Raised  The employer raised two affirmative
defenses at the hearing in this proceeding, although it should be
noted that neither was identified in its answer.  The employer
argues, (1) the union waived its bargaining rights in language
contained in the collective bargaining agreement, and (2) there was
a business necessity to reduce the number of employees on leave.

Facts - Contract Waiver Affirmative Defense

The collective bargaining agreement provides, under "Management
Rights," section 4.2, that the employer may "determine the number of
shifts and the number of personnel assigned to such shifts."  The
employer asserts this clause allows it unfettered discretion to
change minimum staffing even when it affects how accrued leave time
may be used.

The union agrees that the collective bargaining agreement gives the
employer the right to set staffing levels.  However, former union
president Gene Lawson testified that section 4.2 came into the
contract in 1995, and had been unchanged since that date.  He said
that the meaning of the word "shifts" in the collective bargaining
agreement was intended to convey that management has the right to
set the number of shifts and the days and hours those entire shifts 
worked:

     Determining the number of shifts meant how many shifts would
     operate within the section; meaning that there would be a day
     shift, there would be a swing shift, there would be a night
     shift, there may be a couple of other different shifts, also
     known as 4th watch and/or 5th watch. . . .  And the number of
     personnel assigned to such shifts related to how many total
     people -- not just people who would show up on a given day --
     but how many total people were assigned to one of those shifts.

No testimony as to the intent of the section was offered by the
employer's witnesses.

Legal Standard - Contract Waiver  

A "waiver by contract" is an affirmative defense, and the party
asserting it has the burden of proof.  Lakewood School District,
Decision 755-A (PECB, 1980) (cited with approval in Chelan County,
Decision 5469-A (PECB, 1996)).  The Commission has consistently held
parties to a high standard concerning the specificity of language
that would constitute a waiver by contract; if a union waives its
bargaining rights by contract language, an action in conformity with
that contract will not be an unlawful "unilateral change." 
 
In City of Yakima, 3564-A (PECB 1991), the Commission wrote, "In
order to show a waiver, the employer would have to demonstrate that
the union also understood, or could reasonably have been presumed to
have known, what was intended when it accepted the language relied
upon by the employer."  The Commission found no waiver by contract
language in Yakima, because contract provisions were either
ambiguous or added no substance to the matter at issue.  Yakima
involved an employer directive concerning vacation and sick leave
scheduling.  Where the directive in part established a new limit on
the number of employees permitted to be on vacation, the employer
had a duty to bargain.

Analysis - Contract Waiver

Lawson made a logical and customary explanation of the meaning of
the clause; the clause allows the employer to set the total number
of people it hires and assigns to a shift.  The employer offered no
alternative view of the language.  The party asserting an
affirmative defense has the burden of proof.  City of Yakima,
3564-A.  That burden of proof has not been met.

Conclusion - Contract Waiver - Leave Issue

The employer has failed to carry its burden of proof.  The
affirmative defense should be denied.

Issue 1.3 - Was there a business necessity or emergency which
required action without an opportunity to bargain?

Legal Standard - Business Necessity Defense  

Where a party to a collective bargaining relationship is faced with
a compelling legal or practical need to make a change affecting a
mandatory subject of bargaining, it may be relieved of its
bargaining obligation to the extent necessary to deal with the
emergency, Cowlitz County, Decision 7007 (PECB, 2000).  For example,
in City of Kalama, Decision 6739 (PECB, 1999), the employer had to
obtain a different health insurance plan after the employees changed
their exclusive bargaining representative.  Kalama held that the
lack of medical insurance was an emergency and that the employer was
not required to delay the new insurance policy carrier decision
until bargaining with the new representative was completed.

However, even if an employer has no duty to bargain on a particular
subject due to a business or legal necessity defense, it is still
required to give notice and bargain the effects of any change.  Val
Vue Sewer District, Decision 8963,(fn:4) (PECB, 2005) citing Wenatchee
School District, Decision 3240-A (PECB, 1990); Mukilteo School
District 6, Decision 3795 (PECB, 1991), rev'd on other grounds,
Decision 3795-A (PECB, 1992).
____________________
fn:4     Val Vue Sewer District is on appeal to the Public Employment
Relations Commission.  The reasoning of the examiner's decision is
adopted for this discussion. 


In summary, a respondent claiming a defense of legal necessity to a
unilateral change must prove that (1) a legal necessity existed; (2)
the respondent provided adequate notice appropriate to the situation
of the proposed change; and (3) bargaining over the effects of the
change did in fact occur or the complainant waived bargaining over
the effects of the change.

Analysis - Business Necessity

The employer asserts that a threatened funding withdrawal created an
emergency in the Communication Center.  In 2002, the employer's
Communication Center installed a new call counting and measuring
program.  The new technology proved that the employer did not meet
the speed-of-answer standard.  Before the new technology, King
County and the employer debated for several years whether or not the
employer met the speed-of-answer requirement.  King County suspected
the employer of failing the standard, but the employer argued that
it was not sure because the data was insufficient.

Thus the history of the funding dispute dates back several years,
culminating in the threatened withdrawal of funding in 2003 as
described above.  In the summer of 2003, the employer began to shape
a response to the speed-of-answer problem.  This was not an
emergency brought on by nature or outside forces, it was a lack of
planning.   Nothing in this situation rises to the level of a
compelling need such as that described in City of Kalama, Decision
6739.  Nor was there any notice to the union as required in Val Vue
Sewer District, Decision 8963.

Nothing in the record suggests the remotest possibility that the
employer did not have time to notify the union, and if requested, to
bargain with the union over its proposed change in minimum staffing 
levels.

Conclusion - Business Necessity, Changed Use of Leave Time

There was no business necessity to make an emergency change in
minimum shift staff levels.  No notice was given to the union.  When
it discovered the change, the union demanded effects bargaining. 
The employer refused to bargain the change. 

ISSUE 2 - Did the employer unlawfully implement an automated
telephone directory system?

Facts

For as long as any witness could remember, and up through 2003,
police department Communication Center dispatchers answered three
telephone numbers: 911 emergency calls, non-emergency calls to
telephone number 625-5011, and an insignificant small number of
calls to activate alarm systems.  In 2003, the employer decided to
partially replace the dispatchers with an automated telephone
directory for the non-emergency 625-5011 calls, which was about 25%
to 30% of dispatchers' work.

The effect of the automated telephone directory is three-fold:

A)   Some bargaining unit work has been mechanized and is done
     exclusively by the new system.
     
B)   Some bargaining unit work is no longer performed by anything or
     anyone - discontinued service.
     
C)   Some bargaining unit work is now done by non-bargaining unit
     members - skimmed work.


A) Legal Standards - Telephone Directory - Mechanized Work

Seattle School District, Decision 2078-B (PECB, 1986), involved an
employer's installation of computerized controls on boilers, leading
to the transfer of four high school custodial employees who were no
longer needed.  Seattle holds that a capital investment in
technology is within the prerogative of management, and thus there
is no duty to bargain the decision.  Mechanization removes work from
the bargaining unit, but the work no longer exists except in the
automated system.  Port of Seattle, Decision 4989 (PECB, 1995).

Spokane County Fire District 9, Decision 3021-A (PECB, 1990),
addressed several issues, one of which was whether the employer
could mechanize work by the introduction of computers.  Spokane
holds, "A union has the right to demand collective bargaining under
Chapter 41.56 RCW only as to matters that are 'wages, hours and
working conditions.'" It goes on to summarize many management
actions which are within the employer's discretion but notes, "Where
the decision itself is outside of the scope of mandatory collective
bargaining, the employer will nevertheless be obligated to bargain
the effects of that decision on its employees."

A) Analysis - Mechanized Work - Telephone Directory

Testimony indicated that some calls to the 625 number were from
citizens asking, for example, for a phone number they could call to
report a power outage.  Before the phone tree, the dispatcher gave
the citizen the correct number to call.  After the phone tree, the
citizen would press option 2, then listen to the menu and press
option 4, and be given the number to the city services bureau.

When a citizen calls the telephone number given by the automated
telephone directory, the citizen's question is answered by an
employee at a precinct, or at some other division of the employer. 
The employees who now answer non-emergency questions are not
bargaining unit members.

Applying the principle in the Seattle School District boiler case
and the Port of Seattle, the employer has no duty to bargain the
decision to mechanize the provision of a phone number.  However, a
timely demand was made for effects bargaining and the employer
failed to bargain.

A) Conclusion - Mechanized Work - Telephone Directory

The employer had no duty to bargain its entrepreneurial decision
with the union.  With respect to work which had been done by
dispatchers, but is now done entirely by the automated telephone
directory, effects bargaining was required.  The union requested
bargaining, but the employer did not bargain.  The employer violated
RCW 41.56.140 (4) in failing to bargain.

B) Legal Standards - Discontinued Work - Telephone Directory

A public employer's decision to discontinue a service to the public
is a decision about the basic scope of services offered.  Commission
precedents and decisions under the National Labor Relations Act hold
that employer decisions which determine whether or not to offer a
service or product are within the core "entrepreneurial control" of
the employer, and are therefore not mandatory subjects of
bargaining.  Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203
(1964), concurring opinion of Justice Stewart, IAFF Local 1052 v.
PERC, 119 Wn.2d 504 (1992), Port of Seattle Decision 4989 (PECB,
1995), Tacoma-Pierce County Health Department, Decision 6929-A
(PECB, 2001).  An employer has no duty to bargain its decision to 
change, reduce or eliminate services.

An employer does have the duty to bargain the effects of an
entrepreneurial decision.  Port of Seattle, Decision 4989.  Notice
of a change must be given sufficiently in advance of the change to
provide an opportunity for the union to request bargaining and to
allow time for bargaining over the impacts and effects of the
change.  Tacoma-Pierce County Health Department, Decision 6929-A. 
An employer violates RCW 41.56.140(4) if bargaining is requested and
it fails to bargain in good faith.  Federal Way School District,
Decision 232-A (EDUC 1977), North Franklin School District, Decision
5945-A (PECB, 1998).

B) Analysis - Discontinued Work - Telephone Directory

The range of questions answered by dispatchers answering 625-5011
was broad.  Some, or many, of those questions may no longer be
answered.  The record is silent on whether all the work that was
done by dispatchers is still performed.  To the extent that work
which was previously done by dispatchers is no longer performed by
any of the employer's employees, that work is discontinued.

The union requested bargaining.  The employer refused to bargain. 
Tacoma-Pierce County Health Department, Decision 6929-A, requires
bargaining the effects of an entrepreneurial decision.

As the parties bargain over effects of the employer's decision to
implement a telephone directory, it would be appropriate for them to
attempt to discern whether the employer ceased offering answers to
all possible police department questions.

B) Conclusion - Discontinued Work - Telephone Directory

The employer's decision to terminate a portion of its work is not a
mandatory subject of bargaining, and the employer is not required to
bargain the decision.  Because the effects must be bargained, and a
request was made by the union, the employer should be found to have
violated its duty to bargain.

C) Legal Standards - Skimmed Work 
 
The bargaining obligation applies where an employer removes work
from a bargaining unit and gives it to other employees.  If an
employer transfers bargaining unit work to non-unit employees
without notice, an opportunity to bargain, and bargaining if a
demand for bargaining is made, an unfair labor practice will be
found for unlawfully skimming work out of the unit.  South Kitsap
School District, Decision 472 (PECB, 1978); and City of Spokane,
Decision 6232 (PECB, 1998).

City of Seattle, Decision 8313-A (PECB, 2004), summarizes the impact
of decisions to transfer work outside the bargaining unit as follows:

     The harmful effect of skimming results from the prejudicial
     effect on the status and integrity of the bargaining unit.  The
     detriment from skimming may only be felt in the future, such as
     when transfers of bargaining unit work eventually lead to
     erosion of work opportunities, loss of promotional
     opportunities, and adverse effects on the job security of
     bargaining unit employees.

(Citations omitted.)

Under South Kitsap School District, unlawful skimming of bargaining
unit work occurs when an employer fails to give notice to or bargain
with the union before deciding to transfer work historically
performed within the bargaining unit to employees outside of the
bargaining unit.  In South Kitsap, the employer eliminated the
positions of classroom aides and transferred their work to other
employees who were in other bargaining units or unrepresented.  The
employer committed an unfair labor practice in making that change
without notice to the union before making a final decision.  In
Spokane County Fire District 9, Decision 3021-A (PECB, 1990), the
employer put volunteer firefighters on paid standby status to
respond to emergencies, without prior notice to the union
representing professional firefighters.  Both the decision to
transfer bargaining unit work and the effects of that decision on
bargaining unit employees were found to be mandatory subjects of 
bargaining.

The initial element in the proof of a skimming violation is
establishing that the work at issue is, or could be, bargaining unit
work.  City of Anacortes, Decision 6830 (PECB, 1999), aff'd, City of
Anacortes, Decision 6830-A.  If it is bargaining unit work, a
five-factor test is applied to determine whether an employer has a
duty to bargain.

The five factors considered in determining whether a duty to bargain
exists are stated in Port of Seattle, Decision 7271-B (PECB, 2003). 
Those factors are:

     (1)  The employer's previously established operating practice
          as to the work in question, i.e., had non-bargaining unit
          personnel performed such work before;
          
     (2)  Did the transfer of work involve a significant detriment
          to bargaining unit members (as by changing conditions of
          employment or significantly impairing reasonably
          anticipated work opportunities);
          
     (3)  Was the employer's motivation solely economic;
     
     (4)  Had there been an opportunity to bargain generally about
          the changes in existing practices; and
          
     (5)  Was the work fundamentally different from regular
          bargaining unit work in terms of the nature of the duties,
          skills, or working conditions?

Analysis - Skimmed Work  

According to the Kimball report, approximately 220,000 calls a year
came in to the non-emergency telephone number at the time of the
report.  Testimony indicates a greater number a year later. 
Kimball's analysis indicated that the non-emergency calls consumed
about 30% of dispatcher time. 

Non-emergency calls which previously came into the Communication
Center and are now answered by non-bargaining unit employees create
potential skimming violations.  The number of calls that are now
answered by non-bargaining unit members, if any, is not in evidence
- the parties did not provide any clear information on what happens
to calls which no longer reach the Communication Center.

The parties must sort out at bargaining which of the 625-5011 calls
are mechanized, discontinued, or skimmed. The record has no
information whatsoever that would let an examiner determine what
percent of the calls fall into each category.

Is it bargaining unit work?  Chief Dispatcher Ronald Hale testified
that 625 non-emergency calls were handled by coming into a primary
E-911 operator's line.  The primary operator would determine whether
the issue was an emergency call.  If it was not an E-911 call, the
operator would transfer the call to a non-emergency 911 operator,
who was also a bargaining unit member.  The second dispatcher
proceeded to take the required information, for instance, to process
an abandoned vehicle report   name, address, phone number, location
and description of the vehicle, and how long it has been there   and
type it up as a computer form and send it via remote printer to the
Parking Enforcement Office.

Non-emergency calls generated many different responses from
dispatchers.  It was possible that the caller merely needed another
telephone number, such as to report a power outage.  It was possible
that the dispatcher needed to interview the caller and make a
decision about what kind of action was required.  As indicated
above, the dispatcher might fill out a computer-generated report for
another division of the employer.  The range of possible calls and
possible responses was remarkably broad.

Dispatcher and Union President Scott Best described some kinds of
calls which may come into the 625 number:

     Q. by Mr. Casillas:  Can you explain generally what reasons
     citizens may be calling the non-emergency line for?
     A. by Mr. Best:  There would be a number of issues that people
     would call.  It could be general Police Department questions. 
     It could be information like "How do I become a police
     officer?"  It could be questions like . . . laws about, you
     know, different traffic laws.
     You know, "Does a seven-year old have to have a car seat?" . .
     . "I have a handicapped sticker in my car.  I want to get a
     yellow line painted on the curb in front of my house."  It
     could be   it's endless, the questions that the public asks us
     and it just goes on and on.  It could be about, you know,
     criminal versus civil.
     . . . [T]hey might say "Well, the neighbor's building . . . a
     fence and it's going over onto my property . . . is that
     something I need a police officer for?"
     Lot of times it's . . . .  "Is this really a police matter or
     do I handle it a different way?" . . . we either answer the
     questions or we tell them . . . what city department they need
     to call.
     But if it's a police department question, we handle it.  If we
     don't know the answer, we can go to our Chief Dispatcher or we
     can to the supervisor or whatever, but we get them the answer.
     Q:  Were the dispatchers trained to handle those types calls
     and respond with the appropriate information?
     A:  Yes.  Been trained, trained to do that, and we have done
     that since I've . . . worked here.

Testimony also indicated that direct numbers to employer departments
and divisions (police precincts, the jail, etc.), have always been
available to the public.  The record does not reflect whether
general public inquiries by direct calls to departments and
divisions were frequent before implementation of the automated
telephone directory.  The volume of calls into the non-emergency
number suggests that a primary contact point was through the police
department Communication Center.

Where there are overlapping jurisdictions, the work remains
bargaining unit work.  Neither party addressed the possible issue of
overlapping jurisdictions, nor was any evidence offered of what
percent or proportion of total calls went directly to other
divisions and departments before and after the automated telephone
directory.  The employer seemed to raise this at the hearing as
another affirmative defense, but failed to state this in its answer
or address the legal issue in its brief.(fn:5)
____________________
fn:5     The only evidence presented was that of witness Treadwell, who
testified: 
When I first learned of the Department's interest in adopting this
phone tree, I had some concern that with respect at least to the
issue of abandoned vehicle reports, that the Dispatch Guild may in
fact have had some exclusive jurisdiction of that work taking those
reports and providing that information to Parking Enforcement.
I looked into it, called the Parking Enforcement Unit, talked to the
people there and found out that it was very much a shared
jurisdiction because a number of the calls came either to the phone
number for the Parking Enforcement Unit, to the abandoned vehicle
hotline number, which was also in the phone book or to this
non-emergency 625 number.


The employer installed an automated telephone directory in early
2004 to answer the 625-5011 calls.  That line is now answered by a
mechanized menu of other telephone numbers to dial.  The automated
telephone directory only tells the caller the number to call for
information.  It does not provide any direct connection service to
the other telephone numbers, except for a "stay on the line" option
at the end of the menu which is ultimately answered by a dispatcher
in the Communication Center.
Is it a mandatory subject of bargaining?  Answering the 625 number
is bargaining unit work.  The five-factor test of Port of Seattle
must be applied to determine whether the change was a mandatory
subject of bargaining.

(1) Previous practice: The dispatcher job description identifies
non-emergency calls as part of the position, "Provides general
information to callers including availability of services,
jurisdictional limitations, program information and referral to
appropriate departments and agencies."  Testimony cited above
greatly expands this brief list of bargaining unit members' duties,
and indicates their historical work jurisdiction.

(2) Significant impairment: Top management in the Communication
Center is made up of sworn police officers.  The civilian career
path goes up through the Dispatcher III position and some
analyst/training positions, and then stops.  The career ceiling is
low because sworn officers manage the division.  Seniority controls
selection of shift, vacation and leave usage, and a host of other
major working conditions.  When the employer removed its need to
hire more dispatchers, it froze existing dispatchers into their
then-current seniority ranking.  Overtime opportunities were
significantly decreased.  A clear detriment to working conditions is 
present.

(3) Economic motivation: The employer faced the issue of how to
qualify to receive E-911 tax funds.  It asked Kimball to help it
analyze a method to reach the 90/10 speed of call standard.  The
Kimball report made three recommendations: increase staffing,
decrease average call durations, and/or decrease the overall volume
of calls.  Evidence offered by the employer shows a very high rate
of voluntary and mandatory overtime prior to the phone tree.  The
basis for the employer's decision to transfer work out of the
bargaining unit was motivated by economics, specifically funding
received and overtime costs incurred.

(4) Opportunity to bargain: The union was notified of the intention
to implement an automated telephone directory sometime around the
beginning of November 2003 after the employer had made a decision to
install an automated telephone directory.  The notice was oral and
informal; the union president had a conversation with the director
of the communications division.  The decision was announced at a
staff roll call meeting on November 21, 2003.  On November 24, 2003,
the union president requested a copy of the Kimball report and more
information about the phone tree plan. (A previous written request
was also made for the Kimball report on November 4, 2003.)  The
employer provided the Kimball report and the phone tree menu to the
union president the next day.  The union gave a written demand for
bargaining to the employer on December 1, 2003.  The employer met
with the union to explain the automated directory, but it did not
respond to the demand for bargaining.  The union was not provided an
opportunity to bargain.

(5) Work duties, skills, fundamentally different:  Police
Communications Dispatcher positions are within the Seattle Police
Department. Witness Best testified about the range of caller
questions, and concluded, "But if it's a police department question,
we handle it."  The employer required dispatchers to have knowledge
of many aspects of police department operations.  It also required
dispatchers to question the caller to correctly identify the exact
nature of the call, determine the information required to process
the caller's request, and accurately fill out any forms available at
the dispatcher's position for transmission of the work order to the
operating division.  The job description requires a broad range of
knowledge and skills for response to a range of information
requests.  On-the-job and classroom training were provided for
answering non-emergency calls.  

It is bargaining unit work, and it is a mandatory subject of 
bargaining.

Did the employer give pre-decision notice?  It appears that the
decision to remove the 625 number from the Communication Center may
have been made prior to the Kimball report analysis.   In August,
2003, the Kimball report authors interviewed many significant people
in the call center.  The report included brief minutes of the
content of those meetings.  In an interview with the unit
statistician on August 19, 2003, the meeting minutes indicate that
the statistician "Said that a phone tree (voice menu) is being
implemented." (fn:6) 
____________________
fn:6     The unit statistician's position is within the bargaining
unit, but she is not a union officer.  She was called as an employer
witness. Notice to her is not notice to the union, Clover Park
Technical College, Decision 8534-A.

 
The evidence indicates that the employer had a fixed intent to
implement a phone tree long before the union was told about it,
similar to the facts in Seattle School District where the employer
gave pre-implementation notice but only after having reached a fixed
decision.  Notice from the employer is required before the decision,
not merely before the implementation.  If requested by the union,
the employer had a duty to bargain the decision and any impacts. 
City of Clarkston, Decision 3286.

The Kimball report suggested a call-reduction strategy as one of its
three possible solutions to the speed-of-answer issue.  It
recommends "Implementing an interactive menu system on the
non-emergency lines to allow callers to be routed to destinations
outside of the PSAP(fn:7) without call-taker intervention."
____________________
fn:7     A "PSAP" is a Public Safety Answering Point.


The union president indicated that he first heard of the automated
telephone system "several weeks" before the employees were told
about it at the November 21, 2003, roll-call.  That first disclosure
of a telephone system was made in a conversation between the union
president and the director of the call center.  The record is silent
on the purpose of the conversation, whether it was long or short,
and what the extent of the disclosure was of plans for an automated
telephone directory.  The duty of an employer to provide notice to a
union of proposed changes includes the duty to give the information
in a clear manner to a union representative, not just to a member
and not merely a casual mention, Clover Park Technical College,
Decision 8534-A.  The record points to actual notice being received
at least by the November 21, 2003, roll call meeting.

Here, as in another case between the same parties, the union was
presented with notice that the employer was going to implement a
change.  Nothing in the employer's conduct when it gave notice or
when it met with the union indicated the slightest possibility that
its decision was tentative.  This was a fait accompli, just as in
City of Seattle, Decision 8916 (PECB, 2005).  

Did the union request bargaining?  On November 24, 2003, the union
president wrote the human resources director, ". . .  This phone
tree was discussed in our roll call on 11/21/03 and it appears there
may be impacts to our membership as a result of this change.  Please
advise specifically what this phone tree will be used for so the
Guild can determine if there are any mandatory subjects that will
need to be bargained."

On November 25, 2003, the union received a copy of the non-emergency
phone information menu. On December 4, 2003, the union  sent a
letter to the human resources director, ". . .  The Guild has
reviewed the material provided by the City and has determined there
are impacts of said implementation which involved mandatory topics
of negotiation.  In part, those topics include: transfer of work
which could result in a layoff of Guild members.  Therefore,
consider this letter a demand to bargain filing." (emphasis added.)

Was there a fait accompli?  Again, this is the same issue of first
impression; does a union lose its right to decision bargaining, and
its remedies for failure to bargain, when it seeks bargaining of
impacts and effects only?  Having previously weighed the employer's
interest in knowing what is asked of it versus the union's interest
in protecting its right to bargain, the conclusion should be the
same.  The union should be limited to the bargaining it requested.
 
Did the employer bargain?  The employer refused to bargain.  The
employer and union met in December, at which meeting the employer
explained why it was implementing the automated telephone directory.
No further discussions were held.

As stated in the employer's post-hearing brief, case law requires
impacts bargaining for any unilateral change, including changes
which are entrepreneurial.  The employer's failure to bargain
impacts is inexplicable.

C) Conclusion - Telephone Directory - Skimming

Based on the evidence taken as a whole, including  testimony of the
witnesses, history of the work involved, the position description
for dispatcher, training for and utilization of this range of
knowledge, and the sheer volume and variety of calls, the union has
made a showing of skimming.  As indicated by the employer, 220,000
calls are no longer coming into the dispatchers' work stations. 
 
The employer violated RCW 41.56.140(4) in failing to bargain the
effects of transferring work to non-dispatcher bargaining unit
employees.  The decision to transfer bargaining unit work and the
effects of that decision on bargaining unit employees are  mandatory
subjects of bargaining.  However, the union did not ask for decision
bargaining.  The union requested effects bargaining. The employer
failed to bargain effects.

Issue 2.4 - Did the union waive its bargaining rights, by contract,
about automation?

Legal Standard - Contract Waiver Defense - Telephone Directory

The legal standards are described in the section on the use of leave
change.  The employer has the burden of proof, the contract language
must be clear and specific.  City of Yakima, 3564-A.

Analysis - Waiver by Contract - Telephone Directory 
 
The collective bargaining agreement provides, under "Management
Rights," section 4.1, that the employer may  "diminish or change
municipal equipment, including the introduction of any and all new,
improved or automated methods of equipment."
  
The employer contended at the hearing that implementation of an
automated telephone directory falls within this contractual
management rights provision.  The employer did not assert this
affirmative defense in its answer.  Its brief mentions this defense
interwoven with other arguments, making it difficult to discern its 
argument on this point.

Testimony regarding this clause was that it had been in the contract
for over 20 years, had never been discussed at the bargaining table
to any witnesses' recollection, and that the constant technological
changes in the Communication Center had not been a subject of
dispute between the parties.  None of the previous technological
changes had the effect of removing  bargaining unit work.

No bargaining history or past practice has been offered by either
party.  One reading of section 4.1 could support the employer's
contention, but it has not offered any affirmative evidence showing
any specific discussion of this contract clause. The burden of proof
is on the employer.

In addition, the employer's contention at hearing differs from that
made when the union requested bargaining.  The employer responded to
the union's demand to bargain with a November 25, 2003, e-mail to
the union president.  In the e-mail, the employer wrote, "Here I am
exercising the efficiency clause of Article 4 of the collective
bargaining agreement."  The employer relies on section 4.1, but it
is unclear whether it is relying on the "efficiency" language or the
"automated methods of equipment" language.

Conclusion - Contract Waiver - Telephone Directory

The employer has not carried its burden of proof that the contract
language of section 4.1 is a waiver of the union's right to request
bargaining the decision and its effects.

Issue 2.5 - Did the employer have a business necessity or emergency
which required action without an opportunity to bargain?

Legal Standard - Emergency or Business Necessity - Telephone Directory

The legal standards are described in the section on the use of leave
issue above.  A compelling legal or practical need to make a change 
will excuse an employer from its bargaining obligation to the extent
necessary to deal with the emergency, Cowlitz County, Decision 7007
(PECB, 2000).

Analysis - Emergency or Business Necessity - Telephone Directory

The employer argues that a threatened loss of funding was an
emergency, creating a business necessity to implement a unilateral
change. The employer did not announce its decision to install an
automated telephone directory until it had formed a fixed intent to
do so.  When faced with an emergency, an employer may make a change
"to the extent necessary to deal with the emergency."  Cowlitz
County.  If the employer was dealing with an emergency, it
nonetheless could notify the union that it had an emergency, that
immediate action was required, and that it would stay in touch with
the union should bargaining obligations surface as the emergency was
confronted.  The employer's silence is troubling.

The record does not have any information on when the employer made
its decision, or what time and process was required to reach its
decision.  In the absence of that information, it is impossible to
discern facts upon which the employer could prevail.

Conclusion - Emergency or Business Necessity - Telephone Directory

The employer has failed to carry its burden of proof that it was
faced with an emergency or a business necessity.

REMEDIES

Legal Standard - Remedies

The Public Employment Relations Commission imposes remedial orders
to effectuate the purposes of Chapter 41.56 RCW.  In unusual
circumstances, it can impose extraordinary remedies.  An
extraordinary remedy often used by the Commission is an award of
attorney's fees incurred by the opposing party.(fn:8)
____________________
fn:8     The union's charge filed in this case requested an
advertisement posted in the Seattle PI and Seattle Times newspapers.
The union's request is far beyond the remedial purposes of the
statute, and not among the remedies previously ordered by the
Commission.  The union's request is denied.


An example of an award of attorney's fees is found in Seattle School
District, Decision 8976 (PECB, 2005).  In Seattle School District,
the employer refused to supply information requested by the union in
a timely manner.  The examiner reviewed Commission cases awarding
attorney's fees, and made the following analysis:

     Attorney fees are a sparingly used remedy.  The three general
     grounds for an award of attorney fees are:
     - If the defense to the unfair labor practice is frivolous or
     meritless, or
     - If there has been repetitive illegal conduct or egregious or
     willful bad acts, or
     - If the respondent has engaged in a pattern of repetitive
     conduct showing a patent disregard of its statutory obligations.


In Seattle School District, Decision 8976, attorney's fees were
awarded to the union.

A previous Seattle School District case, Seattle School District,
Decision 5733-B (PECB, 1998) also awarded attorney fees to the
union, holding that an award of attorney fees should be made when it
is "necessary to make the order effective and if the defense to the
unfair labor practice is frivolous or meritless", citing
Municipality of Metropolitan Seattle v. PERC, 118 Wn.2d 621 (1992).

Analysis - Remedies

This employer has shown a pattern of repetitive conduct.  It has a
recent history of taking unilateral action and then litigating,
rather than carefully considering the collective bargaining
agreement and the legal duties arising from its relationship with
the union.  See City of Seattle,  Decision 8313-A and City of
Seattle, Decision 8916.

The employer raised frivolous affirmative defenses.  Before the
hearing, the employer's answer requested deferral to arbitration,
but stated "the employer is not willing to waive any procedural
defenses to arbitration."  On September 7, 2004, three weeks before
the hearing, the employer filed a motion for a deferral to
arbitration and request for continuance.  The basis of the
continuance request was to permit time to rule on the deferral
request.  The union immediately filed a brief in response to the
motion.  The employer's motions were denied on the grounds that the
employer continued its refusal to waive procedural defenses to
arbitration.  

The employer's answer did not raise contract clause affirmative
defenses, nor did it assert the business necessity defense. Its
motion for a deferral and a continuance were the first time the
union was put on notice the employer was claiming contract language
affirmative defenses.  The employer raised the business necessity
defense for the first time at the hearing. 

The employer's brief concedes for the first time that the employer
had a duty to engage in effects bargaining on its actions.  The
employer's brief barely touched on its contract language defenses. 
In response to the employer's moving target of defenses, the union
devoted many pages in its post-hearing brief to thorough analysis on
the contract waiver and business necessity issues.

The employer contended that changing staffing levels with the result
of reducing use of leave time was exempt from bargaining.  On
November 4, 2003, the union advised it that, ". . . our members do
not have the same ability to use accrued discretionary time because
of the increased staffing levels."  The human resources director
replied to the union on November 20, 2003, stating that, ". . . it
is the City's position that minimum staffing levels are not a
mandatory subject of bargaining."  The employer willfully
disregarded the fact that leave time had been changed.  The law has
been very clear on leave time scheduling since City of Clarkston,
Decision 3286, and cases cited in that decision.  Well-settled law 
existed to guide the employer; it does not appear that the employer
considered that law before responding to the union.

The employer decided to implement an automated telephone directory,
and received a request to bargain from the union. The employer
responded by writing that it was exercising the efficiency clause of
the contract.  This was the employer' only response to union
concerns regarding removal of 25% to 30% of bargaining unit work. 
The employer's brief after the hearing was its first concession that
it had a duty to bargain.

Conclusion - Remedies

The employer should not be rewarded for its repeated failure to give
prior notice and to bargain in good faith.  Extraordinary remedies
are appropriate.  An award of attorney fees is required to make this
order effective.

                           FINDINGS OF FACT
     
1.   The City of Seattle is a public employer within the meaning of
     RCW 41.56.030(1).

2.   The Seattle Police Dispatchers' Guild is a bargaining
     representative within the meaning of RCW 41.56.030(3).

3.   The union represents a bargaining unit of police communications
     dispatchers and analysts employed by the employer.

4.   At the time of the controversy in this matter, the employer and
     the union were parties to a collective bargaining agreement
     with a term of January 1, 2002, through December 31, 2004,
     which covered the dispatcher bargaining unit.

5.   More dispatchers are assigned to each of the five shifts than
     are needed for operations, to allow for absences and leave use.
      The parties had a practice of permitting dispatcher employees
     to use accrued leave time for a one day absence if there were
     more dispatchers scheduled for a shift than required by the
     minimum shift staffing level.

6.   Beginning in October 2003, for four months, the employer
     increased the minimum staffing levels for all shifts.  The
     change reduced employees' opportunities to use leave time.

7.   The employer did not notify the union of the change prior to
     its implementation.

8.   On November 4, 2003, the union demanded effects bargaining.

9.   The employer met with the union in early December.  The
     employer refused to bargain the leave usage effects of the
     increase in minimum shift staffing.

10.  The collective bargaining agreement, section 4.2,  states that
     the employer may "determine the number of shifts and the number
     of personnel assigned to such shifts".

11.  Uncontroverted testimony defined the meaning of section 4.2  to
     give the employer only the ability to set the total number of
     people it hires and assigns to one of the five shifts.

12.  Nothing in the wording of section 4.2, nor in its prior
     application by the parties, permits the employer to reduce
     opportunities for leave use by increasing the number of people
     on a shift who have to be at work.

13.  Funding to the employer of E-911 tax funds was conditioned on
     meeting an average speed of answer requirement.  The employer
     knew of this requirement for at least two years prior to the
     funder's insistence on compliance.  The employer had
     substantial notice that it must improve speed of answer to
     continue funding.

14.  There was no unforeseeable emergency or business necessity
     which required immediate change of shift staffing by the
     employer, preventing it from providing prior notice to the
     union and, if requested, to bargain the decision and effects.

15.  About October 20, 2003, the employer notified the union that it
     was going to implement a telephone tree.  

16.  On November 24, 2003, the union made a written request for
     information from the employer asking for specifics on the phone
     tree.  The employer provided the union with a copy of the
     automated telephone directory menu the following day.

17.  On December 1 and again on December 4, 2003, the union demanded
     effects bargaining.

18.  The employer met with the union in mid-December to explain the
     automated telephone directory.  The employer demonstrated a
     fixed intent to implement the change.  The employer did not
     bargain effects of the implementation.

19.  In January 2004 the employer implemented an automated telephone
     directory and removed 25% to 30% of dispatcher work from the
     bargaining unit.  Some of the work was mechanized, some was
     discontinued, and some was transferred to non-bargaining unit 
     employees.

20.  The employer's decision to mechanize some work was an
     entrepreneurial decision.

21.  The employer's decision to discontinue some work was an
     entrepreneurial decision.
22.  The employer's automated telephone directory gives callers the
     phone number of non-bargaining unit employees of the employer
     to process information requests previously performed by
     dispatchers, thus transferring some bargaining unit work to
     non-unit employees.

23.  The collective bargaining agreement, section 4.1,  states that
     the employer may  "diminish or change municipal equipment,
     including the introduction of any and all new, improved or
     automated methods of equipment."  No evidence was offered as to
     the scope and intent of this section.

24.  There is no history of the employer's implementation of a
     change in municipal equipment which had the effect of removing
     work from the union's bargaining unit and moving it to
     non-bargaining unit employees of the employer.  History
     reflects gradual efficiency increases through equipment
     changes, without changing the calls coming in to bargaining
     unit members.   The implementation of an automated telephone
     tree removed a large category of calls from bargaining unit 
     members.

25.  Funding to the employer of E-911 tax funds was conditioned on
     meeting an average speed of answer requirement.  The employer
     had substantial advance notice that it must improve speed of
     answer to continue funding.

26.  The employer had sufficient time to give prior notice to the
     union of its potential decision to implement an automated
     telephone directory.

27.  The employer raised frivolous defenses, there have been
     repeated acts of illegal conduct, and the employer has shown
     patent disregard of its statutory bargaining obligations.

                          CONCLUSIONS OF LAW

1.   The Public Employment Relations Commission has jurisdiction in
     this matter pursuant to Chapter 41.56 RCW and Chapter 391-45 WAC.

2.   By its actions in implementing a unilateral increase in minimum
     staffing leading to reduction in available leave time as
     described in Findings of Fact 4, 5, and 6 above, the employer
     failed to bargain regarding a mandatory subject of bargaining
     and presented the union with a fait accompli, a violation of
     RCW 41.56.140(4).

3.   By its actions in requesting only effects bargaining regarding
     the change in shift staffing and leave use, as described in
     Finding of Fact 8 above, the union waived decision bargaining and was
     entitled to effects bargaining only.

4.   By its actions in failing to bargain the effects of the
     staffing change as described in Finding of Fact 9 above, the
     employer failed to bargain, and interfered with employee
     rights,  violations of RCW 41.56.140(4) and (1).

5.   As described in paragraph Findings of Fact 10, 11 and 12 above,
     the employer failed to carry its burden of proof that section
     4.2 of the collective bargaining act is a union waiver of the
     right to bargain this leave usage decision, WAC 391-45-270(1)(b).

6.   As described in Findings of Fact 13 and 14 above, the employer
     failed to carry its burden of proof that there was a business
     necessity or emergency which prevented it from carrying out its
     statutory obligation to bargain with the union, WAC 
     391-45-270(1)(b).

7.   The employer's failure to bargain effects of the mechanized and
     discontinued bargaining unit work performed by the automated
     telephone directory, as described in Findings of Fact 15
     through 21 above, when requested to do so by the union as
     described in Findings of Fact 17, the employer committed an
     unfair labor practice and interfered with employee rights in
     violation of RCW 41.56.140(4) and (1).

8.   The employer's actions in implementing an automated telephone
     directory which removed some work from the union to
     non-bargaining unit employees of the employer, as described in
     Findings of Fact 19 and 22, the employer failed to bargain
     regarding a mandatory subject of bargaining and presented the
     union with a fait accompli, a violation of RCW 41.56.140(4). 

9.   By its actions in requesting only effects bargaining on the
     automated telephone directory, as described in Finding of Fact
     17 above, the union waived decision bargaining and was entitled
     to effects bargaining only.

10.  As described in Findings of Fact 23 and 24 above, the employer
     failed to carry its burden of proof that section 4.1 of the
     collective bargaining act is a union waiver of the right to
     bargain the effects of implementation of an automated telephone
     directory, WAC 391-45-270(1)(b).

11.  As described in Findings of Fact 25 and 26 above, the employer
     failed to carry its burden of proof that there was a business
     necessity or emergency which prevented it from carrying out its
     statutory obligation to bargain with the union, WAC 
     391-45-270(1)(b).

12.  The employer should be required to pay reasonable attorney fees
     incurred by the union in its prosecution of this charge.

                                ORDER

On the basis of Conclusions of Law 2, 4, 7 and 8 above, the
complaint charging unfair labor practices by the City of Seattle
against the Seattle Police Dispatchers' Guild, filed in case
18375-U-04-4684, is SUSTAINED on the merits.

The City of Seattle, its officers and agents, shall immediately take
the following actions to remedy its unfair labor practices:

1.   CEASE AND DESIST from:   

     a.   Refusing to bargain collectively with the Seattle Police
          Dispatchers' Guild as the exclusive bargaining
          representative of the bargaining unit described in
          paragraph 2 of the Findings of Fact;

     b.   In any other manner interfering with, restraining or
          coercing its employees in the exercise of their collective
          bargaining rights secured by the laws of the state of 
          Washington.

2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes
and policies of Chapter 41.56 RCW:

     a.   Negotiate in good faith with the Seattle Police
          Dispatchers' Guild regarding the effects of any change in
          leave use availability.

     b.   Negotiate in good faith with the Seattle Police
          Dispatchers' Guild regarding the effects of the automated
          telephone directory.

     c.   Post, in conspicuous places on the employer's premises
          where notices to all bargaining unit employees are usually
          posted, copies of the notice attached hereto.  Such
          notices shall be duly signed by an authorized
          representative of the respondent, and shall remain posted
          for 60 days.  Reasonable steps shall be taken by the
          respondent to ensure that such notices are not removed,
          altered, defaced, or covered by other material.

     d.   Read the notice attached to the order into the record at a
          regular public meeting of the City of Seattle City
          Council, and permanently append a copy of the notice to
          the official minutes of the meeting where the notice is
          read as required by this paragraph.

     e.   Reimburse the Seattle Police Dispatchers' Guild, upon
          presentation of affidavits, for its attorney fees incurred
          in the prosecution of this matter.

     f.   Notify the Seattle Police Dispatchers' Guild, in writing,
          within 20 days following the date of the order, as to what
          steps have been taken to comply with this order, and at
          the same time provide the complainant with a signed copy
          of the notice required by this order.

     g.   Notify the Executive Director of the Public Employment
          Relations Commission, in writing, within 20 days following
          the date of this order, as to what steps have been taken
          to comply with this order, and at the same time provide
          the Executive Director with a signed copy of the notice
          attached to this order.

Issued at Olympia, Washington this  23rd  day of November, 2005.


                    PUBLIC EMPLOYMENT RELATIONS COMMISSION



                    SALLY B. CARPENTER, Examiner


This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.


NOTICE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION, A STATE AGENCY, HAS HELD A LEGAL PROCEEDING IN WHICH ALL PARTIES WERE ALLOWED TO PRESENT EVIDENCE AND ARGUMENT. THE COMMISSION HAS FOUND THAT WE HAVE COMMITTED UNFAIR LABOR PRACTICES IN VIOLATION OF A STATE COLLECTIVE BARGAINING LAW, AND HAS ORDERED US TO POST THIS NOTICE TO OUR EMPLOYEES: WE UNLAWFULLY failed to give notice prior to making a decision, and, upon request, to bargain in good faith with Seattle Police Dispatchers' Guild in connection with our change in minimum staffing which reduced employees' ability to use leave time. WE UNLAWFULLY refused to bargain the effects of our change in minimum staffing when the union requested us to bargain the effects. WE UNLAWFULLY failed to give notice prior to making a decision to remove bargaining unit work by implementation of the automated telephone tree. WE UNLAWFULLY refused to bargain the effects of the automated telephone directory when the union requested us to bargain the effects. WE UNLAWFULLY interfered with our employees in the exercise of the collective bargaining rights under state law. TO REMEDY OUR UNFAIR LABOR PRACTICES: WE WILL negotiate in good faith with the Seattle Police Dispatchers' Guild regarding the effects of any change in leave use availability. WE WILL negotiate in good faith with the Seattle Police Dispatchers' Guild regarding the effects of the automated telephone directory. WE WILL reimburse the Seattle Police Dispatchers' Guild, upon presentation of affidavits, for its attorney fees incurred in the prosecution of this matter. WE WILL NOT unilaterally implement changes of the wages, hours or working conditions of employees in the bargaining unit represented by Seattle Police Dispatchers' Guild. WE WILL NOT, in any other manner, interfere with, restrain, or coerce our employees in the exercise of their collective bargaining rights under the laws of the State of Washington. DATED: _________________ City of Seattle BY: ______________________________ Authorized Representative THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Questions concerning this notice or compliance with the order issued by the Commission may be directed to the Public Employment Relations Commission, 711 Capitol Way, Suite 603, PO Box 40919, Olympia, Washington 98504-0919. Telephone: (360) 570-7300. A full copy of Decision 9173 will be published on PERC's website, www.perc.wa.gov.