STATE OF WASHINGTON
MARINE EMPLOYEES’ COMMISSION
Evergreen Plaza Building
P.O. Box 40902
Olympia, Washington 98504-0902
(360) 586-6354
Friday, October 22, 2010 – 10:00 a.m.
Rainier Conference Room—Washington State Ferries, Seattle
MINUTES
Present: Members and staff - John R. Swanson, Chairman
Patricia A. Warren, Commissioner
Linda Hoverter, Special Assistant
Kathy Marshall, Administrator
Others - Steve Douglas, KING TV
Jeff Duncan, Marine Engineers Beneficial Association
Susanna L. Frame, KING TV
Leah Maurseth, Washington State Ferries Labor Relations Office
Valarie Peaphon, Office & Professional Employees International Union
Robert Scott, Puget Sound Metal Trades/PNWRCofC
David Slown, Assistant Attorney General – Washington State Ferries
Harry Thompson, Puget Sound Metal Trades/IBEW 46
Jay Ubelhart, Inlandboatmen’s Union of the Pacific
Carrie Wood, Washington State Ferries Labor Relations Office
The meeting was called to order at 10:06 a.m.
Moved, seconded and carried: to adopt the agenda distributed at the meeting.
Moved, second and carried: to approve the minutes of the September 24, 2010 meeting.
STATUS OF CASES
MEC Case No. 16-08
MEBA v. WSF—On 10/8/09, WSF filed a petition with Thurston County Superior Court for review of MEC’s decision awarding attorney’s fees. On 1/8/10, a status conference was held on the petition for review. WSF filed its opening brief with the court on 7/13/10. Briefs of Respondents MEBA and MEC were filed on 8/2/10. WSF filed a Reply Brief on 8/12. At the conclusion of the review hearing on 8/27/10, Judge McPhee affirmed MEC’s decision. On 9/22/10, WSF filed a Notice of Appeal to the Court of Appeals, Division II.
On 1/22/10, Jeff Duncan reported that members have been paid the retro portion of the award through 8/31/09. He reported on 10/22/10 that the parties continue discussions to resolve how the issue will be handled going forward.
MEC Case No. 21-08
IBU v. WSF—Unfair labor practice complaint filed 6/20/08 and amended 6/23/08 and again 6/26/08 in which IBU charges WSF with interference and refusal to bargain. Specifically IBU charges WSF with a unilateral change in the working conditions of unlicensed deck department employees (filling open assignments for Summer 2008). The parties reached agreement on issues 1 and 2; IBU provided MEC with a copy on 10/24/08. During MEC settlement on 11/7/08, the parties reached agreement on a third issue. On 1/7/09, WSF filed its Answer to the Amended Complaint. On 1/21/09, the parties gathered for the hearing, but it did not proceed. IBU and WSF spent some time discussing the issue. They agreed to convert the 2/6/09 hearing in Consolidated Cases 19-06 and 17-08 to another settlement conference (without mediator) for Case 21-08. Hearing was continued to 3/3/09, but later cancelled due to IBU Counsel’s unavailability. On 9/25/09, IBU requested that a hearing be scheduled on the issue of assignment of AB work. On 12/4/09, Chairman Swanson reminded the parties that their “Dispatch Rules” settlement provides for resolution of related disputes such as this one through private arbitration with Liz Ford. On 4/23/10, AAG Slown reported that counsel agree the expedited dispute process is appropriate for resolving the dispute, but have not scheduled with Arbitrator Liz Ford yet. On 5/21/10, AAG Slown suggested that the complaint could be withdrawn or dismissed since the parties have agreed to take it to Liz Ford for arbitration. (Counsel will discuss.) On 7/23/10 the parties reported they have not yet found time to schedule an arbitration date with Ms. Ford. (IBU is not ready to withdraw Case 21-08 at this time.) During the 10/22 meeting, it was announced the parties are ready to schedule this issue for interest arbitration. Jay Ubelhart will check on Ms. Ford’s availability and let WSF know.
MEC Case No. 18-09
IBU v. WSF—Grievance filed 6/15/09 in which IBU alleges WSF filled a temporary vacancy in a year-around position. Commissioner Cox was assigned as Arbitrator. On 3/24/10, IBU filed an amendment to Case 18-09, requesting that two additional similar grievances be arbitrated with 18-09, as agreed to by the parties. Arbitrator Cox conducted the hearing on 7/21/10. MEC received the transcript on 8/16/10. On 9/15/10, WSF requested the 9/17 brief filing date be extended to 9/24; IBU did not object. Arbitrator Cox granted the request. Briefs were timely filed—both received on 9/24/10. Decision pending.
MEC Case No. 2-10
IBU v. WSF—Unfair labor practice complaint filed 10/2/09 in which IBU charges WSF with domination, discouraging union membership, refusal to bargain. Specifically IBU alleges WSF has implemented a new policy and procedure covering employees’ accumulation of compensatory time for holidays and overtime (Rules 10 and 24), without negotiating with the Union. On 1/19/10, the IBU and WSF participated in a settlement conference, but were unable to resolve the issue. MEC found it necessary to cancel the 2/16/10 hearing date for Case 2-10 and use it to reschedule the hearing in Case 15-09. The 2/2/10 Answer filing deadline was also cancelled. On 6/10/10, WSF filed its Answer to the Complaint. Commissioner Cox was reassigned as Examiner. On 6/17/10, IBU Counsel requested the 6/24/10 hearing be continued. An unavoidable conflict arose for two key witnesses. WSF did not oppose the request. Examiner Cox cancelled the 6/24/10 hearing date. On 10/8/10, IBU Counsel withdrew the complaint; the underlying matter has been resolved by the 2011-2013 interest arbitration award. Examiner Cox has cancelled the 12/6/10 hearing date. Case is to be closed.
MEC Case No. 7-10
IBU v. WSF—Unfair labor practice complaint filed 11/5/09 in which IBU charges WSF with interference and refusal to bargain. Specifically IBU alleges that WSF has failed to abide by Rule 3.04/single day vacation hours. On 3/12/10, the parties participated in a settlement conference with Commissioner Cox. They were unable to reach agreement on the issue. Due to a scheduling conflict on 5/4/10, Hearing Examiner Warren cancelled the 6/9/10 hearing and 5/26/10 answer deadline. On 6/16/10, WSF filed its Answer to the Complaint. The 6/30/10 hearing was cancelled due to AAG Slown’s illness. The hearing has been rescheduled for 12/16/10.
MEC Case No. 8-10
MM&P v. WSF—Unfair labor practice complaint filed 12/21/09 in which MM&P charges WSF with refusal to bargain. Specifically IBU alleges WSF failed to adhere to the terms of the memorandum of understanding which provided for an agreement to negotiate and arbitrate a replacement for the Dispatch By Seniority program if either party elected to terminate that agreement. On 5/12/10, the parties participated in a settlement conference with Chairman Swanson; the issue was not resolved. (The arbitration decision has not been issued yet.) On 6/3/10, the parties jointly requested the 6/17 hearing be postponed while the parties await an interest arbitration decision, expected out by 6/18. Hearing Examiner Cox granted the request. The 6/17 hearing was cancelled, as well as the 6/3 answer filing date. The parties received Arbitrator Ford’s decision on 6/20/10; a petition for reconsideration has been filed. On 7/23/10, the parties reported that Arbitrator Ford denied the Petition for Reconsideration and Motion to Stay Implementation of her Award. MM&P and WSF plan to discuss implementation of the interim process contained in the Award. On 9/24/10, AAG Slown reported the interim process goes into effect with the fall schedule. On 10/22/10, AAG Slown reported the parties bargained 10/21 and are close to settling the issue.
MEC Case No. 9-10
IBU v. WSF (Keith Hunt)—Grievance filed 1/27/10 in which IBU alleges
WSF failed to pay Keith Hunt travel time and mileage for days worked in
Anacortes in the summer of 2009. On 3/12/10, the
parties participated in a settlement conference with Commissioner Cox. On
5/21/10, Jay Ubelhart reported that he communicated with the grievant and IBU
intends to proceed to hearing. On 7/12/10, Jerry Holder requested the
7/16/10 hearing be continued, due to a problem with a witness. IBU did not
object. Arbitrator Swanson granted the request; the 7/16 hearing was cancelled.
The hearing has been rescheduled for 1/6/11.
MEC Case No. 11-10
Jonathan Pearson v. WSF—Unfair labor practice complaint filed 2/12/10 in which Mr. Pearson charges WSF with interference, domination, discouraging union membership, discrimination, and refusal to bargain related to Mr. Pearson’s termination. Initially, the Commission decided to hold this matter in abeyance until Case 12-10 was resolved. However, the parties agreed to participate in a joint settlement conference for the two cases. On 9/28/10, the parties participated in a joint settlement conference for Cases 11-10 and 12-10 with Chairman Swanson. Mr. Pearson subsequently agreed to withdraw Case 12-10. MM&P is representing Mr. Pearson in Case 11-10. MEC is waiting for a response from MM&P Counsel regarding further scheduling.
MEC Case No. 12-10
Jonathan Pearson v. MM&P—Unfair labor practice complaint filed 2/16/10 in which Mr. Pearson charges WSF with restraint, coercion; causing employer discrimination; refusal to bargain/failure to represent (Termination). On 5/12/10, the parties participated in a settlement conference with Chairman Swanson. The matter was not resolved; however Mr. Pearson and MM&P are in the process of exchanging additional information. MEC received MM&P’s Answer to the Complaint on 5/20/10. On 5/21/10, MEC received a joint request from MM&P and Mr. Pearson to postpone the 6/1 hearing, consolidate this case with Case 11-10 and schedule another settlement conference. WSF objected to consolidation. Hearing Examiner Warren has cancelled the 6/1/10 hearing. On 9/28/10, the parties participated in a joint settlement conference for Cases 12-10 and 11-10 with Chairman Swanson. Mr. Pearson subsequently agreed to withdraw Case 12-10. MEC received his formal withdrawal on 10/5/10. Case is to be closed.
MEC Case No. 13-10
OPEIU Local 8 v. WSF—Petition for Clarification of Existing Bargaining Unit, specifically vessel work order manager position. On 4/23/10, AAG Slown noted that because the position in question is now represented by IFPTE Local 17, that union should be included as a necessary party. MEC contacted IFPTE Local 17. Vince Oliveri will represent Local 17 in the MEC proceedings. The 7/28/10 hearing date was cancelled as Mr. Oliveri was not available. On 5/21/10, AAG Slown reported that he recently learned that some duties now in the Vessel Work Order Manager position were originally from a position represented by WFSE a year or two ago. He suggested that MEC may want to contact that union about inclusion in the case. MEC staff contacted the representative for WFSE. As of 6/2/10, WFSE had not determined whether or not it wanted to be involved. On 6/7/10, OPEIU, IFPTE Local 17 and WSF participated in a settlement conference with Chairman Swanson. Local 17 and OPEIU are still discussing the issue. DOP is to provide them further information. On 7/23/10, OPEIU requested the 8/16/10 hearing be postponed. Neither WSF nor Local 17 objected. Hearing Officer Cox granted the request. The 8/16/10 hearing has been cancelled. On 9/24/10, Leah Maurseth reported that OPEIU intends to proceed to hearing on this issue. The hearing has been rescheduled for 11/16/10.
MEC Case No. 14-10
MEBA v. WSF —Unfair labor practice complaint filed 3/17/10 in which MEBA charges WSF with refusal to bargain. Specifically MEBA alleges WSF unilaterally implemented a Key Box System without notice to or bargaining with the Union. MEBA’s complaint included notice to the Commission that it intends to file a motion for temporary relief. On 4/12/10, the parties requested that the 4/15/10 settlement conference be cancelled. WSF needs more time to provide information MEBA requested. The parties negotiated the key box issue on 4/23 with another matter. Mediator Swanson cancelled the 4/15/10 settlement conference for Case 14-10. On 10/22/10 Jeff Duncan reported MEBA and WSF are still negotiating this issue.
MEC Case 15-10
MEBA v. WSF—Unfair labor practice complaint filed 3/26/10 in which MEBA charges WSF with refusal to bargain. Specifically MEBA alleges WSF has decided that unlicensed engine room personnel—Oilers and Wipers—should not be allowed to have parking spaces at the Bainbridge Island Terminal. On 7/14/10, the parties participated in a settlement conference with Mediator Cox, but were unable to resolve the issue. They intend to continue discussing. During MEC’s 7/23/10 public meeting, Karol Kingery, MEBA, requested the 9/2 hearing be converted to a settlement conference. AAG Slown did not object. Hearing Examiner Warren granted the request. The 9/2 hearing and 8/19 date for WSF to answer the complaint have been cancelled. On 9/2/10, the parties engaged in further settlement discussions with Mediator Cox. The matter is not yet resolved; however MEBA intends to communicate with IBU regarding a possible agreement for use of a parking space. As of 10/22/10, MEBA and IBU are still discussing.
MEC Case No. 16-10
IBU v. WSF (Pascual)—Grievance filed 4/19/10 in which IBU alleges WSF restricted Elmer Pascual’s bumping/bidding on OS positions, in violation of the contract. On 4/26/10, MEC received a copy of a letter from Jerry Holder to IBU asserting that the request for arbitration is untimely. On 6/15/10, IBU responded to Mr. Holder’s letter. On 9/15/10, the parties participated in a settlement conference with Mediator Cox; they made significant progress. They agreed to use the 10/14 hearing date for a settlement conference in Case 17-10. MEC will reschedule another settlement conference and hearing date for Case 16-10. On 10/13/10, the parties met again with Mediator Cox to continue settlement discussions. They are close to reaching agreement. The hearing remains scheduled for 12/13/10.
MEC Case No. 17-10
IBU v. WSF (Hannam)—Grievance filed 4/20/10 in which IBU alleges WSF did not pay Hannam overtime for working during her vacation. On 4/26/10, MEC received a copy of a letter from Jerry Holder to IBU asserting that the request for arbitration is untimely. On 6/15/10, IBU responded to Mr. Holder’s letter. This matter was scheduled for settlement conference on 9/15/10 along with Case 16-10. Because discussion of 16-10 took most of the day, the parties ran out of time to discuss Case 17-10. IBU and WSF agreed to continue the 17-10 settlement conference to 10/14/10 (formerly hearing date in 16-10). At the conclusion of the 10/14/10 settlement conference, Commissioner Cox determined that IBU’s arbitration request was untimely. Case is to be closed. The 11/2 hearing date has been cancelled.
MEC Case No. 19-10
Christopher Johnson v. MEBA & WSF—Unfair labor practice complaint filed 5/17/10 in which Mr. Johnson charges breach of duty of fair representation/discipline. Specifically Mr. Johnson alleges MEBA acted with restraint and coercion and WSF interfered. Some progress was made during the 9/30/10 settlement conference with Chairman Swanson. The parties are still discussing the matter as of 10/22/10.
MEC Case No. 1-11
IBU v. WSF—Unfair labor practice complaint filed 9/13/10 in which IBU charges WSF with interference, refusal to bargain. Specifically IBU charges WSF with change in deck department standing orders. Forwarded to Commissioners for review. On 9/22/10, Dennis Conklin, IBU, notified MEC that the parties have reached an agreement on this matter; IBU withdrew the complaint. On 9/24/10, MEC entered Order Closing Settled Complaint, Dec. No. 590-MEC.
MEC Case No. 2-11
IBU v. WSF—Grievance filed 9/14/10 in which IBU alleges WSF reduced OS relief positions. A settlement conference is scheduled for 11/30/10, the hearing for 1/12/11.
MEC Case No. 3-11
IBU v. WSF—Grievance filed 9/14/10 in which IBU alleges WSF violated the 9/09 elimination of touring watches MOU (limitation on flexing shifts). A settlement conference is scheduled for 1/18/11, the hearing for 2/2/11.
MEC Case No. 4-11
IBU v. WSF—Unfair labor practice complaint filed 9/13/10 in which IBU charges WSF with interference, discouraging union membership, refusal to bargain. Specifically IBU charges WSF with violation of the Morvan agreement (voluntary lay-off for 2nd year hires). Forwarded to Commissioners for review.
STATUS OF COLLECTIVE BARGAINING 2011-2013
FASPAA................................ Negotiations began in May. The parties were scheduled for interest arbitration on 8/11 and 8/12 before Arbitrator Sylvia Skratek. On 8/3/10, MEC received the lists of disputed issues/final proposals from the parties. On 8/6, MEC issued a Certification of Issues for Interest Arbitration. Apparently the parties reached agreement and cancelled arbitration.
IBU........................................ Negotiations began in February. IBU declared impasse on 6/9/10. On 6/15/10, Jerry Holder requested a mediator be appointed. MEC contacted the FMCS. The parties met with appointed mediator, Gary Hattal, on 7/7 and 7/9/10. On 7/12/10, IBU submitted its list of remaining disputed issues/final proposals to MEC. WSF filed its list/proposals on 7/16/10. On 7/22/10, the Commission issued a Certification of Issues for Interest Arbitration . The parties were in dispute over the impasse items. Interest arbitration was set for 8/2-8/6/10 before Arbitrator Sylvia Skratek. On 7/27, the MEC conducted a hearing on disputed final impasse issues for interest arbitration. On 7/29, MEC entered Decision Amending Final Impasse issues for 2011-2013 Interest Arbitration, Decision No. 586-MEC. Arbitrator Skratek issued her award on 9/22/10.
............................................... On 8/20/10, WSF filed a Petition for Judicial Review of MEC Decision 586 (MEC IMP 2-10) in Thurston County Superior Court (#10-2-01898-8). Judge Paula Casey is assigned and a status conference is scheduled for 11/19/10. MEC delivered a certified copy of the record to the Court on 9/17/10.
MEBA................................... Negotiations began in June. The parties have reached a tentative agree-ment on a few items; next session is 8/4/10. MEBA counsel advised the MEC that the parties have agreed to exchange final proposals on impasse issues in arbitration on 8/10/10. Interest arbitration was scheduled 8/17-8/20/10 before Arbitrator Elizabeth Ford. On 8/13/10, MEC issued a Certification of Issues for Interest Arbitration. Arbitrator Ford issued her Award on 10/2/10. MEBA is waiting for the state to notify MEBA of their position because the award was received 1 day late. By law, it is barred from being included in negotiations.
MM&P.................................. Negotiations began in April. As of 7/20/10, the parties were at impasse. On 7/30 and 8/2, MEC received the list of remaining disputed issues/final proposals from each of the parties. Interest arbitration was scheduled for 8/16-20/10 before Arbitrator Timothy Williams. On 8/5/10, MM&P objected to WSF’s submittal of Rule 8.06 for certification for interest arbitration. On 8/5, WSF filed a response; MM&P replied to WSF’s letter on 8/6. On 8/13, the Commission issued a Certification of Issues for Interest Arbitration with a “conditional certification” regarding the section in dispute. On 8/27/10, the Commission conducted a certification hearing. On 8/31/10, MEC entered Decision Denying Certification of Rule 8.06 for 2011-13 Interest Arbitration, Dec. 588-MEC. Arbitrator Williams issued his Award on 9/23/10 (both deck officers’ and watch supervisors’ contracts).
............................................... On 9/17/10, WSF filed a petition for Judicial Review of MEC Decision No. 588 (MEC IMP 3-11) in Thurston County Superior Court (No. 10-2-02109-1). Judge Paula Casey has been assigned and a status conference scheduled for 1/7/11.
Oper. Watch Superv’s......... Negotiations began in February. On 8/2/10, MEC received the list of remaining disputed issues/final proposals from each of the parties. Interest arbitration was scheduled for 8/16-20/10 before Arbitrator Timothy Williams. On 8/11, MEC issued a Certification of Issues for Interest Arbitration. Arbitrator Williams issued his Award on 9/23/10.
Metal Trades........................ On 8/9/10, MEC received the list of remaining disputed issues/final proposals from each of the parties. Interest arbitration was scheduled for 8/25-26 before Arbitrator Jane Wilkinson. On 8/18/10, MEC issued a Certification of Issues for Interest Arbitration. Arbitrator Wilkinson issued her Award on 9/16/10.
OPEIU................................... Negotiations began in May. On 8/23/10, MEC received the parties’ outstanding disputed issues/final proposals. Interest arbitration was scheduled for 8/30-31. On 8/25/10, MEC issued a Certification of Issues for Interest Arbitration. Arbitrator Lumbley issued his Award on 9/23/10.
SEIU...................................... Negotiations began in June. The parties have a collective bargaining agreement TA’d. On 8/20/10, MEC received confirmation that the parties have no outstanding issues they are seeking to advance to interest arbitration.
OFM/LRO Negotiator Jerry Holder: IBU, MM&P, Operations Watch Supervisors, Metal Trades
OFM/LRO Negotiator Glenn Frye: FASPAA, MEBA, OPEIU, SEIU
Linda Hoverter announced that in an effort to conserve energy and resources, courtesy copies of all notices and orders will now be sent electronically instead of by U.S. mail.
ADMINISTRATIVE REPORT
ESSB 6503 – Furlough Bill
The MEC office was closed from 12noon-5pm on the afternoon of October 6 in compliance with the state furlough bill. The next furlough afternoon will be December 1, 2010.
Proposed 2011 MEC Public Meeting Schedule
Copies of the proposed 2011 MEC public meeting schedule are available today. It is also posted on the agency website. Commissioner Warren moved to approve the proposed schedule and Chairman Swanson seconded the motion. All were in favor. The proposed 2011 meeting schedule was approved.
2011-13 Biennial Budget Reduction
The MEC’s 2011-13 budget reductions were submitted to the Office of Financial Management on October 15. MEC’s budget reduction is 12% ($51,000), which is greater than MEC’s variable budget, so cuts had to be made in the fixed budget. Linda’s time will be cut back to 3 days per week to Wednesday, Thursday, Friday; travel will be reduced; and continuing education eliminated.
Performance Measure Results – 1st Quarter
MEC’s first quarter performance measure results have been posted on the agency website. Three of four measures were on target, but one measure which was very low this quarter was resolution of labor issues. MEC’s target is to resolve 75% of labor issues each quarter; this quarter’s resolution rate was 14%.
Cedar River Group Consultants
On October 13, MEC received the revised draft report from the Cedar River Group with our suggested changes incorporated into the report. No release date for this report was given.
2011 Supplemental Budget Request
As was announced last month, defense for appeals of MEC decisions by WSF is having a severe impact on MEC’s budget. The entire 2-year budgeted amount for attorney general fees was already exhausted as of August. A supplemental budget request was submitted to OFM on October 12, 2010 for additional allotment to cover upcoming attorney general fees.
The meeting was adjourned at 10:36 a.m.
Next meeting: Friday, December 10, 2010, 10:00 a.m., Rainier Conference Room, 4th Floor, Washington State Ferries Offices, 2901 3rd Avenue, Seattle