STATE OF WASHINGTON
MARINE EMPLOYEES’ COMMISSION
Evergreen Plaza Building
P.O. Box 40902
Olympia, Washington 98504-0902
(360) 586-6354
Friday, December 10, 2010 – 10:00 a.m.
Rainier Conference Room—Washington State Ferries, Seattle
MINUTES
Present: Members and staff - John R. Swanson, Chairman
John M. Cox, Commissioner
Patricia A. Warren, Commissioner
Linda Hoverter, Special Assistant
Kathy Marshall, Administrator
Others - Valarie Peaphon, Office & Professional Employees International Union
John L. Ross, Inlandboatmen’s Union of the Pacific
Tim Saffle, Masters Mates & Pilates
Robert Scott, Puget Sound Metal Trades
Jay Ubelhart, Inlandboatmen’s Union of the Pacific
Steve Walker, Marine Engineers Beneficial Association
The meeting was called to order at 10:05 a.m.
Moved, seconded and carried: to adopt the agenda distributed at the meeting.
Moved, second and carried: to approve the minutes of the October 22, 2010 meeting.
STATUS OF CASES
MEC Case No. 16-08
MEBA v. WSF—At 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. As of 9/24/10, the parties continue discussions to resolve how the issue will be handled going forward. They met again the end of October. On 11/1/10, Glenn Frye notified MEC that the parties are at impasse regarding Watch Turnover and requested a mediator be appointed. Mediator Rick Oglesby was assigned. On 11/15/10, MEBA Counsel notified MEC that there are at least 2 issues to be bargained—WSF’s proposed changes to watch turnover procedures and MEBA’s request for progress payments. That information has been provided to the Mediator.
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, 2 and 3. On 1/7/09, WSF filed its Answer to the Amended Complaint. On 9/25/09, IBU requested that a hearing be scheduled on the issue of assignment of AB work. 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 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.) On 12/10/10, Jay Ubelhart reported the parties are ready to schedule this issue for interest arbitration. He will check on Ms. Ford’s availability.
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. On 12/7/10, MEC entered Decision and Award, No. 594-MEC.
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. On 10/22/10, MEC entered Order Closing Withdrawn Complaint, Dec. No. 592-MEC.
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 is rescheduled for 12/16/10. On 12/10/10, IBU requested the 12/16 hearing be continued due to the unavailability of witnesses. WSF did not object to the request. Commissioner Warren cancelled the 12/16/10 hearing date. MEC will reschedule.
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. The parties last met on 10/21 to bargain this issue and AAG Slown reported they are close to settling. On 12/10/10, Tim Saffle reported that MM&P is awaiting a response to its last proposal.
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. On 12/10/10, Tim Saffle reported that Mr. Pearson is considering a settlement proposal.
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 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. On 10/22/10, MEC entered Order Closing Withdrawn Complaint, Dec. No. 591-MEC.
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 11/16/10, the parties gathered for a hearing, but chose to take time to discuss resolution further. The hearing was not convened. If resolved within the next 30 days, OPEIU will withdraw its petition. If not resolved within that time, MEC will reschedule the hearing. On 12/10/10, OPEIU Representative Valerie Peaphon indicated the parties may have reached an agreement on this issue.
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. On 11/10/10, MEBA Counsel notified MEC that negotiations have broken down and requested MEC schedule a hearing. The hearing is scheduled for 1/26/11. WSF’s Answer to the Complaint is to be filed on or before 1/12/11.
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 12/10/10, 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. During the 10/22 MEC meeting, Jay Ubelhart, IBU, noted the parties have exchanged some information and hope to get the issue resolved. On 10/22/10, MEC received a letter from AAG Anderson requesting MEC dismiss this grievance as untimely. IBU Counsel responded on 10/29; WSF replied to IBU’s response on 11/2. On 11/2, MEC issued Order Denying WSF’s Motion to Dismiss. On 12/9/10, the parties requested the 12/13 hearing be continued while they exchanged proposals that may settle the matter. Arbitrator Swanson granted the request. The 12/13/10 hearing has been cancelled. MEC will reschedule the hearing to take place in December, in the event the case is not settled.
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. At the conclusion of the 10/14/10 settlement conference, Commissioner Cox determined that IBU’s arbitration request was untimely. The 11/2 hearing date was cancelled. On 10/22/10, MEC entered Order of Dismissal, Dec. No. 593-MEC.
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 intended to continue discussions thereafter. When contacted by MEC on 11/5/10, Counsel Rhodes indicated the parties were unable to resolve the matter. On 12/3/10, MEBA requested the 2/23/11 hearing be continued; Mr. Leahy has a schedule conflict. Opposing counsel did not object. Examiner Cox granted the request. The 2/23/11 hearing and 2/9/11 deadline for respondents to answer the complaint have been cancelled. MEC will coordinate with the parties to reschedule.
MEC Case No. 2-11
IBU v. WSF—Grievance filed 9/14/10 in which IBU alleges WSF reduced OS relief positions. The parties participated in a settlement conference on 11/30/10 with Commissioner Warren. They were unable to resolve the issue. The hearing remains scheduled 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). Following review, the Commission determined that the facts alleged may constitute an unfair labor practice, if later found to be true and provable. A settlement conference is scheduled for 1/27/11, the hearing for 2/17/11. WSF’s Answer to the Complaint is to be filed on or before 3/3/11.
MEC Case No. 5-11
IBU v. WSF—Grievance filed 11/5/10 in which IBU alleges WSF altered Terri Maulin’s shift on 7/5/10. On 11/10/10 IBU notified MEC that the parties have settled this dispute. On 12/6/10, IBU provided MEC with a signed copy of the parties’ settlement agreement, which includes IBU’s withdrawal of the case. Case is to be closed.
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. The status conference was cancelled; no hearing date set yet.
MEBA................................... Negotiations began in June. The parties have reached a tentative agree-ment on a few items. 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.
RCW 47.64.170 requires the contracts and awards to be submitted to the Office of Financial Management by 10/1/10. MEBA is waiting for formal notification of the State’s position on this situation.
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. MEC delivered the certified copy of the record to the Court on 10/14/10.
The State filed an affidavit of prejudice against Judge Casey. The matter has been reassigned to Judge Christine Pomeroy; status conference is 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
ADMINISTRATIVE REPORT
ESSB 6503 – Furlough Bill
The MEC office was closed from 12noon-5pm on the afternoon of December 1, 2010 in compliance with the state furlough bill. The next furlough afternoon will be January 5, 2011.
Agency Self Assessment
State agencies are required by RCW 43.17.390 to submit a self-assessment report to the Governor’s Accountability and Performance Office by December 30 each year. MEC prepared and submitted its self-assessment December 1.
Commissioner Vacancy
Commissioner Warren’s resignation is effective December 31, 2010, so a new Commissioner needs to be appointed. The position is open and the Governor’s Office is accepting applications. One application has been received, but the Governor’s Office requires three applications for each position. Those present were encouraged to look for strong candidates to submit applications.
Farewell Comments from Commissioner Warren
Commissioner Warren expressed her disappointment in the lack of participation in today’s meeting by Washington State Ferries’ (WSF) representatives and counsel, particularly since today’s public meeting was held in their facility. She also expressed disappointment in diminishing courtesy on the part of WSF in their participation and attitude. She offered use of the Teamster Hall if needed for meetings and coffee would be provided at no cost.
She commended the one candidate who has applied for the vacant commission position and encouraged those present to nominate two more candidates so the Governor’s Office can make a swift decision.
She then recommended the MEC go paperless as much as possible in the materials copied to the Commissioners for information purposes. Transcripts would still need to be hard copy, but nearly all other materials could be sent electronically.
She announced that her husband, Gordon Baxter, was present in the room. She stated that the Governor’s letter in response to her resignation looked like it had been turned over to the AG’s office for a response. The letter said they had analyzed the issue and said Gordon had no interest in the issue so it was acceptable for her to hold a hearing. She was very disappointed – she didn’t believe the Governor actually took it seriously and didn’t really review the issues – it was just sent on through government channels for someone in the AG’s office to write the letter for her to sign. She then stated she was going to write one last letter and try to get the message through to the Governor that this action just reinforced the appearance of favoritism. If the AG’s office wants to play that card, anyone in the commissioner labor role could be found to have an appearance of bias on behalf of labor. She feels it’s a serious issue. Knowledge of her lengthy relationship with Gordon was widespread before she was appointed as MEC Commissioner and to use that relationship as an excuse after the years she has been in this position was actually because she was not wanted on that case due to her knowledge of impasse issues and bargaining from her time on the NLRB. Patty affirmed to those present that her decisions were based on contract language, law, prior decisions, and standards of arbitral review found in Elkouri and Elkouri’s book, How Arbitration Works, and not based on her relationship with Gordon Baxter.
Recognition of Commissioner Patricia A. Warren
Chairman Swanson presented a plaque to Commissioner Patricia Warren in appreciation of her three years of service to the Marine Employees’ Commission, 2008-10. He told those present she has been a great asset to the Commission and will be greatly missed.
Commissioner Cox thanked her for her guidance and help during the past two years, helping him learn how to write strong decisions.
The meeting was adjourned at 10:35 a.m.
Next meeting: Friday, January 28, 2011, 10:00 a.m., 2nd Floor Conference Room, Evergreen Plaza Building, 711 Capitol Way South, Olympia