STATE OF WASHINGTON
MARINE EMPLOYEES’ COMMISSION
Evergreen Plaza Building
P.O. Box 40902
Olympia, Washington 98504-0902
(360) 586-6354
Friday, January 28, 2011 – 10:00 a.m.
2nd Floor Conference Room—Evergreen Plaza Building, Olympia
MINUTES
Present: Members and staff - John R. Swanson, Chairman
John M. Cox, Commissioner
Linda Hoverter, Special Assistant
Kathy Marshall, Administrator
Others - Jeff Duncan, Marine Engineers Beneficial Association
Glenn Frye, OFM Labor Relations Office
Jerry Holder, OFM Labor Relations Office
Leah Maurseth, WSF Labor Relations
Jeff Pelton, WSF Labor Relations
Mark Schutter, WSF Labor Relations
David Slown, WSF Assistant Attorney General
Jay Ubelhart, Inlandboatmen’s Union of the Pacific
The meeting was called to order at 10:00 a.m.
Moved, seconded and carried: to adopt the agenda distributed at the meeting.
Moved, second and carried: to approve the minutes of the December 10, 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 9/23/10, MEC was informed that WSF has filed an appeal with the Court of Appeals.
The State filed its brief on 12/23/10. MEBA filed its response brief on 1/20/11. AAG Daniels requested and received a 30-day extension (to 2/23/11) for filing MEC’s brief.
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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. On 12/15/10, the parties participated in mediation with Rick Oglesby. They are at impasse and moving the matter to interest arbitration. By letter on 1/21/11, MEBA re-invoked jurisdiction pursuant to Decision 563-MEC, indicating the State has not paid for turnover duties since MEC’s Award issued in 2009. During MEC’s 1/28/11 meeting, AAG Slown stated the parties disagree on when additional watch turnover payments have to be made.
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.) The parties are ready to schedule this issue for interest arbitration. On 1/28/11, Jay Ubelhart reported that he now has some possible dates for arbitration with Liz Ford.
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. Chairman Swanson has been substituted as Hearing Examiner for Case 7-10 (Commissioner Warren’s resignation was effective the end of 2010). The hearing has been continued to 3/7/11.
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 12/10/10, Tim Saffle reported that MM&P is awaiting a response to its last proposal. On 1/5/11, Jerry Holder, LRO, provided MEC with a copy of the parties’ signed agreement resolving the issue. Case is to be closed. On 1/19/11, MEC entered Order Closing Settled Complaint, Dec. No. 597-MEC.
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. The parties gathered for a hearing on 1/6/11 before Arbitrator Swanson, but the hearing was not convened. Instead, IBU and WSF engaged in further settlement discussion. Their efforts resulted in the matter being resolved. WSF provided MEC with a final copy of the signed settlement agreement the same day. On 1/19/11, MEC entered Order Closing Settled Grievance, Dec. No. 599-MEC.
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. On 12/14/10, MEC received notice from MM&P Counsel R. Fenrich that her firm no longer represents Mr. Pearson. (MM&P has withdrawn from the case._ Mr. Pearson has indicated he wants to proceed to hearing on his own. On 1/24/11, WSF filed its Answer to the complaint. A hearing is scheduled for 2/7/11.
MEC Case No. 13-10
OPEIU Local 8 v. WSF—Petition for Clarification of Existing Bargaining Unit, specifically vessel work order manager position. On 12/10/10, OPEIU Representative Valerie Peaphon indicated the parties may have reached an agreement on this issue. On 12/16/10, Benita Hyder, OPEIU, withdrew the petition. On 1/19/11, MEC entered Order Closing Resolved Petition for Unit Clarification, Dec. No. 596-MEC.
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. On 1/12/11, WSF filed its Answer to the Complaint. On 1/24/11, MEBA Counsel requested the 1/26 hearing be postponed. The Governor scheduled a meeting with the unions on that date; Jeff Duncan must attend and he is also chief witness for the Union in this case. WSF Counsel did not oppose the request. Examiner Swanson has cancelled the 1/26/11 hearing. MEC will reschedule with the parties.
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 1/28/11, 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. On 1/28/11, Jerry Holder stated he is waiting for a proposal from IBU. The hearing has been continued to 3/1/11.
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. The hearing has been continued to 3/24/11. MEBA and WSF are to file answers to the Complaint on or before 3/10/11.
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. Commissioner Cox was substituted as Arbitrator on 12/16/10. On 1/6/11, IBU withdrew the grievance. (The hearing was cancelled.) On 1/19/11, MEC entered Order Closing Withdrawn Grievance, Dec. No. 599-MEC.
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). On 1/18/11, IBU and WSF participated in a settlement conference with Mediator Cox, but were unable to resolve the issue. On 1/26/11, IBU Counsel requested the scheduled 2/2 hearing be continued. One of IBU’s main witnesses is unavailable. WSF did not object. The 2/2/11 hearing has been cancelled. MEC will reschedule with the parties.
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). On 1/27/11, IBU and WSF participated in a settlement conference with Commissioner Cox. The parties made significant progress and are still discussing the issue. At their request, MEC will convert the 2/17/11 hearing date to another settlement conference.
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, including IBU’s withdrawal of the case. On 12/10/10, MEC entered Order Closing Settled Grievance, Dec. No. 595-MEC.
MEC Case No. 6-11
IBU v. WSF (Coleman)—Grievance filed 12/14/10 in which IBU alleges WSF denied overtime to Michael Coleman. On 1/20/11, AAG Anderson requested the 2/9 settlement conference be continued. He was recently reassigned to this case and had a schedule conflict on 2/9. IBU did not object. Mediator Swanson has cancelled the 2/9 settlement conference. The settlement conference has been rescheduled for 2/22/11. The hearing remains scheduled for 3/28/11.
MEC Case No. 7-11
IBU v. WSF (DeBlasio)—Grievance filed 12/16/10 in which IBU alleges WSF terminated Brandanna DeBlasio without all of the appropriate progressive discipline steps. A settlement conference is scheduled for 2/22/11 and the hearing for 4/6/11.
MEC Case No. 8-11
IBU v. WSF (Ramsey)—Grievance filed 1/14/11 in which IBU alleges WSF violated Rule 1.01 and Rule 5 of the collective bargaining agreement when Robin Ramsey was terminated. By letter on 1/20/11, Jerry Holder, LRO, declared the grievance untimely and requested the Commission decline to exert jurisdiction over it. On 1/24/11, IBU provided MEC with a copy of a letter sent to J. Holder on 9/21/10, as explanation for the Union’s delay in filing. The Commission will schedule a hearing on both the issue of timeliness and the merits of the case.
STATUS OF COLLECTIVE BARGAINING 2011-2013
OFM (Office of Financial Management) declared the contracts fiscally unfeasible. As of January 2011, a coalition of ferry employee unions (all but FASPAA and SEIU) are back at the bargaining table with the State to renegotiate the contracts.
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 cheduled 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
Recognition of Assistant Attorney General David Slown
Chairman Swanson announced that WSF Assistant Attorney General Slown will be taking a new assignment with Corrections and wished him the best in his new position. He praised AAG Slown’s professionalism and integrity and told him it had been a pleasure to do business with him.
ADMINISTRATIVE REPORT
ESSB 6503 – Furlough Bill
The MEC office was closed from 12noon-5pm on the afternoon of January 5, 2011 in compliance with the state furlough bill. The next furlough afternoon will be February 2, 2011.
Commissioner Vacancy
The MEC was notified that the Governor’s Office now has a list of viable candidates for Commissioner Warren’s position and will contact the agency next week.
Legislation Eliminating the MEC
On January 24, 2011, four bills were filed eliminating the MEC and transferring all duties and assets to the Public Employment Relations Commission (PERC). Those bills are: HB 1511, HB 1512, SB 5405 and SB 5408. The hearings for 1511 and 1512 are set for 2/1/11 at 10:30 am. The hearings for 5405 and 5408 are also set for 2/1/11, but at 3:30 pm.
Conversion to Paperless
Since 2005 the Marine Employees’ Commission has converted to paperless operation wherever possible. Meeting notices and minutes are distributed by e-mail or fax and are posted on the agency website.
MEC’s calendar and case list are posted on the website instead of being copied and mailed to interested parties, as was the case in the past. Quarterly GMAP updates are also posted on the agency’s website instead of photocopying and mailing. Decisions are posted on the website after being issued to the parties, allowing access without MEC having to photocopy and mail decisions to interested parties. MEC’s strategic plan, information handout “What You Should Know About the MEC”, and past salary survey reports are all available electronically on the agency’s website as part of the agency’s paperless efforts.
Virtually all filed documents are now sent to the Commissioners electronically. Courtesy copies of settlement conferences and hearing notices are also now sent electronically to interested parties.
MEC’s statute and rules currently don’t allow for electronic filing, but electronic filing is the next logical step. Changing the statute will require the agency to submit a request for legislation; those requests have to be submitted to OFM in September. Executive Order 10-106 suspended non-critical rule development and adoption until January 1, 2012, so MEC will need to wait until fall to begin the legislation request process and until next January to revise its rules.
Performance Measure Results – 2nd Quarter
MEC’s second quarter performance measure results have been posted on the agency website. MEC was able to raise resolution of labor issues from 14% last quarter to 40% this quarter; MEC’s target is 75%.
MEC Budget
MEC met with its accountants on January 18. Expected expenditures through December should be 25%; MEC has spent only 23%.
Comments from Chairman Swanson
Chairman Swanson reported that Susannah Frame from KING 5 TV interviewed him for two hours. He told her it’s a strange time in the United States for employees. In the past, Georgia-Pacific had plaques displayed throughout the building which said, “Our employees are our most important asset”. He worked all over the U.S. doing bargaining and this attitude was widespread. Now the philosophy is that employees are a liability. There’s an animosity about working people, that they are a problem, instead of an asset. He has bargained contracts for 60 years and has never seen a time when employees are considered a disadvantage, not an advantage. He hopes there won’t be a return to the days when there were fights in the streets. It’s terrible to think those we work with are not interested in making the organization work. Unfortunately it seems Susannah Frame, who also spoke with Robert Lavitt and Mike McCarthy, had already written her story. Rob and Mike talked about all the good things about WSF and the State. She told Mike at the end of their conversation that “he would hate her story”—she had already written it. It’s unfortunate to have reporters who write a story and then look for ways to justify it, instead of writing the story people have related; it’s too bad the truth is being distorted. AAG Slown reported that she did not contact him for comment. Chairman Swanson concluded the meeting by saying, “It’s a tough time for everyone; 2011 is a year to be kind to each other. "
The meeting was adjourned at 10:30 a.m.
Next meeting: Friday, February 25, 2011, 10:00 a.m., 2nd Floor Conference Room, Evergreen Plaza Building, 711 Capitol Way South, Olympia