STATE OF WASHINGTON
MARINE EMPLOYEES’ COMMISSION
Evergreen Plaza Building
P.O. Box 40902
Olympia, Washington 98504-0902
(360) 586-6354
Friday, February 25, 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 - Morgan Damerow, Attorney General’s Office
Jerry Holder, OFM Labor Relations Office
Mark Schutter, WSF Labor Relations
Harry Thompson, Puget Sound Metal Trades
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 January 28, 2011 meeting.
STATUS OF CASES
MEC Case No. 16-08
MEBA v. WSF—At conclusion of the Superior Court 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. MEC’s brief was filed on 2/23/11.
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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. 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. On 2/7/11, Examiner Cox conducted a hearing on the issue of timeliness only. Transcript is due 2/28/11; briefs are to be filed 3/31/11.
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. On 2/23/11, AAG Anderson requested the 3/1 hearing be continued to allow time for WSF to consider IBU’s settlement proposal. The IBU had no objection. Arbitrator Swanson granted the request; MEC will reschedule the hearing.
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. On 2/16/11, Complainant Counsel filed a request to conduct discovery. By letter on 2/18/11, MEBA Counsel filed objections. Examiner Cox denied the request.
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. Arbitrator Swanson granted IBU’s request. The 2/2/11 hearing has been cancelled. The hearing has been continued to 6/9/11.
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).
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. On 2/14/11, Jerry
Holder notified the Commission that the parties had reached an agreement. The
2/17 settlement conference was cancelled.
On 2/23/11, MEC entered Order Closing Settled
Complaint, Dec. No. 600-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. On 2/22/11, the parties participated in a settlement conference with Mediator Swanson. The matter was not resolved. IBU needs to gather more information. 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. On 2/22/11, the parties participated in a settlement conference with Mediator Swanson. The matter was not resolved. The hearing remains scheduled 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. Mr. Holder stated he never received the letter. A hearing will be conducted on both the issue of timeliness and the merits of the case. The hearing is scheduled for 6/16/11.
MEC Case No. 9-11
MEBA v. WSF—Unfair labor practice complaint filed 1/28/11 in which MEBA charges WSF with refusal to bargain watch turnover compensation. 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 was scheduled for 2/17/11; however, the parties notified MEC early that day that they had reached an agreement in principle and are in the process of finalizing it. They asked MEC to cancel the 2/17 settlement conference and schedule another in March, to be available if the parties need it. MEC is in the process of coordinating with the parties to schedule another settlement conference. The hearing remains scheduled for 5/26/11. WSF’s Answer to the Complaint is to be filed on or before 5/12/11.
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 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 February 2, 2011 in compliance with the state furlough bill. MEC’s furlough target has been reached so no more furlough days will be taken this fiscal year.
Commissioner Vacancy
The Governor’s Office has a list of viable candidates for Commissioner Warren’s position, but has put refilling this vacancy on hold due to the proposed bills eliminating the MEC.
Legislation Eliminating the MEC
Hearings were held on February 1 on the four bills filed to eliminate the MEC and transfer all duties and assets to PERC: HB 1511, HB 1512, SB 5405, and SB 5408. Both executive sessions and work sessions have been held on the bills and fiscal notes have been finalized for all four bills.
Announcement from Linda Hoverter
Ms. Hoverter presented meeting information concerning two labor law conferences coming up in Seattle.
Comments from Chairman Swanson
Chairman Swanson reported he had been contacted by professors at University of Wisconsin and Indiana regarding public employment and pension plans. He explained to them that these plans weren’t bargained when they were originally established, they were established by the legislature. In the state of Washington no one has ever bargained PERS. Twenty years ago Oregon agreed they would make the employee and employer contributions because they didn’t have any other money. He advised them to get an expert about public employment retirement plans because he has never bargained a public one. This attack on unions putting states out of business because of retirement plans and health benefits— it’s unique because all these plans were legislated, not bargained.
Jerry Holder stated part of the problem for pension plans is that so many of them are now underfunded due to recent markets; the liability is to the employer to maintain those being funded. Those are huge sums of money and they are legally obligated through ERISA to make sure they are funded.
The meeting was adjourned at 10:30 a.m.
Next meeting: Friday, March 25, 2011, 10:00 a.m., 2nd Floor Conference Room, Evergreen Plaza Building, 711 Capitol Way South, Olympia