Washington Public Employees Association v State of Washington, Department of Revenue. March 20th, 2018

When significant changes are made in the workplace, new policies and guidelines ultimately follow to define how those changes will be administered. Within the labor environment, these situations often create opportunities or obligations for bargaining which, if managed well, can help to ease transition and minimize conflicts. This case highlights the reality and impact of the interplay between workplace policy and collectively bargained contract language.

The Grievant accepted a position with the Employer that was headquartered approximately 50 miles away from her residence and required occasional travel to another worksite located in the city in which she lived. The work involved tasks that could reasonably be carried out remotely and on an alternative work schedule. The Employer, a State agency, was subject to telecommuting provisions in the Revised Code of Washington and a gubernatorial executive order calling for the development of commute trip reduction programs, including telework and flexible schedule options, for the purpose of reducing energy consumption and costs to taxpayers. In addition, the Employer had implemented a policy which had, as an added goal, the enhancement of job satisfaction among employees and spelled out how it would administer teleworking and flexible schedules. The parties’ collective bargaining agreement required the Employer to “…make a good faith effort, subject to the agency’s operating, business and customer service needs, to meet the commute trip reduction goals identified in [the aforementioned RCW and executive order].”.

On two occasions during 2016, the Grievant made requests for telecommuting schedules. Those requests were granted and, by the time the Grievant made a third request, she was working from her home on two of her five working days each week. The Grievant’s third request would place her on a 4-day schedule, working 3 days at the work site closest to her residence, and one day per week at home. The Employer denied this request and the Union subsequently filed a grievance asserting the Employer had thereby violated the parties’ collective bargaining agreement.

At hearing, the Union noted that the Grievant’s request would result in cost savings to the Employer and contribute to the agency’s commute reduction goals. The Union held that the Employer had provided no legitimate reason for denying the Grievant’s request. The Employer contended that it had acted within its management rights, as underscored by the agreement, to determine the work locations and schedules of its employees. The Employer noted that the Grievant’s request exceeded the provisions of its telecommuting policies and such an arrangement would not meet its business needs. After considering the parties’ positions, the applicable terms of the collective bargaining agreement, and the telecommuting policies mutually relied upon, the Arbitrator determined the Employer had not violated the terms of the collective bargaining agreement or acted capriciously when it denied the Grievant’s request.

The Arbitrator simply relied on elements the parties had already put in place. These are factors that generally guide affected parties in the implementation and administration of the new or changed conditions:

• Clear Policy. Clear, written policy that is based on reasonable business considerations reduces misunderstandings, allows for consistent administration, and may be relied on to address conflicts and misunderstandings.

• Timely and Ongoing Communication. Willingness to interact in good faith is a cornerstone of the effective and lawful conduct of collective bargaining. Communication can aid the successful establishment and administration of new policies and, when a conflict or misunderstanding arises, provides opportunities to consider why a party believes an action to be consistent or inconsistent with the agreement. 

• Positive Bargaining History. When affected parties have had the opportunity to discuss, bargain over and communicate with their members and employees about the policy and its implications, the likelihood of identifying potential challenges and resolutions ahead of time is greatly increased. In the case at hand, the fact that the parties’ collective bargaining agreement expressly deferred to the Employer’s policies is a strong indication they had been appropriately bargained and were acceptable to both parties.
  

• Contract Language is not Contradictory or Ambiguous. When a collective bargaining agreement is revised to include new policies or provisions, it is important to ensure the new language does not create an ambiguity elsewhere in the contract. Such errors are often not noticed until a conflict arises. If the parties are unable to resolve the conflict on their own, it is then left up to the Arbitrator to ascertain the parties’ intent. While the Arbitrator will have the tools needed to do so, resolution consistent with the parties’ mutual desires is more likely if they have reviewed the contract  to ensure no conflicts or ambiguities have been inadvertently created. 

• Meaningful Interpretation. Clarity and consistency in the language allow for meaningful interpretation both in the day-to-day administration of the agreement and in dispute resolution. In this case, the Union’s claim failed in large part because the Arbitrator determined it had not proven the Employer had acted inappropriately, either with regard to the terms of the agreement or its own policies. Further, the undisputed facts of the situation demonstrated that the Grievant’s actions did not align with any right or guarantee provided by the contract or the Employer’s policies. In a contract interpretation case, the party bringing the claim bears the burden of proving the violation; a bare assertion that a particular contract provision has been violated is typically not sufficient. The moving party must be able to show, through the verifiable facts it presents, that the other party’s actions were not consistently with the terms of the contract. 

Contractual agreement to defer to a policy helps to streamline the theoretical and practical expression of the policy, and reduces confusion as to which rules apply in a particular set of circumstances. When disputes arise, the parties’ clear, unambiguous contact terms provide a a solid pathway for resolution that fits with their original intent. 

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