Agency/Contract:  WWU, WWU/WFSE 05-07 CBA

Contract Article(s):  Article 8.1, Contracting for Public Works; Article 42.4 Bargaining Regarding Changes to Mandatory Subjects.

Arbitrator:  William Greer

Action:  Contracting Out

Outcome:  Grievance Denied

Decision Date:  9/8/2007

The union filed this grievance against the employer over three separate building projects the employer intended to begin during the term of the 2005-2007 collective bargaining agreement (CBA).  After the union learned of the projects, it discussed them with the employer, but the employer refused to bargain over the subcontracting of the work.  Ultimately, the employer used contractors to perform the work.

The union presented evidence that bargaining unit employees had previously performed work that was involved in each of the three projects. The union argued that the work in the three projects involved “maintenance or repairs,” which was clearly excluded from the public works contracting requirement in both Article 8.1 of the CBA and RCW 28B.10.350.  The union argued, therefore, that since Article 8.1 did not apply, the employer was required to bargain regarding the projects under Article 42.4.1, since the preservation of bargaining unit work is a mandatory subject of bargaining.

The employer argued it subcontracted the three projects instead of using its own employees because the total combined cost was more than $35,000, and because the work was of a capital budget nature, (the three projects were funded through the capital budget process), rather than related to the operating or maintenance budgets.  Further, the employer argued that Article 8.1 gives the employer decision making authority with regard to contracting out, and that the employer complied with 8.1.  The employer also argued it did not have enough permanent staff to complete the projects, and that the work was not “maintenance” work.  The employer also argued that RCW 28B.10.350 actually required the employer to subcontract the projects since they were not maintenance projects, and their cost was over $35,000.

The arbitrator found that the three projects did not involve “maintenance or repairs” as those terms were used in Article 8.1, and so denied the union’s claim that 8.1 had been violated. The arbitrator also denied the union’s assertion that the employer had a duty to bargain over each project.  The arbitrator denied this for two reasons. First, the three projects were not bargaining unit work; second, the parties had already bargained fully over the subjects of subcontracting and the work to be performed by bargaining unit employees by including 8.1 in the contract to begin with.  Therefore, the arbitrator denied the union’s grievance.