EvCC takes battle with union to higher court

EVERETT — After a legal battle lasting three and a half years, a labor dispute involving Everett Community College counselors is now before the state Court of Appeals.

The college is asking the court to review previous rulings that found it violated labor laws and owes hundreds of thousands of dollars in back pay and legal fees.

Since the dispute started in 2010, a state labor-management board and a Snohomish County Superior Court judge have ruled that the college improperly reassigned work usually done by union members to nonunion employees, without giving the union the chance to negotiate the changes.

“They’ve refused to acknowledge that they’ve screwed up,” said the union’s attorney, Jon Rosen.

The union represents about 350 instructors, counselors and librarians at the college, said chapter president and English instructor Gary Newlin.

“It’s our hope that the college will comply with the requirements of the (earlier orders) and that they will discontinue their appeal of the case,” he said. “We think it’s in the best interest of the college and the faculty to get the issue resolved, to get it behind us and move forward.”

College leaders declined to comment for this story, citing the pending litigation.

The dispute started when the college changed how it filled advising and counseling positions as part of an administrative overhaul. At the time, the college chose not to renew the contracts of four full-time counselors who were represented by the American Federation of Teachers. Another counselor was given a different job.

The college at the same time created five positions for “education planners” whose work includes entry advising, student orientation and administrative work. The education planners are paid lower wages than union counselors, according to court papers.

The change saved the college up to $270,000 a year.

The union has argued that the education planners are performing work that should be performed by counselors under the labor contracts.

The college has argued in court that education planners and counselors are different jobs with differing tasks. Much of the dispute has centered around the definitions of words such as “counseling” and “advising,” and which duties are governed by the labor contracts.

The job descriptions themselves have been hotly debated. At one point, an assistant state attorney general wrote that education planners aren’t counselors, and also “do not develop education plans.”

In June 2010, the union filed an unfair labor practice complaint with the state Public Employment Relations Commission. A hearing examiner with the commission issued a ruling against the college in summer 2011.

The hearing examiner wrote: “Despite the employer’s efforts to distinguish the educational planners’ work from that of the counselors, a comparison of the duties and responsibilities indicates that there is little fundamental difference between the work educational planners perform and the work that the counselors had historically performed.”

The college was ordered to change the education planner positions back into full-time, union- represented counselor positions and reinstate previous wages, hours and working conditions. Those orders also included reinstating the counselors who were let go and giving them back pay and benefits, Rosen said. By his math, that could cost the college up to $400,000.

Rosen called the college’s most recent appeal “frivolous.” He’s not sure why the dispute has dragged on so long, he said.

“It shouldn’t have,” he said. “This is a run-of-the-mill, vanilla unfair-labor-practice charge, for which there is overwhelming evidence that the college took work that they had specifically agreed in 2008 in writing was bargaining-unit work and they shifted it over to this other group of employees.”

The college’s appeal to the state commission was denied in fall 2012. Later that year, the college sought a judge to review the ruling in Snohomish County Superior Court.

The college is represented by the state Attorney General’s Office, which handles cases involving state agencies, including colleges. The college is billed for the legal representation, but such bills aren’t broken down per case, officials said.

Snohomish County Superior Court Judge Thomas Wynne in September 2013 upheld the labor board’s ruling and ordered the college to pay the union’s attorney fees for the proceedings in that court. At the time, those fees were estimated to be at least $53,560. The court, however, could order the college to pay up to $118,200, depending on how it adds up the tab, documents show. The union is expected to seek additional legal fees if it prevails at the Court of Appeals.

Meanwhile, the college has filed a motion challenging the judge’s decision, including the order to pay the union’s attorney fees, calling it “unreasonable.”

The union’s attorneys have accused the college in court papers of being “stiff-necked and combative despite the handwriting on the wall.”

The college in October 2013 asked the state Court of Appeals to review the case.

The college’s briefs were due in late January, and the union’s response is due later this month, Rosen said. It’s not clear when a decision is expected.

Rikki King: 425-339-3449; rking@heraldnet.com.

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