Walla Walla County, Decision 11751 (PECB, 2013)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
|
wALLA wALLA cOMMISSIONED DEPUTY SHERIFF’S ASSOCIATION,
Complainant,
vs.
WALLA WALLA COUNTY
Respondent.
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CASE 24823-U-12-6338
DECISION 11751 - PECB
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER |
Makler, Lemoine & Goldberg, by Jaime B. Goldberg, Attorney at Law, for the union.
Summit Law Group, by Michael C. Bolasina, Attorney at Law, for the employer.
On May 23, 2012, the Walla Walla Commissioned Deputy Sheriff’s Association (union) filed an unfair labor practice charge against Walla Walla County (employer). The complaint alleged the employer made a unilateral change regarding the maximum accrual of vacation time. On May 31, 2012 a preliminary ruling was issued. On January 9, 2013, Hearing Examiner Casey King held a hearing on the issue. On February 13, 2013, the parties submitted post-hearing briefs.
ISSUES
1. Did the union file a timely complaint?
2. Did the employer refuse to bargain by making a unilateral change regarding the forfeiture of accrued vacation time over the 240-hour maximum?
After reviewing the record and arguments submitted, the Examiner rules that the complaint must be dismissed as untimely. However, even if the complaint could be found to be timely, the complaint failed to establish that any change occurred regarding the forfeiture of accrued vacation time over the 240-hour maximum. Since a change to a mandatory subject of bargaining must occur in order to find a unilateral change, even if the complaint was timely, it must be dismissed.
BACKGROUND
On January 18, 2005, the Walla Walla Board of County Commissioners sent a memo to county elected officials and department heads. In the memo, the Board of County Commissioners outlined the employer’s policy on the maximum accrual of vacation hours. The relevant language of the memo clearly stated that:
Road Deputies: Maximum Accrual of Vacation is based on years of service as follows: 1 – 16; 2 – 18; 3 – 19; 4 – 21; 5 – 23. There is no provision for accrual at a higher rate. There is no provision for Department Head or County Commissioners allowing for deferred use or greater accrual.
. . . .
Policy No.: 30.04.0: “In addition, employees may accumulate up to 240 hours of unused vacation. Any vacation accumulated beyond this limit by the end of the calendar year will be forfeited unless such excess is due to Walla Walla County’s request to defer vacation for work reasons.”
The union became aware of the memo and on January 27, 2005, responded to the County Commissioners memo with a letter from the union’s legal representative. In the letter, the union claimed the forfeiture of excess vacation time was a change to the current policy and requested to bargain the policy.
On February 25, 2005, the employer responded to the union’s letter. In the response, the employer denied that it was making a change and denied there was ever a policy allowing employees to carry over more than 240 vacation hours in the past. However, in an effort to resolve the issue, the employer proposed the following:
In this instance only, the deputies may use any excess accruals within 90 days of the original notice issued on January 18, 2005 or they can request and receive compensation equivalent to the amount of excess accruals that are not used by that date. . . . [T]he auditor’s office will be specifically monitoring vacation accruals to assure that this situation does not repeat itself.
(emphasis in underline added)
At this time, the employer implemented the policy. The union did not request to bargain nor file a complaint alleging an unfair labor practice regarding the maximum accrual of vacation hours policy in 2005.
At the end of 2008, union member Steve Duehn forfeited vacation hours which were in excess of the maximum accrual limit. At the end of 2009, no vacation hours were forfeited because no union member was over the maximum limit. At the end of 2010, union member Jim Romine forfeited vacation hours which were in excess of the maximum accrual limit.
On October 24, 2011, Captain Barry Blackman of the Walla Walla Sheriff’s Office sent an e-mail to the union and bargaining unit members. The subject of the e-mail was “Vacation Balances.” In the e-mail, Blackman reminded the members that they must use any accumulated vacation time that is in excess of the 240-hour maximum accrual limit by December 31, 2011, or forfeit any remaining hours over the 240 limit. The final paragraph of the e-mail states:
The bottom line here is that you need to use this excess time ASAP so it’s not lost. All you need to do is bring your balance under 240 hours by December 31. Please take care of this as I do NOT want the county to deduct any of your unused vacation time.
All the employees were able to reduce their vacation accrual hours under 240 so that no one lost any vacation time.
On March 23, 2012, Captain Blackman sent another e-mail to the union. The subject of the e-mail was “Vacation Time.” In the e-mail, Blackman reminded the bargaining unit members that:
If you have more than 240 hours on December 31, the amount over 240 hours will be lost. That is what the current labor agreement calls for and is not what I want to see happen so please keep an eye on your time balances.
Blackman sent the e-mail in March because he wanted to give the union a reminder about the vacation policy earlier than he had in 2011. Blackman believed that if the union was reminded of the policy in March instead of October, the process of making sure employees remain under 240 hours by December 31, 2012, would be easier. Blackman received no reply to his March 23, 2012 e-mail.
On May 18, 2012, Captain Barry Blackman noticed employees were above the 240 hour vacation time accrual limit and sent another e-mail reminder regarding the forfeiture of vacation time exceeding 240 hours by the end of the calendar year.
On May 23, 2012, the union filed a complaint alleging that the loss of vacation time that exceeded 240 hours was a unilateral change. The union claimed that up until as recently as March 23, 2012, unused vacation time in excess of 240 hours was not lost.
ISSUE 1 − Timeliness
“A complaint shall not be processed for any unfair labor practice occurring more than six months before the filing of the complaint with the commission.” RCW 41.56.160(1). The six-month statute of limitations begins to run when the complainant knows or should know of the violation. City of Bellevue, Decision 9343-A (PECB, 2007), citing City of Bremerton, Decision 7739-A (PECB, 2003). The start of the six-month period, also called the triggering event, occurs when “a potential complainant has actual or constructive notice of the complained-of action.” Emergency Dispatch Center, Decision 3255-B (PECB, 1990).
In City of Selah, Decision 5382 (PECB, 1995), the Commission addressed
the six-month limitation period and noted that its “precedents in this area are
consistent with the rulings of the National Labor Relations Board (NLRB) under
the similar limitations in the federal law.” The Commission specifically cited
U.S. Postal Service, 271 NLRB 397 (1984). In Bryant &
Stratton Business Institute, 321 NLRB 1007 (1996), the NLRB
explained its case law on the six-month statute of limitations, including its
decision in U.S. Postal Service, as follows:
In U.S. Postal Service Marina Center, 271 NLRB 397 (1984), the Board held that henceforth it would focus on the date of unequivocal notice of an allegedly unlawful act, rather than on the date the act’s consequences became effective, in deciding whether the period for filing a charge under Section 10(b) of the Act has expired. However, as the Board emphasized in a subsequent decision, “Postal Service Marina Center . . . was limited to unconditional and unequivocal decisions or actions.” Stage Employees IATSE Local 659 (Paramount Pictures), 276 NLRB 881 (1985). Further, the burden of showing such clear and unequivocal notice is on the party raising the affirmative defense of Section 10(b), the Respondent. Service Employees Local 3036 (Linden Maintenance), 280 NLRB 995 (1986).
Under the standard used by the NLRB and embraced by the Commission, the six-month statute of limitations period begins at the time the employer provides clear and unequivocal notice to the union. Unequivocal notice of a decision requires that a party communicate enough information about the decision or action to allow for a clear understanding. Statements that are vague or indecisive are not adequate to put a party on notice. Community College District 17 (Spokane), Decision 9795-A (PSRA, 2008).
In order to be clear and unambiguous, the notice must contain specific and
concrete information regarding the proposed change. The six-month clock begins
to run when a party gives clear and unambiguous notice of its intent to
implement the action in question. Emergency Dispatch Center, Decision
3255-B (PECB, 1990). The only exception to the strict enforcement of the
six-month statute of limitations is when the complainant had no actual or
constructive notice of the acts or events which are the basis of the charges. City
of Pasco, Decision 4197-A (PECB, 1994).
ANALYSIS
The January 27, 2005 letter sent by the union’s attorney demonstrated that the union had clear and unequivocal notice of the employer’s policy to forfeit any earned vacation hours over the maximum limit allowed. The language was clear and unambiguous so that there could be no doubt that the employer intended to implement the maximum vacation time accrual policy. In order to file a timely complaint on the forfeiture of vacation hours, the union needed to file a complaint in 2005.
Even if it was determined that the union did not have clear and unequivocal notice in 2005, the union was provided notice in October of 2011. Consistent with the 2005 policy, the employer’s October 24, 2011 e-mail to the union provided a clear understanding that employees would forfeit their vacation time in excess of 240 hours if not used before the new calendar year. This e-mail clearly provided notice to the union. Therefore, the union had knowledge that employees could not carry over more than 240 hours of vacation time into the new calendar year on October 24, 2011. The union did not request to bargain and did not file a complaint alleging a unilateral change until May 23, 2012, seven months past the date of knowledge, and one month beyond the statute of limitations.
CONCLUSION
The union had knowledge in January 2005 and again on October 24, 2011, that any hours over the maximum accrual amount would be forfeited at the end of the calendar year. When the union filed its complaint on May 31, 2012, the complaint was untimely under RCW 41.56.160 and therefore is dismissed.
However, even if the complaint could be found to be timely, the proceeding analysis of the record and arguments submitted demonstrates that the union failed to establish that any change occurred regarding the forfeiture of accrued vacation time over the 240-hour maximum. Since a change to a mandatory subject of bargaining must occur in order to find a unilateral change, even if the complaint was timely, it must be dismissed.
ISSUE 2 − Unilateral Change
The Public Employees’ Collective Bargaining Act imposes a duty to bargain on mandatory subjects of bargaining. RCW 41.56.030(4). The duty to engage in good faith negotiations over mandatory subjects is enforced through the unfair labor practice provisions in RCW 41.56.140 and 150, and Chapter 391-45 WAC. The Commission generally finds that any refusal to bargain violation under RCW 41.56.140(4) inherently interferes with the rights of bargaining unit employees, and thus routinely finds a derivative interference violation under RCW 41.56.140(1). Skagit County, Decision 8746-A (PECB, 2006). Therefore, an employer violates RCW 41.56.140(4) and (1) if it implements a unilateral change on a mandatory subject of bargaining without having fulfilled its bargaining obligation. Val Vue Sewer District, Decision 8963 (PECB, 2005) identified four elements the union must prove in order to prevail in a unilateral change case:
1. The existence of a relevant status quo or past practice
The status quo is defined both by the parties’ collective bargaining agreement and by established past practice. As the Commission explained in Kitsap County, Decision 8893-A (PECB, 2007):
Generally, the past practices of the parties are properly utilized to construe provisions of an agreement that may reasonably be considered ambiguous or where the contract is silent as to a material issue. A past practice may also occur where, in a course of the parties' dealings, a practice is acknowledged by the parties over an extended period of time, becoming so well understood that its inclusion in a collective bargaining agreement is deemed superfluous. Whatcom County, Decision 7288-A (PECB, 2002), citing City of Pasco, Decision 4197-A (PECB, 1994).
For a past practice to exist, two basic elements are required: (1) an existing prior course of conduct; and (2) an understanding by the parties that the conduct was known and mutually accepted by the parties as the proper response to the circumstances. City of Pasco, Decision 9181-A (PECB, 2008), citing Whatcom County, Decision 7288-A.
2. The relevant status quo or past practice was a mandatory subject of bargaining
Commission and judicial precedents identify bargaining subjects as either mandatory, permissive, or illegal. NLRB v. Wooster Division Borg-Warner, 356 U.S. 342 (1958); Pasco Police Association v. City of Pasco, 132 Wn.2d 450 (1997) (City of Pasco); Federal Way School District, Decision 232-A (EDUC, 1977). Mandatory subjects of bargaining generally include employee “wages, hours and working conditions” over which both parties must bargain in good faith. The Commission has the exclusive authority to determine whether a subject is a mandatory or nonmandatory subject of bargaining. WAC 391-45-550. Commission precedent has long established that “paid leave time (e.g., vacations, holidays and “Kelly” days) is directly and substantially related to hours of work, and is a mandatory subject of collective bargaining.” City of Yakima, Decision 3564 (PECB, 1990), aff’d, Decision 3564-A (PECB, 1991).
3. There was a change to that status quo or past practice
In order for there to be a “unilateral change” giving rise to a duty to bargain, there must have been some material change from the status quo. City of Yakima, Decision 3564-A (PECB, 1991). A one-time occurrence does not necessarily equate to an actual change in policies or procedures. King County, Decision 4258-A (PECB, 1994). No duty to bargain arises from a reiteration of established policy, or from a change which has no material effect on employee wages, hours or working conditions. Green River Community College, Decision 4008-A (CCOL, 1993).
4. Notice and an opportunity to bargain the proposed change was not given
An employer considering changes affecting a mandatory subject of bargaining must give notice to the exclusive bargaining representative of its employees prior to making that decision. Lake Washington Technical College, Decision 4721-A (PECB, 1995). To be timely, notice must be given sufficiently in advance of the actual implementation of a change to allow a reasonable opportunity for bargaining between the parties. Washington Public Power Supply System, Decision 6058-A (PECB, 1998). Formal notice is not required; however, in the absence of formal notice, it must shown that the union had actual, timely knowledge of the contemplated change. Washington Public Power Supply System.
When given notice of a contemplated change affecting a mandatory subject of bargaining, a union desiring to influence the employer’s decision must make a timely request for bargaining or it waives its right to bargain by its inaction. Washington Public Power Supply System. Waiver is an affirmative defense. Lakewood School District, Decision 755-A (PECB, 1980). A key ingredient to finding a waiver by inaction is a finding that the employer gave adequate notice to the union. Washington Public Power Supply System, Decision 6058-A. An employer asserting that a union waived by inaction its bargaining rights bears a heavy burden of proof. The employer must prove that the union’s conduct is such that the only reasonable inference is that the union has abandoned its right to negotiate. Clover Park Technical College, Decision 8534-A (PECB, 2004).
The burden of proof lies with the union when it charges an employer with making unilateral changes to mandatory subjects of bargaining. WAC 391-45-270(1)(a). Where a unilateral change is alleged, the complainant must prove that the dispute involves a mandatory subject of bargaining and that there was a decision giving rise to the duty to bargain. Municipality of Metropolitan Seattle (METRO), Decision 2746-B (PECB, 1990). The Commission does not assert jurisdiction to remedy alleged violations of past practices where there is, in fact, no change of practice. King County, Decision 4893-A (PECB, 1995); City of Pasco, Decision 4197-A (PECB, 1994). No duty to bargain arises from a reiteration of established policy. Clark County Fire District 6, Decision 3428 (PECB, 1990); City of Yakima, Decision 3564-A (PECB, 1991).
ANALYSIS
The existence of a relevant status quo or past practice
Since the union is claiming that the forfeiture of vacation hours is a unilateral change, the union has the burden of establishing that the retention of vacation hours over the maximum accrual limit at the end of the calendar year was the status quo.
In this case, the union clearly had knowledge in 2005 that employees could not carry over vacation hours in excess of the maximum accrual. After the employer’s proposal on February 25, 2005, to allow a one-time exception by granting employees a longer amount of time to use their excess leave or cash it out in 2005, the union did not request to bargain. Nothing in the record shows that the union took any additional action regarding the forfeiture of vacation hours policy in 2005. The only reasonable inference regarding the union’s inaction in 2005 is that the union had abandoned its right to negotiate that forfeiture of vacation hours.
The evidence shows that since 2005 the employer has routinely purged vacation hours that exceeded the maximum accrual rate at the beginning of every year. The union did not provide any evidence to show that any member of the union carried vacation hours over the maximum allowed accrual from one calendar year to the next since 2005. In fact the record has clear evidence that excess vacation hours have been forfeited since the 2005. In 2008 and 2010, employees had hours forfeited that were in excess of the maximum limit established in the collective bargaining agreement.
The record does not support the union’s contention that the status quo was for bargaining unit members to be allowed to carry over earned vacation hours into the new calendar year in excess of the stated maximum amount. In fact the record clearly supports that employees forfeiting vacation hours in excess of their maximum accrual is the status quo.
The relevant status quo or past practice was a mandatory subject of bargaining
The use of vacation hours and how they are earned is a long established mandatory subject of bargaining. There is no dispute that the forfeiture of vacation hours is a mandatory subject of bargaining.
There was a change to the status quo or past practice
Here the union argues that the employer changed the status quo when it sent e-mails to the union in 2012 stating that excess vacation hours would be forfeited at the end of the calendar year. That argument is flawed because when the employer sent the e-mails to the union, the forfeiture of excess vacation hours had been the status quo for several years.
Since the forfeiture of excess vacation hours had been the status quo for several years, the employer correctly reminding the union of the status quo via e-mail cannot be found to have changed the status quo. The employer’s 2011 and 2012 e-mails were reiterations of the established policy.
Notice and an opportunity to bargain the proposed change was not given
Since no change occurred, the employer had no obligation to provide notice and an opportunity to bargain to the union.
CONCLUSION
The union has failed to establish that the employer made a change to the status quo. There can be no finding of a unilateral change to a mandatory subject of bargaining when no actual change occurred. Since no change occurred, the union’s unilateral change compliant must be dismissed.
FINDINGS OF FACT
1. Walla Walla County is an employer within the meaning of RCW 41.56.030(12).
2. The Walla Walla Commissioned Deputy Sheriff’s Association is a bargaining representative within the meaning of RCW 41.56.030(2).
3. On January 18, 2005, the Walla Walla Board of County Commissioners sent a memo to county elected officials and the department heads. In the memo, the Board of County Commissioners outlined the employer’s policy that employees could not carry over more than 240 vacation hours into a new calendar year.
4. On January 27, 2005, the union responded to the employer claiming that the forfeiture of accrual vacation time was a change to the current policy and requested to bargain the policy.
5. On February 25, 2005, the employer proposed to the union, for 2005 only, that deputies could use any excess vacation accruals within 90 days of the original notice issued on January 18, 2005, or they could request and receive compensation equivalent to the amount of excess accruals not used during the 90-day extension.
6. The union did not request to bargain the employer’s February 25, 2005 proposal and the employer implemented the policy.
7. At the end of 2008, union member Steve Duehn forfeited vacation hours which were in exccess of the maximum accrual limit.
8. At the end of 2009, no vacation hours were forfeited because no union member was over the maximum limit.
9. At the end of 2010, union member Jim Romine forfeited vacation hours which were in exccess of the maximum accrual limit.
10. On October 24, 2011, Captain Barry Blackman of the Walla Walla Sheriff’s Office sent an e-mail to the union. The subject of the e-mail was vacation balances. In the e-mail, Blackman reminded the union that they must use any accumulated vacation time that is in excess of the 240-hour maximum accrual limit by December 31, 2011, or any remaining hours over the 240 limit will be forfeited.
11. On May 18, 2012, the employer sent an e-mail to employees reminding them that vacation leave in excess of 240 hours will be forfeited.
12. On May 23, 2012, the union filed this complaint alleging the employer’s forfeiture of accrued vacation hours policy was new and therefore a unilateral change to the collective bargaining agreement.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391-45 WAC.
2. Based upon Findings of Facts above, the complaint in this case was not timely filed under RCW 41.56.160(1).
3. Based upon the Findings of Facts above, the employer did not make a unilateral change to a mandatory subject of bargaining in violation of RCW 41.56.140(4) and (1).
ORDER
The complaint charging unfair labor practices filed in the above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 13th day of May, 2013.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CASEY KING, Examiner
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.