Pierce County, Decision 11818 (PECB, 2013)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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Pierce County Deputy Sheriffs’ Independent guild,
Complainant,
vs.
Pierce county,
Respondent.
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CASE 24982-U-12-6389
DECISION 11818 - PECB
FINDINGS OF FACT,
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Lowenberg, Lopez, Paluck, by Leann Paluck, Attorney at Law, for the union.
Pierce County Prosecuting Attorney Mark Lindquist, by James P. Richmond, Deputy Prosecuting Attorney, for the employer.
On July 17, 2012, the Pierce County Deputy Sheriffs’ Independent Guild (union) filed an unfair labor practice complaint against Pierce County (employer). The union alleged the employer refused to bargain in violation of RCW 41.56.140(4) and (1), by its unilateral change regarding leave utilization for bargaining unit members on January 18 and 19, 2012, without providing an opportunity to bargain. A preliminary ruling was issued on July 27, 2012, stating a cause of action existed. Examiner Emily Whitney held a hearing on February 25 and 26, 2013. The parties submitted post-hearing briefs to complete the record.
ISSUE
Did the employer make a unilateral change to employees’ leave utilization on January 18 and 19, 2012, without providing an opportunity to bargain?
Based on the record as a whole, the employer did not make a unilateral change to employees’ leave utilization on January 18 and 19, 2012.
APPLICABLE LEGAL STANDARD
Duty to Bargain
Chapter 41.56 RCW requires a public employer to bargain with the exclusive bargaining representative of its employees. The duty to bargain extends to mandatory subjects of bargaining including wages, hours, and working conditions. RCW 41.56.030(4). The Commission applies a balancing test on a case-by-case basis to determine whether an issue is a mandatory subject of bargaining. International Association of Fire Fighters, Local 1052 v. PERC, 113 Wn.2d 197, 200 (1989) (City of Richland). The law limits the scope of mandatory subjects to those matters of direct concern to employees. International Association of Fire Fighters, Local 1052 v. PERC, 113 Wn.2d 197, 200 (1989) (City of Richland). The Commission has used the balancing test to analyze the issue of leave utilization and held it is a mandatory subject of bargaining. City of Wenatchee, Decision 6517-A (PECB, 1999); City of Yakima, Decision 3564-A (PECB, 1991).
Past Practice
“The parties’ collective bargaining obligations require that the status quo be maintained regarding all mandatory subjects of bargaining, except where such changes are made in conformity with the collective bargaining obligation or the terms of a collective bargaining agreement.” City of Edmonds, Decision 8798-A (PECB, 2005) (citing City of Yakima, Decision 3503-A (PECB, 1990), aff'd, 117 Wn.2d 655 (1991)); Spokane County Fire District 9, Decision 3661-A (PECB, 1991).
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 (PECB, 2002)).
Unilateral Change
An employer must give a union sufficient notice of possible changes affecting mandatory subjects of bargaining and, upon union request, bargain in good faith until reaching agreement or impasse. Wapato School District, Decision 10743-A (PECB, 2011). 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. Seattle School District, Decision 10732-A (PECB, 2012). No violation exists where there is no change to an established past practice. Kitsap County, Decision 8893-A (PECB, 2007) (citing King County, Decision 4893-A (PECB, 1995); City of Pasco, Decision 4197-A (PECB, 1994)).
Derivative Interference
When the Commission finds a refusal to bargain violation under the statutes it administers, it automatically finds that the employer derivatively interferes with employee rights. Mason County, Decision 10798-A (PECB, 2011); Battle Ground School District, Decision 2449-A (PECB, 1986). When an employer commits a refusal to bargain violation by making a unilateral change, the Commission finds that the action has “an intimidating and coercive effect” on employees. Battle Ground School District, Decision 2449-A. Thus, if an employer unlawfully implements a unilateral change to a mandatory subject of bargaining, the employer’s violation of RCW 41.56.140(4) also results in a derivative violation of RCW 41.56.140(1).
ANALYSIS
The union represents all commissioned deputies, detectives, sergeants, lieutenants, and detective sergeants of the employer. The employer and the union were parties to a collective bargaining agreement that was effective between January 1, 2010, and December 31, 2011, and was extended by a memorandum of agreement for calendar year 2012. The parties did not have any language in the collective bargaining agreement that reflected how leave would be used during inclement weather or a county closure. For inclement weather, the county did have Administrative Guidelines and a County Code that reflected language for leave use. For county closures, the employer designated employees as either essential or nonessential to distinguish who should report to duty during an emergency event. The employer required essential employees to report to work or use leave for their absence on closure days.
There is no dispute between the parties that leave utilization is a mandatory subject of bargaining. “Vacation and other paid leave directly affect the hours that an employee works and are alternative forms of wages.” City of Yakima, Decision 3564-A. Thus the employer has a duty to bargain the subject of leave utilization with the union.
There is no contract language regarding the use of leave during a county closure, but a past practice had clearly been established. The first documented county closure occurred on January 6, 2004. On that date, the County Executive closed Pierce County and required essential employees to report to work or use leave for their absence. At that time, the positions at issue in this bargaining unit were considered essential employees and were required to report to work or take leave for their absence. Again on December 19, 2008, and November 23, 2010, the County Executive closed the county and followed the same procedure in regards to pay and leave utilization for essential employees. In these two additional instances, the positions in this bargaining unit were considered essential and required to report to work or use leave for their absence.
On January 3, 2011, because of confusion on who was considered an essential employee within Pierce County during the 2010 closures, the Undersheriff, Eileen Bisson, sent a proposed draft memorandum defining essential employees to the union and command staff. The union, in February 2011, did not agree with the employer’s proposal and demanded to bargain. The parties bargained about the issue through 2012.
While continuing to bargain the issue, on January 18 and 19, 2012, the County Executive again closed the county and followed the procedure that was used in 2004, 2008, and 2010. As it had in previous years, the employer considered the positions in this bargaining unit essential and required them to report to work or use leave if they were absent for these days.
The evidence of three prior incidents before the January 2012 closures shows that there was a prior course of conduct. County closures do not happen on a regular basis and a showing of three times over a six year period is sufficient to establish a past practice. The evidence reflects that employees, who were considered essential, were required to report to work or use leave if they were unable to report to work on every occasion when the county closed. The practice that was followed in 2004, 2008, and 2010 was that essential employees were required to come to work and if they did not work, they were charged leave. This conduct was known and mutually accepted by the parties as the proper response to the circumstances. The employer provided evidence of an e-mail sent to all employees in 2004, 2008, and 2010, describing how leave would be used after each county closure. It specifically stated that essential employees would be required to report to work on days of closure. The union did not provide any evidence that it did not receive any of the notices. The union also did not demand to bargain about the use of leave after each of the previous closures in 2004, 2008, and 2010. On each of the previous closure days, employees in this bargaining unit were required to report to work or take leave because they were considered essential personnel. Thus, there was an understanding by the parties and a past practice that the employees in this bargaining unit were considered essential employees and required to report to work or use leave during a county closure.
Next the Examiner must determine if there was a unilateral change to the past practice. As stated in Snohomish County, Decision 9770-A, no duty to bargain arises from a reiteration of an established policy. The employer showed that there was an established past practice of how leave would be used if the county was closed. The practice was that essential employees were required to report to work on closure days and if they did not work, they were charged leave. On January 18 and 19, 2012, the employer continued the same practice by regarding the positions in this bargaining unit as essential personnel and requiring them to report to work on these two days of closure. Thus, there was no duty to provide the union with notice because there was no change to the practice that had been used for over eight years, since 2004.
The union argues that the essential employees in this bargaining unit were treated disparately from the nonessential employees in other bargaining units or from those who are not represented. The issue here is whether the employer changed leave utilization for employees in this bargaining unit from the past practice developed with this bargaining unit. Thus, the Examiner only needs to analyze whether there was a change to how leave was utilized for essential employees in this bargaining unit through the employer’s actions on January 18 and 19, 2012.
The union also argues that because the employer provided a proposal on January 3, 2011, defining the members of this bargaining unit as essential or nonessential employees and implemented its proposal without reaching an agreement, the employer made a unilateral change. While it is true the parties were bargaining over the definition of essential and nonessential employees at the time of the January 2012 closures, the employer maintained the past practice and implemented a closure policy that had been implemented on three prior occasions. Even though the employer’s practice for leave utilization during the January 2012 closures happened to be the employer’s proposal, it does not mean there was a unilateral change since the action of the employer was not a change from the past practice. The employer did not implement the policy that the parties were bargaining. Rather, the employer maintained the past practice and continued to bargain with the union about essential employees after the January 2012 closure.
CONCLUSION
The employer established that the parties had a past practice of how to use leave during county closures. Because there was no change to the status quo during the snow closures on January 18 and 19, 2012, the employer did not unilaterally change the employees leave utilization and commit an unfair labor practice. Because there was no unilateral change, there was no derivative interference violation.
FINDINGS OF FACT
1. Pierce County (employer) is a public employer within the meaning of RCW 41.56.030 (12).
2. The Pierce County Deputy Sheriffs’ Independent Guild (union) is a bargaining representative within the meaning of RCW 41.56.030(2), and is the exclusive bargaining representative of all commissioned deputies, detectives, sergeants, lieutenants, and detective sergeants of the Pierce County Sheriffs’ Department.
3. The union and employer were parties to a collective bargaining agreement effective between January 1, 2010, and December 31, 2011, that was extended by a memorandum of agreement for calendar year 2012. The parties did not have any language in the collective bargaining agreement that reflected how leave would be used during inclement weather or a county closure.
4. On January 6, 2004, the County Executive closed Pierce County and required essential employees to report to work or use leave for their absence. At that time, the positions in this bargaining unit were considered essential employees and were required to report to work or take leave for their absence.
5. On December 19, 2008, and November 23, 2010, the County Executive closed the county and required essential employees to report to work or use leave for their absence. In these two instances, the positions in this bargaining unit were considered essential employees and were required to report to work or use leave for their absence.
6. On January 3, 2011, the Undersheriff, Eileen Bisson, sent a proposed draft memorandum defining essential employees to the union and command staff. The union, in February 2011, did not agree with the employer’s proposal and demanded to bargain. The parties bargained about the issue through 2012.
7. On January 18 and 19, 2012, the County Executive again closed the county and followed the procedure that was used in 2004, 2008, and 2010. As it had in previous years, the employer considered the positions in this bargaining unit essential and required them to report to work on closure days or use leave for their absence.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and Chapter 391-45 WAC.
2. Based upon Findings of Fact 4 through 7, the employer did not make a unilateral change to employees’ leave utilization on January 18 and 19, 2012, without providing an opportunity to bargain 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 12th day of July, 2013.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
EMILY K. WHITNEY, 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.