Island County, Decision 12858 (PECB, 2018)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

ISLAND COUNTY DEPUTY SHERIFFS’ GUILD,   Complainant,   vs.   ISLAND COUNTY,   Respondent.

CASE 128704-U-17   DECISION 12858 - PECB     FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

 

James M. Cline and Eamon McCleery, Attorneys at Law, Cline & Associates, for the Island County Deputy Sheriffs’ Guild.

 

Robert R. Braun Jr., Consultant, Braun Consulting Group, for Island County.

 

On January 20, 2017, the Island County Deputy Sheriffs’ Guild (union) filed an unfair labor practice complaint with the Public Employment Relations Commission (Commission).  In its complaint, the union alleged that Island County (employer) unlawfully skimmed bargaining unit work and failed to provide information to the union that was relevant to bargaining.  The Commission’s unfair labor practice manager issued a preliminary ruling on February 2, 2017, stating that a cause of action existed.  On September 5, 2017, the union filed a motion for summary judgment, which was denied by Examiner Daniel Comeau on October 17, 2017.  Examiner Comeau held a hearing on November 15, 2017, and the parties filed post-hearing briefs on January 17, 2018, to complete the record.

ISSUES

The allegations in this complaint, as framed by the preliminary ruling, concern the employer’s refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] by:

1.      Since July 25, 2016, announcing the creation of new non-bargaining unit control room operator positions as a fait accompli.

 

2.      Since November 23, 2016, failing and or refusing to provide the union with relevant information it requested concerning the control room operator positions.

 

3.      Since November 23, 2016, failing and or refusing to bargain with the union over the decision to remove control room operating duties from the bargaining unit.

 

4.      Since January 2017, skimming bargaining unit control room operating duties, by using non-bargaining unit control room operators to perform work previously performed by corrections officers, without providing the union with an opportunity to bargain.

 

Based on the record, the employer did not announce its decision to hire nonbargaining unit control operators as a fait accompli.  The employer did unlawfully skim bargaining unit work when it assigned the control room operator duties and responsibilities to nonbargaining unit control room operators without negotiating with the union to agreement or initiating impasse resolution procedures for uniformed personnel.  The union did not waive its right to negotiate the employer’s decision to remove the control room duties and responsibilities from the bargaining unit.  Finally, the employer refused to bargain by failing to provide relevant information that the union requested.

BACKGROUND

The union and the employer were parties to a collective bargaining agreement (CBA) in effect from January 1, 2015, to December 31, 2016.  The union represented a bargaining unit consisting of corrections lieutenants, corrections sergeants, and corrections officers.  In addition, the union also represented a Sheriff’s Support Staff bargaining unit (Support Staff), which was subject to a CBA that was effective from January 1, 2015, to December 31, 2016.[1]  The Support Staff CBA did not include the position of control room operator.

 

This dispute centers on the employer’s decision to remove control room duties and responsibilities from corrections officers and assign those duties to nonbargaining unit employees in the Support Staff bargaining unit.  The control room duties and responsibilities are vital to the operation and security of the jail because it allows control room employees to monitor the 58-bed facility and the Law and Justice Center through security cameras and regulate access into and out of the jail.  The union claims that these duties and responsibilities have been historically performed by corrections officers almost exclusively since at least 1998.

The Nature of the Control Room Duties and Responsibilities

The control room is staffed 24 hours per day by an individual employee who has multiple responsibilities.  The duties begin with regulating access into and out of the facility itself.  The employee regulates access to authorized individuals, such as attorneys, visitors, and visiting personnel, through a controlled set of doors, or sally port.  Through this sally port, the employee can monitor for unauthorized weapons or other contraband to ensure safety within the jail.

 

In addition to regulating access, the employee monitors the jail through security cameras located throughout the facility.  These cameras are linked to screens within the control room, where the employee can survey inmate, staff, and visitor behavior.  Additional cameras are located in the Law and Justice Center, which allow the control room employee to monitor fellow corrections deputies who are transporting inmates to and from court proceedings.  Should suspicious, unauthorized, or potentially dangerous behavior be identified, the control room employee can communicate with corrections deputies via radio or, if necessary, call outside emergency assistance.

 

There are several floors and several cell blocks within the jail.  The layout of the cell blocks with its multiple rooms and areas (Multi-Purpose Room, Day Area, Dormitories) prohibited corrections officers from remaining in visual sight of each other and the inmates at all times.  Because of this, a corrections officer was assigned to the control room with at least two other corrections deputies on the jail floor.

 

Within this three-person minimum staffing model, the corrections deputy in the control room gave the other corrections deputies on the jail floor an extra set of eyes with which to monitor each other and the inmates.  These deputies could communicate via radio when necessary to alert deputies on the jail floor when inmates began misbehaving, so that a corrections deputy was not walking into a dangerous situation unaware.  Even if a situation reached a critically dangerous level, however, the control room employee could not leave the control room if it would render the control room unattended.

 

In spite of this limitation, when corrections deputies served in the control room they were able to provide relief and flexibility to other corrections deputies.  Corrections Deputy Pam McCarty testified that corrections deputies could switch with each other when the floor deputy needed relief on a 15-hour overtime shift.  This interchange also allowed corrections deputies to switch out of the control room to assist a fellow floor deputy who may be having a difficult time dealing with a noncompliant inmate or when high maintenance inmates were on a 15-minute watch.  Since inmates at the Island County Jail were typically repeat offenders, the interchange allowed deputies to capitalize on the rapport built with certain inmates to de-escalate arguments and assist fellow corrections deputies.

 

The control room assignment also allowed corrections officers a transition period when returning to direct inmate custody.  McCarty and Stan Reed, a retired corrections officer, testified about the consistent practice of beginning their work weeks in the control room upon returning from leave.  When they began their first shift in the control room, it allowed them to catch-up on e-mails, review pass down logs from previous shifts, and monitor inmates from the security of the control room as a way to gather critical information about inmate dynamics before dealing directly with the inmates themselves.

 

Control room employees also performed administrative tasks in addition to their security tasks.  The administrative tasks included verifying warrants and entering stolen property or missing person information into the law enforcement database (Spillman database).  These tasks required individual attention and could sometimes take the control room employee up to 30 minutes to complete.  Thus, the control room employee’s attention would sometimes be diverted away from security responsibilities, such as monitoring the security cameras, when verifying a warrant or entering data.

 

There was no state-mandated training or certification for working in the control room in spite of serving a critical security and safety function.  Control room employees were trained by the employer’s assigned field training officer (FTO).  The FTO provided on-the-job training to employees in the control room as part of the initial orientation process.  Corrections officers, on the other hand, were required to attend and complete training at the Criminal Justice Training Center (Academy) where they learned, often through situation role play, defensive tactics, identifying and dealing with difficult inmate behavior, and inmate rapport building.

Evolution of the Control Room Duties and Responsibilities

Speaking from his direct experience, Reed testified that Island County Sheriff’s Dispatchers worked in the control room as early as 1984.  While technology has advanced since that time, the nature of the work was generally the same as it is today.  Dispatchers regulated access into and out of the jail and monitored the security cameras (although there were fewer cameras then), and performed dispatching functions for the employer.  Reed testified that corrections deputies, who were in the same bargaining unit as the dispatchers, supported and supplemented the work in the control room during this time.

 

Around 1996, the corrections deputies became interest arbitration eligible, triggering a split in the bargaining unit between corrections deputies and dispatchers.  Shortly thereafter, in 1998 Island and Oak Harbor Counties merged their dispatch services into an organization called I-COM.  This merger took the dispatchers out of the control room and into I-COM, leaving a void in the control room duties.

 

To fill this void, corrections deputies were assigned the control room work.  The control room duties and responsibilities were written into the corrections deputy job description.  The job description provided in relevant part:

JOB DESCRIPTION

DEPUTY SHERIFF – CORRECTIONS

 

*****

 

Work Performed: Work performed includes, but is not limited to the following:

 

*****

 

(6)        Control room operations, including reception and documentation duties for visitation and other business with personnel or inmates, for both Correctional Facility and Sheriff’s Office.  (These duties will be regularly scheduled when the ICSO Communications Center is integrated with ICOM, a countywide radio dispatch center).

 

The testimony and evidence presented at hearing established that, between 1998 and 2016, the corrections deputies performed control room work almost exclusively.  The few exceptions to this general practice were when the control room was attended by an employee on light duty or the employer utilized provisional employees due to a severe shortage in staffing levels.

 

Reed, during the latter part of his career with the employer, worked exclusively in the control room as a corrections deputy, because of an injury that rendered him unfit to work directly with inmates.  In addition to Reed, Kevin Whitney, a patrol officer, performed light duty in the control room for approximately five months with limited or no supervision.  In both of these situations, there were no opportunities for interchange as neither Reed nor Whitney were able to leave the control room and work directly with the inmates on the floor.

 

The employer also utilized outside employees for provisional appointments in 2015 following the loss of key personnel.  Provisional appointments are excluded from the bargaining unit under Article 1.1 of the parties’ collective bargaining agreement.  At that time, the employer utilized provisional employees to perform work in the jail, including control room work, in six-month increments.  Chief Jail Administrator Jose Briones stopped this practice in 2016, because the jail was legally prohibited from utilizing provisional appointments in this manner.

Inmate Death, the Impact on the Jail, and the Stanley Report

In 2015, under an arrangement with San Juan County, the employer housed a mentally challenged San Juan County Corrections inmate.  Caring for the inmate was a challenging endeavor for the employer and the inmate died from dehydration while in the employer’s custody.  This event triggered a loss of significant staff, including the Chief, the facility’s nurse, and several corrections deputies, and also triggered a review of the jail’s organizational structure and operation.

 

Phil Stanley, a corrections expert and consultant, was hired to perform this review.  He was given access to records and staff, and reviewed all aspects of the jail’s operation, including the overall staffing model and control room operations.  Following his review, he generated a report that included his findings and recommendations and submitted his report to the employer.

 

Stanley was critical of the control room staffing and operations.  In his report, he underscored the critical security function the control room deputies provided to the jail.  Specifically, the control room deputy, who was generally assigned alone to this station, was responsible for monitoring all activities within the jail.  In spite of this important function, the employer had been assigning unrelated administrative duties to the deputies, such as warrant verification and stolen property data, which diverted attention away from security responsibilities.  Given all of the duties assigned to the control room, Stanley concluded that the duties were “nearly impossible for one person to accomplish.”

 

Stanley offered recommendations to the employer regarding control room operations.  First, noting that the control room deputy’s primary responsibilities were to monitor security and control access, he recommended the extraneous warrant verification and stolen property data duties be reassigned elsewhere and removed from the control room.  Second, he concluded that one corrections deputy was sufficient if these duties were eliminated and the work was streamlined.  If these duties were to remain with the control room, then he recommended “an additional corrections deputy should be assigned to this post.”

 

In regard to corrections deputy staffing, Stanley was also critical.  Even so, he understood that the employer was facing a recent 50 percent trend in turnover within the previous 18 months, and that current staff was “weary and overworked” from five months of significant overtime.  He further concluded that three corrections deputies be assigned to the jail floor between the hours of 5:00 a.m. to 10:00 p.m. and two corrections deputies be assigned to the floor from 10:00 p.m. to 5:00 a.m., in conjunction with “at least one corrections deputy in the control booth twenty four hours a day.”  To accomplish this, Stanley recommended the employer increase its corrections deputy positions by six to a total of 23.  He recommended this increase in addition to his lieutenant and sergeant staffing recommendations.[2]

The Staffing and Control Room Changes following the Stanley Report

Stanley issued his report on September 25, 2015.  At that time, the employer was bridging the staff shortage with provisional appointments, a practice that Stanley believed should only be temporary and could lead to liability should provisional employees be used in use-of-force situations.  Briones held this same belief, while also recognizing the immense pressure the staff was under to work safely with such a staff shortage.

 

Upon Briones’ arrival in December 2015, he set upon the task of implementing some of Stanley’s recommendations.  In spite of his concern regarding the use of provisional appointments, Briones continued to utilize them in the first half of 2016 so he could focus on the larger staffing issue.  Concurrently, while utilizing provisional appointments, he instructed his lieutenants to continue to mandate overtime to ensure the jail was staffed accordingly.  Briones’ goal was to increase the overall staffing level in the jail and, at the time of the hearing, jail staff was at 25 employees.  These 25 employees included Chief Briones, two lieutenants, three sergeants, two non-deputy control room operators, and 17 corrections officers.

 

In regard to the control room, Briones wanted to discuss ideas with the staff as part of the future of the overall jail operations.  On April 21, 2016, he invited all jail staff to convene a meeting during which everyone could bring agenda items, ideas, and questions to cover anything the staff believed needed to be addressed.  That meeting convened on May 20, 2016, at which Briones recalled discussing his idea of adding a control room operator position that would allow a corrections deputy to be moved out onto the jail floor for added presence and security.

 

Corrections Officer Gene Whetsel also attended the May 20, 2016, all-staff meeting.[3]  He described the meeting as a “bitch session,” during which everyone was free to complain about what he or she did not like operationally and offer ideas to fix them.  He recalled Briones discussing the control room operator position as a way to help with overtime.  Whetsel understood this position would most likely be a corrections deputy position and that it would continue to be discussed with the union following the meeting.

 

The May 20, 2016, meeting concluded without any resolutions on how to move forward.  On June 22, 2016, Briones received an e-mail from Lieutenant Eric Bingham.  In that e-mail, Bingham suggested hiring Carla Hjelle-Schork, who had been working at the jail as a provisional appointee.  He explained that Hjelle-Schork’s 15 years of prior experience as a King County Corrections Deputy made her an excellent candidate.  Bingham believed in her candidacy even though Hjelle-Schork claimed to lack the physical abilities necessary to pass the Academy training.

 

On July 25, 2016, Briones announced, again, his idea to create a control room operator position and its impacts on jail staffing.  In his e-mail, he expressed his intent to request from the County Commissioners two positions to work in the control room Monday through Friday from 8:00 a.m. to 8:30 p.m., with overlap during the busiest times between 12:00 p.m. and 4:30 p.m.  This, he explained, would allow him to bring the corrections officers out onto the jail floor to make the jail operations safer.  He further indicated that he could fund these two positions from his own department budget in the interim.  He concluded his e-mail by inviting questions from staff.

 

Briones included with his July 25, 2016, e-mail an attached job description of the proposed control room operator position.  This job description included all of the security responsibilities, such as monitoring inmate and staff movements and regulating jail access, as well as the administrative tasks, such as entering the stolen property information into the law enforcement database (Spillman Database).  The description also indicated that the position was designated as a support staff bargaining unit position.

 

On July 26, 2016, Corrections Officer Christian Hiatt, who served as the union president at the time, indicated the union was not in agreement with Briones’ control room operator idea.  Specifically, he wrote:

 

Chief,

 

I spoke to our Guild attorney about this on Friday.  The Guild cannot support the non-deputy control room positions until a full review of a proposal, impacts on current and future staffing levels, contract negotiations, and assigned duties & training can be completed.  In addition, the position is listed as a member of the Support Staff Guild, to which we do not have current contract language to include additional positions.

 

I have forwarded the position description to our Guild attorney for his review as well.  Perhaps in the near future we can schedule a meeting to discuss how to proceed.

 

Very respectfully,

 

Christian Hiatt

 

That same day, Briones responded to Hiatt’s e-mail and expressed concern about timing.  Briones was concerned that, if the issue regarding the positions was not resolved soon, then the Commissioners’ budget window would close and there could potentially be no funding for the positions in 2017.  Specifically, he indicated he had a budget meeting the following week and that it would be helpful to have something from the union by then on whether “to push forward on this.”  He also reiterated the employer’s position that this change would allow more corrections officers to work on the jail floor and would also give the support staff guild additional positions in its bargaining unit.

 

There were no further e-mail communications between the parties on this issue until November 2016.  Linda Fryant, Labor Relations Manager, testified that, between July and November 2016, she made several attempts to schedule meetings to discuss the control room position as well as other issues.  Because contracts with the support staff as well as corrections deputies were expiring at the end of 2016 and needed to be renegotiated, Fryant claimed that she attempted to contact Corrections Deputy Duwayne Evans, his successor as President, Hiatt, and Whetsel to set up meetings.

 

At the time of Briones’ and Fryant’s attempts to schedule meetings, the union was experiencing significant turnover in leadership, as Evans, Hiatt, and Whetsel each succeeded each other as union president during the summer and early fall of 2016.  It is unclear what happened to Evans, but Hiatt replaced him sometime after April 2016, and then left for a patrol deputy position around September 2016.  Whetsel became president in October 2016, and was new to the position and the process of collective bargaining.  Fryant acknowledged this turnover in her testimony as she claimed she continued to contact all of them to discuss the control room position and other issues.

The Union’s Demand to Bargain Regarding the Control Room Operators

Having not reached resolution with the union, Briones proposed the control room operator positions to the County Commissioners on November 16, 2016.  The specific proposal was for two new control room operator positions at a proposed rate of pay of $14.96 per hour.  The Commissioners unanimously approved the positions at the rate of pay of $15.00 per hour.  Following the approval, the employer posted the position with the starting pay rate of $15.00 per hour, with an increase to $15.84 after the first six months, and to $16.67 per hour after one year.  None of these pay rates were listed in the parties’ CBA, which listed the starting pay rate for corrections officer as $20.79.

 

In addition to the approved pay rate, the position carried with it the same administrative responsibilities of which Stanley was critical in his report.  Specifically, the position included answering phones, directing calls to the appropriate number, answering basic information, entering data into the Spillman Database, and confirming warrants.  On November 23, 2016, the union submitted a demand to bargain.  In that demand, the union sought negotiations on both the decision and the effects of creating the non-deputy control room operator positions.  The union claimed these effects included bargaining unit status, job functions, impact on other bargaining units, and wages.

 

There were very few formal interactions between the parties regarding these control room operator positions between the union’s demand to bargain letter on November 23, 2016, and the union’s unfair labor practice complaint filed on January 20, 2017.  The interactions that did occur were limited to scheduling e-mails between Robert Braun, the employer’s lead negotiator, and Erica Shelley Nelson, the union’s negotiator, some informal discussions between Briones and Whetsel, and a brief interaction during a January 19, 2017, bargaining session.[4]  None of these interactions resulted in a resolution concerning the control room operator position.

 

During the January 19, 2017, bargaining session, the union presented a document that included a provision listed as “OPEN ON ADDING CONTROL ROOM OPERATOR.”  The parties had divergent perspectives on how they communicated regarding this issue.  Whetsel testified that he asked Braun when the parties would be negotiating these positions, to which Braun replied, “not at this time.”  Fryant, on the other hand, testified that the union did not explain this proposal and, at the end of the meeting Nelson said “We are not going to talk about that.  We are going straight to a ULP.”

 

The control room operator positions had not been filled when the union filed its demand to bargain.  The record, however, is unclear as to the precise dates on which both Hjelle-Schork and Melinda Matlock were hired as the new control room operators.  The record is clear that both worked on January 16, 2017, which was a holiday, because Briones fielded a question from payroll as to how each of them should be paid for work on that day.  In his e-mail, Briones indicated that the control room operator pay issue would be the subject of upcoming negotiations with the Support Staff bargaining unit.

 

Each of the current corrections deputy witnesses, McCarty, Whetsel, and Christine Wright, testified about the impacts of having non-deputy employees working in the control room.  The first was that there was no longer the interchange between the two assignments that provided corrections officers with previous flexibility.  Therefore, there were no opportunities to begin the work week in the control room or to switch with a control room operator when dealing with a noncompliant inmate or working a long shift.  Second, the lack of rigorous corrections training that corrections deputies must complete caused inefficiencies and adversely impacted inmate and staff safety.

 

McCarty provided specific examples of how this change impacted jail safety.  First, corrections officers spent more time on the radio and phone with a control room operator because the control room operator did not understand how to prioritize issues.  She testified that a control room operator used radio time to identify insignificant issues, such as an inmate with his shirt off.  Second, McCarty recalled a control room operator who did not immediately notify corrections officers of a three-inmate fight.  These time-sensitive situations were usually covered in the Academy curriculum completed by corrections deputies.

 

The union also presented work schedules to illustrate how the employer simply replaced corrections deputies with non-deputy employees.  Whetsel testified that there were about twenty instances in August 2017 in which a control room operator was working with only two other corrections deputies on the floor, despite Briones’ claim that this change would increase staffing.  To Whetsel and the union, this indicated that the employer simply put a less expensive employee in place to perform the premium work of a corrections deputy.

 

Briones responded to these concerns in his testimony.  First, he testified that control room operators could be hired with prior corrections officer experience and, therefore, could handle some of the security sensitive duties in the control room.  Moreover, by utilizing a non-deputy control room operator and increasing the number of corrections deputies generally, he now had additional corrections deputies to put on the jail floor.[5]  This increase in staffing provided more of a presence on the jail floor, allowed for corrections deputies to be more flexible without having to interchange with the control room, and decreased the strain on staff from having to work so much overtime.

 

Briones also testified that the work schedules relied upon by the union were misleading.  Whetsel did not include the additional Sergeant or Lieutenant, who was not precluded from providing the relief the union was concerned about.  According to Briones, once those employees were included, the ratio was not as concerning.  In addition, Briones testified that Stanley returned for a follow-up and reacted favorably to Briones’ approach to the control room staffing issue.  Briones testified that there were additional reports, emails, or notes, but none of these were presented at the hearing.

The Union’s Request for Information and Prior Dealings with the Employer

As part of the union’s November 23, 2016, demand to bargain the union requested information it deemed relevant to bargaining over the control room positions.  This information request included information as to when it was determined to initiate the position, how the pay scale was determined, and how the position was funded.  The employer did not produce any evidence to show that it provided the information or communicated with the union regarding this information request prior to the union filing this unfair labor practice complaint on January 20, 2017.

 

The union introduced Island County, Decision 11946 (PECB, 2013) into evidence to illustrate the employer’s previous failure to provide information relevant to bargaining.  In that case, the hearing examiner concluded that the employer committed an unfair labor practice when it unreasonably delayed responding to the union’s information request, to which it did not begin responding until the union filed a public records request lawsuit.  In spite of this conclusion, the hearing examiner did not award attorney fees as an extraordinary remedy because there was “no history or pattern of ongoing behavior of bad faith displayed.”

ANALYSIS

Applicable Legal Standards

Duty to Bargain

A public employer has a duty to bargain with the exclusive representative of its employees concerning mandatory subjects of bargaining.  RCW 41.56.030(4).  As a general rule, an employer must refrain from unilaterally changing terms and conditions of employment unless it gives notice to the union; provides an opportunity to bargain before making a final decision; bargains in good faith, upon request; and bargains to agreement or to a good faith impasse concerning any mandatory subject of bargaining.  King County, Decision 12451-A (PECB, 2016).

 

The Commission focuses on the circumstances as a whole to determine whether an opportunity for meaningful bargaining existed.  Id., citing Washington Public Power Supply System, Decision 6058-A (PECB, 1998).  If the employer’s action has already occurred when the employer notifies the union (a fait accompli), the notice would not be considered timely and the union would be excused from the need to demand bargaining.  King County, Decision 12451-A.  If the union is adequately notified of a contemplated change at a time when there is still an opportunity for bargaining which could influence the employer’s planned course of action, and the employer’s behavior does not seem inconsistent with a willingness to bargain, if requested, then a fait accompli will not be found.  Id., citing Washington Public Power Supply System, Decision 6058-A.

 

If the bargaining unit employees are eligible for interest arbitration, an employer may not unilaterally implement its desired change to a mandatory subject of bargaining without bargaining to impasse and obtaining an award through interest arbitration.  King County, Decision 12451-A, citing Snohomish County, Decision 9770-A (PECB, 2008).  Interest arbitration is also applicable when an employer desires to make a midterm contract change to a mandatory subject of bargaining.  King County, Decision 12451-A, citing City of Yakima, Decision 9062-A (PECB, 2006).

Skimming of Bargaining Unit Work

The test for determining whether an employer unlawfully skimmed bargaining unit work is set forth in Central Washington University, Decision 12305-A (PSRA, 2016) and is utilized in both contracting out and skimming cases.  King County, Decision 12632-A (PECB, 2017).  Under this test, the threshold question is whether the work that was assigned to nonbargaining unit employees was bargaining unit work.  Id.  If the work was not bargaining unit work, then the analysis stops and the employer was under no obligation to have bargained its decision to assign the work.  Id.  If the work was bargaining unit work, then we apply the City of Richland balancing test to determine whether the decision to assign bargaining unit work to nonbargaining unit employees was a mandatory subject of bargaining.  King County, Decision 12632-A, citing Central Washington University, Decision 12305-A.

 

The City of Richland balancing test weighs the competing interests of the employees in wages, hours, and working conditions against “the extent to which the subject lies ‘at the core of [the employer’s] entrepreneurial control’ or is a management prerogative.”  International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission (City of Richland), 113 Wn.2d 197, 203 (1989).  Recognizing that public sector employers are not “entrepreneurs” in the same sense as private sector employers, entrepreneurial control should consider the right of the public sector employer, as an elected representative of the people, to control management and direction of government.  Central Washington University, Decision 12305-A, citing Unified School District No. 1 of Racine County v. Wisconsin Employment Relations Commission, 81 Wis.2d 89, 95 (1977).  In cases where the subject relates to conditions of employment as well as a managerial prerogative, the focus of inquiry is to determine which one predominates.  International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission, 113 Wn.2d 197, 200.

Information Requests

The duty to bargain includes an obligation to provide relevant information needed by the opposite party for the proper performance of its duties in the collective bargaining process.  City of Bellevue v. International Association of Fire Fighters, Local 1604, 119 Wn.2d 373 (1992).  In evaluating requests for relevant information, the Commission considers whether the requested information appears reasonably necessary for the performance of the union’s function as bargaining representative.  City of Bellevue, Decision 4324-A (PECB, 1994).  Failure to provide relevant information upon request constitutes a refusal to bargain unfair labor practice.  University of Washington, Decision 11414-A (PSRA, 2013).

 

In addition to providing the relevant information, communication about the information request is included in the obligation.  Island County, Decision 11946-A (PECB, 2014).  The responding party must communicate with the requesting party on issues such as the type of information the requester is seeking, whether the responding party will be delayed in responding to the request, or whether the responding party believes the information requested is not relevant or the information request is not clear.  Id.; Kitsap County, Decision 9326-B (PECB, 2010), citing City of Seattle, Decision 10249 (PECB, 2008), remedy aff’d, Decision 10249-A (PECB, 2009); Pasco School District, Decision 5384-A (PECB, 1996).  If these issues arise, the responding party must also engage in negotiations with the requesting party over the information sought.  City of Yakima, Decision 10270-B (PECB, 2011); Seattle School District, Decision 9628-A (PECB, 2008).

Waiver

A party may waive its right to bargain in one of two ways: waiver by contract or waiver by inaction.  Waiver is an affirmative defense and the burden of proving such waiver is on the party asserting it.  Lakewood School District, Decision 755-A (1980).  A contractual waiver of statutory collective bargaining rights must be consciously made, must be clear, and must be unmistakable.  City of Yakima, Decision 3564-A (PECB, 1991).  When a knowing, specific, and intentional contractual waiver exists, an employer may lawfully make changes as long as those changes conform to the contractual waiver.  City of Wenatchee, Decision 6517-A (PECB, 1999).

 

A party may also waive its right to bargain by inaction.  For a party’s conduct to ripen into a clear and unmistakable waiver of a bargaining right, its conduct must be such that the only reasonable inference is that it has abandoned its rights to negotiate.  Clover Park Technical College, Decision 8534-A (PECB, 2004).  The Commission focuses on the circumstances as a whole, and on whether an opportunity for meaningful bargaining existed.  Id., citing Seattle School District, Decision 5733-B (PECB, 1998).  A union’s request for bargaining must adequately signify a desire to bargain over the issue; neither a strongly worded protest nor the filing of an unfair labor practice charge constitutes a valid bargaining request.  Clover Park Technical College, Decision 8534-A.  An employer asserting a waiver by inaction defense carries a heavy burden in that it must establish that the only reasonable inference is that the union has abandoned its right to negotiate.  City of Mountlake Terrace, Decision 11702-A (PECB, 2014), citing Clover Park Technical College, Decision 8534-A.

Application of Standards

The Employer did not Announce its Decision as a Fait Accompli

The union alleges that the employer, since July 25, 2016, announced the creation of new nonbargaining unit control room operator positions as a fait accompli.  To defeat a fait accompli allegation, the employer must establish that it adequately notified the union of the contemplated change at a time when there was still an opportunity for bargaining which could influence the employer’s planned course of action.  Washington Public Power Supply System, Decision 6058-A.  If the employer’s action had already occurred when the employer notified the union, the notice would not be considered timely and the union would be excused from the need to demand bargaining.  King County, Decision 12451-A.

 

The employer’s e-mail notification to the union on July 25, 2016, was not a fait accompli because it provided sufficient information of the contemplated change while there was still an opportunity for bargaining.[6]  In this e-mail, Briones included sufficient information to inform the union that two new control room positions would be created.  He notified the union of the shifts the new positions would work, that corrections officers would be removed and placed onto the jail floor, and attached the job description indicating that the positions would be in a different bargaining unit (Support Staff).  However, it was clear from Briones’ e-mail that this idea, together with interim and long-term funding for the positions, required final approval by the County Commissioners.  Briones refrained from officially taking the matter to the County Commissioners, even though he had the opportunity, and he waited to in hopes of a response from the union first.[7]

 

Hiatt, the union president, acknowledged and responded to Briones’ e-mail the following day on July 26, 2016.  In his e-mail, Hiatt clearly understood Briones’ information about the control room operator position sufficiently to reject the idea as described and suggested further review and meetings to discuss the issue.  Therefore, the union had notice of the contemplated change at a time when there was still an opportunity to persuade the employer to take a different course of action.

 

The employer did not refuse to bargain when it announced the creation of new nonbargaining unit work on July 25, 2016.  The employer provided the union with adequate notice and an opportunity to bargain, and therefore did not present the proposed change as a fait accompli.

The Employer did not Refuse to Bargain since November 23, 2016

The union also alleged that the employer, since November 23, 2016, refused to bargain with the union regarding the decision to remove control room operating duties from the bargaining unit.  November 23, 2016, was the date on which the union filed a demand to bargain with the employer regarding the employer’s decision to create the control room operator positions and the impacts, including “bargaining unit status, job functions, impact on other bargaining unit, and wages.”  However, the employer did not refuse to bargain from this date.

 

On November 16, 2016, the County Commissioners approved the employer’s request for two new control room operator positions at $15 per hour.  Following this meeting, the employer posted the open control room operator positions with a wage rate of $15 per hour for the first six months, $15.84 per hour for the second six months, and $16.67 per hour after the first year.  The job posting did not close until November 30, 2016, which meant the employer had not filled the positions as of the date of the union’s demand to bargain on November 23, 2016.

 

On November 23, 2016, Nelson e-mailed the employer to explain her role as lead negotiator for the union and to schedule bargaining.  Braun responded to Nelson on November 29, 2016, (the day before the job posting closed) to explain to her that he continued to represent the employer regarding the corrections unit and suggested they discuss the process at their next meeting for the Support Staff agreement.  Thus, Braun’s e-mail to Nelson expressed a willingness to discuss the issue at a time when the control room operator positions had not been filled and the employer’s plan to remove the work had not been fully implemented.

 

The employer did not refuse to bargain with the union over the removal of the control room duties and responsibilities since November 23, 2016.  The employer responded to the union’s attorney with a willingness to schedule and negotiate.

The Employer Refused to Bargain by Skimming Bargaining Unit Work

The union alleged that the employer, since January 2017, unlawfully skimmed bargaining unit work by using nonbargaining unit control room operators to perform control room duties and responsibilities.  The first question in a skimming analysis is whether the disputed work is bargaining unit work.  To prove the work was bargaining unit work, the union is not required to prove that the work is “exclusive” bargaining unit work.  King County, Decision 12632-A.  The evidence regarding the jurisdiction of the control room work is largely undisputed.  The employer does not refute the union’s evidence that Island County Corrections Officers have been working in the control room and performing the security monitoring, access regulation, and administrative duties since at least 1998.

 

The employer does, however, claim that there were times when non-deputies were working in the control room.  Whether other employees have performed the bargaining unit work is something for an examiner to consider in determining whether the work is bargaining unit work.  Id.  In the present case, the examples of other employees performing the work were either isolated incidents or a narrowly tailored situation in response to the employer’s abrupt loss of jail staff in 2015.[8]  Therefore, these examples were limited and temporary in nature.

 

First, Kevin Whitney, a patrol deputy, served for only five months in the control room as he recovered from injuries that kept him from patrol work.  Second, the employer used employees in provisional appointments to alleviate some of the pressure from mandated overtime after losing staff in 2015.  The employer, though, understood that the use of provisional appointments was temporary and was not sustainable long term.  Thus, these limited instances are not sufficient to overcome the long term and consistent performance of the control room work by control officers.

 

Upon finding that the disputed work is bargaining unit work, the next question in the analysis is whether the decision to remove the work from the bargaining unit, or skimming, was a mandatory subject of bargaining.  To determine whether the decision was a mandatory subject of bargaining, the Commission weighs the competing interests of the employees in wages, hours, and working conditions against “the extent to which the subject lies ‘at the core of [the employer’s] entrepreneurial control’ or is a management prerogative.”  International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission, 113 Wn.2d 197, 200.  In cases such as this, where the subject relates to conditions of employment as well as a managerial prerogative, the focus of inquiry is to determine which one predominates.  Based upon the facts of this case, the decision to assign bargaining unit work outside of the bargaining unit predominantly impacts the employees’ wages, hours, and working conditions and is a mandatory subject of bargaining.

 

In regard to the union’s interests, it contends that the assignment of the control room responsibilities to nonbargaining unit control room operators limits opportunities for overtime, shift selection, and light duty.  Furthermore, the union contends that having non-deputy employees in the control room impacts the safety of corrections officers and inmates, because non-deputy control room operators are not adequately trained to recognize the potential dangers on the jail floor and inefficiently prioritize insignificant issues tying up the radio.  On the other hand, the employer acknowledges that there are impacts to the bargaining unit, but that they are all positive.  Specifically, fewer overtime opportunities leads to reduced strain and burnout and more corrections officers on the jail floor means more coverage.  In addition, the employer contends that losing the opportunity to “relax” in the control room at the beginning of the work week is not a significant loss to the bargaining unit.

 

The assignment of control room duties to control room operators certainly impacted the working conditions for the Corrections Officer bargaining unit.  Specifically, the loss of interchangeability limited the flexibility corrections officers had to rotate between the jail floor and the control room on long shifts or after having an intense situation dealing with a difficult inmate.  Moreover, instead of using their time in the control room to “relax,” McCarty and Reed testified that they spent their first work shift of the week in the control room to gather information and observe the facility as a way of transitioning back into inmate custody following a long vacation or weekend.  This contributed to their understanding of inmate and staff dynamics that were critical to understanding how best to approach situations when they returned to the jail floor.  Having the control room assignment was a benefit the bargaining unit enjoyed prior to control room operators taking over control room responsibilities.

 

The employer argues that it was within its contractual rights to make this change.  The employer asserts that its reassignment of the control room duties and responsibilities outside of the bargaining unit had a positive impact on the working conditions of the bargaining unit, including the reduction in mandated overtime, the increase in staff on the jail floor, and the increased coverage and flexibility for more vacation and leave.  However, the impacts on the bargaining unit do not have to be negative in order to trigger an obligation to bargain.  Since the union established these impacts, and the employer merely asserted it had a contractual right to do so, the decision to assign control room duties and responsibilities to the nonbargaining unit control room operators was a mandatory subject of bargaining.

 

Since the assignment of control room duties to nonbargaining unit employees was a mandatory subject of bargaining, the employer was obligated to provide notice to the union and bargain with the union to impasse.  As explained above, the employer provided sufficient notice to the union of the contemplated change on July 25, 2016, and had been urging the union to decide its course of action in order to present to the County Commissioners during its impending budget window.  Furthermore, the employer had not filled the control room operator positions at the time the union demanded bargaining and the parties began scheduling negotiations.  The parties did not provide the precise date upon which the new control room operators were hired, but the evidence establishes that they worked, at the earliest, Monday, January 16, 2017.  This was three days before the parties held their initial bargaining session on January 19, 2017.

 

For interest arbitration eligible employees, like the corrections officers in this case, all changes to mandatory subjects of bargaining must be made after the parties have either reached a negotiated agreement or fulfilled their collective bargaining obligations, including proceeding through statutory impasse procedures, mediation and, if necessary, arbitration.  King County, Decision 12451-A, citing RCW 41.56.430 through .470.  Although the employer exhibited a willingness to negotiate and set meeting dates, particularly after the union’s demand to bargain, the employer failed to complete bargaining before it hired the nonbargaining unit employees to perform bargaining unit work.  Since it did this before reaching an agreement or initiating impasse procedures, the employer violated the statute by unilaterally implementing a change to a mandatory subject of bargaining.

 

At hearing, Fryant testified that the union, through Nelson, refused to discuss the control room operator positions at the January 19 meeting.  Fryant also testified that, instead, Nelson indicated the union would go straight to filing an unfair labor practice complaint.  Although this supports the employer’s contention that it was the union who refused to bargain on this date, the information is not relevant to the analysis since the negotiation session occurred after the employer had already shifted the control room duties away from the corrections officers and gave them to nonbargaining unit control room operators.

 

Therefore, the employer unlawfully skimmed bargaining unit work by assigning bargaining unit work to the nonbargaining unit control room operators.

The Union did not Waive its Right to Negotiate the Decision to Assign Control Room Duties to Control Room Operators

The employer asserts two affirmative waiver defenses to justify its actions in implementing the removal of control room duties and responsibilities from the bargaining unit.  These defenses are waiver by inaction and waiver by contract.  Under these facts, the union did not waive its right to negotiate the decision to assign the control room duties and responsibilities to the nonbargaining unit control room operators.

 

Waiver by Inaction.  To prove waiver by inaction, the employer must establish, based on the circumstances, that the “only reasonable inference is that the [other party] has abandoned its right to negotiate.”  City of Mountlake Terrace, Decision 11702-A, citing Clover Park Technical College, Decision 8534-A.  When Hiatt replied to Briones on July 26, 2016, he indicated that Briones’ idea still needed to be reviewed and processed.  Specifically, he indicated that the union could not support the control room operator idea “until a full review of a proposal, impacts on current and future staffing levels, contract negotiations, and assigned duties & training can be completed.”  In addition, Hiatt indicated to Briones that “the position is listed as a member of the Support Staff Guild, to which we do not have current contract language to include additional positions.”  He concluded his e-mail by suggesting an additional meeting with Briones in order to discuss how to proceed.

 

With this e-mail, Hiatt is clearly indicating to Briones that further processes are necessary.  Those processes included a review and analysis of the impacts of Briones’ control room idea (staffing levels, duty assignments, and training requirements) based on a proposal from the employer.  Indeed, Hiatt contemplated further contract negotiations, because he understood that the Support Staff CBA, at least, didn’t have language to accommodate the introduction of a control room operator.  Thus, while Hiatt’s e-mail didn’t specifically demand bargaining, it precludes a finding that the union was abandoning its negotiating rights as of July 26, 2016.

 

The employer contends that the union’s inaction between July 25, 2016, and November 23, 2016, the date on which the union officially filed its demand to bargain, serves as a waiver.  The employer emphasizes that the union’s inaction occurred in spite of Briones’ July 26, 2016, e-mail response to Hiatt, in which Briones indicates that time was crucial given the County Commissioners’ budget window.  In spite of the passage of time and Briones’ warning, on the whole the union did not abandon its right to negotiate.

 

Between July 25, 2016, and November 23, 2016, the employer never fully implemented its plan.  Certainly, the employer provided sufficient information to the union to place the union on notice that it intended to create and hire control room operators.  In addition, the employer obtained approval from the County Commissioners for the positions and posted a job announcement to commence the hiring process.  As of November 23, 2016, however, the employer had not filled the positions and was still, presumably, taking applications given the November 30, 2016, closing date.  Thus, the union demanded to bargain with the employer at a time when there was still an opportunity to negotiate over the wages, hours, and working conditions (including bargaining unit) of the position.

 

Indeed, as late as January 31, 2017, Briones was still unsure under what CBA the control room operators would fall.  On that date, he sent an e-mail to his payroll department regarding a holiday pay issue for control room operators, in which he wrote:

 

They will be bargained into a unit with the upcoming contract negotiations.  We should probably discuss how we want this to read for their contract.  I guess in my opinion we should probably lean in the direction of what the Records Support Staff have as that is likely the guild they are going to fall into.

 

Therefore, the union did not waive its right to negotiate by inaction.

 

Waiver by Contract.  The employer asserts the union waived its bargaining rights by contract by agreeing to the management rights language in Article 3.4 of the CBA.  The Commission has consistently evaluated waiver by contract claims under a “clear and unmistakable” standard, so that the contract language being relied upon must be specific, or it must be shown that parties fully discussed the matter and that the party alleged to have waived its right consciously yielded its interest in the matter.  Skagit County, Decision 8746 (PECB, 2006).  The management rights clause in Article 3.4 is too broad to meet the standard of specificity required by the waiver standard.

 

Whether a management rights clause waives a union’s right to bargain requires an analysis of the contract language.  City of Yakima, Decision 11352-A (PECB, 2013).  Article 3.4 provides that the Union “recognizes the prerogative of the Employer to operate and manage its affairs in all respects in accordance with its lawful mandate.”  Specifically, these affairs include the “direction of its working force and operation” and includes “all matters relating to its program, facilities, budget, personnel and staffing.”  The employer argues that this language is broad enough to encompass its decision to assign Control Room Operators to the control room and, by agreeing to this language, the union waived its right to bargain the work assignment.

 

However, this language is not specific enough to establish that the union, at the time this language was bargained, was consciously yielding its interest in negotiating personnel and staffing matters, particularly if they related to mandatory subjects of bargaining.  Indeed, the employer provided no evidence as to how the language was negotiated or what was being discussed at the time it was bargained into the contract.  The language is also similarly as broad as other management rights language the Commission has ruled did not constitute a waiver.  See City of Sumner, Decision 1839-A (PECB, 1984) (“The Union recognizes the prerogative of the employer to operate and manage its affairs in all respects in accordance with its responsibilities.”); Washington Public Power Supply System, Decision 6058-A (“The Supply System retains the exclusive right to manage and operate its business, subject only to the express terms of this Agreement.”).

 

Therefore, the union did not waive its right to bargain by contract.

The Employer Failed to Provide Relevant Information to the Union

On November 23, 2016, the union submitted an information request to the employer as part of its demand to bargain.  The union requested the date upon which it was determined to initiate the position, how the pay scale was determined, and where the funding was coming from.  This information is clearly relevant to the issue of the control room operators, because it could inform bargaining between the parties on items such as wage rates, health and welfare benefits, and retro-active pay (if there was a difference in the set rate and the bargained rate).  This information was not provided to the union by the employer.

 

The employer did not respond to the union’s information request.  Communication about information requests, including whether the party will be delayed in responding or to clarify the request, is included in the duty to bargain and provide information.  Island County, Decision 11946-A; Kitsap County, Decision 9326-B, citing City of Seattle, Decision 10249.  There is no evidence that either Braun or Fryant had any communications with the union about its information request.  Therefore, the employer violated its duty to provide information and refused to bargain.

 

The employer’s defense is twofold.  First, the employer contends that the information sought by the union had already been provided.  Specifically, the employer argues that Briones had already provided this information to the union at the May 20, 2016, all staff meeting and also by sending the job description to the union on July 25, 2016.  However, Briones provided this information at times when the control room operator idea had not been finalized and wages had not been set.  It was clear from the testimony that many items were discussed at the May 20 meeting and that Briones’ July 25 idea still needed to be worked out with the County Commissioners.  Indeed, Briones indicated that some of the funding for the new positions could come from his internal budget, so the funding source request was something that definitely needed to be clarified following the County Commissioners meeting.  Therefore, the employer had not provided the information to the union prior to its information request.

 

Second, the employer contends that it did not refuse to provide information because it was fully prepared to provide the information at the January 19, 2017, bargaining session.  The employer further contends that the union was the party who shut off communications at this bargaining session by refusing to discuss control room operators.  The employer’s argument here is misplaced, because its duty to provide information is not contingent upon the union’s willingness to discuss the topic at this negotiation meeting.[9]  Whether or not either party was willing to discuss the topic at that particular time, the union proposed to open a provision of the parties CBA to negotiate over the control room operators, which meant the union’s information request was still active and relevant.  If the employer was truly prepared and willing to provide the information, and did indeed have it at the time, then it could have shared the information at (or even before) the meeting, regardless of Nelson’s purported remarks about a ULP.

The Union’s Claim for Attorney Fees and Extra-Ordinary Remedies[10]

At hearing, the union claimed that it was entitled attorney fees.  The union based this claim upon a previous failure of the employer to timely respond to information requests and the union asserts this instance makes the employer a repeat violator.  The circumstances in this case are insufficient to warrant the award of attorney fees.

 

The Commission’s remedial authority to fashion remedies is discretionary and has been construed liberally by the Supreme Court of the State of Washington to accomplish its purpose.  Seattle School District, Decision 11045-A (PECB, 2011), citing Municipality of Metropolitan Seattle v. Public Employment Relations Commission, 118 Wn.2d 621 (1992).  Generally, the Commission awards attorney fees (1) when such an award is necessary to make the order effective and (2) when the defense to the unfair labor practice is meritless or frivolous, or the respondent had engaged in a pattern of repetitive conduct showing a patent disregard to its statutory obligations.  Seattle School District, Decision 12173 (PECB, 2014), citing Pasco Housing Authority, Decision 5927-A (PECB, 1997), aff’d, Pasco Housing Authority v. Public Employment Relations Commission, 98 Wn. App. 809 (2000); City of Seattle, Decision 3593-A (PECB, 1991).

 

It is true that the employer has previously violated its good faith bargaining obligation to provide information in a timely manner.  Island County, Decision 11946 (PECB, 2013), aff’d, Island County, Decision 11496-A.  In that case, the Examiner held that attorney fees were not warranted because there was no history or pattern of ongoing bad faith behavior by the employer, and, once the employer began to respond it exhibited some effort in its attempts to fulfill its obligation.  The Commission in that case affirmed the examiner, acknowledged that attorney fees should be awarded in rare circumstances, and found that the employer’s appeal was not meritless or frivolous.

 

In Seattle School District, Decision 10664-A (PECB, 2010), the Examiner ordered attorney fees because the employer in that case had a repeated pattern of violating its obligation to provide information.  The pattern included four violations within a five year period, and the Examiner awarded attorney fees and mandated training to be completed by the employer.  Later, in Seattle School District, Decision 11045-A, another information case, the Commission affirmed an Examiner’s award that did not include attorney fees, since the employer had recently completed its mandated training on information requests.  Specifically, the Commission did not order attorney fees because “the employer’s violations in [that] case occurred prior to the employer being ordered to attend agency mandated training, and that training should [have been] allowed to take hold before imposing additional remedies.”  Id.

 

Finally, in Seattle School District, Decision 12173, the Examiner found attorney fees unwarranted when the employer failed to provide information because such an award was not necessary to make the order effective, and it had been nearly three years since the employer’s previous violation.  Although the Examiner did not award attorney fees, she ordered the parties to craft internal policies and procedures to identify who was responsible for responding to information requests and to include steps in the policy to deal with situations that could cause delays in responding.

 

These cases are instructive in the present case, in that they illustrate the nature and pattern of offenses that warrant attorney fees and the Commission’s willingness to craft remedies to ensure that future violations do not occur.  Island County’s previous violation was found on December 9, 2013, and its violation was affirmed by the Commission on July 8, 2014, nearly four years ago.  As in the first Island County case, there is no history or pattern of bad faith conduct sufficient to warrant attorney fees.  Thus, attorney fees will not be awarded in this case.

CONCLUSION

The employer did not announce its decision to hire nonbargaining unit control operators as a fait accompli.  The employer did unlawfully skim bargaining unit work when it assigned the control room operator duties and responsibilities to nonbargaining unit control room operators without negotiating with the union to agreement or initiating impasse resolution procedures for uniformed personnel.  The union did not waive its right to negotiate the employer’s decision to remove the control room duties and responsibilities from the bargaining unit.  Finally, the employer refused to bargain by failing to respond to provide relevant information to the union, but the union is not entitled to attorney fees in this case.

 

FINDINGS OF FACT

 

1.                  Island County is a public employer within the meaning of RCW 41.56.030(12).

 

2.                  The Island County Deputy Sheriffs’ Guild (union), a bargaining representative within the meaning of RCW 41.56.030(2), is the exclusive bargaining representative of an appropriate bargaining unit of corrections lieutenants, corrections sergeants, and corrections officers of the employer.

 

3.                  The employer and the union were parties to a collective bargaining agreement (CBA), which was effective from January 1, 2015, to December 31, 2016.

 

4.                  Article 3.4 of the parties’ CBA provides that the union “recognizes the prerogative of the Employer to operate and manage its affairs in all respects in accordance with its lawful mandate.”  Specifically, these affairs include the “direction of its working force and operation” and includes “all matters relating to its program, facilities, budget, personnel and staffing.”  Article 3.4 is too broad to meet the standard of specificity required by the waiver standard.

 

5.                  The employer operates a 58-bed jail facility located in Island County, Washington, which includes a control room in which employees monitor inmates and staff through security cameras and also control access into and out of the facility.

 

6.                  Employees in the control room also perform administrative functions, such as verifying warrants and entering stolen property information into a law enforcement database.

 

7.                  Since 1998, bargaining unit corrections officers have performed this work, with a few isolated exceptions, which makes the control room work bargaining unit work.

 

8.                  On July 25, 2016, Chief Jose Briones e-mailed the entire jail staff regarding his idea to create a new control room operator position, which included the shifts the new position would work, that the corrections officers would be removed from the control room and onto the jail floor, and a description that indicated the position would be in a different bargaining unit.

 

9.                  Christian Hiatt, the union president on July 25, 2016, received the chief’s e-mail as he was a member of the jail staff.

 

10.              On July 26, 2016, Hiatt replied to Briones and indicated that the union could not support the creation of a new control room position until after a review of a proposal, impacts on current and future staffing levels, contract negotiations, and assigned duties and training could be completed.  He also suggested scheduling a meeting to discuss how to proceed.

 

11.              Briones responded to Hiatt the same day and indicated that a union response would be helpful for a budget meeting the following week and that he did not want to miss the County Commissioners’ budget window for 2017.

 

12.              Briones provided sufficient information to the union about the contemplated creation of the control room operator position while there was still an opportunity for bargaining.

 

13.              On November 16, 2016, the County Commissioners approved two new control room operator positions at a wage rate of $15.00 per hour.

 

14.              After approving the two new positions, the employer posted for the nonbargaining unit control room operator positions with a closing date of November 30, 2016, with wage rates of $15.00 per hour for the first six months, $15.84 per hour for the next six months, and $16.67 per hour after the first year.

 

15.              On November 23, 2016, before the closing of the control room operator job postings, the union filed a demand to bargain concerning the decision to create the new control room operator positions and its effects, including “bargaining unit status, job functions, impact on other bargaining units, and wages.”

 

16.              As of November 23, 2016, the employer had not filled the control room positions and there was still an opportunity for bargaining the decision and effects.

 

17.              On November 23, 2016, Erica Shelley Nelson, the union negotiator, e-mailed Robert Braun, the employer negotiator, to schedule bargaining over the control room positions.

 

18.              On November 29, 2016, which was the day before the closing date for the control room operator job posting, Braun replied to Nelson and suggested they schedule a bargaining session at their next meeting with a different bargaining unit.

 

19.              The parties did not provide the precise date upon which the new control room operators were hired, but the evidence establishes that they worked, at the earliest, Monday, January 16, 2017.  These new control room operators performed the control room work that had historically been bargaining unit work performed by corrections officers.

20.              On January 19, 2017, the parties held their first bargaining session for a successor CBA for the corrections officer bargaining unit.

 

21.              At this bargaining session, the union proposed to open an article of the CBA to include the new control room operator position.

 

22.              The employer did not initiate statutory impasse resolution procedures under RCW 41.56.430 through RCW 41.56.470 prior to implementing its decision to assign bargaining unit work to nonbargaining unit control room operators.

 

23.              The employer’s assignment of bargaining unit work to control room operators impacted the wages, hours, and working conditions of bargaining unit employees, reduced overtime opportunities, shift selection, light duty, and the flexibility to interchange with other corrections officers in the control for a break from intense inmate interactions or transitioning back onto the jail floor.

 

24.              The employer’s transfer of bargaining unit work to control room operators increased the number of corrections officers on the jail floor, which also positively impacted working conditions for bargaining unit members, such as increased vacation usage and coverage.

 

25.              The employer’s decision to transfer work outside of the bargaining unit was a mandatory subject of bargaining.

 

26.              On November 23, 2016, the union requested information relevant to bargaining the control room operator positions, which included requests for the date on which the employer determined to initiate the position, how the employer determined the pay scale, and how the position was funded.

 

27.              The employer did not respond to the union’s information request or provide the requested information to the union.

 

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.                  By providing the union with information regarding the new control room operator positions as described in Findings of Fact 8 through 12, the employer did not announce its decision to create the new control room operator positions as a fait accompli or violate RCW 41.56.140(4) and (1).

 

3.                  By responding to union requests for bargaining sessions before filling the control room operator positions as described in Findings of Fact 15 through 18, the employer did not refuse to bargain or violate RCW 41.56.140(4) and (1).

 

4.                  By assigning work historically performed by the bargaining unit to nonbargaining unit control room operators as described in Findings of Fact 5, 6, 7, and 19 through 25, the employer unlawfully skimmed bargaining unit work without bargaining to agreement or initiating statutory impasse procedures and violated RCW 41.56.140(4) and (1).

 

5.                  By failing or refusing to provide information to the union as described in Findings of Fact 26 and 27, the employer refused to bargain and violated RCW 41.56.140(4) and (1).

 

6.                  As described in Findings of Fact 10, 11, and 15 through 21, the union did not waive its right to negotiate by inaction.

 

7.                  As described in Finding of Fact 3 and 4, the union did not waive its right to negotiate by contract.

 

ORDER

 

Island County, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

 

1.         CEASE AND DESIST from:

 

a.                      Unlawfully skimming bargaining unit work historically performed by employees represented by the Island County Deputy Corrections’ Guild, without providing an opportunity for bargaining or initiating statutory impasse resolution procedures.

 

            b.         Failing or refusing to provide information to the union relevant for bargaining.

 

            c.         In any other manner interfering with, restraining or coercing its employees in the exercise of their collective bargaining rights under the laws of the State of Washington.

 

2.         TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter 41.56 RCW:

           

a.         Restore the status quo ante by re-assigning control room operating duties and responsibilities back to the corrections officers.

 

b.         Upon request, bargain with the Island County Deputy Corrections’ Guild before transferring work outside of the bargaining unit or implementing any changes in wages, hours, and working conditions of bargaining unit employees.

 

c.         Provide the Island County Deputy Corrections’ Guild with the relevant information that it requested on November 23, 2016.

 

d.         Contact the Compliance Officer at the Public Employment Relations Commission to receive official copies of the required notice posting.  Post copies of the notice provided by the Compliance Officer in conspicuous places on the employer’s premises where notices to all bargaining unit members are usually posted.  These notices shall be duly signed by an authorized representative of the respondent and shall remain posted for 60 consecutive days from the date of initial posting.  The respondent shall take reasonable steps to ensure that such notices are not removed, altered, defaced, or covered by other material.

 

e.         Read the notice provided by the Compliance Officer into the record at a regular public meeting of the County Commissioners of Island County, and permanently append a copy of the notice to the official minutes of the meeting where the notice is read as required by this paragraph.

 

f.          Notify the complainant, in writing, within 20 days following the date of this order as to what steps have been taken to comply with this order and, at the same time, provide the complainant with a signed copy of the notice provided by the Compliance Officer.

 

g.         Notify the Compliance Officer, in writing, within 20 days following the date of this order as to what steps have been taken to comply with this order and, at the same time, provide her with a signed copy of the notice she provides.

 

ISSUED at Olympia, Washington, this  18th  day of April, 2018.

 

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

                                               

 

DANIEL J. COMEAU, 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