Snohomish County, Decision 12826-A (PECB, 2018)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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SNOHOMISH COUNTY CORRECTIONS GUILD,
Complainant,
vs.
SNOHOMISH COUNTY,
Respondent.
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CASE 128432-U-16
DECISION 12826-A - PECB
DECISION OF COMMISSION
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Loyd J. Willaford, Attorney at Law, Cline & Associates, for the Snohomish County Corrections Guild.
Douglas J. Morrill and Charlotte F. Comer, Deputy Prosecuting Attorneys, Snohomish County Prosecuting Attorney Mark K. Roe, for Snohomish County.
The purpose of the Public Employees’ Collective Bargaining Act “is to promote the continued improvement of the relationship between public employers and their employees. . . .” RCW 41.56.010. The collective bargaining obligation imposed by Chapter 41.56 RCW is a means to improve the relationship between public employers and employees. Inherent in that obligation is the duty for parties to communicate with one another. While the unfair labor practice procedure is available to parties for resolving their disputes, a more effective and civil method is available to parties without the financial costs of multiday hearings, the emotional costs of being embroiled in long-running conflict, and the collateral costs to relationships and trust. That method is timely and effective communication. When parties to a collective bargaining relationship take the time to communicate with each other, to ask questions, to engage in problem-solving, and to embody the spirit of Chapter 41.56 RCW, they find that many of their disputes can be resolved.
However, this decision will join others, such as Snohomish County Police Staff and Auxiliary Services Center, Decision 12342-A (PECB, 2016); City of Mountlake Terrace, Decision 11702-A (PECB, 2014); City of Mountlake Terrace, Decision 11831-A (PECB, 2014); Southwest Snohomish County Public Safety Communications Agency, Decision 11149-C (PECB, 2013); Kiona-Benton School District, Decision 11862-A (EDUC, 2014); Kiona-Benton School District, Decision 11035 (EDUC, 2011); and Shelton School District, Decision 579 (EDUC, 1979), that involved parties who succumbed to the temptation to mechanically comply with their collective bargaining obligation rather than embody the spirit of the statute.
The Snohomish County Corrections Guild (union) represents correctional deputies working for Snohomish County (employer). Until 2016, the employer and union engaged in regular labor management meetings. The employer and the union continued to meet in labor management meetings after the union leadership changed in 2016. However, the parties did not share an understanding of the purpose of their meetings. As the year progressed, the relationship between the union and the employer became strained. The union objected to many of the changes the employer implemented. Snohomish County, Decision 12826 (PECB, 2018). The employer did not believe that some of the changes it made involved mandatory subjects of bargaining and did not communicate changes to the union in a manner that might have led to collaborative resolution of their differences. The union officers and members became increasingly frustrated.
Ultimately, the union filed this unfair labor practice complaint alleging that the employer made nine separate unilateral changes, skimmed bargaining unit work, and engaged in bad faith bargaining. The Examiner found that the employer unilaterally changed the meal available to employees on the graveyard shift, skimmed bargaining unit work, and breached its good faith bargaining obligation. Snohomish County, Decision 12826. The union appealed the dismissed allegations, except for the urinalysis supervision claim. The employer cross-appealed the Examiner’s conclusion of law which stated that the employer unilaterally changed the meal provided to corrections deputies on graveyard shift and breached its good faith bargaining obligation.
The nine issues before the Commission can be separated into two categories. The first category includes the issues for which the union did not appeal any of the findings of fact. Those issues include the alleged unilateral changes to the number of deputies on transport, the number of ballistic vest carriers that weapons-qualified deputies receive, the requirement for corrections deputies to assist during blood draws, and the meal available to corrections deputies on holidays. The second category includes the issues for which either the union or the employer appealed the findings of fact. Those issues include the alleged unilateral change to the number of response/escort officers (REOs) available for duty, the procedure for bidding for the technology specialist deputy position, the per diem reimbursement, the meal made available to corrections deputies on the graveyard shift, and the employer’s breach of its good faith bargaining obligation.
The Commission applies its experience and specialized knowledge in labor relations to decide cases. RCW 34.05.461(5). The Commission reviews conclusions and applications of law, as well as interpretations of statutes, de novo. The Commission also reviews findings of fact to determine if they are supported by substantial evidence and, if so, whether those findings in turn support the Examiner’s conclusions of law. C-TRAN (Amalgamated Transit Union, Local 757), Decision 7087-B (PECB, 2002). The Commission reviews factual findings for substantial evidence in light of the entire record. Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise. Public Employment Relations Commission v. City of Vancouver, 107 Wn. App. 694, 703 (2001); C-TRAN (Amalgamated Transit Union, Local 757), Decision 7087-B. The Commission attaches considerable weight to the factual findings and inferences, including the credibility determinations made by its examiners. Cowlitz County, Decision 7007-A (PECB, 2000). This deference, while not slavishly observed on every appeal, is highly appropriate in fact-oriented appeals. C-TRAN (Amalgamated Transit Union, Local 757), Decision 7087-B.
On appeal, unchallenged findings of fact are verities. City of Vancouver v. Public Employment Relations Commission, 180 Wn. App. 333, 347 (2014). With respect to the number of deputies on transport, the number of ballistic vest carriers that weapons-qualified deputies receive, the requirement for corrections deputies to assist during blood draws, and the holiday meals, the union did not appeal the findings of fact. Therefore, those findings of fact are verities on appeal. After reviewing the record, exhibits, and the parties’ briefs, the findings of fact support the conclusions of law. We affirm the Examiner.
The union challenged the findings of fact on the procedure for bidding for the technology specialist deputy position and the per diem reimbursement. The employer challenged the findings of fact on the employer’s good faith bargaining obligation. We must decide whether substantial evidence supports the Examiner’s findings of fact, and if those findings of fact support the Examiner’s conclusions of law. After reviewing the record, exhibits, and the parties’ briefs, we find the findings of fact support the conclusions of law. We affirm the Examiner.
Two issues remain. First, whether the employer unilaterally changed the number of REOs available for duty. Second, whether the employer unilaterally changed the meal that the employer made available to corrections deputies on the graveyard shift. We dismiss the allegation that the employer unilaterally changed the number of REOs as untimely. We reverse the Examiner’s conclusions of law that the employer unilaterally changed the meal available to corrections deputies on the graveyard shift. The union waived by contract its right to bargain the meal provided to corrections deputies.
ANALYSIS
Applicable Legal Standards
Statute of Limitations
“[A] complaint shall not be processed for any unfair labor practice occurring more than six months before the filing of the complaint with the commission.” RCW 41.56.160(1). A cause of action accrues, and the statute of limitations begins to run at the earliest point in time that a complaint concerning the alleged wrong could be filed. Municipality of Metropolitan Seattle, Decision 1356‑A (PECB, 1982), citing Edison Oyster Co. v. Pioneer Oyster Co., 22 Wn.2d 616 (1945). The statute of limitations is a jurisdictional issue that the Commission may raise at any time. City of Brier, Decision 10013-A (PECB, 2009); City of Bellevue, Decision 9343-A (PECB, 2007).
For notice to trigger the statute of limitations, the notice must be clear and unequivocal. Municipality of Metropolitan Seattle, Decision 1356-A, citing Peerless Roofing Co., Ltd. v. National Labor Relations Board, 641 F.2d 734 (1981). Unequivocal notice of a decision requires that a party communicate enough information about the decision or action to allow for understanding. City of Renton, Decision 12563-A (PECB, 2016). Statements that are vague or indecisive are not adequate to put a party on notice. Community College District 17 (Spokane Community College), Decision 9795-A (PSRA, 2008). To be clear and unambiguous, notice must contain specific and concrete information regarding the proposed change. City of Renton, Decision 12563-A.
The statute of limitations is a legal question, which we review de novo. Bilanko v. Barclay Court Owners Association, 185 Wn.2d 443, 448 (2016), citing Goodman v. Goodman, 128 Wn.2d 366, 373 (1995).
Unilateral Change
The parties’ collective bargaining obligation requires that the status quo be maintained regarding all mandatory subjects of bargaining, except when any changes to mandatory subjects of bargaining are made in conformity with the statutory collective bargaining obligation or a term of a collective bargaining agreement. City of Yakima, 3503-A (PECB, 1990), aff’d, City of Yakima v. International Association of Fire Fighters, Local 469, 117 Wn.2d 655 (1991); Spokane County Fire District 9, Decision 3661-A (PECB, 1991). As a general rule, an employer has an obligation to 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; and bargains to agreement or a good faith impasse concerning any mandatory subject of bargaining. Port of Anacortes, Decision 12160-A (PORT, 2015); Griffin School District, Decision 10489-A (PECB, 2010), citing Skagit County, Decision 8746-A (PECB, 2006).
To prove a unilateral change, the complainant must prove that the dispute involves a mandatory subject of bargaining and that there was a decision giving rise to the duty to bargain. Kitsap County, Decision 8292-B (PECB, 2007). A complainant alleging a unilateral change must establish the existence of a relevant status quo or past practice and that a meaningful change to a mandatory subject of bargaining occurred. Whatcom County, Decision 7288-A (PECB, 2002); City of Kalama, Decision 6773-A (PECB, 2000); Municipality of Metropolitan Seattle (Amalgamated Transit Union, Local 587), Decision 2746-B (PECB, 1990). For a unilateral change to be unlawful, the change must have a material and substantial impact on the terms and conditions of employment. Kitsap County, Decision 8893-A (PECB, 2007), citing King County, Decision 4893-A (PECB, 1995).
Past Practice
A past practice is a course of dealing 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, citing City of Pasco, Decision 4197-A (PECB, 1994). To be an established past practice, the practice must be consistent, known to all parties, and mutually accepted. Whatcom County, Decision 7288-A; Snohomish County, Decision 8852‑A (PECB, 2007).
Waiver by Contract
Waiver is an affirmative defense. Lakewood School District, Decision 755-A (PECB, 1980). A contractual waiver of statutory collective bargaining rights must be consciously made, must be clear, and must be unmistakable. City of Yakima, Decision 11352-A (PECB, 2013); City of Yakima, Decision 3564-A (PECB, 1991). When a knowing, specific, and intentional contractual waiver exists, an employer may lawfully make changes so long as those changes conform to the contractual waiver. City of Wenatchee, Decision 6517-A (PECB, 1999). The burden of proving the existence of the waiver is on the party seeking enforcement of the waiver. Lakewood School District, Decision 755-A.
Application of Standards
The complaint alleging a unilateral change to response/escort officer staffing is untimely.
On November 23, 2015, Major Jamie Kane e-mailed the supervisors a draft 2016 break/training schedule that included a plan to assign the REOs to the duty stations of corrections deputies who were attending training for the first hour and fifteen minutes of the shift.[1] On November 25, 2015, Kane e-mailed the REO plan to the union. Kane explained that the employer wanted to complete the change on a timeline and wanted to implement by the first quarter of 2016. Kane said, “This is your opportunity to give input (we can still sit down and discuss it prior to final implementation 1st quarter of 2016).”[2]
On January 25, 2016, Kane e-mailed the union that the REO plan would be effective January 31, 2016.[3] On May 26, 2016, the union demanded to bargain the REO change.[4]
On September 14, 2016, the union filed an unfair labor practice alleging that since January 2016 the employer stopped using overtime to cover training and instead used the REOs to cover training. The union alleged it demanded to bargain the how the employer used REOs and that the parties met between January and April 28, 2016, to negotiate. The preliminary ruling framed the issue as employer refusal to bargain, since April 28, 2016, by unilaterally reducing the number of REOs available to respond to emergencies in the jail.
An employer must give notice of proposed changes before making a change to a mandatory subject of bargaining. Washington Public Power Supply System, Decision 6058-A (PECB, 1998). Indeed, if an employer is to fulfill its bargaining obligation, it must provide notice of a contemplated change. Id. It is not the employer’s obligation to invite the union to bargain. After receiving notice of a proposed change, it is the union’s obligation to request bargaining. City of Centralia, Decision 1534 (PECB, 1983).
In this case, Kane notified the union on November 25, 2015, that the employer planned to change the break matrix and have REOs cover for training. Kane was clear in his message that this was the union’s “opportunity to give input.”[5] As demonstrated by the employer and union working quickly to agreement on the use of REOs in booking, there was time for the parties to discuss the change before the employer’s planned implementation date in the first quarter of 2016.[6]
The Examiner entered finding of fact 17, which the union appealed.
17. The union did not demand to bargain the changes to the break schedule during the two months between Kane’s November and January e-mails, and the union did not broach the subject during the parties’ six labor-management meetings in February, March, and April after the changes were implemented.
Substantial evidence supports this finding of fact. Following the notice on November 25, 2015, the union did not request to bargain the issue until May 26, 2016[7]—four months after the employer provided a second notice of the change. The union filed the unfair labor practice complaint on September 14, 2016. Nine and one-half months after the first notice. Eight months after the second notice. Seven and one-half months after the change. The union’s complaint is untimely.
The union waived by contract the right to bargain the meals served to employees.
The union argued that the employer unilaterally changed a mandatory subject of bargaining when it provided employees on the graveyard shift with a cold sack meal for breakfast instead of a hot meal. The Examiner agreed. The employer appealed. The employer argued that the language in the collective bargaining agreement allowed the employer to change the meal provided to employees because the union waived by contract its right to bargain. We agree.
The employer and the union were parties to a collective bargaining agreement effective January 1, 2015, through December 31, 2017. Appendix A.4 of the collective bargaining agreement covered the meals the employer provided to employees while on duty.
A.4 Meals - The Employer shall make available to the employee the meal provided to the confined jail inmates for each day the employee is on duty and remains within the jail facilities during the meal period. The Employer shall also provide a meal at no cost to the employee for those officers performing bargaining unit work outside of the Corrections facilities (i.e. hospital, etc.).
The employer has the right to determine what food it provides to the inmates. The employer decided to change the breakfast meal for inmates. On April 25, 2016, Captain Daniel Stites sent a memo to staff that effective May 5, 2016, the employer would provide inmates with a cold sack meal for breakfast. On May 5, 2016, the employer implemented the change. In compliance with the collective bargaining agreement, the employer made the same meal available to employees as the employer provided to inmates.
The past practice is that the employer provided the employees with the same meal that was provided to inmates. The past practice is not, as the union contends, providing the employees with a hot meal.
The language of Appendix A.4 has been in the collective bargaining agreement since the 1980s. The union and employer agreed that employees would receive the same meal the employer provided to inmates. Thus, the Appendix A.4 is a clear, unmistakable waiver of the union’s right to bargain what meal the employer provides employees.
CONCLUSION
The union’s complaint alleging the change to the number of REOs was untimely. We reverse the Examiner’s conclusion that the employer unilaterally changed the meal provided to employees on the graveyard shift. The union waived by contract its right to bargain the meal provided to employees when it agreed that the employer would provide employees with the same meal as inmates. We affirm the Examiner on all other issues.
ORDER
The findings of fact entered by Examiner Stephen W. Irvin are affirmed and adopted as the findings of fact of the Commission. Conclusions of law 1 through 4 and 6 through 14 are affirmed and adopted as the conclusions of law of the Commission. We vacate conclusion of law 5 and substitute the following conclusion of law:
5. By its actions described in findings of fact 48 through 52, the employer did not refuse to bargain in violation of RCW 41.56.140(4) and (1) by unilaterally ending the practice of providing bargaining unit employees working on the graveyard shift with hot meals and instead providing the employees with cold, sack lunches.
The order issued by the Examiner, modified:
SNOHOMISH COUNTY, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:
1. CEASE AND DESIST from:
a. Skimming work historically performed by employees represented by the Snohomish County Corrections Guild, without providing the guild notice and opportunity to bargain.
b. Refusing to bargain with the Snohomish County Corrections Guild regarding the transfer of bargaining unit work to employees in other bargaining units.
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. Give notice to and, upon request, negotiate in good faith with the Snohomish County Corrections Guild, before transferring bargaining unit work outside the bargaining unit or implementing any changes in the wages, hours, and working conditions of its employees represented by the guild.
b. Compensate employees in the affected bargaining unit for overtime lost for transporting inmate work crews to the fairgrounds through December 31, 2016, as a result of the employer’s transfer of bargaining unit work outside the bargaining unit found unlawful in this order.
c. 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.
d. Read the notice provided by the Compliance Officer into the record at a regular public meeting of the County Council of Snohomish 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.
e. 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.
f. 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 15th day of June 2018.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
MARK E. BRENNAN, Commissioner
MARK BUSTO, Commissioner