Snohomish County, Decision 13480-A - PECB (PECB, 2023)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
Snohomish county Complainant, vs. SNOHOMISH COUNTY, Respondent. |
CASE 134640-U-21 DECISION 13480-A - PECB Findings of fact, |
Amme Verbarendse and John A. Follis, Attorneys at Law, Anderson Hunter Law Firm, for the Snohomish County Corrections Guild.
Douglas J. Morrill, Deputy Prosecuting Attorney, Snohomish County Prosecuting Attorney Adam Cornell, for Snohomish County.
In this case, the Snohomish County Corrections Guild pursues 11 separate claims against Snohomish County. The Guild fails to carry its burden of proof on each of the issues, and so the complaint is dismissed in its entirety.
The Guild claims[1] that the County committed domination or assistance of a union by selecting and contacting a specific deputy to conduct the Guild’s new hire training. This claim is dismissed because the preponderance of the evidence does not show that the employer intended to dominate or assist the Guild.
The Guild claims that the County unlawfully refused to meet and negotiate with the Guild during previously scheduled Labor / Management meetings. This claim is dismissed because the preponderance of the evidence does not show that the employer refused to meet to bargain a mandatory subject of bargaining.
The Guild claims that the County unilaterally changed Labor / Management meetings. This claim is dismissed because the details of Labor / Management meetings involved here are not mandatory subjects of bargaining.
The Guild claims that the County committed a unilateral change by utilizing deputies in 4 North module to fill duties in the 4 South module without utilizing the “REO 9” position. This claim is dismissed because the Guild has not carried its burden of proving that there was any actual change to the past practice during the statute of limitations period.
The Guild claims that the County unilaterally changed the mandatory training deadline. This claim is dismissed because the preponderance of the evidence shows that there was not a change to the past practice during the statute of limitations period.
The Guild claims that the County unilaterally changed the use of the provisional sergeant position. This claim is dismissed because the preponderance of the evidence shows that there is an existing past practice of using provisional sergeants, and the evidence does not show that there was an agreement or past practice to never use provisional sergeants unless the Guild agreed.
The Guild claims that the County unilaterally changed the process and time for the Guild to view video evidence prior to investigations. This claim is dismissed because the preponderance of the evidence shows that that there was no change to past practice.
The Guild claims that the County unilaterally changed the swing shift deputies’ mandatory overtime process. This claim is dismissed because the Guild did not carry its burden of proving that there was any change to the past practice.
The Guild claims that the County unilaterally changed the union notification process when an investigation is being conducted on a member. This claim is dismissed because contrary to the Guild’s allegation, the preponderance of the evidence shows that no bargaining unit members were interviewed prior to the notice to the Guild.
The Guild claims that the County committed unlawful interference by making threats of reprisal or force, or promises of benefit, regarding the parties’ negotiations for a successor contract. This claim is dismissed because the Guild does not show that any threats of reprisal or force, or promises of benefit, were made regarding the parties’ negotiations for a successor contract.
The Guild claims that the County made a unilateral change to uniform policies and the shift bidding process. This claim is dismissed because the preponderance of the evidence shows that there was no change to the past practice of providing three uniforms to deputies; and the preponderance of the evidence shows that the Guild was notified and agreed to the change to the shift bidding process.
Issues
As set forth in the preliminary ruling dated November 23, 2021, and the amended preliminary ruling and order of partial dismissal dated February 22, 2022, Snohomish County, Decision 13480 (PECB, 2022), the following alleged violations are at issue in this case:
1. Employer domination or assistance of a union in violation of RCW 41.56.140(2) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by selecting and contacting Deputy David Dunlap as the union representative during new hire orientation.
2. Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by failing or refusing to meet and negotiate with the exclusive bargaining representative of its employees, during the previously scheduled Labor / Management meetings.
3. Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the Labor / Management meetings, without providing the union an opportunity for bargaining.
4. Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing working conditions by utilizing deputies in 4 North module to fill duties in the 4 South module without utilizing the REO 9 position, without providing the union an opportunity for bargaining.
5. Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the mandatory training deadline, without providing the union an opportunity for bargaining.
6. Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the use of the provisional sergeant position, without providing the union an opportunity for bargaining.
7. Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the video viewing time and process, without providing the union an opportunity for bargaining.
8. Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the swing shift deputies’ mandatory overtime, without providing the union an opportunity for bargaining.
9. Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the union notification process when an investigation is being conducted on a member, without providing the union an opportunity for bargaining.
10. Employer interference with employee rights in violation of RCW 41.56.140(1) within six months of the date the complaint was filed by threats of reprisal or force, or promises of benefit, made regarding the parties’ negotiations for a successor contract.
11. Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing uniform policies and the shift bidding process without providing the union notice and an opportunity to bargain.
Background
The Snohomish County Jail is run by the Snohomish County Corrections Bureau, which is part of the Snohomish County Sheriff’s Office.
The Snohomish County Corrections Guild is the bargaining representative for Corrections Deputies who work at the jail. Deputy Charles “Chuck” Carrell is the current president of the Guild.
The chain of command at the jail is as follows: Corrections Deputies report to Corrections Sergeants, who report to Corrections Lieutenants, who report to Corrections Captain, who report to the Corrections Major, who reports to the Corrections Bureau Chief. Jamie Kane is the Corrections Bureau Chief. Alonzo Downing is a Corrections Major.[2] David Hall is a Corrections Captain. Didy Quick is a Corrections Lieutenant.[3]
On November 10, 2021, the Guild filed its original unfair labor practice complaint in this matter. On November 15, 2021, the Guild filed an amended complaint. It appears the only differences between the two complaints were the Guild’s contact information listed on the original complaint form, and the amended complaint was signed while the original was not. On November 23, 2021, Unfair Labor Practice Administrator Emily Whitney issued a preliminary ruling, finding that the Guild’s amended complaint stated nine causes of action. On December 14, 2021, the County filed an answer. On December 14, 2021, Michael Snyder was assigned as the Examiner. On January 5, 2022, the Guild filed a second amended complaint, adding additional allegations. On January 25, 2022, Examiner Snyder issued a ruling on motion to amend complaint and partial deficiency notice. On February 15, 2022, the Guild filed a third amended complaint. On February 22, 2022, Examiner Snyder issued an amended preliminary ruling and order of partial dismissal, Snohomish County, Decision 13480. Examiner Snyder found that the Guild’s third amended complaint stated two additional causes of action. On March 15, 2022, the County filed an amended answer. On August 11, 2022, I was assigned as the Examiner. A hearing was conducted January 9 through 13, 2023. The parties agreed to hold the hearing virtually using a videoconferencing computer program. The parties filed briefs to complete the record on March 24, 2023.
Further background information specific to each of the issues in this case is provided below.
Analysis
Applicable Legal Standards
Burden of Proof and Statute of Limitations
The complainant in an unfair labor practice case has the burdens of investigation and prosecution, as well as the burden of proof. WAC 391‐45‐270(1)(a); Whatcom County, Decision 7244-B (PECB, 2004); City of Seattle, Decision 6702 (PECB, 1999). A complainant in an unfair labor practice complaint bears the burden of proving by a preponderance of the evidence that the respondent did, in fact, commit the complained-of acts. The fact that a respondent declines to raise an affirmative defense or attempt to discredit a witness does not, in turn, satisfy a complainant’s burden. Seattle School District (Seattle Education Association), Decision 9355-C (EDUC, 2010).
“[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 (METRO), 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).
The timeliness of the complaint is a threshold question in any unfair labor practice case. If a complaint is not timely, the Commission does not have jurisdiction to remedy it. City of Bellevue, Decision 9343-A (citing Clark v. Selah School District, 53 Wn. App. 832 (1989)); Stewart v. Omak School District No. 19, 108 Wn. App. 1049 (2001); Malpica v. Mary M. Knight School District No. 311, 93 Wn. App. 1084 (1999). “The [six-month statute of limitations] has been strictly enforced, even when settlement negotiations are occurring.” City of Bremerton, Decision 7739-A (PECB, 2003). The burden of proof to establish when the complainant learned of the issue giving rise to the unfair labor practice lies with the complainant, not the respondent. City of Pasco, Decision 4197-B (PECB, 1999). The time when a complainant has actual knowledge of a potential unfair labor practice for purposes of tolling the statute of limitations is an issue of fact. State – Corrections, Decision 11025-A (PSRA, 2011).
Domination
An employer violates RCW 41.56.140(2) when it controls, dominates, or interferes with a bargaining representative by involving itself in the internal affairs or finances of the union, or attempts to create, fund, or control a “company union.” State of Washington (Washington State Patrol), Decision 2900 (PECB, 1988); City of Anacortes, Decision 6863 (PECB, 1999). The union bears the burden of proof and must establish that the employer intended to control or interfere with the administration of the union and/or intended to dominate the internal affairs of the union. Northshore Utility District, Decision 10534-A (PECB, 2010) (citing King County, Decision 2553‐A (PECB, 1987)). A domination violation requires proof of employer intent. King County, Decision 2553-A; Snohomish County, Decision 9834 (PECB, 2007).
Failure to Meet
To prove a failure to meet, the complainant must demonstrate that it requested negotiations on a mandatory subject of bargaining and demonstrate that the other party failed or refused to meet with the complainant, or imposed unreasonable conditions or limitations that frustrated the collective bargaining process. State – Washington State Patrol, Decision 10314-A (PECB, 2010) (citing City of Clarkston (International Association of Fire Fighters, Local 2299), Decision 3246 (PECB, 1989)); Benton County, Decision 12920-A (PECB, 2019).
Unilateral Change
To prove a unilateral change, the complainant must establish that the dispute involves a mandatory subject of bargaining and that there was a decision giving rise to the duty to bargain. Whatcom County, Decision 13082-A; Kitsap County, Decision 8292-B (PECB, 2007). The complainant must establish the existence of a relevant status quo or past practice and a meaningful change to a mandatory subject of bargaining. Whatcom County, Decision 13082-A (PECB, 2020); 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. Whatcom County, Decision 13082‐A; Kitsap County, Decision 8893-A (PECB, 2007) (citing King County, Decision 4893-A (PECB, 1995)). A one-time occurrence does not necessarily equate to an actual change in policies or procedures. See King County, Decision 4258-A (PECB, 1994).
The “unilateral change” standard has been described as a four-element test, in which the union must prove
1. [t]he existence of a relevant status quo or past practice.
2. [t]hat the relevant status quo or past practice was a mandatory subject of bargaining.
3. [t]hat notice and an opportunity to bargain the proposed change was not given, or that notice was given but an opportunity to bargain was not afforded or the change was a fait accompli.
4. [t]hat there was an actual change to the status quo or past practice.
See, e.g., State – Employment Security, Decision 12913 (PSRA, 2018); City of Tukwila, Decision 10536-A (PECB, 2010).
Whether a particular subject is a mandatory subject of bargaining is a mixed question of law and fact for the Commission to decide. WAC 391-45-550. To decide, the Commission balances “the relationship the subject bears to [the] ‘wages, hours, and working conditions’” of employees and “the extent to which the subject lies ‘at the core of entrepreneurial control’ or is a management prerogative.” City of Everett (International Association of Fire Fighters, Local 46), Decision 12671‐A (PECB, 2017) (quoting International Association of Fire Fighters, Local Union 1052 v. Public Employment Relations Commission (City of Richland), 113 Wn.2d 197, 203(1989)).
While the balancing test calls upon the Commission and its examiners to balance these two principal considerations, the actual application of this test is more nuanced and is not strictly black and white. Subjects of bargaining fall along a continuum. At one end of the spectrum are grievance procedures and “personnel matters, including wages, hours and working conditions,” also known as mandatory subjects of bargaining. RCW 41.56.030(4). At the other end of the spectrum are matters “at the core of entrepreneurial control” or management prerogatives, which are permissive subjects of bargaining. City of Richland, 113 Wn.2d at 203. In between are other matters, which must be weighed on the specific facts of each case. One case may result in a finding that a subject is a mandatory subject of bargaining, while the same subject, under different facts, may be considered permissive. The decision focuses on which characteristic predominates. Id.
Independent Interference
To prove an interference violation, the complainant must prove, by a preponderance of the evidence, the employer’s conduct interfered with protected employee rights. Washington State Patrol, Decision 11775-A (PSRA, 2014); Grays Harbor College, Decision 9946-A (PSRA, 2009); Pasco Housing Authority, Decision 5927-A (PECB, 1997), remedy aff’d, Pasco Housing Authority v. Public Employment Relations Commission, 98 Wn. App. 809 (2000). An employer interferes with employee rights when an employee could reasonably perceive the employer’s actions as a threat of reprisal or force, or a promise of benefit, associated with the union activity of that employee or of other employees. Kennewick School District, Decision 5632-A (PECB, 1996).
An employer may interfere with employee rights by making statements, through written communication, or by actions. Snohomish County, Decision 9834-B (PECB, 2008); Pasco Housing Authority, Decision 5927-A, remedy aff’d, Pasco Housing Authority v. Public Employment Relations Commission, 98 Wn. App. 809.
The complainant is not required to demonstrate that the employer intended or was motivated to interfere with employees’ protected collective bargaining rights. City of Tacoma, Decision 6793‐A (PECB, 2000). Nor is it necessary to show that the employee involved was actually coerced by the employer or that the employer had union animus for an interference charge to prevail. Id.
Application of Standards
Issue 1: Employer domination or assistance of a union in violation of RCW 41.56.140(2) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by selecting and contacting Deputy Dunlap as the union representative during new hire orientation.
Additional Background
As part of the corrections bureau’s orientation process, the Guild is provided time to meet with new hires. During this time, the Guild explains its role to new hires and offers them the opportunity to become Guild members. Usually, a member of the Guild executive board conducts the Guild’s orientation.
Deputy Travis Luszey works in the training department and is responsible for scheduling new-hire orientations, including the Guild’s orientation time. On July 14, 2021, Deputy Luszey emailed Deputy Dunlap, asking if he was available to come in early to conduct a Guild orientation on July 21.[4] Deputy Dunlap was a member of the Guild’s executive board at that time and had conducted the prior Guild orientation. Between July 17 and August 5, Deputies Dunlap and Luszey exchanged messages about the scheduling of the Guild’s new hire orientation. On August 5, Deputy Luszey included the Guild’s Gmail account as well as Lieutenant Quick on the email string. Quick was the training sergeant and Luszey’s supervisor. Prior to this message, this correspondence had just been between Deputies Luszey and Dunlap.
Deputy Carrell brought this string of correspondence to Chief Kane, and Deputy Carrell insisted that the training department should have contacted the Guild board’s Gmail account rather than directly corresponding with Deputy Dunlap, an executive board member of the Guild. Captain Hall, Deputy Dunlap, Deputy Carrell, and Lieutenant Quick exchanged emails over the next several days regarding this issue.
Captain Hall told Deputy Carrell:
I believe that Deputy Dunlap has been the SCCG designated person to conduct the new hire orientations in the past (Dunlap correct me if I’m wrong). That being said, management did not select him nor do we have a preference on who does this. If Deputy Dunlap is no longer the guilds designated person, please let Deputy Luszey know who will be the new person doing them, as he coordinates most of the new hire training.
Deputy Dunlap responded, “I don’t mind doing the New Hires if I am available to do so. I don’t recall being assigned the SCCG designated person, but if it was that way, I don’t remember. I did do the last one with Cazac, but before that, it had been a couple years.” Captain Hall replied, “Copy, I had just remember [sic] you doing them in the past, either way, we will defer to the SCCG on who they would like conducting this portion of the New Hire orientation.”
Lieutenant Quick stated, “Please refer to your Guild email as the scheduling (or E-Board member Dunlap). The Training Department has no position on who instructs on said date.” Lieutenant Quick also said, “Guild member Deputy Luszey is in charge of the new hire schedule, not management. Please address your concerns directly with him as he has always constructed the calendar as a guild member.”
At the hearing, Lieutenant Quick credibly testified that she did not direct Deputy Luszey to contact Deputy Dunlap or select him to do the training, and that she had no preference who did the Guild’s orientation. Captain Hall, Lieutenant Quick, and Chief Kane also credibly testified that they did not direct anyone to pick a particular person to do the Guild’s orientation.
Application of Standards: Issue 1
The Guild did not address this issue in its brief.[5] I find that the Guild does not carry its burden of proof in establishing that domination or assistance occurred when Deputy Luszey contacted Guild executive board member Deputy Dunlap about doing the Guild orientation instead of contacting the Guild’s Gmail account.
The Guild’s evidence that Deputy Luszey contacted Dunlap at all, is entirely composed of hearsay. The Guild did not call Deputy Luszey or Deputy Dunlap to testify. The Guild’s case in chief on this issue was based entirely on Deputy Carrell’s testimony about emails he received from Deputies Luszey and Dunlap. “[T]he weight accorded to hearsay depends on the degree of independent corroboration that exists.” Town of Friday Harbor (Guild of Pacific Northwest Employees), Decision 13500-A (PECB, 2022) (citing Educational Service District 114, Decision 4361-A (PECB, 1994)).
To the extent that the Guild’s hearsay evidence has probative value, I do not find that it establishes that the County had intent to interfere with the internal affairs of the union, as required by Northshore Utility District, Decision 10534-A (PECB, 2010) and other cases.
The fact that Deputy Dunlap was a member of the Guild’s executive board at the time he was contacted by Deputy Luszey undermines the argument that management had an intent to circumvent the Guild executive board. The preponderance of the evidence also establishes that management did not care who conducted the Guild’s orientation. Members of management credibly testified to this effect, and I did not see any evidence to the contrary. Finally, the preponderance of the evidence establishes that management did not actually direct Deputy Luszey to specifically contact Deputy Dunlap instead of the Guild Gmail account. The preponderance of the evidence shows that Deputy Luszey did this without being specifically directed. Deputy Luszey was not called to testify to shed any light on why he contacted Deputy Dunlap instead of the Guild’s Gmail account.
In brief, the union fails to carry its burden of proof that when Deputy Luszley contacted Deputy Dunlap, the employer thereby intended to control or interfere with the administration of the union and/or intended to dominate the internal affairs of the union.[6]
Issue 2: Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by failing or refusing to meet and negotiate with the exclusive bargaining representative of its employees, during the previously scheduled Labor / Management meetings.
Additional Background
Labor / Management meetings have been a component of the relationship between the Guild and the corrections bureau management for some time. The parties’ collective bargaining agreement (CBA) provides that
the function of the [Labor / Management ] Committee shall be to meet on the call of either party to discuss issues of mutual interest or concern for the purpose of alleviating potential grievances and establishing a harmonious working relationship between the employees, the Employer, and the Guild. No less than a one (1) week notice of a requested meeting shall be given . . . .
At Labor / Management meetings, representatives of the Guild and management meet to discuss issues going on at the corrections bureau. As described in the CBA and as witnesses testified, the intent seems to be to “nip in the bud” potential grievances, unfair labor practices, or other conflicts. Chief Kane testified that Labor / Management meetings do not take the place of more formal bargaining, which take place separately. Deputy Carrell testified, “I don’t know if we necessarily do any contract negotiation things at labor/management. We generally try to avoid those type of things in a labor/management meeting. It’s more for the things that are in the contract. So contract violations, maybe, that are coming up.” To attend Labor / Management meetings, deputies must be relieved from their posts, which must be covered by other deputies working overtime.
At some point, the parties began scheduling Labor / Management meetings at regular intervals rather than setting up meetings ad-hoc. For a period of time in 2019 and 2020, the parties met every week. At some time in 2020, the parties began scheduling Labor / Management meetings every other week.[7]
At some point, Captain Hall and Chief Kane concluded that the Labor / Management meetings were not productive enough to justify meeting every two weeks. Chief Kane testified:
Snohomish County Jail, we’re one of the largest jails in the state, and it’s a significant operation to run. And when we will have meetings at times, it’s very apparent when there’s time left on the clock on the meeting, and there’s just nothing left to talk about, or there’s just not a lot of – like, we found that there was a lot of time left over in meetings, that they just weren’t productive. And with the – you know, we have other things to do if we can’t – if we don’t – if we don’t have things are – to have a labor/management meeting conversation where we could use our time productively, then we’re going to decrease the frequency. And conversely, we’ve also in our past increased the frequency when the meetings were – the topics were such that we weren’t having extra time left over in the meeting. We weren’t asking the same questions over and over again, and they were – they were productive. But this would go to any aspect of the corrections bureau and how I manage meetings and schedules. We’re going to meet as frequently as we need to. And that could be very frequent or infrequent.
. . . .
. . . I believe that, like I said before, it was a matter of just we weren’t having – I don’t want to say that we weren’t having productive conversations because that would just mean that we were maybe not agreeing or arguing. But what I mean by not productive conversations is that there was nothing left to talk about with significant chunks of time on the clock. So again, when we’re going to – you know, when we’re telling deputies they can’t go home because we have to go cover meetings for them, that’s absolutely worth it if we’re going to get – have those conversations, whether we agree or disagree, and hash those things out. But when we’re not utilizing that time effectively, then we’re going to reduce the time. And I believe we were going through a piece of our history at that point in time where things just weren’t very productive.
(attorney’s questions from transcript omitted).[8]
On July 14, 2021, Captain Hall sent an email to Deputy Carrell, the Guild Gmail account, Major Downing, and Chief Kane, stating “We will be moving the labor management meetings from twice a month (every other Thursday), to once a month (every third Thursday). Of course, if you have any urgent matters that you would like to address between scheduled meetings, we can have those discussions as needed.” Captain Hall testified:
[I]t wasn’t necessary to meet twice a month. The meetings . . . they weren’t very productive. There was a lot of downtime in the meetings. And so we moved them to once a month to save time. You know, we have to backfill all of these positions. Usually involves overtime, oftentimes mandatory overtime. So we were trying to reduce that. And, you know, as I stated in this email that if they had anything urgent that they needed to discuss, we would, and we have, had impromptu meetings to accommodate that.
On August 4, 2021, Deputy Carrell responded to Captain Hall, objecting to Captain Hall’s message and “demanding to keep the status quo of every other Thursday.” Since the Labor / Management meetings had been changed to once a month, the meetings had sometimes been cancelled by the County or the Guild. Deputy Carrell testified that reducing the frequency of the meetings has impacted the Guild’s ability to resolve issues.
Application of Standards: Issue 2
The preliminary ruling found that the Guild stated a cause of action for “failing or refusing to meet and negotiate with the exclusive bargaining representative of its employees, during the previously scheduled labor management meetings.”
The Guild did not address the “failure to meet” issue in its brief.[9] I do not find that the Guild has carried its burden of proof on this issue.
An essential element of a “failure to meet and negotiate” unfair labor practice is that the union “requested negotiations on a collective bargaining agreement or some issue that was a mandatory subject of bargaining.” State – Washington State Patrol, Decision 10314-A. Here, the preponderance of the evidence indicates that the Labor / Management meetings were part of an informal dispute resolution, “nip in the bud” process. Deputy Carrell testified, “I don’t know if we necessarily do any contract negotiation things at labor/management. We generally try to avoid those type of things in a labor/management meeting.” In the first amended complaint, the Guild stated that Labor / Management meetings were “to discuss any issues of concern, or events that could be resolved without a formal demand to bargain or grievance” (emphasis added), indicating that the meetings were an alternative to bargaining. The record does not indicate that any Labor / Management meetings were for the purpose of collective bargaining over mandatory subjects.
Moreover, although management stopped pre-scheduling standing biweekly meetings, management told the Guild they would meet between scheduled meetings as needed. The record does not contain evidence of any specific time during the statute of limitations period where management ever refused to meet when requested by the Guild.
I found no basis in case law for finding that one party stating they would only meet for Labor / Management meetings once a month instead of every other week is a “failure to meet” violation.
In sum, the Guild does not carry its burden of proof that the County “fail[ed] or refus[ed] to meet and negotiate with the exclusive bargaining representative of its employees, during the previously scheduled labor management meetings.”
Issue 3: Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the Labor / Management meetings, without providing the union an opportunity for bargaining.
Additional Background
As stated in the background for Issue 2 above, by late December 2020, the parties had been pre‐scheduling Labor / Management meetings to occur every other week. In July 2021, Captain Hall informed the Guild that management would only pre-schedule Labor / Management meetings for once a month.[10] Deputy Carrell objected to this change and demanded that the parties continue to meet every other week.
Application of Standards: Issue 3
The preliminary ruling found a cause of action existed for “[u]nilaterally changing the labor management meetings.”[11] The preliminary ruling does not say what specific change with respect to Labor / Management meetings is at issue here. The Guild appears to take issue primarily with the County’s change from pre-scheduling Labor / Management meetings every two weeks to pre‐scheduling them once a month. The Guild also complains that management “started to insist on a specific agenda for any meetings,” and that the employer “changed the nature of the meetings deciding to now include discussions of grievances.”
Whatever the specific theory, I find that the Guild does not carry its burden of proof that the employer unilaterally changed the Labor / Management meetings.[12] The fatal flaw in the Guild’s case is that these issues are not mandatory subjects of bargaining. An essential element of the Guild’s complaint is that the decision at issue must be a mandatory subject of bargaining. Snohomish County Police Staff and Auxiliary Services Center, Decision 12342‐A (PECB, 2016) (confirming mandatory subject is an essential element of a “unilateral change” case). The Guild does not address in its brief whether the issues relating to Labor / Management meetings are mandatory subjects of bargaining.[13]
The mandatory or permissive nature of a subject is determined by balancing “the relationship the subject bears to [the] ‘wages, hours and working conditions’” of employees and “the extent to which the subject lies ‘at the core of entrepreneurial control’ or is a management prerogative.” City of Everett (International Association of Fire Fighters, Local 46), Decision 12671-A (citing City of Richland, 113 Wn.2d at 203).
I find that the subject of pre-scheduling Labor / Management meetings to occur once a month versus every other week is not closely related to wages, hours, and working conditions of employees. On the other side of the balance, I think it is within each parties’ own prerogative to attend Labor / Management meetings only to the extent that they determine the meetings are productive. The issue of the frequency of pre-scheduled Labor / Management meetings seems to be in the same category as ground rules or other matters that have to do with the procedural aspects of the relationship between unions and employers, which have been consistently found to be nonmandatory subjects. See Whatcom County, Decision 7244-B (concluding proposal “governed the relationship between the union and employer, and did not directly impact the employees”); State – Office of Financial Management, Decision 11084-A (PSRA, 2012).[14] See also State of Iowa v. Public Employment Relations Bd., 508 N.W.2d 668, 675 (Iowa, 1993) (showing establishment and operation of Labor / Management committees are not mandatory subjects).[15] Accordingly, I find that the frequency of Labor / Management meetings is not a mandatory subject of bargaining.
The record here shows that Labor / Management meetings were at times productive. The record also shows that the meetings impact the corrections bureau’s operations, taking up work time of the management and Guild representatives in attendance. For every meeting, the Guild’s representatives need to be backfilled by other deputies on overtime. If a party determines that pre‐scheduling Labor / Management meetings every other week is not in the best interest of the relationship or operations, or otherwise a good use of time, they can lawfully stop participating in such standing meetings. I will not force the County and the Guild to continue having standing meetings where one party believes they are not productive.
Whether agendas should be submitted in advance of Labor / Management meetings is also a nonmandatory subject. Whether agendas are submitted in advance of Labor / Management meetings is not closely related to wages, hours, and working conditions of employees. It is within each party’s own prerogative whether to attend Labor / Management meetings, and if a party decides that it will not be productive to attend a Labor / Management meeting if there is no agenda or the agenda doesn’t seem to be substantial, I believe that is a choice they are free to make.
Similarly, whether grievances are discussed at Labor / Management meetings is not closely related to wages, hours, and working conditions of employees. Each party is free to decide on its own whether to discuss grievances at Labor / Management meetings.[16]
In sum, the Guild does not establish that the County unilaterally changed the Labor / Management meetings, because the complained-of changes are not mandatory subjects of bargaining.
Issue 4: Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing working conditions by utilizing deputies in 4 North module to fill duties in the 4 South module without utilizing the REO 9 position, without providing the union an opportunity for bargaining.
Additional Background
New Policies for Maximum Security Units
Snohomish County Jail inmates are housed in different modules, some of which are specifically tailored to different types of inmates. The 4 South and 4 North modules on the fourth floor, and the 5 North module on the fifth floor, are designated for maximum security inmates.
Prior to 2017, deputies provided maximum security inmates with their recreation time by simply opening their cell door and allowing them to use the day area within their housing module, immediately outside their cells. This practice resulted in inmates assaulting deputies. In response, management changed the policies relating to recreation time for maximum security inmates. Under the new policies established in 2017,[17] these inmates now take their recreation time in a secure area outside of the module. Deputies cuff the inmates through the cuff port of the cell door, escort them to the recreation area, and then uncuff them so they can enjoy their recreation time.
The new policies required that two deputies participate in moving the maximum security inmates to and from their recreation area (hereinafter referred to as the “two-deputy requirement”). It would be a violation of the new policies for a single deputy to carry out this movement without the assistance of a second deputy.[18]
As part of the new policies, management created a new post, called REO 9.[19] The REO 9 post was specifically designated to assist with the movement of maximum security inmates, supporting the two-deputy requirement.[20]
Under the new policies, when a maximum security inmate needed to be transported, the deputy assigned to the maximum security module would use their radio to request a second deputy to assist with the transport. An REO 9 would come and assist, or if the REO 9 was unavailable, another deputy would come and assist. The new policies did not mandate that the maximum security deputies could only use REO 9 for assistance.
Management Stops Staffing the REO 9 Post
Soon after the new policies were implemented, management noticed that assisting with the movement of maximum security inmates was not sufficient to keep the REO 9 post busy. Management began treating the REO 9 post as “supplemental,” meaning the post was also used for other things such as medical transport.
At some point, management stopped staffing the REO 9 post, although the post technically still exists. Nonetheless, the two-deputy requirement continued to be in effect.
The record is conflicting regarding when the decision to stop staffing REO 9 occurred. At one point during his direct testimony, Deputy Carrell suggested that the change occurred some time in 2021. Deputy Carrell testified:
As far as I know, [REO 9] was staffed the entire time since 2017 until 2021. I basically became aware at some point in 2021 that people were being told – well, they removed the staffing thing in there. And I was told that people were still being told to follow that policy and having deputies from other modules come over and assist . . . .
As is apparent from Deputy Carrell’s testimony, this is multiple degrees of hearsay. It is clear from the record that Deputy Carrell did not have any personal knowledge of when the change occurred. He stated, “I generally don’t work in the 4-South, typically. I’ve worked there a couple of times. But I typically don’t work in there so I wasn’t aware of when it stopped being staffed . . . .” He testified that his knowledge of the change was based on another deputy telling him about it, but he could not remember who told him.[21] Deputy Derek Henry also suggested that the change occurred in 2021. Deputy Henry testified that, at some point, Captain Hall and Major Downing confirmed that the two-deputy requirement would still be in place when REO 9 was no longer staffed. Deputy Henry thought this conversation might have been in late 2021.
At a different time in his direct testimony, however, Deputy Carrell indicated that the decision to stop staffing REO 9 occurred in 2020. Deputy Carrell had an email exchange with Deputy Craig Ottulich (described further below), who was the Guild’s board president at the time. Based on this exchange, Deputy Carrell testified:
My understanding from that is that the previous board was not under the same impression as what was represented to me by management, that they were only under the impression that REO 9 was being temporarily suspended because that first in COVID in 2020 there was a lot of – you know, a lot of things were done differently that year in 2020. And this was one of those things. I think they were under the impression that it was done temporarily due to the COVID thing, and but not on a permanent basis.”[22]
Chief Kane testified that REO 9 was “the least needed from an operational standpoint when we arrived at a place where we had to cut back through COVID” but did not provide an exact date when it stopped being staffed.
According to the minutes of a Labor / Management meeting on July 8, 2021, Major Downing (a captain at the time) said that “the REO-9 position was removed well over a year ago.”[23] Deputy Carrell tried to get confirmation from other deputies as to whether Major Downing’s statement was accurate, as discussed below, but it appears he was unsuccessful.
Deputy Jason Salt Warned for Violating the Two-Deputy Policy; Deputy Carrell Hears 4 North Deputies Are Assisting Deputies in 4 South and Investigates
On July 6, 2021, Deputy Carrell received an email from Deputy Ottulich, in which he wrote:
I don’t know if this happens on days but Sgt’s on swings are asking 4N deputies to cross the hall and assist in placing inmates on rec in 4SA. They even had a “conversation” with a swings deputy about moving an inmate from his cell to the video visit booth by himself. The inmate was restained [sic]. All reos on swings do breaks and without a REO 9 using 4N deputy doesn’t seem like the correct solution. Just FYI.
Deputy Carrell responded, saying that he wasn’t aware of this happening on dayshift and “this is the first that I’ve heard of it on any shift.”
On July 8, 2021, Deputy Salt was issued a Performance Incident Report (PIR) by Sergeant Roy. In the PIR, Sergeant Roy stated:
On Thursday, July 8, 2021 I entered 4SA where you were working your assigned post, and observed you moving an inmate from the outdoor rec area back to his cell. There was no other deputy or detention staff in 4SA. I recognized this to be a safety issue and a violation of policy. I asked you to have a conversation with me in the unit office. You told me that you were not aware that there must be two staff present to move inmates to and from rec. I told you that this has been policy for many years, it has been covered on turnover, and reiterated recently on Sharepoint. I asked you about a recent similar incident (21-1361 on May 7, 2021) in which you were moving an inmate in 4SA to and from video visit by yourself. This resulted in a use of force. You claimed to not recall it. Before leaving 4SA I made it clear that you are not to move inmates without a second staff member present. You said you understood.
Directive 17-00001 was put in place for the safety of staff and inmates. It has been in effect since 2017. It can be found on Sharepoint under Directives. I have also provided you a copy of it . . . .
Sergeant Roy noted that reminders about the two-deputy requirement had been posted on SharePoint[24] in May, June, and earlier in July, 2021.
On July 8, 2021, Deputy Carrell attended a Labor / Management meeting with Major Downing and Captain Hall, where Deputy Carrell brought up Deputy Ottulich’s email. Management denied that this was a new situation. The minutes stated:
C/D Carrell received an email that 4N deputies are being asked to assist 4S deputies in moving inmates from their cells for rec-time and visitation. C/D Carrell stated he was unaware this was happening and asked why it is occurring.
Captain Downing confirmed this option has been available to deputies since the REO-9 position was removed well over a year ago. Since all inmates in the 4N/4S modules are locked down, and it only takes 2-3 minutes to move an inmate, management is unclear why this is a problem. Captain Downing repeated this is just an “option” in the event a REO or supplemental deputy is not available in a timely manner to assist in moving an inmate. Deputies may still contact a Sergeant if they don’t get a response for back-up in a reasonable time (i.e. 3-5 minutes). Captain Hall also pointed out the 4N deputy’s absence from the module for several minutes is not unlike when they go to 4 Lobby and take a restroom break without relief.
C/D Carrell responded he believes most of his membership is unaware of this change and that by implementing it, Management is requiring deputies perform additional work as a substitute for the REO-9 position. He added he believes 90% of his members will move an inmate on the 4th floor without a 2nd C/D and requested written protocol be established to avoid possible disciplinary action for his members.
Captain Hall stated he believes Management’s directive to staff has been crystal clear that all moves on the 4th floor are to be done as a 2-C/D detail and that no deputy is to go one-on-one with an inmate. If there is a safety and security concern, the deputy should be calling the sergeant for assistance in setting up appropriate staffing for an inmate move. Both Captains also noted that up until today, Management has received no reports from any shift Sergeant regarding this issue. Captain Downing will speak with supervisors to make sure that all deputies in 4S and 5N are aware they need [to] contact a sergeant if they are unable to get back‐up.
(emphasis added). After the Labor / Management meeting, Deputy Carrell sent an email to Deputy Ottulich, reporting, “Captain Hall and Downing both said this was done a year ago when they eliminated REO 9.” Deputy Carrell said, “I don’t work on the 4th or 5th floor, so I can’t give any firsthand knowledge of what the practice has been since REO 9 was eliminated, so you might want to ask around to see if anyone else has more information.”
Later on July 9, 2021, Deputy Salt sent an email to Deputy Carrell about his PIR, stating,
I have been working 4SA, 4N C and D, and 5N two rotations out of the year for years now. I have never heard of using the 4N officer till I was written up on 7/8/21 with a negative PIR. If this was a thing that was put into effect I was unaware of it up till now. I have taken inmates in and out of their cell for rec in past on my own only if the other officers in the facility are unavailable for helping. I was informed this was not ok and will not escort without a second officer.
Neither Deputy Salt nor Sergeant Roy (who issued the PIR) was called to testify.
That afternoon, Deputy Carrell sent an email to Chief Kane, asserting that having 4 North deputies assist in 4 South was a change in practice, and demanding to bargain the change. The record does not indicate if Chief Kane responded to this email.
Deputy Ottulich responded to Deputy Carrell’s July 9 message on August 4, 2021, but did not clarify whether this was a year-old practice as Captain Hall and Major Downing had said. The next day, August 5, 2021, Deputy Carrell again asked Deputy Ottulich, “Can you confirm that what Captain Downing and Hall told me is not correct? I obviously wasn’t in those discussions last year, so I don’t know what conversations they are referring to.” Deputy Dunlap weighed in on the subject[25] but did not address whether Captain Hall and Major Downing were correct that this was a year‐old practice. Deputy Carrell responded, “I can only address the facts on this subject with management, not speculation or opinions. I’m looking for a first-hand account of what took place at these meetings . . . .” Deputy Ottulich responded again, and in this email, he does appear to say that the two-deputy requirement was not being implemented for a period of time:
I don’t recall any conversations regarding 4N leaving post or any conversations about escorting inmates to and from rec. I feel fairly confident considering all of swings started escorting alone until Sgt Roy passed out the policy long after I left office. Sgt Roy called 4N on the radio and asked if they could go assist 4S approximately a week ago so clearly no emails from command were sent out removing this practice. I happened to be breaking 4N at the time of the radio traffic and did not assist.
(emphasis added). Deputy Ottulich was not called to testify. The record is silent regarding whether Deputy Ottulich actually worked in 4 North or 4 South himself, or how he otherwise would have had personal knowledge regarding the practices at issue here. Deputy Dunlap also was not called to testify. The Guild did not call anyone else to testify when 4 North deputies began assisting deputies in 4 South without REO 9.[26]
Application of Standards: Issue 4
The issue for determination here, as stated in the preliminary ruling, is specific: the employer “unilaterally chang[ed] working conditions by utilizing deputies in 4North module to fill duties in the 4south module without utilizing the REO9 position, without providing the union an opportunity for bargaining” (emphasis added).[27] This issue is distinct from the employer’s decision to not fill the REO 9 post, which is beyond the scope of the preliminary ruling.[28]
I find that the Guild has failed to prove that “utilizing deputies in 4North module to fill duties in the 4south module without utilizing the REO9 position” was an actual change from the status quo that occurred during the statute of limitations period. This is an essential element of a “unilateral change” case, and the union bears the burden of proof on this element. See, e.g., State – Employment Security, Decision 12913 (PSRA, 2018). The deficiency in the Guild’s case here stems from its failure to put on clear evidence of the dates when events relating to REO 9 and the 4 North and 4 South deputies took place.[29]
As described above, the preponderance of the evidence is that since the implementation of the new policies in 2017, the two-deputy requirement has consistently been in place. The record also indicates that under the new policies, deputies in 4 South could be assisted by deputies other than REO 9 to carry out the two-deputy requirement. As noted above, the record did not clearly indicate whether management stopped staffing REO 9 before, or during, the statute of limitations period. It follows that when REO 9 became unstaffed while the two-deputy requirement continued, deputies other than REO 9 assisted with the movement of maximum-security inmates in 4 South. It seems likely that through this time, deputies in 4 North module were among those who assisted in the 4 South module without utilizing the REO 9 position.[30] When Deputy Carrell asked about 4 North deputies assisting in 4 South during the July 8, 2021, Labor / Management meeting, management told him that this had been the practice for over a year. Deputy Carrell attempted to investigate this statement, but he did not get a firm answer. The Guild did not establish that this practice only began during the statute of limitations period.
Deputy Carrell’s testimony that a change in practice occurred is not entitled to weight on this issue because he clearly indicated that he does not have any personal knowledge about the prior practice or even the alleged change. As Deputy Carrell said in his email to Deputy Ottulich trying to get more information, “I can’t give any firsthand knowledge of what the practice has been since REO 9 was eliminated, so you might want to ask around to see if anyone else has more information.”
The Guild relies heavily on Deputy Ottulich’s July 9, 2021, email, inferring that using 4 North deputies to assist in 4 South was a new practice at that time. Deputy Carrell said as much in his July 9 email to Chief Kane: “I received an email from Deputy Ottulich about this change on Wednesday, and this appeared to be a new change for him as well.” I do not find that Deputy Ottulich’s email satisfies the union’s burden of proof. I understand the inference Deputy Carrell and the Guild are making: why would Deputy Ottulich send this email if it wasn’t a change in practice? However, Deputy Ottulich does not actually say that 4 North assisting 4 South was a change in practice nor does he indicate how he would have personal knowledge of this. The record does not clearly indicate if Deputy Ottulich even works in 4 North or 4 South. The statements from Deputy Ottulich that are in the record are uncorroborated hearsay. The Guild did not call him to testify to provide any further clarification or corroboration. The Guild should have known that relying entirely on hearsay to establish its case would be insufficient to carry its burden of proving that the 4 North deputies began assisting in 4 South without utilizing REO 9 during the statute of limitations period. See Seattle School District (Seattle Education Association), Decision 9355-C (holding while “hearsay evidence is admissible in hearings before this agency, such evidence, standing by itself, has little probative value”) (citing Port of Tacoma, Decision 4626-A (PECB, 1995)); Educational Service District 114, Decision 4361-A (PECB, 1994) (demonstrating the “weight accorded hearsay testimony will generally depend upon the degree of independent corroboration that exists for the hearsay statement”); City of Renton, Decision 12563-A (PECB, 2016) (holding that the union did not carry its burden of proof when it relied on uncorroborated hearsay testimony to prove its allegations: “The union bears the burden of proving its allegations; it was the party responsible for presenting sufficient evidence, including calling witnesses, to substantiate its allegations.”).
In order to carry its burden of proof, the Guild needed to show that 4 North deputies did not previously assist in 4 South without utilizing REO 9 and that during the statute of limitations period, they did. Ideally, a witness who worked in 4 North or 4 South at this time would provide such testimony. The Guild did not provide such evidence.
Deputy Salt’s July 9, 2021, email to Deputy Carrell comes close:
I have been working 4SA, 4N C and D, and 5N two rotations out of the year for years now. I have never heard of using the 4N officer till I was written up on 7/8/21 with a negative PIR. If this was a thing that was put into effect I was unaware of it up till now.
The problem is that this, again, is hearsay, and the Guild did not call Deputy Salt to actually testify about this issue. It is unclear what exactly he means by “using the 4N officer” as Sergeant Roy did not mention this in the PIR. He was not asked to elaborate on the extent of his personal knowledge of the prior practices of the alleged change. Without corroborating evidence, his testimony is entitled to little evidentiary weight. Id.
No one working in 4 North or 4 South testified at the hearing that 4 North deputies only began assisting in 4 South without utilizing REO 9 during the statute of limitations period. The Guild did call Deputy Kelsey Ramirez to testify about this issue, but she testified only that she currently works in 4 North. Deputy Ramirez did not indicate whether she worked there during the six months preceding the filing of the complaint (the statute of limitations period). Deputy Ramirez also did not testify whether or when the two-deputy requirement was ever suspended, or when REO 9 stopped being staffed. Nor did she provide clear testimony as to whether 4 North deputies ever assisted in 4 South, either prior to or during the statute of limitations period.
In sum, to establish that “utilizing deputies in 4North module to fill duties in the 4south module without utilizing the REO9 position” was a change from the status quo that occurred during the statute of limitations period, the Guild’s best evidence are Deputy Ottulich’s and Deputy Salt’s uncorroborated hearsay statements. I find that this does not outweigh the employer’s evidence that this was not a change, and the Guild does not carry its burden of proof on this issue. See City of Tukwila, Decision 4968 (PECB, 1995) (“A complainant must establish a case based on evidence, and not on uncorroborated hearsay or suspicion.”) (citing East Wenatchee Water District, Decision 1392 (PECB, 1982); Southwest Snohomish County Public Safety Communications Agency, Decision 3289-B (PECB, 1990)).
Issue 5: Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the mandatory training deadline, without providing the union an opportunity for bargaining.
Additional Background
Deputies at the corrections bureau are required to regularly undergo training. Prior to 2020, training was assigned throughout the year and was often due 30–60 days after assignment.
When Lieutenant Quick became training sergeant in 2020, she heard complaints that it was difficult for some employees to complete their training under the existing timelines. She decided to front-load much of the year’s training, making it available at the beginning of the year and to set a due date of the end of October. Lieutenant Quick came up with the October deadline after consulting with the corrections bureau’s accreditation specialist.
There was still training due at other times throughout the year. Deputy Carrell testified:
There were some things that were still specific, like, say, our – if you were a firearms qualification, you had to go out and shoot. That was done, usually, typically every January. But other than that, the other training was all – if they gave you an assignment for training, it didn’t have to be done until October 31.
Later, Deputy Carrell said, “there’s annual firearms training that’s always done in January . . . . And CPR training is done on – on a separate basis. But everything else is not due until October.”
Lieutenant Quick also testified that in 2020 and 2021 there was training due at other times during the year.
Throughout the year there would be additional training. Some of it in-service, such as defensive tactics, TASER, CPR, and then whatever command deemed very relative and important to role out to everybody. . . .
. . . What happened in 2020 was that of the global pandemic. So there was a lot of changes to corrections, especially with PPE, so personal protective equipment, and so forth, and there was some training that was developed that we rolled out in addition to that via CorrectionsOne.
Other than Deputy Carrell’s generalized statements, the Guild did not rebut Lieutenant Quick’s testimony.
The County introduced separate emails that Lieutenant Quick sent to deputies in April and May 2021, informing them that their First Aid, Restraint Chair, and Handgun Proficiency trainings—which were due on March 31—were past due. The Guild did not specifically rebut this evidence.
On June 21, 2021, Lieutenant Quick sent an email to employees stating that certain staff, including Deputy Carrell, were past due on their “March 2021 Handgun Proficiency.”
Also on June 21, 2021, Lieutenant Quick sent an email to the corrections bureau workforce, titled “C1 online training REMINDER.” Lieutenant Quick wrote, “Effective Immediately: Staff who do not complete the CorrectionsOne Academy training by the due date (unless prior authorization is given / or on extended leave) will be subject to progressive disciplinary action.” (emphasis omitted). Lieutenant Quick testified that she used “effective immediately” to get employees’ attention and wasn’t trying to say that this was a change from the prior practice.
On June 22, 2021, Deputy Carrell forwarded the “C1 online training REMINDER” email to Chief Kane, stating that “the Guild [was] demanding to bargain this change to disciplinary action.” Chief Kane responded on June 23, 2021, stating, “There is no change. . . . We are all subject to progressive discipline for not getting assigned work done.”
Deputy Carrell and Chief Kane continued to exchange emails discussion this issue, and on July 1, 2021, Chief Kane attached a copy of a Guild grievance from April 23, 2018, where Deputy Henry asserts, “I was given a one day suspension along with a two year written reprimand for completing my ‘bloodborne pathogens’ online training two days late. . . . ” At the hearing, Chief Kane testified, “As far as completing it, and there potentially being consequences if it’s not completed, that is not a change.” Lieutenant Quick testified that being subject to potential discipline for not meeting a training due date was something that had been in place throughout her career. Lieutenant Quick further testified:
I don’t think there was a change. I think that’s the expectation of the employee under Snohomish County Sheriff’s Office to be in compliance with their mandatory training. And I expect for all of the rank and file to understand if you don’t get your training done by due dates that there will be progressive discipline. It’s not new. It’s implied. It’s mandatory for employment as a deputy under the Snohomish County Sheriff’s Office. It’s nothing new.
Lieutenant Quick also stated:
“[I]t’s always been the case 100 percent if you don’t get your mandatory training done, then it’s an – it’s expected that you do your training, then its common knowledge that if you don’t get your training done by the due dates by the mandate that you should expect progressive discipline to follow.”
Application of Standards: Issue 5
In its First Amended Complaint, the Guild alleged:
II.18 Guild and management had previously agreed that all mandatory training for corrections deputies would not need to be completed until the end of October each year.
II.19 On June 21, 2021, Sergeant Quick sent an email to corrections deputies that their training was past due. The email stated that if the training was not completed, the deputies would be subject to discipline. This represented a change in the above‐referenced agreement and in working conditions that could result in discipline to deputies.
The preliminary ruling recognized a cause of action for “[u]nilaterally changing the mandatory training deadline.” It is not clear which specific change regarding the mandatory training deadline the preliminary ruling is referencing. The Guild asserts that there was an agreement or past practice of all training being due on October 31 and seems to argue that this deadline was unilaterally changed. In its brief, the Guild asserted that “training would not be considered late unless it was completed after the October 31 deadline.” However, the Guild’s primary argument seems to be that Lieutenant Quick’s email threatening discipline for failing to complete assigned training was a unilateral change. In its brief, the Guild asserted, “Receiving progressive disciplinary action beyond a PIR for late training is not the standard practice.” The Guild concluded its discussion of the training issue by stating, “Based on the record, PERC should find that the County committed an unfair labor practice by threatening progressive disciplinary action.” Ultimately, the Guild does not carry its burden of proof on either theory.[31]
The Guild does not carry its burden of proof to establish an agreement or past practice of all mandatory training being due at the end of October. Testimony from both Lieutenant Quick and Deputy Carrell indicates that prior to the statute of limitations period, some mandatory training was due at times other than the end of October, such as firearms training, TASER, and CPR training. The Guild’s assertion in its brief that “all mandatory training for corrections deputies would not need to be completed until the end of October each year,” is contradicted by Deputy Carrell’s own testimony. The record shows that Lieutenant Quick notified deputies, by emails in April and May 2021, that they were overdue on First Aid, Restraint Chair, and Handgun Proficiency trainings, which were due in March. These emails were sent shortly before the statute of limitations period in this case.[32] Deputy Carrell testified that firearms training was a type of training that was due at other times during the year, and the past-due training that Lieutenant Quick emailed about on June 21, 2021 (which appears to be the subject of the Guild’s complaint), was specific to “Handgun Proficiency.” The preponderance of the evidence indicates that the past practice relating to training did not change during the statute of limitations period—much of the training is still due in October, but some is due at other times.
The Guild also does not carry its burden of proof to establish that warning employees that they could face discipline for failing to complete assigned training was a change in practice. I agree with Lieutenant Quick’s testimony that it seems logically implicit in the concept of mandatory training: if an employee doesn’t complete it, there could be a consequence. The Guild has not presented evidence to refute this logical conclusion. Instead, the preponderance of the evidence indicates that the potential discipline for missing training deadlines is not new. I credit Chief Kane and Lieutenant Quick’s testimony to this effect, and it is supported by the unrebutted evidence that Deputy Henry was disciplined for failing to complete training in 2018. The Guild did not introduce any evidence of an employee who had previously failed to complete assigned training and was not disciplined.[33]
Issue 6: Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the use of the provisional sergeant position, without providing the union an opportunity for bargaining.
Additional Background
For some time, the corrections bureau has used a position called “provisional sergeant.” A provisional sergeant is essentially a deputy who is working out-of-class, filling a sergeant position that is temporarily vacant. The deputies who become provisional sergeants have taken the training to become sergeants. Many deputies who work as provisional sergeants are eventually fully promoted to sergeants. When a deputy is acting as a provisional sergeant, their deputy post must be backfilled using overtime.
Around 2019, a deputy acting as a provisional sergeant got into trouble, and it was unclear whether this individual would be represented by the Guild or by the Teamsters, who represents the unit of sergeants and lieutenants. Chief Kane agreed to pause the utilization of provisional sergeants while the questions about representation were figured out.
Around February 2021, Chief Kane determined that the corrections bureau should resume using provisional sergeants. On February 16, 2021, Deputy Chicara Chesney was appointed to a provisional sergeant position.
Deputy Carrell emailed Chief Kane on February 26, 2021, demanding to bargain the issue. Chief Kane responded that it was not a new program and stated, “I don’t believe there has been a change to bargain.”
On March 18, 2021, the Guild and management met for a Labor / Management meeting. According to the minutes, the issue relating to union representation of provisional sergeants was discussed. The parties talked about setting up a meeting with the County and the Teamsters, and the minutes stated that “Chief Kane repeated his agreement to not make any additional provisional sergeant appointments until first notifying the guild.”
Deputy Carrell testified that “Chief Kane had agreed to put the program paused until we could work out some resolution to it.” Deputy Carrell was asked when this occurred, and he stated, “I don’t remember the exact date, off the top of my head. But I want to say it was like it was in April or May [2021]. Somewhere in there.”
On April 29, 2021, the Guild and the County had a Labor / Management meeting. According to the minutes, “Chief Kane was clear that his concerns [had] been resolved, and he [did] not believe appointing further provisional sergeants would require any further work on management’s part to this long-standing practice.”
On May 1, 2021, Deputy Chesney was promoted to a full sergeant (thus her provisional sergeant appointment ended).[34] On May 13, 2021, Chief Kane sent an email to the Guild and others stating,
“Our most recent Provisional Sergeant was fully promoted on May 1, 2021, so we currently do not have one. However, due to some long term leave amongst the Lt/Sgt group, I plan on bringing up a couple more Provisionals in the next few weeks. I originally agreed with the Guild to hit pause on the program as I had some concerns about representation. Since then I have had those questions answered for me, but the Guild still has concerns of their own.”
On May 30, 2021, Deputy Scott Warnken was appointed to a provisional sergeant position. Deputy Zachary Woods was appointed to a provisional sergeant position on July 1, 2021. Deputy Justin Manchester was appointed to a provisional sergeant position on October 30, 2021.
Application of Standards: Issue 6
In its complaint, the Guild asserted that
“[o]n May 13, 2021, Snohomish County Sherriff’s Office Corrections bureau Chief Kane sent an email to the Guild and the Teamsters 763 union, which represents the corrections sergeants and lieutenants bargaining unit. Chief Kane communicated that while he had agreed to pause the utilization of the provisional sergeant positions, he intended to resume using those positions once again.”
The Guild further asserted, “The County had previously agreed not to use these positions until this was negotiated with the Guild.” Id. The Guild asserted that Deputy Carrell demanded to bargain the re-institution of provisional sergeants, and the County refused. Id.
Here, the preponderance of the evidence is that the County had a past practice of appointing provisional sergeants, including in February 2021, shortly before the statute of limitations period for this case.
The Labor / Management meeting minutes of March 18, 2021, state that Chief Kane agreed to “not make any additional provisional sergeant appointments until first notifying the guild.”[35] I find that the commitment to “notify” the Guild prior to appointing additional provisional sergeants falls short of “agree[ing] not to use these positions until this was negotiated with the Guild” as alleged in the complaint. I do not find that this statement by Chief Kane is sufficient to nullify the prior practice of using provisional sergeants and replace it with a new practice of never using them. I do not find that Deputy Carrell’s uncorroborated testimony that “Chief Kane had agreed to put the program paused until we could work out some resolution to it” is enough to carry the Guild’s burden of proof to establish an actual agreement to never use provisional sergeants. The Guild simply does not provide sufficient evidence to establish that there was a past practice or agreement to never use provisional sergeants without bargaining with the Guild.
Issue 7: Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the video viewing time and process, without providing the union an opportunity for bargaining.[36]
Additional Background
Article 15.7 of the parties’ CBA provides, “An employee who is the subject of an investigation shall be allowed to privately view the video with a Guild representative immediately prior to his/her interview concerning the alleged misconduct.” At the hearing, Deputy Carrell was asked “In the past have there been any limitations on the amount of video that could be reviewed?” Deputy Carrell answered:
No. Typically, my experience since this language has been in place there, you know, when it comes to the viewing time, or however you want to call it, it’s basically hour for hour. You know, you – you can expect that if you’re going to get an hour’s worth of video, it’s going to take you an hour to review the video. Right? Depending on what it is. Now, there are some times you can speed it up if there’s nothing of any – I guess graveyard is a good example, where all the inmates are locked down for three or four hours, and you’re looking for one specific thing or something. You could speed up and go through some of that. . . .
In mid-2021, Deputy Mount was under investigation for allegedly failing to conduct required module checks. [37] Deputy Carrell testified he was provided with 48 hours of video prior to Deputy Mount’s interview. The video was offered to show that Deputy Mount did not go upstairs to conduct module checks every half-hour as required. Captain Hall testified that it would have been easy to see from the video whether Deputy Mount went upstairs or not.
Initially, Sergeant Lee told Deputy Carrell that he could have two days of paid time to view the video.[38] According to Deputy Carrell, Sergeant Lee then told him that he would get two hours of paid time to view the video. Deputy Carrell asked for more time, and Sergeant Lee scheduled Deputy Carrell for four hours.
On August 13, 2021, Deputy Carrell sent Sergeant Lee an email saying, “the Guild requested an additional 4 hours to review, and this was agreed upon and approved by Chief Kane.” Deputy Carrell told Sergeant Lee, “[W]e used the entire 8 hours to review the 48 hours of video footage. This was only possible because all of these events occurred on the graveyard shift and there was limited movement that didn’t interfere with the video when it’s being sped up.” Deputy Carrell testified:
48 hours of video, we’re still rushing through it. And the only reason that was even doable was because a lot of this time was happening on graveyard where I could fast forward through it ten times the speed to try to get to the relevant portions. I mean, but if that had happened on day shift or swing shift where there’s a lot of movement, there’s no way I could have discerned what was going on.
Deputy Carrell was asked several times on cross-examination whether he asked for more time beyond the eight hours provided by Chief Kane. He said:
I think I did. I’m trying to remember now if I actually emailed him or not. I certainly did. . . .
. . . .
I don’t remember if it was Chief Kane. I don’t want to say Chief Kane. Somebody in management. . . .
. . . .
It could have been Captain Hall or Major Downing. One of those people. . . .
. . . .
. . . I don’t remember if it was Chief Kane, but it was certainly somebody in management. I said, you know, this is not enough time. We’re rushing through this just to watch . . . .
. . . .
. . . And I had a conversation with somebody when I gave them back because I knew we were rushing through it. And I don’t want to say Chief Kane. . . . I can’t remember if it was Chief Kane or Captain Hall. Somebody from management and I had a conversation.
(transcript references to attorneys’ questions, and other testimony by Deputy Carrell, omitted). Chief Kane testified that Deputy Carrell did not ask him for more time. Chief Kane said, “I never received a request to go on. I mean, they could have kept watching video past 4 p.m. on their own time. But they also could have watched it on paid time if they would have requested more.” Captain Hall and Major Downing both testified that Deputy Carrell did not come to them to request more time beyond the day provided by Chief Kane. Captain Hall offered Deputy Carrell the opportunity to take the video on a thumb drive and continue reviewing the video off-duty, and Deputy Carrell declined.[39]
Application of Standards: Issue 7
In its complaint, the Guild asserted:
II.32 On August 5, 2021, Sergeant Lee informed Guild President Carrell that, after talking to Captain Downing, it was decided that a deputy who Sergeant Lee was currently assigned to investigate, and that deputy’s representative, would only be allowed two hours to watch the videos. He also informed Guild President Carrell that any additional viewing time would be unpaid and must occur after work hours.
II.33 In this particular investigation, there were over 48 hours of video used by management. It was impossible to view all relevant video in a two hour time block.
II.34 On August 11, 2021, Guild President Carrell emailed the County negotiator about this issue. The County negotiator never responded.
In its brief, the Guild argued that the past practice was that “as much time as needed to review a video” would be provided, and that the County had unilaterally attempted to impose a limitation: that “a reasonable amount of time” would be allowed to review video. Although I am not sure that the Guild has established that a past practice of unlimited paid video viewing time existed (distinct from “a reasonable amount of time”), I find that that the Guild did not carry its burden of proof in showing that a limitation was actually imposed on Deputy Carrell’s ability to view the video in this incident.
The preponderance of the evidence does not show that Deputy Carrell was limited to two hours (as alleged in the complaint), or even to eight hours. Deputy Carrell said in his email to Sergeant Lee that “the Guild requested an additional 4 hours to review, and this was agreed upon and approved by Chief Kane.” In other words, the evidence shows that the eight hours of video viewing time provided by Chief Kane was exactly what the Guild had asked for. Deputy Carrell also testified that this was sufficient for them to view the video.
Chief Kane testified that Deputy Carrell could have had more than eight hours of paid time to watch the video if he had asked. Chief Kane, Captain Hall, and Major Downing all testified that Deputy Carrell did not ask them for more time. Balancing Deputy Carrell’s testimony that he asked “somebody in management” for more time, against Chief Kane, Captain Hall, and Major Downing’s testimony, I find the Guild has not carried its burden of proving, by the preponderance of the evidence, that the Guild was strictly limited to two hours as alleged in the complaint, or even eight hours, or that the Guild made a request for more time that was denied.
Issue 8: Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the swing shift deputies’ mandatory overtime, without providing the union an opportunity for bargaining.
Additional Background
The parties’ CBA provides that mandatory overtime is assigned on a rotating basis (known as “ratcheting”), and “[t]he rotation shall commence on the first day of each month starting with the least senior employee qualified to perform the assigned work.” The agreement also provides that “mandatory overtime for the next shift will be filled by the shift on duty,” and specifically, “swing shift will provide coverage for Graveyard shift mandatory overtime vacancies.”
The issue here involves the intersection of these contract provisions; specifically, how mandatory overtime is handled for deputies working on swing shift—whose shifts end at midnight on the last day of the month. Deputy Carrell testified that management changed the way this issue was addressed:
So Lieutenant [Daniel] Stites apparently decided that he was going to ratchet people into the following month. I believe they were in the bucket list, if I remember correctly, or they were allowing people to use their credits. I can't remember now, off the top of my head, without looking at the email. But I believe there might have been some people that were in the bucket list that he was ratcheting into the following month instead of resetting it over again.[40]
Deputy Carrell was asked who was involved, and he explained:
I don't remember the individuals who were actually ratcheted over. I remember that Deputy [David] Kosnosky was having interaction with Lieutenant Stites. Deputy Kosnosky, he's been there longer than me. He works swing shift.· And so he was having this interaction with Lieutenant Stites about why they were doing this. But I don't believe Deputy Kosnosky was the one that was actually being ratcheting [sic]. I think it was somebody else. I don't remember, off the top of my head.
Deputy Carrell testified that he received an email from Deputy Kosnosky on September 1, 2021, where Deputy Kosnosky stated:
So I spoke with Lt Stites today regarding his interpretation of the ratcheting clause in the contract.
His opinion is that since swing shift covers graveyard shift for OT, then the previous months rachet list is still used for graveyard positions on the 1st day of the month.
He acknowledged that the list ‘resets’ at midnight on the 1st of the month, but the ratcheting happens on the last day of the month so that is why he has instructed his Sergeants to do that.
He also pointed out that swing shift would have 1 less day of being ratcheted than the other 2 days.
Deputy Carrell’s testimony and the email from Deputy Kosnosky were essentially the entirety of the Guild’s evidence on this issue. Neither Deputy Kosnosky, Lieutenant Stites, nor anyone other than Deputy Carrell testified about this issue. The Guild did not submit any records to show the historical practice of how mandatory overtime was dealt with for swing shift deputies working on the last day of the month, or specifically what had occurred in the situation described by Deputy Kosnosky on September 1, 2021.
Chief Kane testified that he did not authorize or direct Lieutenant Stites to change the practice. However, Chief Kane also made it clear that he didn’t actually know what the practice was relating to this specific scenario. Nor did he have a preference about how that issue would be handled. There is no indication that he knew specifically what Lieutenant Stites had done, either. Chief Kane said:
I was unaware of this scenario, and I couldn’t tell you the practice either way up until that point. If this were in fact a change, no, he wouldn’t have the authority to do that. If it was status quo, he of course would have the authority to do that. Instead of doing a long, historical look back as to what happened and whatnot, we, quite frankly, weren’t concerned enough and were going to default with the guild’s preference.
Application of Standards: Issue 8
I find that the Guild did not carry its burden of proof to establish there was a change from the past practice relating to swing shift deputies’ mandatory overtime. Deputy Carrell’s testimony about this issue is hearsay, based on what he heard from Deputy Kosnosky. The September 1, 2021, email represents Deputy Carrell’s hearsay of Deputy Kosnosky’s hearsay of Lieutenant Stites’ statements. The email also purports to be about Deputy Kosnosky’s discussion with Lieutenant Stites about “his interpretation of the ratcheting clause” rather than evidence that the practice actually changed on that day. The Guild did not call Deputy Kosnosky, Lieutenant Stites, or anyone else to testify as to what exactly happened with the swing shift deputies’ mandatory overtime. I find that without independent corroboration, this hearsay evidence is not sufficient for the Guild to carry its burden of proof on this issue. Seattle School District (Seattle Education Association), Decision 9355-C; Educational Service District 114, Decision 4361‐A.
Issue 9: Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing the union notification process when an investigation is being conducted on a member, without providing the union an opportunity for bargaining.
Additional Background
On September 6, 2021, Sergeant Daniel Young sent an email to Deputy Farrell, informing her that a complaint had been filed against her on August 31, 2021. Sergeant Young copied Deputy Carrell and the Guild’s Gmail account on the email.
Later on September 6, 2021, Deputy Carrell emailed Sergeant Young, stating:
If this complaint was filed on August 31st, why are we just receiving it on September 6th? It also appears that there were other Deputies involved in this PC that could potentially be part of the investigation and subject to discipline. The Guild is requesting the names of any other Deputies involved prior to them being interviewed so that we can represent them and notify them of their rights. Thanks.
Sergeant Young responded to Deputy Carrell, providing the names of five deputies.
Deputy Carrell testified, “[Sergeant Young] did give me a list of the other people that were a part of the investigation at that point. But after I went and talked to a couple of them, they had already been interviewed.”
Deputy Carrell did not provide names of the deputies he talked to that had already been interviewed. The investigation report, portions of which were submitted as evidence, indicates that Sergeant Lee contacted Booking Support Officer (BSO) Joplin and asked her to write a report on what she had witnessed. BSO Joplin is not a deputy and not a member of the deputy bargaining unit. The report indicates that the first interview of a Guild bargaining unit member was on September 6. The Guild did not call Sergeant Young to testify nor did they call any deputies who were allegedly interviewed prior to Young’s September 6, 2021, email to Deputy Carrell.
Application of Standards: Issue 9
In its first amended complaint, the Guild alleges:
On September 6, 2021, Sergeant Young sent an email to the Guild to notify it of an investigation that was being conducted on a Guild member. However, the investigation began on August 31, 2021. Several deputies were already interviewed prior to September 6 without any notification to the Guild of the investigation. This was a change in past practice and was one of the proposals management include in its CBA proposal.[41]
Similarly, in its brief, the Guild claims, “Carrell learned that multiple other deputies had been interviewed prior to notifying the guild;” and “the county is conducting pre-investigation interviews that subject other deputies to possible disciplinary action without notification to the guild and without an opportunity for deputies to have a representative present.”
I find that the Guild does not carry its burden of proof in establishing that any deputies were interviewed as part of the Deputy Farrell investigation prior to the September 6, 2021, notification to the Guild, as alleged. Deputy Carrell testified that he heard from unnamed deputies that they had been interviewed prior to September 6. This hearsay is not corroborated by any other evidence. No deputies were called to testify that they had been interviewed as part of the Farrell investigation. The investigation report, by contrast, indicates that only non-bargaining unit employees had been contacted prior to September 6. Based on this evidence, I find that the Guild has failed to prove that deputies were interviewed prior to September 6, as alleged.[42]
Issue 10: Employer interference with employee rights in violation of RCW 41.56.140(1) within six months of the date the complaint was filed, by threats of reprisal or force, or promises of benefit, made regarding the parties’ negotiations for a successor contract.
This was a new cause of action recognized by a previously assigned Examiner, after the Guild filed its third amended complaint. In the third amended complaint, the Guild added new paragraphs that specifically mentioned “interference”:
Direct Dealing & Interference with the Guild Board
2.39 Deputy Ottulich was appointed Guild President in June 2020. In January 2021, Deputy Carrell was elected Guild President. On January 22, 2021, Guild President Carrell sent an email to all members of the Corrections Bureau Command Staff. Since January 2021 and as of the date of this amended complaint, Deputy Ottulich has not served in any capacity on the Guild Board.
2.40 On October 7, 2021, Deputy Ottulich sent out an “all hands” email to Corrections Deputies notifying those recipients that he had obtained a copy of the Guild’s collective bargaining proposal. At that time, only the Guild’s negotiating team and County management had a copy of those contract proposals. Deputy Ottulich acknowledged in this email that he did not receive the contract proposals from the Guild Board.
2.41 No member of the Guild’s negotiating team or the Guild Board provided the contract proposals to Deputy Ottulich. A member of management provided the contract proposals to Deputy Ottulich.
2.42 Also in the fall of 2021, members of management directly discussed a pending grievance arbitration regarding former Guild member James Norris with Deputy Ottulich.
Application of Standards: Issue 10
It is not clear whether the cause of action found by the prior Examiner is for a “threat of reprisal” or if it is a “promise of benefit” or both.
At the hearing, the Guild did not introduce any testimony or evidence relating to these allegations in sections 2.39 through 2.42 of the third amended complaint. There was no mention that I can see of any threat of reprisal or promise of benefit regarding the parties’ negotiations for a successor contract. In its brief, the Guild did not mention this independent interference issue at all. Although the Guild chose to ignore this issue, I am obliged to analyze it (as was the County).[43]
I do not find any evidence in the record of a threat of reprisal or a promise of benefit regarding the parties’ negotiations for a successor contract. I do not find that the Guild has carried its burden of proof that the employer committed interference as stated in the preliminary ruling.
Issue 11: Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by unilaterally changing uniform policies and the shift bidding process without providing the union notice and an opportunity to bargain.
This cause of action appears to encompass two separate issues, which will be addressed separately.[44]
Additional Background for Unilateral Change in Uniform Policy Allegation
The CBA provides that the employer will provide each corrections deputy with three shirts and three pairs of trousers. Prior to 2008, the corrections bureau was part of the County Executive’s office, and the deputy uniforms were blue. Accordingly, deputies were provided with at least three blue shirts and three pairs of trousers, in addition to other items.
On October 22, 2021, Chief Kane announced[45] that the corrections bureau was going to change the color of the uniforms from blue to green. Chief Kane stated that the initial purchase would be for two sets of new uniforms for each deputy. Regarding the old blue uniforms, Chief Kane stated, “While there are too many variables to set hard dates at this time, I anticipate blue uniforms being authorized to wear for at least the next six months. I do not want to take those off-line until we are confident everyone has what they need.” He also said, “Until we phase out the blue, they will be authorized to wear.” On October 23, 2021, Chief Kane sent a follow-up email, stating, “I want to re-affirm we haven’t set a hard date for a full transition to green. This initial purchase is not going to get us to a place where we can all swap over.” Chief Kane explained that because deputies were still authorized to wear their three blue uniforms in addition to the two new sets of green uniforms, each deputy had at that time at least five sets of uniforms that they could wear. Chief Kane testified that the blue uniforms were still authorized to wear at the time of the hearing.
Deputy Carrell testified:
Well, basically, management decided they were going to change the color of the uniforms, which is fine. I mean, I don’t think anybody cares about the actual color. It’s the implementation of how this was done. Because of this we were basically told our contract language was not going to be honored. You’ve got – you’re only ordering two uniforms. We couldn’t order Class A’s. We couldn’t order jackets. I haven’t had a jacket in two years since this thing started. So you know, this – I think that’s where our concern is. I mean, everything gets wrapped up in the change in the color. It’s not the change in the color. It’s changed how our ordering process works in our contract. And first of all, the uniforms are pretty poor quality. But there’s other issues along those lines too. Like I said, you’ve basically told everybody they can only order two uniforms. Our contract specifically says three.
Application of Standards: Issue 11 for Unilateral Change in Uniform Policy Allegation
In the third amended complaint, the Guild specifically alleges:
In November 2021, Chief Kane sent out an “all hands” email to Corrections Deputies stating that management was changing mandated uniform requirements for Corrections Deputies from three (3) sets of blue shirts and trousers to two (2) green uniforms. Pursuant to the implementation of this new policy, all Corrections Deputies have been instructed to order two (2) green uniforms through the Quartermaster. Some Corrections Deputies have requested a third uniform from the Quartermaster, pursuant to the current CBA; however, the Quartermaster – who is a Corrections Sergeant and the spouse of the Bureau Chief – has denied those requests pursuant to the new policy.[46]
The Guild does not dispute that prior to transitioning to green uniforms, the County was providing three sets of blue pants and shirts to deputies. The record clearly shows that initially, as part of the transition to green uniforms, the County only provided two sets of green uniforms. In its brief, the Guild asserts that “[h]aving one less uniform greatly impacts deputies.” However, the Guild did not rebut Chief Kane’s testimony that blue uniforms were still authorized to wear, in addition to the two green uniforms. Thus, the record indicates that the employer continued to provide three, or more, sets of authorized shirts and pants to deputies. The union has failed to establish that the employer changed the status quo regarding the number of uniforms provided to deputies.
Additional Background for Shift Bidding Process Allegation
Every year, the deputies bid for their shifts and days off. This process usually takes place around September, for the following year’s shifts. At some point in the past, deputies who were out on long-term leave still took part in the annual shift bidding process.
Deputy Carrell testified how he learned that this practice had changed:[47]
I believe I found out when Deputy McAllister . . . was out on some type of long‐term leave. I believe she called me first. Either her or her husband. I don’t remember who contacted me. Found out that she wasn’t on the annual shift bid because she was out on a long-term leave.
. . . .
I think there was a couple other people there also. But Deputy McAllister is just the one that comes to mind of the top – she’s the one, I think, that I first heard about it from.
. . . .
I believe Lieutenant Simonson was in charge of it. I think I reached out to him first to see what was going on. Maybe there was just some mistake. And then later on I found out that no, this is how they were doing it for the year. And then I think after that I – I don’t remember if I went up and verbally talked to a couple of the people in management to see what was going on. And then Deputy McAllister filed a grievance because of the – because she wasn’t allowed to bid for her shift until she came back to work.
. . . .
. . . [T]here were other people. I can’t remember everybody, off the top of my head. There was – I think there was a couple of other people on long-term leave. Deputy McAllister is the one that comes to my mind because I know she had filed a grievance over the issue, and there’s where a lot of this interaction with management was – stemmed from her grievance . . . .
(transcript references to attorneys’ questions, and other testimony by Deputy Carrell, omitted).
Deputy Carrell did not say when his interactions with Deputy McAllister or others occurred. The Guild did not call Deputies McAllister or Simonson, or anyone else with actual direct knowledge of the events described by Deputy Carrell. The Guild did not offer Deputy McAllister’s grievance or any other specific evidence to prove a change in status quo.
Chief Kane testified that the historical practice was as described by Deputy Carrell: “If we could track them down, they would have the opportunity to put in a bid sheet.” Chief Kane explained that there were concerns with having employees bid for shifts that they wouldn’t actually work. Chief Kane testified that in fall 2020, management changed the shift bidding process for the 2021 shifts and did not include employees on indefinite long-term leave in the shift bidding process.
The County introduced the minutes of a Labor / Management meeting from September 22, 2020, which stated that, among other things, management and the Guild discussed this issue.
Dunlap asked about shift bids and missing deputies. Chief Kane explained that the deputies left off the shift bid process (i.e. Bickley, Pellissier, Hassing etc...) are not expected back any time soon. However, when/if they do return, Admin will deal with it at that point and then they can be placed in a days off slot that would be equivalent to their seniority. (If Pellissier’s seniority would have earned him Weds/Thus Swings then, that’s where he could go) Chief also stated when asked that the people out on MIL and L & I who have not bid for shift and days off due to their leave will not count against the vacation calendar.
The email string, confirmed by Chief Kane’s testimony, indicates that Deputy Dunlap took these minutes (and Chief Kane subsequently proposed to add the portion italicized above). Deputy Dunlap and Deputy Jeremy Haugstad were the Guild executive board members in attendance, along with Chief Kane and other members of command. Chief Kane confirmed that this was indeed the discussion at that Labor / Management meeting.
Chief Kane explained:
So it was a compromise on our part in order to have an accurate roster of active employees in the sense of the – the give on our part was that yes, we would make the employee who returns to work, when they return to work, we would make them whole in accordance with their seniority. So if they’re amongst the shifts and days off sets that they would like, they can look at the roster at any time and figure out where their seniority would have earned them, and we would put them in that place. And the same would go for vacation selections as well.
. . . .
Yes. So we wouldn’t displace any – anybody. We wouldn’t bump anybody out of anything. That was, again, another consolation on my part where we would just kind of eat that if we had to create another days off set midway through the year because somebody returned and we had to create a slot for them. The number of those people in that scenario was enough in my mind to where we could absorb that.
. . . .
This is the same as in ’21, 2021. And the last sentence is really the biggest benefit or give on our part, and that is those who are out on long-term leave will not count against the vacation calendar. And that’s something that the guild has asked for for [sic] years and years in bargaining, and this was – it was a gift.
(transcript references to attorneys’ questions omitted)
Chief Kane testified that the Guild executive board agreed to this change in process. Deputy Haugstad and Deputy Dunlap were on the Guild executive board in 2020. Neither Deputy Dunlap nor Deputy Haugstad, nor anyone else who was on the Guild’s board in 2020, were called to testify.[48] Deputy Carrell was not on the Guild’s executive board in 2020, when this meeting occurred. Deputy Carrell testified that he knew that management believed there was an agreement with the previous Guild board on this issue.
Application of Standards: Issue 11 for Shift Bidding Process Allegation
The Guild asserts in its complaint that in 2021, management changed the annual shift bidding process so that employees on long-term leave would not be included. As demonstrated above, the Guild’s sole evidence to support this claim is Deputy Carrell’s vague hearsay. The Guild continued to pursue this claim in its brief, contending, “The County unilaterally the [sic] changed the shift bidding process, without providing notice to the union and an opportunity to bargain.”
The County, on the other hand, presented evidence that this change occurred in 2020—outside of the statute of limitations period for this charge. The Guild did not rebut this evidence. Furthermore, the County presented evidence that members of the Guild board were aware of the change at that time and discussed it with management. The Guild did not rebut this evidence. There was no indication that the Guild had any objection at that time. Further still, Chief Kane testified that the Guild board agreed to this change, and the Guild did not rebut this testimony.[49]
The Guild has failed to prove that “within six months of the date the complaint was filed, [management] unilaterally chang[ed] . . . the shift bidding process.” The preponderance of the evidence is that the Guild was aware of this change, had agreed to it, and that the change was made outside of the statute of limitations period.
Conclusion
For the reasons discussed herein, the Guild has failed to carry its burden of proof on any of the issues in this case, and so the complaint is dismissed in its entirety.[50]
Findings of Fact
1. Snohomish County (employer) is a public employer within the meaning of RCW 41.56.030(13).
2. The Snohomish County Corrections Guild (union) is bargaining representative within the meaning of RCW 41.56.030(2).
3. Jamie Kane is the Corrections Bureau Chief.
4. Alonzo Downing is a Corrections Major.
5. David Hall is a Corrections Captain.
6. Didy Quick is a Corrections Lieutenant.
7. Charles Carrell is a Corrections Deputy.
8. As part of the corrections bureau’s orientation process, the Guild is provided time to meet with new hires. During this time, the Guild explains its role to new hires and offers them the opportunity to become Guild members. Usually, a member of the Guild executive board conducts the Guild’s orientation.
9. Deputy Travis Luszey works in the training department and is responsible for scheduling new-hire orientations, including the Guild’s orientation time.
10. On July 14, 2021, Deputy Luszey emailed Deputy David Dunlap, asking if he was available to come in early to conduct a Guild orientation on July 21. Deputy Dunlap was a member of the Guild’s executive board at that time and had conducted the prior Guild orientation. Between July 17 and August 5, Deputies Dunlap and Luszey exchanged messages about the scheduling of the Guild’s new hire orientation. On August 5, Deputy Luszey included the Guild’s Gmail account as well as Lieutenant Quick on the email string. Lieutenant Quick was the training sergeant at the time, and Deputy Luszey’s supervisor. Prior to this message, this correspondence had just been between Deputies Luszey and Dunlap.
11. The parties’ collective bargaining agreement (CBA) provides that “the function of the [Labor / Management] Committee shall be to meet on the call of either party to discuss issues of mutual interest or concern for the purpose of alleviating potential grievances and establishing a harmonious working relationship between the employees, the Employer, and the Guild. No less than a one (1) week notice of a requested meeting shall be given . . . .”
12. At Labor / Management meetings, representatives of the Guild and management meet to discuss issues going on at the corrections bureau.
13. The intent of Labor / Management meetings is to “nip in the bud” potential grievances, unfair labor practices, or other conflicts. Labor / Management meetings do not take the place of more formal bargaining, which take place separately.
14. To attend Labor / Management meetings, deputies must be relieved from their posts, which have to be covered by other deputies working overtime.
15. At some point, the parties began scheduling Labor / Management meetings at regular intervals rather than setting up meetings ad-hoc. For a period of time in 2019 and 2020, the parties met every week. At some time in 2020, the parties began scheduling Labor / Management meetings every other week.
16. At some point, Captain Hall and Chief Kane concluded that the Labor / Management meetings were not productive enough to justify meeting every two weeks.
17. On July 14, 2021, Captain Hall sent an email to Deputy Carrell, the Guild Gmail account, Major Downing, and Chief Kane, stating “We will be moving the labor management meetings from twice a month (every other Thursday), to once a month (every third Thursday). Of course, if you have any urgent matters that you would like to address between scheduled meetings, we can have those discussions as needed.”
18. On August 4, 2021, Deputy Carrell responded to Captain Hall, objecting to Captain Hall’s message and “demanding to keep the status quo of every other Thursday.” Since the Labor / Management meetings had been changed to once a month, the meetings had sometimes been cancelled by the County or the Guild.
19. Snohomish County Jail inmates are housed in different modules, some of which are specifically tailored to different types of inmates. The 4 South and 4 North modules on the fourth floor, and the 5 North module on the fifth floor, are designated for maximum security inmates.
20. Prior to 2017, deputies provided maximum security inmates with their recreation time by simply opening their cell door and allowing them to use the day area within their housing module, immediately outside their cells. This practice resulted in inmates assaulting deputies. In response, management changed the policies relating to recreation time for maximum security inmates. Under the new policies established in 2017, these inmates now take their recreation time in a secure area outside of the module. Deputies cuff the inmates through the cuff port of the cell door, escort them to the recreation area, and then uncuff them so they can enjoy their recreation time.
21. The new policies required that two deputies participate in moving the maximum security inmates to and from their recreation area (hereinafter referred to as the “two-deputy requirement”). It would be a violation of the new policies for a single deputy to carry out this movement without the assistance of a second deputy.
22. As part of the new policies, management created a new post, called REO 9. The REO 9 post was specifically designated to assist with the movement of maximum security inmates, supporting the two-deputy requirement.
23. Under the new policies, when a maximum security inmate needed to be transported, the deputy assigned to the maximum security module would use their radio to request a second deputy to assist with the transport. An REO 9 would come and assist, or if the REO 9 was unavailable, another deputy would come and assist. The new policies did not mandate that the maximum security deputies could only use REO 9 for assistance.
24. Soon after the new policies were implemented, management noticed that assisting with the movement of maximum security inmates was not sufficient to keep the REO 9 post busy. Management began treating the REO 9 post as “supplemental,” meaning the post was also used for other things such as medical transport.
25. At some point, management stopped staffing the REO 9 post, although the post technically still exists. Nonetheless, the two-deputy requirement continued to be in effect.
26. On July 6, 2021, Deputy Carrell received an email from Deputy Ottulich, who wrote in pertinent part, “Sgt’s on swings are asking 4N deputies to cross the hall and assist in placing inmates on rec in 4SA.”
27. On July 8, 2021, Deputy Salt was issued a Performance Incident Report by Sergeant Roy, for moving an inmate from the outdoor recreation area back to his cell without the assistance of a second deputy.
28. On July 8, 2021, Deputy Carrell attended a Labor / Management meeting with Major Downing and Captain Hall, where Deputy Carrell brought up Deputy Ottulich’s email. Management denied that this was a new situation.
29. On July 9, 2021, Deputy Carrell sent an email to Chief Kane, asserting that having 4 North deputies assist in 4 South was a change in practice, and demanding to bargain the change.
30. Deputies at the corrections bureau are required to regularly undergo training. Prior to 2020, training was assigned throughout the year and was often due 30–60 days after assignment.
31. When Lieutenant Quick became training sergeant in 2020, she heard complaints that it was difficult for some employees to complete their training under the existing timelines. She decided to front-load much of the year’s training, making it available at the beginning of the year and to set a due date of the end of October. There was still training due at other times throughout the year.
32. Lieutenant Quick sent email messages to deputies in April and May 2021, informing them that their First Aid, Restraint Chair, and Handgun Proficiency trainings—which were due on March 31—were past due.
33. On June 21, 2021, Lieutenant Quick sent an email to employees stating that certain staff, including Deputy Carrell, were past due on their “March 2021 Handgun Proficiency.”
34. Also on June 21, 2021, Lieutenant Quick sent an email to the corrections bureau workforce, titled “C1 online training REMINDER.” Lieutenant Quick wrote, “Effective Immediately: Staff who do not complete the CorrectionsOne Academy training by the due date (unless prior authorization is given / or on extended leave) will be subject to progressive disciplinary action.” (emphasis omitted).
35. On June 22, 2021, Deputy Carrell forwarded the “C1 online training REMINDER” email to Chief Kane, stating that “the Guild [was] demanding to bargain this change to disciplinary action.” Chief Kane responded on June 23, 2021, stating, “There is no change. . . . We are all subject to progressive discipline for not getting assigned work done.”
36. On July 1, 2021, Chief Kane attached a copy of a Guild grievance from April 23, 2018, where Deputy Derek Henry asserts, “I was given a one day suspension along with a two year written reprimand for completing my ‘bloodborne pathogens’ online training two days late. . . . ”
37. For some time, the corrections bureau has used a position called “provisional sergeant.” A provisional sergeant is essentially a deputy who is working out-of-class, filling a sergeant position that is temporarily vacant. The deputies who become provisional sergeants have taken the training to become sergeants. Many deputies who work as provisional sergeants are eventually fully promoted to sergeants. When a deputy is acting as a provisional sergeant, their deputy post must be backfilled using overtime.
38. Around 2019, a deputy acting as a provisional sergeant got into trouble, and it was unclear whether this individual would be represented by the Guild or by the Teamsters, who represents the unit of sergeants and lieutenants. Chief Kane agreed to pause the utilization of provisional sergeants while the questions about representation were figured out.
39. Around February 2021, Chief Kane determined that the corrections bureau should resume using provisional sergeants. On February 16, 2021, Deputy Chicara Chesney was appointed to a provisional sergeant position.
40. Deputy Carrell emailed Chief Kane on February 26, 2021, demanding to bargain the issue. Chief Kane responded that it was not a new program and stated, “I don’t believe there has been a change to bargain.”
41. On March 18, 2021, the Guild and management met for a Labor / Management meeting. According to the minutes, the issue relating to union representation of provisional sergeants was discussed. The parties talked about setting up a meeting with the County and the Teamsters, and the minutes stated that “Chief Kane repeated his agreement to not make any additional provisional sergeant appointments until first notifying the guild.”
42. On April 29, 2021, the Guild and the County had a Labor / Management meeting. According to the minutes, “Chief Kane was clear that his concerns [had] been resolved, and he [did] not believe appointing further provisional sergeants would require any further work on management’s part to this long-standing practice.”
43. On May 1, 2021, Deputy Chesney was promoted to a full sergeant (thus her provisional sergeant appointment ended).
44. On May 13, 2021, Chief Kane sent an email to the Guild and others stating, in pertinent part, “I plan on bringing up a couple more Provisionals in the next few weeks. I originally agreed with the Guild to hit pause on the program as I had some concerns about representation. Since then I have had those questions answered for me, but the Guild still has concerns of their own.”
45. On May 30, 2021, Deputy Scott Warnken was appointed to a provisional sergeant position. Deputy Zachary Woods was appointed to a provisional sergeant position on July 1, 2021. Deputy Justin Manchester was appointed to a provisional sergeant position on October 30, 2021.
46. Article 15.7 of the parties’ CBA provides, “An employee who is the subject of an investigation shall be allowed to privately view the video with a Guild representative immediately prior to his/her interview concerning the alleged misconduct.”
47. In mid-2021, Deputy Mount was under investigation for allegedly failing to conduct required module checks. Deputy Carrell was provided with 48 hours of video prior to Deputy Mount’s interview. The video was offered to show that Deputy Mount did not go upstairs to conduct module checks every half-hour as required.
48. Initially, Sergeant Lee told Deputy Carrell that he could have two days of paid time to view the video. Sergeant Lee then told him that he would get two hours of paid time to view the video. Deputy Carrell asked for more time, and Sergeant Lee scheduled Deputy Carrell for four hours.
49. On August 13, 2021, Deputy Carrell sent Sergeant Lee an email saying, “the Guild requested an additional 4 hours to review, and this was agreed upon and approved by Chief Kane.” Deputy Carrell told Sergeant Lee, “[W]e used the entire 8 hours to review the 48 hours of video footage. This was only possible because all of these events occurred on the graveyard shift and there was limited movement that didn’t interfere with the video when it’s being sped up.”
50. The parties’ CBA provides that mandatory overtime is assigned on a rotating basis (known as “ratcheting”), and “[t]he rotation shall commence on the first day of each month starting with the least senior employee qualified to perform the assigned work.” The agreement also provides that “mandatory overtime for the next shift will be filled by the shift on duty,” and specifically, “swing shift will provide coverage for Graveyard shift mandatory overtime vacancies.”
51. Deputy Carrell received an email from Deputy David Kosnosky on September 1, 2021, regarding Lieutenant Stites’ interpretation of the contract.
52. On September 6, 2021, Sergeant Daniel Young sent an email to Deputy Farrell, informing her that a complaint had been filed against her on August 31, 2021. Sergeant Young copied Deputy Carrell and the Guild’s Gmail account on the email.
53. Later on September 6, 2021, Deputy Carrell emailed Sergeant Young, “requesting the names of any other Deputies involved prior to them being interviewed so that we can represent them and notify them of their rights.”
54. Sergeant Young responded to Deputy Carrell, providing the names of five deputies.
55. The investigation report indicates that Sergeant Lee contacted Booking Support Officer (BSO) Joplin and asked her to write a report on what she had witnessed. BSO Joplin is not a deputy and not a member of the deputy bargaining unit. The report indicates that the first interview of a Guild bargaining unit member was on September 6.
56. The CBA provides that the employer will provide each corrections deputy with three shirts and three pairs of trousers. Prior to 2008, the corrections bureau was part of the county executive’s office, and the deputy uniforms were blue. Accordingly, deputies were provided with at least three blue shirts and three pairs of trousers, in addition to other items.
57. On October 22, 2021, Chief Kane announced that the corrections bureau was going to change the color of the uniforms from blue to green. Chief Kane stated that the initial purchase would be for two sets of new green uniforms for each deputy. Chief Kane stated that the blue uniforms were still authorized to wear until they were phased out.
58. Every year, the deputies bid for their shifts and days off. This process usually takes place around September, for the following year’s shifts. At some point in the past, deputies who were out on long-term leave still took part in the annual shift bid process.
59. In fall 2020, management changed the shift bidding process for the 2021 shifts and did not include employees on indefinite long-term leave in the shift bidding process.
60. During a Labor / Management meeting from September 22, 2020, management and the Guild discussed this issue. The Guild was aware of the change to the shift bidding process and agreed to it.
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. As described in findings of fact 8 through 10, the employer did not dominate or assist a union in violation of RCW 41.56.140(2) by selecting and contacting Deputy David Dunlap as the union representative during new hire orientation.
3. As described in findings of fact 11 through 18, the employer did not refuse to bargain in violation of RCW 41.56.140(4) by failing or refusing to meet and negotiate with the exclusive bargaining representative of its employees, during the previously scheduled Labor / Management meetings.
4. As described in findings of fact 11 through 18, the employer did not refuse to bargain in violation of RCW 41.56.140(4) by unilaterally changing the Labor / Management meetings, without providing the union an opportunity for bargaining.
5. As described in findings of fact 19 through 29, the employer did not refuse to bargain in violation of RCW 41.56.140(4) by unilaterally changing working conditions by utilizing deputies in 4 North module to fill duties in the 4 South module without utilizing the REO 9 position, without providing the union an opportunity for bargaining.
6. As described in findings of fact 30 through 36, the employer did not refuse to bargain in violation of RCW 41.56.140(4) by unilaterally changing the mandatory training deadline, without providing the union an opportunity for bargaining.
7. As described in findings of fact 37 through 45, the employer did not refuse to bargain in violation of RCW 41.56.140(4) by unilaterally changing the use of the provisional sergeant position, without providing the union an opportunity for bargaining.
8. As described in findings of fact 46 through 49, the employer did not refuse to bargain in violation of RCW 41.56.140(4) by unilaterally changing the video viewing time and process, without providing the union an opportunity for bargaining.
9. As described in findings of fact 50 and 51, the employer did not refuse to bargain in violation of RCW 41.56.140(4) by unilaterally changing the swing shift deputies’ mandatory overtime, without providing the union an opportunity for bargaining.
10. As described in findings of fact 50 through 55, the employer did not refuse to bargain in violation of RCW 41.56.140(4) by unilaterally changing the union notification process when an investigation is being conducted on a member, without providing the union an opportunity for bargaining.
11. As described in findings of fact 8 through 60, the employer did not interfere with employee rights in violation of RCW 41.56.140(1) by threats of reprisal or force, or promises of benefit, made regarding the parties’ negotiations for a successor contract.
12. As described in findings of fact 56 through 60, the employer did not refuse to bargain in violation of RCW 41.56.140(4) by unilaterally changing uniform policies and the shift bidding process without providing the union notice and an opportunity to bargain.
Order
The complaint charging unfair labor practices filed in the above-captioned matter is DISMISSED.
ISSUED at Olympia, Washington, this 28th day of June, 2023.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
Sean M. Leonard, 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.
[1] These are the issues that were found to state a cause of action in preliminary rulings pursuant to WAC 391‐45‐110. As will be discussed further below, the Guild’s “claims” do not perfectly align with these issues. For simplicity’s sake, the issues described in this introductory section are referred to as the Guild’s claims.
[2] While a captain at the time of these events, Downing has since been promoted to a major. Downing will be referred to as Major Downing throughout this decision.
[3] While a sergeant at the time of these events, Quick has since been promoted to a sergeant. Quick will be referred to Lieutenant Quick throughout this decision.
[4] Although these emails were admitted as evidence, neither Deputy Luszey nor Deputy Dunlap were called to testify at the hearing.
[5] In its brief, the Guild argued that the County unilaterally changed the process of coordinating a Guild representative for new hire orientation. The preliminary ruling did not state such a cause of action. The preliminary ruling stated that the issue is whether the County committed unlawful domination or assistance of a union by selecting and contacting Deputy Dunlap as the union representative during new hire orientation. It is the domination issue, rather than the “unilateral change” issue, that I am required to address. The preliminary ruling issued under WAC 391-45-110 limits the issues that agency examiners may consider or rule upon. King County, Decision 9075-A (PECB, 2007); WAC 391-45-110(2)(b). I must address the domination issue (as did the County) even though the Guild did not take the time to address it. See, e.g., City of Seattle, Decision 2935 (PECB, 1988) (analyzing claims even though union did not file a brief); Yakima County (Teamsters Local 670), Decision 13338 (PECB, 2021).
[6] The Guild seems to suggest that Lieutenant Quick engaged in a cover-up when, on August 2, she told Deputy Carrell, “No new hires are scheduled this week,” even though Deputies Luszey and Dunlap had been corresponding in July about scheduling a new hire orientation. I am not persuaded that this communication from Lieutenant Quick demonstrates any malicious intent on the part of management. Lieutenant Quick credibly testified that she was not aware of Deputies Luszey and Dunlap’s correspondence until she was copied on the email on August 5. There is nothing in the record to contradict this and establish that Lieutenant Quick was specifically aware of the correspondence that had been occurring between Deputies Luszey and Dunlap when she wrote to Deputy Carrell on August 2. Additionally, the next morning, August 3, Deputy Luszey emailed Deputy Dunlap and told him “[t]he new hires got pushed back . . . again,” so at the time Lieutenant Quick sent her message to Deputy Carrell, the new hire orientation that had been scheduled for that week may have already been delayed, as Lieutenant Quick said (and Deputy Luszey was not called to testify to explain).
The Guild also introduced testimony suggesting that Lieutenant Quick contacted Deputy Dean Cooper, a Guild executive board member, to ask if he could do new hire orientation. It appears that Deputy Cooper declined, and Lieutenant Quick did not pursue this any further. I do not find that this supports a finding that management intended to dominate the union vis-à-vis the new hire orientation. Any issue relating to Deputy Cooper is beyond scope of complaint and preliminary ruling, which specifically relate to Deputy Dunlap. It also appears to be beyond the statute of limitations (Deputy Carrell raised it in an email to management on February 5, 2021). The Guild did not mention the “Cooper” incident in its brief.
[7] Deputy Carrell was not on the Guild’s executive board in 2020 and could not say exactly when the Labor / Management meetings were changed from every week to every other week. The union presented evidence showing that in March 2020, the parties were meeting every week, and by December 29, 2020, the parties began meeting every other week.
[8] Deputy Carrell disagreed that the meetings were not productive.
[9] The Guild only briefed the “unilateral change” issue relating to Labor / Management meetings, a separate and distinct cause of action recognized in the preliminary ruling. Nonetheless, the County was obliged to spend time addressing the “refusal to meet” issue, as am I.
It is not clear to me what specific action constitutes the “refusal to meet” cause of action. Was it cancelling specific Labor / Management meetings that were previously scheduled? Was it the change from pre-scheduled biweekly meetings to meeting once a month? Neither the preliminary ruling nor the Guild specify.
[10] Given these timelines, I do not agree with the Guild’s assertion that biweekly meetings were the “practice for years” prior to Captain Hall’s email.
[11] Thus, the Commission’s existing “unilateral change” analysis applies. The Guild points to the contract provisions stating that the parties “shall meet on the call of either party” with at least one week’s notice, and asserts in its brief that Deputy Carrell effectively provided this notice en masse, notifying the County that they wanted to meet every other week: “As a practical matter, the guild gave that notice when it insisted on bi-monthly meetings going forward.” I do not find that the Guild established that this was a mutually accepted interpretation of the contract. The County disputes that this is the meaning of the contract. The Commission does not assert jurisdiction to remedy violations of CBAs through the unfair labor practice provisions of the statutes it administers. Shoreline Community College, Decision 12973-A (CCOL, 2020) (citing City of Walla Walla, Decision 104 (PECB, 1976); City of Richland, Decision 246 (PECB, 1977)).
[12] The lack of clarity as to the specific unilateral change is problematic. In its brief, the County only addresses the “biweekly meetings” issue, apparently under the impression that this was the specific change that was at issue. It does appear to me that this is the gravamen of the Guild’s case. For example, in its brief, the Guild concludes the section about Labor / Management meetings by stating, “The hearing examiner should find the actions of the County constitutes an unfair labor practice and order meetings to be held twice a month pending further bargaining on the issues.” The Guild did not mention Labor / Management meeting agendas at all in its complaint. The amended complaints did assert, “grievance meetings began to be scheduled within these newly allotted Labor-Management meeting times.”
I have due process concerns about whether the County was sufficiently on notice that claims relating to “agendas” and “grievance discussions” were properly at issue. See King County, Decision 9075-A (observing that “the preliminary ruling under WAC 391-45-110 and the sufficiently-detailed complaint that conforms with WAC 391-45-050 serve to provide sufficient notice to the responding party regarding complained-of facts and issues to be heard before an examiner”). This due process issue is avoided, however, as I find in any event that the Guild would not carry its burden of proof on those issues.
[13] Other than the possible assertion that “RCW 41.56.140 specifically extends to grievance procedures,” the County also does not analyze whether these issues are mandatory subjects of bargaining. The County argues that the asserted past practice is inconsistent with the language of the CBA on this issue and that the union failed to establish that the biweekly meetings were actually a mutually agreed past practice rather than a “mere convenience.” I find it unnecessary to address these arguments because, even assuming that the union established that the biweekly meetings were a past practice that was consistent with the CBA, I would find that the issue was not a mandatory subject.
It is necessary and appropriate to inquire whether the issues here are mandatory subjects, even if the parties did not. WAC 391-45-550 provides that the determination as to whether a particular subject is mandatory or nonmandatory is “not subject to waiver by the parties by their action or inaction,” See Kittitas Public Hospital District 1, Decision 11992 (PECB, 2014) (confirming under WAC 391-45-550, examiner needed to analyze whether issue was a mandatory subject, even though employer’s brief did not dispute that the issue was mandatory); State – Employment Security, Decision 11962 (PSRA, 2013) (same).
[14] The Guild asserts that the employer is required to attend Labor / Management meetings by the CBA. Parties may enter into agreements on ground rules and other nonmandatory subjects of bargaining, but such agreements cannot be enforced through a “unilateral change” unfair labor practice claim. See City of Bellevue, Decision 2899 (PECB, 1988); Everett Housing Authority (Teamsters Local 38), Decision 12506 (PECB, 2015).
[15] I have found one National Labor Relations Board (NLRB) decision stating that a Labor / Management meeting was a mandatory subject of bargaining. In Heartland Human Services, 359 NLRB 636, 638 (2013), enforced on other grounds, Heartland Human Services v. National Labor Relations Board, 746 F.3d 802 (7th Cir. 2014), the union scheduled a Labor / Management meeting pursuant to the CBA. The NLRB found:
the Respondent failed and refused to attend the labor-management meeting. The labor‐management meeting relates to wages, hours, and other terms and conditions of employment of the unit and is a mandatory subject for the purposes of collective bargaining. The Respondent refused to attend the scheduled meeting without prior notice to the Union and without affording the Union an opportunity to bargain with the Respondent with respect to this conduct.
This was the entirety of the NLRB’s discussion on this subject.
Our Commission has long recognized that decisions of the NLRB can be persuasive in the interpretation of state labor acts that are similar to the National Labor Relations Act. See, e.g., State – Washington State Patrol, Decision 10314-A (citing Nucleonics Alliance, Local Union No. 1-369 v. Washington Public Power Supply System, 101 Wn.2d 24 (1984)).
I have carefully considered this question, and the NLRB’s decision in Heartland Human Services does not persuade me that the issues present in this case are mandatory subjects of bargaining. The issue in Heartland Human Services involved the employer’s refusal to attend a duly scheduled Labor / Management meeting. The issue here is whether the employer may change the frequency of pre-scheduled recurring Labor / Management meetings. The NLRB did not engage in the sort of balancing test required by our Commission’s precedent. I believe the application of our balancing test compels the conclusion that the subjects here are nonmandatory.
[16] The Guild asserts in its brief that “RCW 41.56.140 specifically extends to grievance procedures and by now injecting these grievance discussions into these limited meetings was itself an unfair labor practice.” The parties have bargained over a grievance procedure, resulting in Article 17 of their CBA. I do not agree that by seeking to discuss grievances in a Labor / Management meeting, this constitutes a refusal to bargain over grievance procedures.
In his testimony, Deputy Carrell described an incident where management apparently wanted to schedule a “grievance meeting” or “grievance hearing” during a Labor / Management meeting. Deputy Carrell testified that he was not opposed to this if the time allocated for the Labor / Management meeting was increased. The Guild ultimately did not offer the emails that Deputy Carrell testified about into evidence. The record does not contain sufficient specificity as to exactly what occurred in this incident and when. Insofar as this concerns what is discussed at Labor / Management meetings, it is not a mandatory subject of bargaining for the reasons discussed above. To the extent that this concerns a violation or change of the grievance procedure, that is beyond the scope of the preliminary ruling.
[17] There were actually two new policies. Operations Directive OPS 17.0001 pertained to the fourth floor; i.e., 4 South and 4 North, and Operations Directive OPS 17.0002 pertained to the fifth floor; i.e., 5 North.
[18] The policies specifically stated, “A minimum of two deputies will be present for inmate movement to/from their cell to the designated rec area.”
[19] REO stands for response escort officer.
[20] The new policies specifically stated, “Effective upon the implementation of this plan, a temporary REO 9 position will be created and staffed 24/7 to assist with 2 C/D details in 4SA and 5N. This REO will assist with movement for Rec time in these units. This position is temporary and will be utilized while a long term security plan is developed for these units.”
[21] Deputy Carrell stated, “One of the deputies told me that they’re not staffing REO 9, and they’re telling us to move the inmates around on our own or to have the 4-North deputies come over and leave their module to come over to 4-South. I believe it was on graveyard. I don’t remember who initially told me. But I believe it was a graveyard deputy.”
[22] This is Deputy Carrell’s speculation of what the Guild board thought, again, based on hearsay (Deputy Ottulich’s email). Here, Deputy Carrell goes on to testify that he thought that the board had thought in 2020 that although the staffing of REO 9 was going to be suspended, the two-deputy requirement was also going to be suspended, which didn’t turn out to be the case. Deputy Carrell testified:
And they – they were under the understanding that the policies were being – weren’t going to be implemented that same way either. So I think – I think as far as the board’s perspective, I was trying to get what their understanding of what their conversations were. And this is – [Ottulich’s] response was the same was what I was under the impression is if REO 9 goes away, so do those policies. But they kept the policies in place and got rid of REO 9.
Deputy Dunlap, however, in an August 5, 2021, email, says he thought the two-deputy requirement was actually suspended for a time: “When they said they would be temporarily suspending REO9 OPS, due to ‘COVID’ they really weren’t on the kick of having 2 deputies escort restrained inmates. Now that they are back on the enforcement of that directive, it’s become problematic.” Deputy Dunlap was not called to testify at the hearing.
[23] Captain Hall testified that the minutes were an accurate summary of what occurred at the meeting. The Guild did not challenge this contention.
[24] SharePoint is a computer program that jail command uses to communicate important information to staff.
[25] Deputy Dunlap had also been copied on the emails between Deputies Carrell and Ottulich.
[26] Deputy Kelsey Ramirez was called to testify. She currently works in 4 North, but she did not say if she worked there before or during the statute of limitations period. She testified about how the two‐deputy requirement and management’s decision to not staff REO 9 impacted working conditions in 4 North. She did not testify that, as a deputy in 4 North, whether she ever had to assist in 4 South. She did not testify as to when any 4 North deputies began assisting deputies in 4 South without utilizing REO 9.
[27] In its brief, the Guild frequently talks about management utilizing 5 North deputies in 4 South, which is distinct from the very specific scenario described in the preliminary ruling.
[28] Nonetheless, in its brief, the Guild does appear to primarily focus on the County’s decision to stop staffing the REO 9 post, rather than the specific issue of utilizing 4 North deputies in 4 South, as described in the preliminary ruling. The Guild’s heading in its discussion of the REO 9 issue is, “The County’s unilateral decision to remove the position of REO 9 was an unfair labor practice . . . .” The conclusion of this section reads, “PERC should find that the County committed an unfair labor practice and direct the County to bargain with the Guild in regard to the REO 9 position before it is eliminated at the expense of deputy safety.”
[29] In Tacoma Housing Authority, Decision 7390-B (PECB, 2002), Examiner Stuteville captured the essence of the case that is currently before me:
From WAC 391-45-270 and a long line of Commission decisions, it is clear that the union has the burden of proof as the complainant in this matter. It must provide clear and understandable evidence and argument that persuades the trier of fact. It is important to note that it is not the responsibility of the Examiner to reconstruct incomplete arguments or to supply missing facts.
In its briefs and arguments, the union consistently referred to positions without naming the employees involved, and has frequently failed to establish the dates when alleged events took place. This has made it difficult to follow the union’s claims either chronologically or factually. . . . Non-specific argument and statements cannot be the basis for the finding of an unfair labor practice.
[30] The preliminary ruling states that the issue is about “utilizing” deputies in 4 North to assist in 4 South. This term is somewhat ambiguous. To the extent that it means that management was requiring deputies in 4 North to assist with inmate moves in 4 South, the record does not indicate that this was the case. As Major Downing described in the July 8, 2021, Labor / Management meeting minutes, the record shows that deputies could use their radio to call for assistance from other deputies or even a sergeant, and there is no evidence that deputies from 4 North were ever required to assist in 4 South. I am proceeding with the analysis utilizing the common dictionary definition of “utilizing”—that is, “to make use of.” Utilizing, Merriam-Webster, https://www.merriam-webster.com/dictionary/utilizing (last visited Jun. 23, 2023). See State – Washington State Patrol (Washington State Patrol Troopers Association), Decision 12967‐A (PECB, 2019) (stating that absent a specific statutory definition, terms applied in cases are defined by their common dictionary definitions). Thus, the Guild needs to show that prior to the statute of limitations period, 4 North deputies were never used to assist in 4 South without using the REO 9, and then during the statute of limitations period this changed.
[31] I agree with the County’s concern that the issue of imposing discipline for not completing required training is arguably beyond the scope of the preliminary ruling, which found a cause of action for “unilaterally changing the mandatory training deadline.” However, even if it is within the scope of the preliminary ruling, the Guild fails to establish that there was any actual change.
[32] The Guild’s original, unsigned complaint was filed on November 10, 2021, and so Lieutenant Quick’s April 14 emails about First Aid and Restraint Chair trainings were beyond the six-month statute of limitations. Lieutenant Quick’s email about the Handgun Proficiency training was sent on May 10, arguably on the very edge of the statute of limitations period, assuming that the original unsigned complaint tolls the statute of limitations.
[33] The Guild insists that Lieutenant Quick’s email stating “Effective Immediately” means that a change must have occurred. Lieutenant Quick credibly explained that this wasn’t what she meant in her use of that term. I find that regardless of the language used by Lieutenant Quick, the Guild has not shown that prior to her announcement, deputies could fail to complete mandatory training and would not be disciplined.
[34] Thus it appears that Deputy Chesney was in a provisional sergeant position the entire time from February 16 to May 1, 2021.
[35] It seems to me that Chief Kane’s statement in his May 1, 2021, email: “I originally agreed with the Guild to hit pause on the program as I had some concerns about representation,” was likely a reference to the commitment he made at the March Labor-Management meeting.
[36] In its complaint and at the hearing, the Guild characterized its theory of this issue as “Implementation of Contract Proposal Changes Before Negotiation.” That is, the Guild argued that the employer proposed changes to video viewing time in negotiations for a new CBA and that the employer implemented its proposed changes before reaching agreement with the Guild. The Guild characterized the issues relating to mandatory overtime, investigations, and uniforms in the same way.
Despite the Guild’s “premature implementation” characterization, I am analyzing these issues using the Commission’s standard “unilateral change” framework. The issues are all described in the preliminary ruling as standard “unilateral change” cases, and the employer does not attempt to defend against these claims by arguing it was allowed to implement its proposal from collective bargaining.
[37] Deputy Carrell testified that this happened some time after the employer made its initial proposal for the CBA on April 29, 2021. Union Exhibit 23 was stipulated and admitted into evidence, and appears to indicate that this incident occurred in August 2021, but no witnesses testified about this document.
[38] Deputy Carrell testified that Sergeant Lee gave him four days but then stated, “I believe there’s an email that he sent out. I’d have to go back and look at the emails. But there was an email where he sent out where he emailed the day shift supervisors and said please schedule Deputy Carrell off for those days to review video.” It appears that Deputy Carrell was referring to an email from Sergeant Lee dated August 5, 2021, that was admitted into evidence, where Sergeant Lee asks supervisors to relieve Deputy Carrell for August 12 and 13, 2021.
[39] This was according to Captain Hall’s testimony. Deputy Carrell was called to testify on rebuttal but didn’t deny this.
[40] The parties’ CBA provides that employees who worked voluntary overtime during the month can apply those “credits” to avoid mandatory overtime. The agreement also provides that employees can be excused from a mandatory overtime shift if they are not available, but then they “will be assigned, without exception, the next mandatory shift beginning on the third calendar day (72 hours) following the shift the employee was excused from.” Deputies subject to this last requirement are referred to as being on the “bucket list.”
Thus the question seems to be whether swing shift deputies working the last day of the month are subject to being first for mandatory overtime because they used their credits and are on the “bucket list,” or if they are not because the actual overtime is worked after midnight at the beginning of the new month (and so the “bucket list” is cleared at the beginning of the new month, pursuant to Section 5.4.4 of the CBA).
[41] In its complaint, the Guild also alleged that “management was directly contacting Guild members who were under investigation to discuss their investigations with them directly. Those deputies had requested a Guild representative while under investigation.” The Guild introduced testimony about one such alleged incident at the hearing, i.e., that Captain Hall and Major Downing improperly met with Deputy Fletcher without the presence of a Guild representative. I believe this issue is beyond the scope of the preliminary ruling. The preliminary ruling found a claim for “[u]nilaterally changing the union notification process when an investigation was being conducted on a member,” which seems to specifically describe the issue relating to Deputy Farrell.
Even if the issue relating to Deputy Fletcher was properly before me, Captain Hall and Major Downing testified without rebuttal that they were present at the meeting and that Deputy Fletcher stated she did not want Guild representation at the meeting. Deputy Carrell was not present at the initial meeting. The Guild did not call Fletcher or anyone other than Carrell to testify about this issue. Captain Hall and Major Downing further testified that later, they met with Deputy Carrell and Deputy Fletcher and confirmed that Deputy Fletcher did not want Guild representation. Deputy Carrell did not rebut this testimony.
[42] In its brief, the Guild for the first time asserts that the County breached the CBA by not providing 48 hours’ notice prior to interviews. This is beyond the scope of the complaint and so will not be considered.
[43] The County seems to also be at a loss as to what this issue is about. The County “[presumed the allegation related] to the [Snohomish County Sheriff’s Office]’s so-called ‘implementation’ of proposed contract changes prior to the close of interest arbitration proceedings.” The County then devoted space in its brief to arguing that the “changes” alleged by the union could not be considered implementations of its proposed contract language. As explained above in n 30, I do not think the “premature implementation” theory is properly before me, nor do I think that could that be within the scope of the “threat/promise” preliminary ruling. Preliminary rulings should be taken at face value and should be specific enough that the respondent knows what they are accused of. It is problematic when a respondent is forced to guess what they are accused of. See n 11, supra, King County, Decision 9075-A.
[44] Arguably, the preliminary ruling could be construed as a compound issue; i.e., the Guild would have to prove that the County unilaterally changed both the uniform policies and the shift bidding process in order to have the violation sustained on this cause of action.
[45] The announcement was made via a document posted on the corrections bureau’s SharePoint system.
[46] Although the preliminary ruling says simply, “unilaterally changing uniform policies,” it is clear from the union’s complaint that the Guild is specifically concerned with the number of uniforms being provided by the County.
Deputy Carrell also testified that he was not able to get a “Class A” uniform and so was prevented from attending a memorial service, and he also was not provided a new jacket. These issues are beyond the scope of the complaint. Moreover, the preponderance of the evidence showed that deputies were still authorized to wear blue jackets and class-A uniforms until the transition to green uniforms was complete.
[47] At hearing Deputy Carrell was asked, “[W]hen did you first become aware of the change in the 2021 annual shift bid?” The record is not clear whether this meant the bid for 2021, which would have taken place in September 2020, or if it was the bidding process that took place in 2021, which would have been for the 2022 shifts.
[48] It is not clear whether Deputy Henry was on the Guild executive board in 2020. He testified that he had been on the board for a “couple of years.” He did not address this issue in his testimony.
[49] In its brief, the Guild asserts, “there is no record or evidence of any such agreement.” I disagree, as Chief Kane’s unrebutted testimony is evidence that the Guild agreed. There is certainly no evidence that the Guild objected to the change documented in the September 2020 Labor / Management meeting minutes.
[50] Comment on remedy, or skin in the game:
In its answer, the County requested that the Commission dismiss the Guild’s case, and also “[e]nter such further relief as it deems just and equitable.”
To summarize the Guild’s processing of the 11 claims at issue in this proceeding: Issue 1: The Guild’s case on this issue was entirely hearsay, was meritless, and the Guild briefed a “unilateral change” rather than the “domination” analysis that was actually at issue. Issue 2: The Guild did not brief the “refusal to meet” claim, and it was without merit. Issue 3: This issue was debatable, but ultimately it was without merit due to the issues involved not being mandatory subjects of bargaining. The Guild did not brief the City of Richland balancing test to establish that the subject was mandatory. Issue 4: The Guild’s case on this issue was based almost entirely on hearsay, and the Guild did not present evidence that any change occurred during the statute of limitations period. Issue 5: This issue was without merit as the record showed that the past practice was not actually changed. Issue 6: This issue was without merit as the record showed that management’s action was clearly consistent with past practice, and the Guild did not introduce any evidence of an agreement to the contrary, as alleged in the complaint. Issue 7: This issue was without merit as the record showed that the Guild received exactly the video viewing time that it requested from management. Issue 8: The Guild’s case on this issue was composed entirely of hearsay, and the Guild did not provide specific information about what occurred. Issue 9: The Guild’s case was meritless as the uncontroverted evidence showed that no deputies were interviewed prior to the notice to Deputy Carrell, as alleged in the complaint; the Guild’s case to the contrary was nonspecific hearsay. Issue 10: The Guild appeared to abandon this issue, and it was not supported by the record, although the Guild did not withdraw it and the County was forced to defend against it. Issue 11: The issue relating to uniforms was without merit as the record clearly showed that deputies received more than three authorized uniforms from the County, contrary to the complaint; the issue relating to shift bidding was utterly meritless as the uncontroverted evidence was that the Guild’s board was aware of the change in 2020 and agreed to it.
With the possible exception of Issue 3, involving the unilateral change to Labor / Management meetings, I find that the Guild’s effort in prosecuting the issues in this case was at best, perfunctory. (The Guild’s prosecution of Issue 3 was still deficient as they failed to brief the City of Richland balancing test, which is an essential component of any unilateral change case. See City of Everett (International Association of Fire Fighters, Local 46), Decision 12671-A. The Guild’s case was largely based on hearsay, which the Guild should have known was insufficient to carry its burden of proof. The Guild also failed to establish basic facts in support of many of its claims, such as names and dates. Notably, in support of these 11 causes of action, the union only submitted a 19 1⁄2-page brief (WAC 391-45-290 limits briefs to 25 pages, but also provides a procedure for requesting a longer page limit).
The Commission’s standards for awarding attorney fees are arguably met here. “An award of attorney fees should not be commonplace; it should be reserved for cases in which a defense to an unfair labor practice charge can be characterized as frivolous or meritless.” Kiona Benton City School District (Kiona Benton Education Association), Decision 11862‐A (EDUC, 2014) (quoting State ex rel. Washington Federation of State Employees v. Board of Trustees, 93 Wn.2d 60, 69 (1980)). “The term ‘meritless’ has been defined as meaning groundless or without foundation.” Id. See also Spokane County Fire District 9 (International Association of Fire Fighters, Local 2916), Decision 3773-A (PECB, 1992) (awarding attorney fees for a frivolous appeal) rev’d on other grounds, Local 2916, International Association of Fire Fighters v. Public Employment Relations Commission, 128 Wn.2d 375 (1995).
It seems to me that it would be just and equitable to consider the award of attorney fees to the employer in this case due to the fact that the employer was forced to go through the time and expense of defending against the Guild’s 11 claims in this case, when the Guild itself made very little effort on many of them (not to mention the state’s resources in processing the case). The “shotgun approach” of filing a multitude of claims of questionable merit in the hope that some of them might hit the target, should be deterred. Perhaps skin in the game would have prompted a more thorough investigation (e.g., to see if the Guild had actually agreed to the shift bidding process) prior to the complaint being filed. Arguably, complainants as well as respondents should have skin in the game to deter frivolous claims that waste their counterpart’s time and resources. See Seattle School District, Decision 5733-B (PECB, 1998) (affirming attorney fees were warranted where employer’s defenses were frivolous, “to curtail such actions in the future, to prevent their recurrence, and to make the order effective”). However, in light of the Commission’s case law in Anacortes School District, Decision 2464-A (EDUC, 1986), I am unable to impose such accountability upon the Guild.