City of Everett v. Wash. Public Emp't Relations Comm'n

• Decision Date: 28 October 2019
• Docket Number: No. 77831-5-I,77831-5-I
• Citation: 451 P.3d 347
• Parties: CITY OF EVERETT, Appellant, v. State of Washington PUBLIC EMPLOYMENT RELATIONS COMMISSION and International Association of Fire Fighters, Local 46, Respondents.
• Court: Washington Court of Appeals

451 P.3d 347

CITY OF EVERETT, Appellant,

v.State of Washington PUBLIC EMPLOYMENT RELATIONS COMMISSION and International Association of Fire Fighters, Local 46, Respondents.

No. 77831-5-I

Court of Appeals of Washington, Division 1.

FILED: October 28, 2019

Rodney B. Younker, Shannon E. Phillips, Summit Law Group PLLC, 315 5th Ave. S. Ste. 1000, Seattle, WA, 98104-2682, for Petitioner.

Mark Spencer Lyon, Office of the Atty. General, 7141 Clearwater Dr. Sw., Po Box 40108, Olympia, WA, 98504-0108, W. Mitchell Cogdill, Attorney at Law, 3232 Rockefeller Ave., 3 Thirty Two Sq., Everett, WA, 98201-4317, for Respondent.

Bob C. Sterbank, Attorney at Law Po Box 987 Snoqualmie, WA, 98065-0987, for Amicus Curiae on behalf of Washington State Association of Municipal Attorneys.

Jennifer L Robbins, Carson Phillips-Spotts, Barnard Iglitzin & Lavitt LLP, 18 W. Mercer St. Ste. 400, Seattle, WA, 98119-3971, for Amicus Curiae on behalf of Washington State Council of Fire Fighters.

PUBLISHED OPINION

Schindler, J. ¶1 A public employer and a union representing public employees have a duty to bargain in good faith on mandatory subjects of collective bargaining. It is an unfair labor practice to insist on bargaining to impasse a nonmandatory subject of collective bargaining. During negotiations between the city of Everett (City) and the International Association of Fire Fighters Local 46 (Union) on a successor collective bargaining agreement, the Union proposed an amendment to "Article 27, Health and Safety," to increase the minimum crew level of firefighters and paramedics on duty for a 24-hour shift. As a general rule, the determination of shift staffing is a fundamental and strong management prerogative that is a nonmandatory subject of bargaining. The City filed an unfair labor practice complaint against the Union, alleging the Union insisted on bargaining to impasse the proposal to amend Article 27. The Washington State Public Employment Relations Commission (PERC) balanced the City's managerial prerogative over shift staffing with unrebutted evidence submitted by the Union that demonstrated a direct relationship between the proposed amendment and the workload and safety of the firefighters and paramedics. PERC concluded the proposed amendment to Article 27 was a mandatory subject of bargaining. The City appeals the PERC decision to dismiss the unfair labor practice complaint.¹ The City cites International Ass'n of Fire Fighters, Local Union 1052 v. Public Employment Relations Commission, 113 Wash.2d 197, 778 P.2d 32 (1989), to assert that without regard to workload and safety concerns, as a matter of law shift staffing is never a mandatory subject of collective bargaining. We disagree. In International Ass'n of Fire Fighters, Local Union 1052, 113 Wash.2d at 204, 778 P.2d 32, the Washington State Supreme Court expressly rejected the assertion that the determination of shift staffing "never can be ‘working conditions’ included within the scope of mandatory bargaining." While "staffing levels typically weigh on the managerial prerogative side of the balance," where there is "a demonstratedly direct relationship" to workload and safety, shift staffing may be a mandatory subject of collective bargaining. Int'l Ass'n of Fire Fighters, Local Union 1052, 113 Wash.2d at 207, 204, 778 P.2d 32. The court held, "Every case presents unique circumstances, in which the relative strengths of the public employer's need for managerial control on the one hand, and the employees' concern with working conditions on the other, will vary," and PERC must carefully consider "meaningful distinctions in the circumstances" of each case. Int'l Ass'n of Fire Fighters, Local Union 1052, 113 Wash.2d at 207, 778 P.2d 32. Even if shift staffing is not a per se mandatory subject of collective bargaining, the City contends PERC erred in balancing the interests, and substantial evidence does not support finding a direct relationship between shift staffing and workload and safety. We conclude PERC did not err in balancing the strong fundamental prerogative of the City on shift staffing and the unrebutted workload and safety testimony, and substantial evidence supports PERC finding the Union demonstrated a direct relationship between the Union proposal to increase the minimum number of crew on each shift and the workload and safety of the firefighters and paramedics. We affirm the PERC decision.

City of Everett Fire Department

¶2 The Everett Fire Department operates six stations and responds to residential and commercial building fires, fires at the Navy shipyard, medical emergencies, and emergencies on Interstate 5.

¶3 The International Association of Fire Fighters Local 46 (Union) represents firefighters, paramedics, captains, and battalion and assistant chiefs.

Article 27, Health and Safety

¶4 In 1974, the city of Everett (City) and the Union agreed to include "Article XXVII, Health and Safety Measures," in the collective bargaining agreement. Article XXVII established a minimum number of firefighters on duty for each shift.

¶5 In 1976, the City and Union reached an impasse on negotiating a successor collective bargaining agreement. The City filed a declaratory judgment action. The City challenged the Public Employees' Collective Bargaining Act (PECBA)² statutes, RCW 45.56.100 and .450, that impose mandatory mediation and interest arbitration on mandatory subjects of collective bargaining.³ The City also sought a declaratory judgment on whether a minimum crew for each shift was a mandatory subject of bargaining. In City of Everett v. Fire Fighters, Local No. 350 of the International Ass'n of Fire Fighters, 87 Wash.2d 572, 555 P.2d 418 (1976), the Washington Supreme Court rejected the City's challenge to the statutes that require mediation and interest arbitration. Because the court affirmed the order to engage in interest arbitration, the court declined to address whether minimum crew requirements is a mandatory subject of bargaining. However, the court noted, "It would appear that the size of the crew might well affect the safety of the employees and would therefore constitute a working condition, within the meaning of RCW 41.56.030(4) defining collective bargaining." City of Everett, 87 Wash.2d at 576, 555 P.2d 418.

¶6 On remand, the arbitration panel concluded minimum on-duty crew staffing for each shift related to the safety of the firefighters and was a mandatory subject of bargaining. With minor changes, the 1976 collective bargaining agreement and subsequent collective bargaining agreements have included "Article 27, Health and Safety."

¶7 Article 27, Health and Safety, states:

The parties recognize that manning (crew size, on duty shift force) vitally affects the efficient and economic operation of the Department in providing the best possible service to the community and, further, that changes from the present minimum level agreed to in prior contracts do affect the safety and job security of the members of the Union, and therefore agree as follows:

The City agrees to maintain a firefighting force of at least twenty-five (25) firefighters on duty at all times. The City further agrees to maintain at least three (3) firefighters on each fire suppression company, one of whom shall be a captain; to maintain two (2) firefighters on each aid car and to maintain a battalion chief who shall be on duty with each fire suppression platoon.

The City further agrees to use the attrition method in reaching the twenty-five (25) firefighter minimum crew level. Attrition is defined as voluntary quit, dismissal for just and sufficient cause, permanent disability, retirement or death.

Provided, however, that notwithstanding the foregoing, the City may, during the course of the contract year, seek to effect a change in the minimum manning provided by paragraph one above. If the City desires to effect such change, it shall propose to the Union a written proposal as to the reduction sought including reason for the change, prior to the date of the change.

2012-2014 Successor Agreement Negotiation

¶8 In 2008, the City imposed a zero-growth budget for the fire department. In 2010, the City reduced the minimum crew on duty for each shift from 33 to 28. However, the City "neither reduced the number of personnel assigned to an apparatus nor changed the number and type of apparatuses required to respond to calls." For a medical emergency, "a minimum of seven people on an engine, a paramedic unit, and, possibly, an aid unit" are required to respond. If no aid unit is available, "a second engine responds." For a residential fire, "a minimum of 17 personnel respond." For a commercial fire, "a minimum of 21 personnel respond."

¶9 In 2014, the population and size of the City had grown to 104,900 citizens with an area of 34.16 square miles, and the number of calls to the fire department had increased to 21,389.

¶10 In 2014, the City and the Union engaged in negotiations for a successor collective bargaining agreement. In response to the significant increase in workload and safety concerns, the Union proposed an amendment to Article 27 to increase the minimum crew on duty for each shift to 35. The proposed amendment to Article 27, Health and Safety, provides:

The parties recognize that manning (crew size, on duty shift force) vitally affects the efficient and economic operation of the Department in providing the best possible service to the community and, further, that changes from the present minimum level agreed to in prior contracts do affect the safety and job security of the members of the Union, and therefore agree as follows:

The City agrees to maintain a firefighting force of at least twenty-five-(25)thirty five (35) firefighters on duty at all times. The City further agrees to maintain at least three (3) firefighters on each fire suppression company, one of whom shall be a captain; to maintain two (2) firefighters on each aid car and to maintain a battalion chief who shall be on duty with each

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