Lincoln Cnty. v. Pub. Emp't Relations Comm'n of Wash.
| Decision Date | 03 November 2020 |
| Docket Number | No. 37054-2-III,37054-2-III |
| Citation | 475 P.3d 252,15 Wash.App.2d 143 |
| Parties | LINCOLN COUNTY, Appellant, v. PUBLIC EMPLOYMENT RELATIONS COMMISSION of the State of Washington; Office of the Attorney General; and Teamsters Local 690, a labor organization, Respondents. |
| Court | Washington Court of Appeals |
PUBLISHED OPINION
Lawrence-Berrey, J. ¶ 1 Public employers are adopting resolutions requiring collective bargaining to be conducted in public. Bargaining representatives, believing private collective bargaining to be more effective in the give and take process for resolving differences, often push back on these resolutions. Here, Lincoln County (County) adopted a resolution requiring collective bargaining to be conducted in public. In response, Teamsters Local 690 (Teamsters) adopted a resolution requiring collective bargaining to be conducted in private.
¶ 2 This case answers the question of what must be done when a public employer and a bargaining representative cannot agree on the procedure for collective bargaining and no collective bargaining, thus, takes place. We hold that a public employer and a bargaining representative each commit an unfair labor practice (ULP) when they refuse to bargain on mandatory subjects of bargaining unless the other agrees to a procedure that it lacks the prerogative to unilaterally decide. To this extent, we affirm PERC's1 decision.
¶ 3 We further hold that procedures for collective bargaining are permissive subjects of bargaining. As such, the inability of the parties to agree on procedures for bargaining does not result in the return to status quo. To this extent, we reverse PERC's decision. We remand this case to PERC for it to order appropriate relief.
FACTS
¶ 4 Teamsters Local 690 represents two bargaining units of workers employed in Lincoln County. Lincoln County v. Teamsters Local 690 , No. 128814-U-17 (Wash. Pub. Emp't Relations Comm'n Apr. 3, 2018). The County is governed by three elected commissioners. The commissioners serve as the County's representative for collective bargaining. Teamsters and the County had two collective bargaining agreements, one for each unit. Those agreements expired after December 31, 2016.
¶ 5 In September 2016, the County passed Resolution 16-22. The resolution, which was passed without notice to Teamsters, required all collective bargaining to be done in public. The idea for the resolution originated several years earlier when the County received information from the Freedom Foundation about opening bargaining to the public. The County used a template, e-mailed to it from the Freedom Foundation, as the basis for its resolution. The County hoped that by making collective bargaining transparent, voters would more likely pass a tax increase on the November ballot.
¶ 6 Teamsters promptly met with the County and asked it to rescind its recent resolution. The County refused. Id. ( of Fact 5).
¶ 7 Over the next few months, Teamsters filed with PERC two ULP complaints against the County. A PERC hearing examiner dismissed both complaints.
¶ 8 In January 2017, Teamsters and the County began bargaining in public a new collective bargaining agreement. Id. ( of Fact 7). Teamsters stated it disagreed with holding the meetings in public and was not waiving its position. Id. The parties reached agreement on several issues, but because a reporter was present, they did not discuss others. Id. ( of Fact 8). When they got to those issues, Lincoln County's sheriff asked to engage in private discussions. Sometime later, the sheriff, the undersheriff, and Teamsters discussed those issues privately.
¶ 9 In February 2017, Teamsters passed its own resolution. The resolution, passed without notice to the County, required all collective bargaining to be done in private. Id. ( of Fact 10).
¶ 10 Later in February, the parties reconvened for additional collective bargaining. Id. ( of Fact 11). Teamsters stated it preferred the longstanding practice of bargaining in private. The County stated it was ready, willing, and able to bargain in public, consistent with its resolution. The two repeated their positions on how they would proceed several times before the County questioned whether any bargaining would be done that day. Id. (Findings of Fact 11-12). Teamsters left the meeting and went into the breakroom. Id. ( of Fact 12). The County kept the meeting open until Teamsters left the building. The parties do not dispute that bargaining in private or public is classified as a ground rule or bargaining procedure and is a permissive subject of bargaining. Id. ( of Fact 13).
¶ 11 The County filed a ULP complaint against Teamsters, alleging the union refused to bargain on mandatory subjects of bargaining unless the County acquiesced on a permissive subject of bargaining. In turn, Teamsters filed a ULP complaint against the County, alleging it was the County that refused to bargain. The complaints were consolidated into a single hearing.
¶ 12 The case was heard before a hearing examiner. The hearing examiner issued a decision that included findings of fact and conclusions of law. The examiner concluded both parties committed ULPs. Both parties appealed to the PERC board. Lincoln County v. Teamsters Local 690 , No. 128814-U-17 (Wash. Pub. Emp't Relations Comm'n Aug. 29, 2018).
¶ 13 PERC adopted the findings of fact and conclusions of law of the hearing examiner and concluded both parties committed ULPs by refusing to negotiate mandatory subjects of bargaining unless they first agreed on a bargaining procedure, a permissive subject of bargaining. As a remedy, PERC ordered the parties to bargain in good faith over the procedure for collective bargaining. If the parties could not agree on the procedure after two sessions of good faith bargaining, PERC would appoint a mediator to assist the parties. If mediation failed, PERC concluded the parties must return to status quo, which it found was private collective bargaining.
¶ 14 Both parties appealed this decision to the Lincoln County Superior Court, which affirmed PERC's order. The County timely filed this appeal, and Teamsters timely cross appealed.
ANALYSIS
¶ 15 The arguments raised in the appeal and cross-appeal require us to address three broad issues: (1) does the preemption doctrine either validate or invalidate the County's resolution, (2) did PERC correctly conclude that both parties committed ULPs, and (3) did PERC err in applying the status quo doctrine to bargaining procedures, a permissive subject of bargaining.2
STANDARDS OF REVIEW
¶ 16 We review an appeal from a PERC decision involving a ULP in accordance with the Administrative Procedure Act (APA), chapter 34.05 RCW. Amalgamated Transit Union, Local 1384 v. Kitsap Transit , 187 Wash. App. 113, 123, 349 P.3d 1 (2015) ; Pub. Emp't Relations Comm'n v. City of Vancouver , 107 Wash. App. 694, 702, 33 P.3d 74 (2001). Under the APA, we may grant relief from an agency order for any one of nine reasons set forth in RCW 34.05.570(3). Of these, the one relevant to our disposition is whether PERC erred in interpreting or applying the law. RCW 34.05.570(3)(d).
¶ 17 When reviewing questions of law, an appellate court may substitute its determination for that of PERC, although PERC's interpretation of the Public Employees’ Collective Bargaining Act (PECBA), chapter 41.56 RCW, is entitled to great weight and substantial deference, given PERC's expertise in administering this law. RCW 34.05.570 ; City of Bellevue v. Int'l Ass'n of Fire Fighters, Local 1604 , 119 Wash.2d 373, 382, 831 P.2d 738 (1992) ; Amalgamated Transit Union , 187 Wash. App. at 123, 349 P.3d 1. In addition to Washington law, we rely on federal decisions construing the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 - 169, because decisions construing the NLRA are persuasive when construing similar provisions of the PECBA. Pasco Police Officers’ Ass'n v. City of Pasco , 132 Wash.2d 450, 458, 938 P.2d 827 (1997).
RELEVANT LEGAL PRINCIPLES
¶ 18 The PECBA " ‘regulates the subjective conduct and motivations of the parties in a collective bargaining situation, but expressly refrains from mandating any result or procedure for achieving final resolution of an intractable bargaining dispute.’ " Id. at 460, 938 P.2d 827 (quoting Stuart S. Mukamal, Unilateral Employer Action Under Public-Sector Binding Interest Arbitration , 6 J.L. & COM. 107, 113-14 (1986) ). PERC intervenes "only in those limited circumstances where the conduct of one party or the other indicates a refusal to bargain in good faith," which is defined as "an absence of a sincere desire to reach agreement." Id. at 114.
¶ 19 If a subject of bargaining is permissive, parties may negotiate, but each party is free to bargain or not bargain and to agree or not agree. Pasco Police Officers’ Ass'n , 132 Wash.2d at 460-61, 938 P.2d 827. Agreements on permissive subjects of bargaining "must be a product of renewed mutual consent" and expire with the parties’ collective bargaining agreement. Klauder v. San Juan County Deputy Sheriffs’ Guild , 107 Wash.2d 338, 344, 728 P.2d 1044 (1986). A party commits an unfair labor practice when it bargains to impasse over a permissive subject of bargaining. Id. at 342, 728 P.2d 1044.
¶ 20 Permissive subjects fall into different categories. Some authorities, such as the employer's authority to determine its budget, are managerial prerogatives. Spokane Educ. Ass'n v. Barnes , 83 Wash.2d 366, 376, 517 P.2d 1362 (1974). When a permissive subject is a managerial prerogative, the employer is free to unilaterally decide the subject. See Int'l Bhd. of Elec. Workers, Local 21 v. Nat'l Labor Relations Bd. , 563 F.3d 418, 422 (9th Cir. 2009). Similarly, if the permissive subject is a union prerogative, the union is free to unilaterally decide the subject. See, e.g. , Ramada Plaza Hotel , 341 N.L.R.B. 310, 310 n.2 (2004). This follows, where a permissive subject of bargaining is neither a...
To continue reading
Request your trial
-
Am. Fed'n of Teachers v. State
...a ULP claim in accordance with the Administrative Procedure Act (APA), chapter 34.05 RCW. Lincoln County v. Pub. Emp't Relations Comm'n, 15 Wash. App. 2d 143, 150-51, 475 P.3d 252 (2020), review denied, 197 Wash.2d 1003, 483 P.3d 774 (2021). Under the APA, we may grant relief from an agency......
-
Wash. State Council of Cnty. & City Emps. v. City of Spokane
...that it is an unfair labor practice for one party to set rules on a permissive subject of bargaining prior to negotiations. In PERC's Lincoln County decision, the board concluded that a party unlawfully refuses to bargain when it requires that the parties bargain in a certain way as a condi......