PERC finds Deputy Sheriff’s Association Bargained Regressively on Eve of Interest Arbitration

By Therese Norton

MaliceBoth employer and union can violate their good faith bargaining obligations under the state collective bargaining laws when one party advances proposals prior to interest arbitration that are regressive from proposals made earlier in negotiations. In Spokane County (Spokane County Deputy Sheriff’s Association), PERC Examiner Stephen W. Irvin found, and the Commission affirmed, that the Spokane County Deputy Sheriff’s Association breached its good faith bargaining obligations by submitting a regressive wage proposal after impasse and shortly before the parties’ scheduled interest arbitration hearing. The Association had initially tied its wage proposal to the Consumer Price Index (CPI); however, the Examiner had concluded that prior to arbitration the Association severed the tie to the CPI when conveying its wage proposal to the interest arbitration panel, resulting in an escalated wage demand.

The Association argued that it never intended to tie its wage proposal to CPI-U, because its proposal was meant to offset the potential of significantly higher out-of-pocket medical costs. The examiner evaluated the union’s overall bargaining behavior and concluded, “Despite the employer’s insistence on a wage freeze for 2012 and 2013, the possibility existed that the parties could have reached a settlement on the courthouse steps prior to interest arbitration.  The window of opportunity for a negotiated settlement closed abruptly, however, when the union switched courses on its wage proposal following months of bilateral negotiations and mediation in which it consistently maintained its initial proposal to link wage increases to CPI-U.”

Regressive bargaining occurs when one party at the bargaining table in some manner evidences an attempt to make a proposal less attractive. The Commission has determined, and the Washington Supreme Court has affirmed, that interest arbitration represents a continuation of the collective bargaining process and of the parties’ obligation to bargain in good faith. In this case, the union argued that its wage proposal did not infect the bargaining process, because the bargaining process was finished once impasse was declared.  The examiner disagreed, explaining that impasse can and should be broken if possible, even after the Executive Director has certified the matter for interest arbitration. “Offers can be changed after interest arbitration has been invoked, particularly when there is an apparent attempt to narrow the parties’ differences.”

The examiner explained the impact of the Association’s behavior. “Instead of narrowing the parties’ differences, the union frustrated the collective bargaining process by making its wage proposal less attractive to the employer and making it less likely that the parties would be able to reach agreement.”

Examiner Irvin also rejected the union’s argument that the employer’s complaint was not timely. The examiner determined that it was reasonable for the employer to conclude that the union’s subsequent email regarding its wage proposal was tied to CPI-U as it had been in its initial proposal. Therefore, the examiner determined that the employer knew of the change in the union’s position and filed its complaint within the six months statute of limitation.

As a remedy, Examiner Irvin ordered the union to cease and desist from its illegal activity, to post appropriate notices, and to enter the interest arbitration hearing with the initial wage proposal it provided to the employer in which the wages were tied to CPI.

Editor’s Note (Chris Casillas): This case is a good reminder that the good faith bargaining obligation does not cease to operate once an impasse is reached and the parties have been certified for interest arbitration.  There is a statutory obligation that all collective bargaining be done in “good faith.”  The interest arbitration process was designed to be a final step in the process to reach a new collective bargaining agreement, but it is still a part of the collective bargaining process as a whole.  As such, both the employer and union must act in a manner that each side would reasonably believe could bring the parties closer to a deal rather than escalating any demands, and such an obligation continues through the arbitration process.  

Court Issues a Mixed Ruling on Kitsap County Deputy Fire Marshal’s USERRA Claims

By Jordan L. Jones

sad happyIn Hanson v. Cnty. of Kitsap, the court held that a Kitsap County Deputy Fire Marshal’s claims under the Uniformed Services Employment and Reemployment Rights Act (USERRA) relating to (1) reemployment, (2) benefits, (3) hostile work environment, and (4) constructive discharge should be dismissed under summary judgment. The court also held that the “[p]laintiff’s motion for summary judgment on his USERRA claim under § 4318 (pension) should be granted . . . . [T]he § 4311 USERRA claim and WLAD [i.e., Washington Law Against Discrimination] claim (to the extent they are based on the failure to promote him and his removal from the fire investigation rotation) and his USERRA claim under § 4316 (without cause discharge), is very thin, but is sufficient to allow to proceed on those claims.”

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State Supreme Court Holds Oral Argument on Kitsap Retroactive Insurance Case

By Jim Cline

healthcare costsAs we indicated in an earlier blog, the State Supreme Court has accepted review of the Kitsap County retroactive insurance case.  The issues in the case involve whether an employer can retroactively increase health insurance premiums and whether they may also deduct the amount needed to cover the increased premiums from the employee’s paychecks without employee consent.  Our previous blog provides a detailed review of the legal issues before the Court.

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New York Federal Court Holds That Corrections Officer Waived Any Right To A Pre-Termination Hearing By Signing A Last Chance Agreement

By Jordan Jones

last_chance

In Stresing v. Agostinoni, a Federal court held that a New York corrections officer (officer) waived any right to a pre-termination hearing when he signed a last chance agreement with his employer.

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Washington Court of Appeals finds Trial Court erred in Slapping down Lawsuit under Anti-SLAPP Statute

By Kasey Burton

slapp

In Spratt v. Toft, the Washington State Court of Appeals, Division I, held that the King County Superior Court erred in failing to consider whether or not a plaintiff is likely to prevail on his or her defamation claim before dismissing the suit under the Washington Anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.

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Washington Appeals Court Holds That Kitsap Lieutenant’s Union Was Not Entitled To Attorney Fees Under RCW 49.48.030 For ULP Hearing

By Jordan L. Jones

stock-photo-5918704-flying-moneyIn Int’l Union of Police Ass’n, Local 748 v. Kitsap County, the Court of Appeals of Washington, Division One held that a trial court erred when it awarded attorney fees incurred in an Unfair Labor Practice ULP (ULP) proceeding to the Kitsap County Sheriff’s Office Lieutenant’s Association under the state wage law.

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Appeals Court Upholds Ruling That A Trucking Company Was Liable For The Retaliatory Discharge Of An Independent Contractor Under The WLAD

By Jordan L. Jones

DiscriminationIn Currier v. Northland Servs., Inc., the Court of Appeals of Washington, Division One (court) upheld a trial court decision that Northland Services Inc. (NSI) was liable for the retaliatory discharge of an independent contractor under the Washington Law Against Discrimination (WLAD). The court found that “[b]ecuase the WLAD applies to this case and substantial evidence supports the trial court’s findings and conclusions that retaliation was a substantial factor in NSI’s termination of . . . [the contractor,] we affirm the trial court’s judgment.”

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ULP Alleges School District Provided Union with False Information

By Therese Norton

misleadingThe Public Employment Relations Commission (PERC) vacated an order dismissing the International Union of Operating Engineers, Local 609’s unfair labor practice complaint against the Seattle School District.  Seattle School District, Decision 11995-A (PECB, 2014). The union had alleged the School District had provided false and misleading information in response to its information request regarding placing an employee on administrative leave.  The District must now file its answer to the complaint, and the matter can proceed to a full evidentiary hearing.

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PERC Dismisses Objections to Decertification Election

By Therese  Norton

voting-symbolsA group of individuals petitioned the Public Employment Relations Commission (PERC) to decertify the Public School Employees of Washington/Puyallup Association of Education Office Personnel as the exclusive bargaining representative of clerical employees at the Puyallup School District. Following a mail ballot election, the employees chose to remain represented by the union. The group subsequently alleged that the union engaged in objectionable conduct that affected the results of the election. In Puyallup School District, the Commission dismissed the election objections brought by the group.  Decision 12067 (PECB, 2014).

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PERC Affirms Ruling Union Improperly Circumvented Employer’s Designated Collective Bargaining Rep

By Therese Norton

bargaining 2In Kiona Benton School District, the Public Employee Relations Commission affirmed Examiner Coss’s finding that the Kiona Benton Education Association, the Union that represents certain teachers in the School District, breached its good faith bargaining obligation under State collective bargaining laws by refusing to communicate with the District’s designated collective bargaining representatives.

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