By Therese Norton
Employers commit an unfair labor practice if they do not engage in good faith bargaining of “personnel matters, including wages, hours and working conditions.” In a recent decision involving the City of Seattle and the Seattle Police Guild, the Public Employment Relations Commission examined the scope of an employer’s obligation to bargain an employer provided benefit of legal representation for police officers involved in civil lawsuits.
In City of Seattle, the Commission affirmed Hearing Examiner Emily Martin’s conclusions that changing an element of the false arrest insurance benefit regarding the use of in-house attorneys and the use of a legal representation agreement are not mandatory subjects of bargaining. Because these issues involve only permissive subjects of bargaining, Examiner Martin found, and the Commission affirmed, that the City had no obligation to bargain these decisions with the Guild.
The parties’ most recent labor agreement requires the employer to provide false arrest insurance. The insurance policy allowed the insurance company “to assume the defense of a claim provided the attorney retained was approved by the insured and acceptable to the insurance company.” The contract also stated the employer “shall continue the current practice” related to the selection of legal representation.
For many years, the City contracted with an outside law firm to provide a majority of the police officer’s legal representation. In 2010, the City ended this practice and instead planned to use in-house counsel. The union, concerned with a potential decline in the quality of its legal representation and potential conflicts of interest, demanded to bargain the change. (You may recall this became a hotly contested issue in the news).
The Commission applied a balancing test and found that the employer’s reasons for these changes outweighed any impact on employee wages, hours, and working conditions. The Police Guild had argued that the false arrest insurance benefits were a form of “wages” and thus a mandatory subject of bargaining. However, the Commission gave more weight to the City’s desires to manage its costs, provide direct oversight of litigation, and increase transparency among other things.
The move to using in-house counsel brought other changes including a new legal representation agreement that sought permission from the police officer to share some information with other co-defendants including the employer. The union was concerned this required disclosure would expose police officers to other investigations or discipline against them.
The Commission concluded that the terms of this “legal representation agreement,” were outside the scope of bargaining: “The employer’s interest in complying with the developing case law outweighs any potential impact the legal representation agreement might have on employee wages, hours, or working conditions.” The Guild had objected that the agreement improperly sought permission of the officers to share confidential information with their co-defendants. In passing, the Commission also questioned whether PERC and an unfair labor practice charge was the appropriate forum to “address concerns with the validity, scope, or form of the legal representation agreement.”
