By Jim Cline
COVID-19 is creating significant operational issues and the related economic downturn is creating financial issues. COVID-19 also drove further usage of digital payments during the pandemic. For small businesses today, having access to the cheapest card machine is crucial for growth and success. An important question many are wondering is whether or when these developments can trump the right of labor organizations to maintain existing working conditions or labor contract protections. Those rights are essentially protected by two different sets of rights, which overlap to a certain extent: the terms of your CBA and the statutory right to maintain existing practices. The existence of a claimed emergency might impact those rights, but different considerations arise under the PERC regulated right to bargain and the arbitrator enforced rights under your labor contract.
So, we’ll separately break out those two sets of rights – those related to your right to engage in collective bargaining and the right to enforce the terms of your CBA. In this article, we first turn to the duty to bargain and how that is impacted by claimed “emergencies.” We’ll follow in a future newsletter article as to how this may impact your labor contract in front of an arbitrator.
Washington law requires public employers to engage in collective bargaining with the exclusive bargaining representative of their employees concerning mandatory subjects of bargaining, including wages, hours, and working conditions of employment. The scope of Mandatory Subjects of Bargaining is broad. Cline and Associates maintains an extensive case table detailing which subjects have been ruled to be “mandatory,” “permissive,” or “illegal” subjects of bargaining. To understand whether a working condition can be changed – with or without an “emergency” we advise labor organizations to review the breadth of bargainable “wages, hours, and working conditions” demonstrated in great detail in our Subjects of Bargaining case table.
PERC has recognized certain exceptions to the bargaining obligation. A unilateral change of a mandatory subject of bargaining can be lawfully implemented where (1) a party waives its bargaining rights by inaction, after adequate notice of the proposed change has been provided; or (2) the employer establishes a “business necessity” to impose the change. The focus of this article is on when the “business necessity” or “emergency” defense can excuse the general duty to bargain.
PERC has held that the business necessity defense may be applicable where a party to a collective bargaining relationship is faced with a compelling legal or practical need to make a change affecting a mandatory subject of bargaining. It may then be relieved of its bargaining obligation but only to the extent necessary to deal with the emergency.
If an employer raises this necessity defense to an otherwise unlawful unilateral change, they must show that: (1) a legal necessity existed; (2) they provided adequate notice of the proposed change; and (3) that bargaining over the effects of the change did, in fact, occur or the complainant waived bargaining over the effects of the change. If these elements are met, this may relieve the employer of its bargaining duty even if the decision to implement a unilateral change was presented as a fait accompli.
My Associate Troy Thornton and I have written a more detailed memo on this subject, available on our Premium Website. We’ve also assembled a detailed PERC case table that identifies the various cases in which the emergency defense has been raised by employers and how PERC has addressed that defense.
A review of those cases suggests that this defense is hardly a “slam dunk” for employers. In fact, the defense is generally rejected:
- In Port of Walla Walla (Decision 9061-A (PORT, 2006) the Commission rejected an employer claim that its financial “emergency” voided its duty to bargaining layoffs, noting that similar budget shortfalls had occurred in the past;
- In City of Tacoma (Decision 4539 (PECB, 1994) the Police Department’s failure to complete its negotiations for a drug testing policy before being faced with an under the influence officer did not establish an emergency allowing it to unilaterally impose its policy (later modified by the Commission that ruled that the fitness for duty policy could be applied instead);
- In Evergreen School District (Decision 3954 (PECB, 1991)) an employer was allowed to temporarily skim a narrow book handling assignment that otherwise would have impeded the instruction process;
- In Cowlitz County (Decision 3954 (PECB, 1991)) and Port of Anacortes (Decision 3954 (PECB, 1991)), employers would be allowed to temporarily change coverage when an insurance policy had lapsed, and employees would have been left without coverage.
These rulings indicate a reluctance by PERC to allow employers to evade bargaining simply by claiming an emergency. The emergency must be real and, even if found valid, it generally only excuses bargaining for the short term.
As always, you should be ready to assert your bargaining rights. If the employer claims the emergency excuse from bargaining, it should be viewed skeptically, and with the assistance of legal counsel.
