By Chris Casillas and Jordan L. Jones
In Washington State Ferries, the Commission affirmed Examiner Slone-Gomez’s decision that the Inland Boatmen’s Union of the Pacific did not refuse to bargain in violation of RCW 47.64.130(2)(c). The Commission stated that the Washington State Ferries was unable to prove that the Union negotiated to impasse on a non-mandatory subject of bargaining.
In the case before Examiner Slone-Gomez, the Washington State Ferries and the Union were negotiating a successor CBA for 2013 – 2015 when the issue of relief personnel came up. The Washington State Ferries believed that relief personnel was a permissive subject of bargaining and sought to delete certain language in the CBA pertaining to the issue. The Union disagreed with the proposed deletion and the notion that relief personnel were a permissive subject. Both parties were unable to come to an agreement on the issue of relief personnel and interest arbitration certification was sought for the issues that remained over the CBA.
The Washington State Ferries subsequently filed a ULP complaint claiming that the Union refused to bargain by insisting to impasse a permissive subject of bargaining, i.e., relief personnel. Examiner Slone-Gomez ultimately held that the Union’s failure to seek interest arbitration on a permissive of bargaining subject was dispositive and dismissed the Washington State Ferries’ ULP complaint.
On review, by its own motion, the Commission affirmed Examiner Slone-Gomez’s decision. The Commission framed the issue on review as “whether a claim for refusal to bargain by insisting to impasse” can be made against a party who does not submit those disputed issues to interest arbitration.
In its decision, the Commission highlighted three propositions from the Washington Supreme Court case of Klauder v. San Juan County Deputy Sheriff’s Guild:
First, parties need not bargain over permissive or nonmandatory subjects, “including those that deal with the procedures by which wages, hours and the other terms and conditions of employment are established.” Second, interest arbitration provisions are permissive subject[s] of bargaining. Third, it is “an unfair labor practice to bargain to impasse over a non-mandatory subject.”
The Commission then stated that “[t]here is nothing in Klauder that leads us to read the decision to hold that it is an unfair labor practice to bargain to impasse and seek interest arbitration of a permissive subject of bargaining.”
Subsequently, the Commission noted that the:
employer proposed deleting or modifying two rules in the collective bargaining agreement on the basis those rules were nonmandatory, or permissive, subjects of bargaining. The union disagreed . . . . [and] the parties did not reach agreement. The union did not submit either rule to interest arbitration. The employer submitted one of the two rules to interest arbitration.
The Commission held that because the Union did not submit the disputed issues to interest arbitration, there was not a refusal to bargain by insisting to impasse on non-mandatory subjects of bargaining.
The Commission’s decision is now on appeal in Thurston County Superior Court and will almost certainly be overturned at some stage since it directly conflicts with the State Supreme Court’s decision in Klauder. In fact, the Commission’s decision upends a body of law, even within PERC’s own decisions, that has been relatively stable for nearly thirty years following Klauder, without specifically identifying as much or the reasons therefor. Several aspects of the decision are, at best, curious. The Commission correctly frames some of the key principles to emerge from Klauder, including the basic proposition that one party cannot insist to a point of impasse on permissive or non-mandatory subjects of bargaining. Oddly, however, immediately after laying this out, the Commission then contradicts this position by noting that “[t]here is nothing in Klauder that leads us to read the decision to hold that it is an unfair labor practice to bargain to impasse and seek interest arbitration of a permissive subject of bargaining.” It is impossible to square the latter proposition with the former.
Second, the Commission draws significance from the fact that the party in favor of the alleged non-mandatory provision did not request such provision to be certified for arbitration, which is a legal distinction without any difference. In reality, to the extent one party with an interest arbitration eligible group wants to remove what it believes to be a non-mandatory provision in the current agreement from the future agreement, it has three choices. It can reach an agreement with the other side to modify the alleged non-mandatory subject, file a ULP charge to block the other side from advancing the provision, or it can submit the matter to arbitration. To the extent the Commission’s new rule is that if the party proposing the non-mandatory subject does not request its certification it cannot constitute a ULP, then the other party, absent a mutual agreement, will be forced to take the issue to arbitration to seek its removal. At arbitration, the party who favors the alleged non-mandatory provision, even if that party did not seek its certification, will most certainly take a position in favor of maintaining the non-mandatory subject. Thus, the fact that the party in favor of maintaining the alleged non-mandatory subject did not seek its certification, in the end, makes no difference because that position will be carried forward into arbitration with at least the possibility that the arbitrator will agree to maintain the alleged non-mandatory subject of bargaining in the new agreement.
For this reason, and others, the State Supreme Court made clear in Klauder that the unfair labor practice was premised on one party insisting, as a precondition of reaching an agreement, on advancing a non-mandatory subject of bargaining to a point of impasse. It makes no difference, in the end, which of the two parties formally seeks certification over the offending provision because the unlawful act comes earlier in the process when successful resolution of a mutually agreed contract is preconditioned on agreement over a permissive subject of bargaining. This basic principle should be recognized on appeal of this case, likely resulting in the case being remanded to PERC to make a determination over whether the provision at issue was, in fact, non-mandatory or not. To the extent the alleged provision is found to be non-mandatory, the insistence on that provision to a point of impasse should be declared unlawful.
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