By Therese Norton
The Walla Walla County Commissioned Deputy Sheriff’s Association filed an unfair labor practice complaint alleging that Walla Walla County refused to engage in collective bargaining and interfered with employee rights by unilaterally changing the practice of compensating for the lunch hour during training days. PERC Examiner Slone-Gomez dismissed the complaint, finding that the County did not commit an unfair labor practice because the union failed to prove a “past practice”. Walla Walla County, Decision 11877 (PECB, 2013).
Under the Public Employees’ Collective Bargaining Act, wages and hours of work are mandatory subjects of bargaining. An employer must notify a union of any change to wages and, upon request, bargain with the union while maintaining the status quo. Status quo is determined by the collective bargaining agreement (CBA) and past practice.
In this case, because neither the CBA nor a 2011 Work Schedule MOU mentioned how employees would be compensated for lunch breaks on training days. The CBA simply stated:
“Any employee who is required to attend job training during off-duty hours whether in the county or outside the county will be given compensatory time on a one and one half-hour basis.” The Examiner looked to see if there was a past practice of employees being paid for the lunch period. Examiner Slone-Gomez found that there was “no set standard for how lunch periods were compensated for training days.”
Past trainings varied in duration. Most did not include a lunch break, and some included a “working lunch.” Four times in 2011, employees attended an eight-hour training and did not receive a paid lunch. Examiner Slone-Gomez concluded that the employer did not unilaterally change the past practice.
The County also alleged that the union did not meet the Commission’s statute of limitations for unfair labor practice occurring more than six months before the filing of the complaint. Examiner Slone-Gomez found that the union knew of the lunch hour compensation issue as early as April 2011 when the first training day where employees worked eight hours with a one-hour unpaid lunch break. Thus, the union’s complaint was “substantially beyond” the statute of limitations.
Although PERCs decision does not address it, the union initially raised an issue that the practice may be in violation of the Fair Labor Standards Act (FLSA). The FLSA requires payment for certain training time and for meal breaks when the employee is not “completely relieved of duty”. These are not waivable rights by an employee or by a union. They are separate and distinct from those arising out of the CBA.
But such an FLSA claim would likely not be successful. Although the FLSA appears to require compensation for lunch breaks on patrol days, while officers remain subject to call, it is generally understood that the FLSA would not require such compensation for lunch breaks on training days where officers are not subject to being called out. So whether or not this time is compensable is left to the arrangement of each bargaining unit and their CBA.
