In the Washington State Department of Corrections, the Examiner ruled that the Department of Corrections (DOC) cannot unilaterally change its practice of using a volunteer list to assign female correctional officers (COs) to conduct strip searches on transgender female inmates.
In 2019, the DOC and the union adopted a policy outlining how COs would conduct strip searches of transgender inmates at male-only correctional facilities. The policy allowed transgender inmates to select their preference regarding the gender identity of the CO performing the search. Female COs could volunteer to strip search transgender female inmates. If no female COs volunteered, the Shift Commander would assign male COs to conduct the search and then report it. There were routinely not enough female volunteers, so transgender female inmates were often strip searched by male COs. These cross-gender searches violated the Prison Rape Elimination Act (PREA), which led Disability Rights Washington to sue the DOC. A settlement agreement was reached—without the union’s knowledge.
To comply with the settlement, the DOC revised its policy on strip searches of transgender inmates stating that such searches must be conducted by a CO whose gender matches the inmate’s stated preference. The DOC invited the union to “bargain the impacts” of this change. The union filed a demand to bargain over the proposed revisions. During a meeting between the DOC and the union, the DOC stated its intent to eliminate the volunteer list because it believed the list violated PREA. The DOC further stated that if female COs refused to strip search a transgender inmate, it would be considered insubordination. No agreement was reached between the parties.
In 2023, the DOC implemented its revised policy by eliminating the volunteer list and requiring female COs to conduct strip searches of transgender inmates.
The union argued that the new policy substantially changed the working conditions of female COs at male-only correctional facilities and was therefore a mandatory subject of bargaining. The union also argued that while PREA and the settlement agreement require transgender inmates to be searched by a CO of the gender they request, neither specifies how this must be implemented. During negotiations, the union proposed maintaining the volunteer list, offering incentives to COs for performing the work, and establishing bona fide occupational qualifications to achieve the desired result.
The DOC argued it had no obligation to bargain with the union because the old policy violated PREA. They further argued that if no female COs were available to perform the searches, they would have to forgo them entirely, thus increasing the risk of contraband entering the facility and jeopardizing the safety of inmates and staff.
The Examiner agreed with the DOC that the previous practice of allowing cross-gender searches when no female COs were available violated PREA, making that policy a non-mandatory subject of bargaining. Therefore, the DOC could revise its policy without bargaining with the union to require female COs to conduct searches when no volunteers were available. However, the Examiner also concluded that eliminating the volunteer list was a mandatory subject of bargaining because PREA does not dictate how same-gender searches must be conducted, and removing the volunteer list had a substantial impact on the working conditions of female COs.
The Examiner determined that the elimination of the volunteer list constituted a unilateral change. Although the DOC invited the union to “bargain the impacts” of the policy changes, it implemented the new policy without reaching an agreement beforehand.
“The employer’s decision to eliminate the previously bargained practice of first assigning strip searches of transgender incarcerated individuals to COs on the volunteer list was a mandatory subject of bargaining. The employer refused to bargain by unilaterally eliminating the process of using a volunteer list to make these work assignments without giving the union an opportunity to bargain.”
Therefore, the Examiner ruled that the DOC had to restore the status quo with regard to the volunteer list.
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