Lincoln County v. Public Employment Relations Commission ( 2020 )

FILED
NOVEMBER 3, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
LINCOLN COUNTY, ) No. 37054-2-III
)
Appellant, )
)
v. )
)
PUBLIC EMPLOYMENT RELATIONS ) PUBLISHED OPINION
COMMISSION of the State of )
Washington; OFFICE OF THE )
ATTORNEY GENERAL; and )
TEAMSTERS LOCAL 690, a labor )
organization, )
)
Respondents. )
LAWRENCE-BERREY, J. — Public employers are adopting resolutions requiring
collective bargaining to be conducted in public. Bargaining representatives, believing
private collective bargaining to be more effective in the give and take process for
resolving differences, often push back on these resolutions. Here, Lincoln County
(County) adopted a resolution requiring collective bargaining to be conducted in public.
In response, Teamsters Local 690 (Teamsters) adopted a resolution requiring collective
bargaining to be conducted in private.
No. 37054-2-III
Lincoln County v. Pub. Emp’t Relations Comm’n
This case answers the question of what must be done when a public employer and
a bargaining representative cannot agree on the procedure for collective bargaining and
no collective bargaining, thus, takes place. We hold that a public employer and a
bargaining representative each commit an unfair labor practice (ULP) when they refuse to
bargain on mandatory subjects of bargaining unless the other agrees to a procedure that it
lacks the prerogative to unilaterally decide. To this extent, we affirm PERC’s1 decision.
We further hold that procedures for collective bargaining are permissive subjects
of bargaining. As such, the inability of the parties to agree on procedures for bargaining
does not result in the return to status quo. To this extent, we reverse PERC’s decision.
We remand this case to PERC for it to order appropriate relief.
FACTS
Teamsters Local 690 represents two bargaining units of workers employed in
Lincoln County. Lincoln County v. Teamsters Local 690, No. 128814-U-17 (Wash. Pub.
Emp’t Relations Comm’n Apr. 3, 2018) . The County is governed by three elected
commissioners. The commissioners serve as the County’s representative for collective
bargaining. Teamsters and the County had two collective bargaining agreements, one for
each unit. Those agreements expired after December 31, 2016.
1
Public Employment Relations Commission.
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In September 2016, the County passed Resolution 16-22. The resolution, which
was passed without notice to Teamsters, required all collective bargaining to be done in
public. The idea for the resolution originated several years earlier when the County
received information from the Freedom Foundation about opening bargaining to the
public. The County used a template, e-mailed to it from the Freedom Foundation, as the
basis for its resolution. The County hoped that by making collective bargaining
transparent, voters would more likely pass a tax increase on the November ballot.
Teamsters promptly met with the County and asked it to rescind its recent
resolution. The County refused. Id. (Finding of Fact 5).
Over the next few months, Teamsters filed with PERC two ULP complaints
against the County. A PERC hearing examiner dismissed both complaints.
In January 2017, Teamsters and the County began bargaining in public a new
collective bargaining agreement. Id. (Finding of Fact 7). Teamsters stated it disagreed
with holding the meetings in public and was not waiving its position. Id. The parties
reached agreement on several issues, but because a reporter was present, they did not
discuss others. Id. (Finding of Fact 8). When they got to those issues, Lincoln County’s
sheriff asked to engage in private discussions. Sometime later, the sheriff, the
undersheriff, and Teamsters discussed those issues privately.
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In February 2017, Teamsters passed its own resolution. The resolution, passed
without notice to the County, required all collective bargaining to be done in private.
Id. (Finding of Fact 10).
Later in February, the parties reconvened for additional collective bargaining.
Id. (Finding of Fact 11). Teamsters stated it preferred the longstanding practice of
bargaining in private. The County stated it was ready, willing, and able to bargain in
public, consistent with its resolution. The two repeated their positions on how they would
proceed several times before the County questioned whether any bargaining would be
done that day. Id. (Findings of Fact 11-12). Teamsters left the meeting and went into the
breakroom. Id. (Finding of Fact 12). The County kept the meeting open until Teamsters
left the building. The parties do not dispute that bargaining in private or public is
classified as a ground rule or bargaining procedure and is a permissive subject of
bargaining. Id. (Finding of Fact 13).
The County filed a ULP complaint against Teamsters, alleging the union refused to
bargain on mandatory subjects of bargaining unless the County acquiesced on a
permissive subject of bargaining. In turn, Teamsters filed a ULP complaint against the
County, alleging it was the County that refused to bargain. The complaints were
consolidated into a single hearing.
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The case was heard before a hearing examiner. The hearing examiner issued a
decision that included findings of fact and conclusions of law. The examiner concluded
both parties committed ULPs. Both parties appealed to the PERC board. Lincoln County
v. Teamsters Local 690, No. 128814-U-17 (Wash. Pub. Emp’t Relations Comm’n
Aug. 29, 2018).
PERC adopted the findings of fact and conclusions of law of the hearing examiner
and concluded both parties committed ULPs by refusing to negotiate mandatory subjects
of bargaining unless they first agreed on a bargaining procedure, a permissive subject of
bargaining. As a remedy, PERC ordered the parties to bargain in good faith over the
procedure for collective bargaining. If the parties could not agree on the procedure after
two sessions of good faith bargaining, PERC would appoint a mediator to assist the
parties. If mediation failed, PERC concluded the parties must return to status quo, which
it found was private collective bargaining.
Both parties appealed this decision to the Lincoln County Superior Court, which
affirmed PERC’s order. The County timely filed this appeal, and Teamsters timely cross
appealed.
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ANALYSIS
The arguments raised in the appeal and cross-appeal require us to address three
broad issues: (1) does the preemption doctrine either validate or invalidate the County’s
resolution, (2) did PERC correctly conclude that both parties committed ULPs, and
(3) did PERC err in applying the status quo doctrine to bargaining procedures, a
permissive subject of bargaining.2
STANDARDS OF REVIEW
We review an appeal from a PERC decision involving a ULP in accordance with
the Administrative Procedure Act (APA), chapter 34.05 RCW. Amalgamated Transit
Union, Local 1384 v. Kitsap Transit, 187 Wash. App. 113, 123, 349 P.3d 1 (2015); City of
Vancouver v. Pub. Emp’t Relations Comm’n, 107 Wash. App. 694, 702, 33 P.3d 74 (2001).
2
Teamsters also argues PERC committed reversible error by not considering
evidence excluded by the hearing examiner. The excluded evidence consists of proposed
exhibits showing the connection between the County’s resolution and the Freedom
Foundation. Teamsters sought to have the exhibits admitted to support its argument that
the County passed the resolution in bad faith.
Here, the hearing examiner permitted sufficient evidence to understand the
connection between the resolution and the Freedom Foundation. It rejected the exhibits
because they were irrelevant. Lincoln County, No. 128814-U-17 at n.8 (filed Apr. 3,
2018). Nothing in the hearing examiner’s decision, PERC’s decision, or ours, requires us
to decide whether the County passed the resolution in bad faith. Because the proposed
exhibits have no tendency to make the existence of any fact of consequence more
probable or less probable, we conclude the hearing examiner did not abuse its discretion.
ER 401.
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Under the APA, we may grant relief from an agency order for any one of nine reasons set
forth in RCW 34.05.570(3). Of these, the one relevant to our disposition is whether
PERC erred in interpreting or applying the law. RCW 34.05.570(3)(d).
When reviewing questions of law, an appellate court may substitute its
determination for that of PERC, although PERC’s interpretation of the Public Employees’
Collective Bargaining Act (PECBA), chapter 41.56 RCW, is entitled to great weight and
substantial deference, given PERC’s expertise in administering this law. RCW 34.05.570;
City of Bellevue v. Int’l Ass’n of Fire Fighters, Local 1604, 119 Wash. 2d 373, 382, 831
P.2d 738 (1992); Amalgamated Transit Union, 187 Wash. App. at 123. In addition to
Washington law, we rely on federal decisions construing the National Labor Relations
Act (NLRA), 29 U.S.C. §§ 151-169, because decisions construing the NLRA are
persuasive when construing similar provisions of the PECBA. Pasco Police Officers’
Ass’n v. City of Pasco, 132 Wash. 2d 450, 458, 938 P.2d 827 (1997).
RELEVANT LEGAL PRINCIPLES
The PECBA “‘regulates the subjective conduct and motivations of the parties in a
collective bargaining situation, but expressly refrains from mandating any result or
procedure for achieving final resolution of an intractable bargaining dispute.’” Id. at 460
(quoting Stuart S. Mukamal, Unilateral Employer Action Under Public-Sector Binding
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Interest Arbitration, 6 J.L. & COM. 107, 113-14 (1986). PERC intervenes “only in those
limited circumstances where the conduct of one party or the other indicates a refusal to
bargain in good faith,” which is defined as “an absence of a sincere desire to reach
agreement.” Id. at 114.
If a subject of bargaining is permissive, parties may negotiate, but each party is
free to bargain or not bargain and to agree or not agree. Pasco Police Officers’ Ass’n,
132 Wash. 2d at 460-61. Agreements on permissive subjects of bargaining “must be a
product of renewed mutual consent” and expire with the parties’ collective bargaining
agreement. Klauder v. San Juan County Deputy Sheriffs’ Guild, 107 Wash. 2d 338, 344,
728 P.2d 1044 (1986). A party commits an unfair labor practice when it bargains to
impasse over a permissive subject of bargaining. Id. at 342.
Permissive subjects fall into different categories. Some authorities, such as the
employer’s authority to determine its budget, are managerial prerogatives. Spokane Educ.
Ass’n v. Barnes, 83 Wash. 2d 366, 376, 517 P.2d 1362 (1974). When a permissive subject is
a managerial prerogative, the employer is free to unilaterally decide the subject. See Int’l
Bhd. of Elec. Workers, Local 21 v. Nat’l Labor Relations Bd., 563 F.3d 418, 422 (9th Cir.
2009). Similarly, if the permissive subject is a union prerogative, the union is free to
unilaterally decide the subject. See, e.g., Ramada Plaza Hotel, 341 N.L.R.B. 310, 310 n.2
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(2004). This follows, where a permissive subject of bargaining is neither a managerial
prerogative nor a union prerogative; neither party may unilaterally impose on the other its
decision on the subject. See, e.g., Kent Educ. Ass’n v. Kent Sch. Dist. No. 415, No. 438-
U-76-49 (Wash. Pub. Emp’t Relations Comm’n June 26, 1979).
PREEMPTION ARGUMENTS
The County’s contention
The County contends PERC erred by effectively ruling that the PECBA preempted
its resolution. We do not construe PERC’s decision in this manner. Nevertheless, we
briefly discuss the County’s preemption argument.
The County concedes that preemption is appropriate to the extent its resolution
thwarts a legislative purpose of the PECBA. See Emerald Enter., LLC v. Clark County,
2 Wash. App. 2d 794, 804, 413 P.3d 92, review denied, 190 Wash. 2d 1030, 421 P.3d 445
(2018). An important legislative purpose of the PECBA is that public employers and the
bargaining representatives collectively bargain mandatory subjects such as wages, hours,
and terms or conditions of employment. See RCW 41.56.030(4) (defining “collective
bargaining”); RCW 41.56.140(4) (making it a ULP for a public employer to refuse to
collectively bargain with a certified bargaining representative); RCW 41.56.150(4)
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(making it a ULP for a bargaining representative to refuse to engage in collective
bargaining).
If we conclude the County lacks unilateral authority to insist on public collective
bargaining and if we conclude the County’s insistence on abiding by its resolution
resulted in its refusal to collectively bargain mandatory subjects, the County’s resolution
thwarted the legislative purpose of the PECBA. We discuss these two issues elsewhere in
this opinion.
Teamster’s contention
Teamsters argues the legislature intended for the Open Public Meetings Act of
1971 (OPMA), chapter 42.30 RCW, to occupy the field with respect to open meetings
when, in RCW 42.30.030, it declared “all” meetings of the governing body of a public
agency must be open and public. It argues that the legislature, by exempting collective
bargaining from the OPMA,3 impliedly preempted resolutions such as the County’s. We
disagree.
A state statute preempts local legislation where the legislature, either expressly or
implicitly, occupies the field, leaving no room for concurrent jurisdiction. Watson v.
City of Seattle, 189 Wash. 2d 149, 171, 401 P.3d 1 (2017). For a statute to expressly
3
See RCW 42.30.140(4)(b).
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preempt local legislation, it must include clear preemption language, specifically calling
out that intent. Id. Teamsters concedes the OPMA does not contain clear preemption
language.
In determining whether the OPMA impliedly preempts the field of open meetings,
we consider the purposes of the legislative enactment, and the facts and circumstances
upon which the enactment was intended to operate. Lenci v. City of Seattle, 63 Wash. 2d
664, 669-70, 388 P.2d 926 (1964), abrograted on other grounds by Yim v. City of Seattle,
194 Wash. 2d 682, 451 P.3d 694 (2019). When construing a statute, our fundamental
objective is to ascertain and give effect to the legislature’s intent. Columbia Riverkeeper
v. Port of Vancouver USA, 188 Wash. 2d 421, 435, 395 P.3d 1031 (2017). The declared
intent of the OPMA is to advance government transparency. RCW 42.30.010. We, thus,
construe the OPMA liberally to advance this intent. Columbia Riverkeeper, 188 Wash. 2d at
435.
In Lenci, the question was whether the city of Seattle’s ordinance that required
eight-foot high walls around wrecking yards was preempted by state law that required six-
foot high walls around such yards. The court held, “‘the fact that a city charter provision
or ordinance enlarges upon the provisions of a statute by requiring more than the statute
requires, does not create a conflict unless the statute expressly limits the requirements.’”
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63 Wash. 2d at 671 (quoting State ex rel. Isham v. City of Spokane, 2 Wash. 2d 392, 398, 98
P.2d 306 (1940)).
Here, the County’s ordinance enlarges on the OPMA’s requirements for open
meetings by creating greater transparency. We decline to construe the OPMA as
preempting local ordinances, such as the resolution before us, from providing greater
public transparency. Such a construction would frustrate the declared intent of the
OPMA.
BOTH PARTIES COMMITTED ULPS
The County’s contention
The County contends PERC erred by ordering the parties to bargain over whether
collective bargaining should be public or private. The County argues that public
collective bargaining is a managerial prerogative and it should not be required to bargain
over it.
When examining the question whether an issue is a mandatory subject of
bargaining or a managerial prerogative, this court applies a balancing test. Int’l Ass’n of
Fire Fighters, Local Union 1052 v. Pub. Emp’t Relations Comm’n, 113 Wash. 2d 197, 203,
778 P.2d 32 (1989). “On one side of the balance is the relationship the subject bears to
‘wages, hours and working conditions’. On the other side is the extent to which the
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subject lies ‘at the core of entrepreneurial control’ or is a management prerogative.” Id.
(internal quotation marks omitted) (quoting Spokane Educ. Ass’n, 83 Wash. 2d at 376).
“Where a subject both relates to conditions of employment and is a managerial
prerogative, the focus of inquiry is to determine which of these characteristics
dominates.” Fire Fighters, Local Union 1052, 113 Wash. 2d at 203.
The County argues that public collective bargaining has no relationship to wages,
hours, or working conditions. We agree. The County then argues that the public has a
right to know how its tax dollars are spent and cites Janus v. American Federation of
State, County, and Municipal Employees, Council 31, ___ U.S. ___, 138 S. Ct. 2448,
2474, 201 L. Ed. 2d 924 (2018). We certainly agree with this principle and note that the
County has the ability to keep the public informed of how its tax dollars are spent.4 But
the public’s right to know how its tax dollars are spent is not the test. The test is whether
public collective bargaining is “‘at the core of entrepreneurial control.’” Fire Fighters,
Local Union 1052, 113 Wash. 2d at 203 (quoting Spokane Educ. Ass’n, 83 Wash. 2d at 376).
4
For instance, the County can begin in open session by explaining to the public its
current budgetary issues and what topics it anticipates will be discussed during collective
bargaining. After each bargaining session, the County can provide the public regular
updates of what topics were discussed and the progress of negotiations. Once
negotiations have concluded, the County can inform the public how each of the issues
was decided and how these issues impact its budget.
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We see no evidence of this.
If public bargaining was at the core of entrepreneurial control, the legislature—
itself a public entity—would not have exempted collective bargaining from open
meetings. Even in the midst of the present dispute, the County requested that some
subjects be discussed in private. This shows that public bargaining, without some
flexibility to engage in private discussions, would inhibit the free flow of information the
County needs to make informed decisions.
Teamster’s contention
Teamsters contends the procedure for collective bargaining is the type of a
permissive subject where past practice determines who prevails and, because past practice
was private collective bargaining, its desired process must prevail. Teamsters wholly
relies on a footnote in Aggregate Industries v. National Labor Relations Board, 824 F.3d
1095, 1099 n.4 (D.C. Cir. 2016). In the footnote, the court implies there are some
permissive subjects that, if one party refuses to bargain, result in maintaining the status
quo.
This statement is not supported by any authority and is inconsistent with various
authorities brought to our attention. For instance in Klauder, the court held that
permissive subjects such as interest arbitration “must be a product of renewed mutual
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consent” and expire with the parties’ collective bargaining agreement. 107 Wash. 2d at 344.
Because Klauder holds that permissive subjects of bargaining expire at the end of an
agreement, we decline to follow contrary authority.
PERC correctly concluded both parties committed ULPs
The County has failed to convince us that public collective bargaining is a
managerial prerogative. Also, Teamsters does not contend that private collective
bargaining is a union prerogative. We, therefore, conclude that the bargaining procedure
in dispute here is not a managerial prerogative or a union prerogative. For this reason,
neither the County nor Teamsters had authority to impose its preferred procedure on the
other.
Neither party may “hold collective bargaining hostage to unilaterally imposed
preconditions to bargaining.” UPS Supply Chain Solutions, Inc., 366 N.L.R.B. No. 111,
slip op. at 2, 2018 WL 3032952. Here, the parties did just that. Each insisted on their
own procedure for collective bargaining. This prevented them from bargaining on
mandatory subjects. Their insistence caused an impasse over a permissive subject of
bargaining, which is a ULP.
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Both the County and Teamsters argue the other enacted improper resolutions that
prevented a discussion of mandatory subjects. Both argue the other is to blame. We
disagree.
Neither party offered to bargain the disputed procedure in good faith. Rather, each
insisted that their procedure be used. This insistence held collective bargaining hostage
and resulted in an impasse over a permissive subject.
REMEDY
PERC ordered the parties to bargain in good faith to resolve to what extent
collective bargaining should be public. If two attempts of good faith bargaining could not
resolve the question, PERC would appoint a mediator. If mediation failed, PERC
concluded that the parties would return to status quo, which it found was private
collective bargaining.
The County contends PERC erred by applying the status quo doctrine to the case.
It argues the doctrine does not apply to permissive subjects of bargaining, such as
procedures for bargaining, only mandatory subjects. We agree.
This issue has been examined extensively by PERC itself. Before this case,
PERC’s decisions have consistently concluded that the status quo doctrine was
inappropriate when looking at permissive subjects of bargaining. See Int’l Ass’n of Fire
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Fighters, Local 469 v. City of Yakima, No. 7900-U-89-1699 at 10 (Wash. Pub. Emp’t
Relations Comm’n Oct. 17, 1991); Teamsters Local 117 v. Port of Seattle, No. 24668-U-
12-6306 (Wash. Pub. Emp’t Relations Comm’n Feb. 10, 2014). As the board described in
City of Yakima, “In practical application, one of the principal distinctions between
‘mandatory’ and ‘permissive’ subjects is that the status quo must be maintained on
mandatory subjects after the expiration of a collective bargaining agreement, while
obligations concerning a permissive subject expire with the contract in which they were
contained.” Fire Fighters, Local 469, No. 7900-U-89-1699 at 10 (alteration in original).
This is consistent with our own jurisprudence. In Kitsap County v. Kitsap County
Correctional Officers Guild, Inc., the court acknowledged that waivers were permissive
subjects of bargaining and, because of that, expire with the previous collective bargaining
agreement unless mutually agreed on. 179 Wash. App. 987, 996, 320 P.3d 70 (2014).
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We conclude status quo is not an appropriate remedy when parties are unable to
agree on a permissive subject of bargaining. We remand for PERC to reconsider the
appropriate remedy. 5
Lawrence-Berrey, J . \
j
WE CONCUR:
#2'·
I<.ors``.C.J.A~ Siddoway, J.
5 The parties have not briefed whether PERC can order binding interest arbitration
over a permissive subject, which is neither an employer nor a union prerogative. Even if
PERC lacks such authority, the parties might still agree to resolve the dispute by binding
interest arbitration in the manner described in RCW 41.56.450.
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Korsmo, A.C.J. (concurring) – I have signed the majority opinion, but write
separately to address the real problem at issue in this case. The resolution adopted by
Lincoln County (County)—and a few other jurisdictions—has to be one of the most
cynical political documents drafted in modern times. It takes an exemption to the Open
Public Meetings Act of 1971 (OPMA), chapter 42.30 RCW, reverses it, and then claims
to be operating under the principles of the OPMA—and does so in the labor relations
arena, a sphere in which the OPMA does not apply. In addition to being irrelevant, the
effort to amend the public bargaining statutes by local legislation is preempted by state
law.
The OPMA requires that “meetings of the governing body of a public agency shall
be open to the public and all persons shall be permitted to attend any meeting of the
governing body of a public agency.” RCW 42.30.030. That definition includes several
terms of art that are significant to explaining why the OPMA is inapplicable. A
“governing body” is one, including the body’s committees and commissions, that
“conducts hearings, or takes testimony or public comment” for a public agency.
RCW 42.30.020(2). A county or other political subdivision of the state is a “public
agency.” RCW 42.30.020(1)(b). A “meeting” is one at which “action” is taken.
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RCW 42.30.020(4). In turn, “action” means “transaction of the official business
of a public agency by a governing body,” including receipt of public testimony,
deliberations, and “final actions.” RCW 42.30.020(3). “‘Final action’ means a
collective positive or negative decision, or an actual vote by a majority of the members
of a governing body . . . .” Id.
These definitions explain why the OPMA is inapplicable to labor negotiations. A
meeting between private individuals (the Teamsters Local 690 (Union) and its members)
and a governing body simply cannot be a “meeting of the governing body.” The typical
labor negotiation also has nothing to do with taking testimony or public comment for the
public agency, meaning that the County’s representatives are never acting as a
“governing body” during negotiations. Exchanging proposals during bargaining does not
constitute a “meeting” because it does not involve “action,” even if a County artificially
attempts to create a “final action” situation by sending a majority of its commissioners to
take part in negotiations.1 For all of these reasons, and probably a few others, the OPMA
simply is not implicated in this case. It is an irrelevancy.2
1
This is another aspect of the OPMA problem in this context. The County is
always free to determine the makeup of its negotiating team and can manipulate its
membership to place a matter within or without the OPMA. This fact demonstrates the
artificial nature of the “controversy” appellant has raised.
2
While local agencies can open more of their official business to the public than
the OPMA requires, the mere act of government officials talking to private individuals
does not make that interaction public business. Thus, I agree that the OPMA does not
preempt the Lincoln County resolution.
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In essence, this was a local attempt to amend state labor law by requiring that
labor negotiations be conducted on the County’s terms. The County had no authority to
impose any conditions on negotiations. The Public Employees’ Collective Bargaining
Act (PECBA), chapter 41.56 RCW, was developed “to promote the continued
improvement of the relationship between public employers and their employees by
providing a uniform basis” for organizing and representation. RCW 41.56.010 (emphasis
added). It should go without saying that requiring employees in some counties to bargain
under local ordinances and others under state law cannot constitute “uniform” bargaining.
To that end, we should recognize that the PECBA preempts the field of public
bargaining.
The resolution is a local attempt to control the ground rules for negotiation in
violation of state labor law. Just as the County could not pass a resolution stating that no
represented employee would receive a raise from the County, it cannot condition
negotiations on compliance with its chosen bargaining rules. The County’s resolution is
no more effectual than a resolution requiring bargaining in Times Square at midnight
New Year’s Eve or in Tahiti the following day.
Neither side gets to determine the ground rules for negotiations. It is considered
bad faith and, therefore, an unfair labor practice for parties to bargain to an impasse over
a permissive bargaining issue. Klauder v. San Juan Deputy Sheriffs’ Guild, 107 Wash. 2d
338, 342, 728 P.2d 1044 (1986). The Public Employment Relations Commission (PERC)
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understandably treats ground rules as matters of permissive bargaining over which it has
no authority to compel a resolution in accordance with RCW 41.56.160 (establishing
PERC authority to enforce unfair labor practices is limited to practices prohibited by
RCW 41.56.140 and RCW 41.56.150).3 PERC should refine that practice and assume
ancillary jurisdiction over “ground rules” disputes that directly relate to mandatory
subjects of bargaining.4 Otherwise, a motivated party can bog down negotiations
indefinitely a la the Paris Peace Talks dispute over table configuration in 1968-69.
Here, negotiations over mandatory issues have been stalled by the failure to get past the
permissive, procedural hurdle thrown up by the County.
Under existing practices, PERC correctly found that both parties committed unfair
labor practices by bargaining the topic to an impasse. In my view, however, the only
unfair practice occurred when the County insisted on matters being done its own way or
not at all. The County was the proponent of the change that led to the impasse and
should be the one held responsible. While I appreciate that means the responding party
normally would not have any incentive to change its opposition, the responding party
already has no obligation to bargain at all over permissive issues. The only obligation
3
PERC also leaves the enforcement of contract provisions, including topics of
permissive bargaining, to the courts. E.g., Seattle Cmty. Coll. Fed’n of Teachers v.
Cmty. Coll. Dist. 6—Seattle, No. 16643-U-02-4345 (Wash. Pub. Emp’t Relations
Comm’n June 12, 2003).
4
PERC also should decide the scope of this ancillary jurisdiction, including the
ability to determine whether a ground rules impasse is actually an effort to avoid
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here was to bargain over wages and working conditions, something the Union was
prepared to do.
Ultimately, the legislature will need to clarify the ability of public employers or
employees to insist on preconditions for bargaining. That body also is free to open
negotiations to the public if desired. 5 It also should clarify PERC's authority to resolve
ground rules disputes and provide for remedies.
I
Korsmo, A.C.J.
mandatory bargaining.
5
In my view, as well as the view of PERC and the National Labor Relations
Board, it is bad public policy to invite others to attend negotiations. E.g., Pullman Police
Officers' Guildv. City ofPullman, No. 16177-U-02-4134 (Wash. Pub. Emp't Relations
Comm'n May 30, 2003). However, the legislature is entitled to enact the policies it
desires.
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