Pierce County, Decision 13023 (PECB, 2019)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

Pierce county prosecuting attorneys’ association   Complainant,   vs.   pierce county,   Respondent.

CASE 130576-U-18   DECISION 13023 - PECB     FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Kathleen Phair Barnard, Attorney at Law, Barnard Iglitzin & Lavitt LLP, for the Pierce County Prosecuting Attorneys’ Association.

Daniel A. Swedlow, Attorney at Law, Summit Law Group PLLC, for Pierce County.

The Pierce County Prosecuting Attorneys’ Association (union) is a bargaining representative within the meaning of RCW 41.56.030(2) and represents a bargaining unit employed by the employer.  On April 13, 2018, the union filed an unfair labor practice complaint with the Public Employment Relations Commission (Commission).  The union asserts that Pierce County (employer), an employer within the meaning of RCW 41.56.030(12), breached its duty to bargain in good faith by setting an arbitrary deadline for the parties to agree to a new collective bargaining agreement (CBA).  The unfair labor practice manager issued a preliminary ruling on April 17, 2018, stating a cause of action for employer refusal to bargain in violation of RCW 41.56.140(4), and derivative interference, by breaching its good faith bargaining obligations regarding cost of living adjustment (COLA) retroactive (retro) pay.  Examiner Elizabeth Snyder held a hearing on January 29, 2019, and the parties submitted post-hearing briefs.

The issue presented is whether the employer breached its duty to bargain in good faith in violation of RCW 41.56.140(4), and committed a derivative interference violation of RCW 41.56.140(1) by conditioning retro pay on the date of contract ratification.  I find that the employer did not breach its duty to bargain in good faith.  It had full and frank discussions with the union, was willing to meet, and did not engage in surface bargaining.  The deadline the employer set for union ratification in order for members to receive retro pay was a lawful condition of the employer’s proposal on wages.  The deadline was not a permissive subject of bargaining.  The employer had legitimate reasons why it did not want to extend the deadline indefinitely, and it bargained and met with the union in good faith.

BACKGROUND

The union and employer have a long bargaining history which, over the course of many years, developed into an efficient, bargaining process.  The union formed in 1996 and is comprised of four classifications of deputy prosecuting attorneys (DPAs), County Attorney 1–4.  The January 1, 2016, through December 31, 2017, CBA was effective during the period of this complaint and was the successor agreement to the 2018–2019 negotiations.  The bargaining representative for the employer was Joe Carrillo, and the representative for the union was Lisa Wagner.  They had been bargaining together for their respective groups since 1997.  In the past, bargaining between the parties was usually short and only lasted a few sessions before they reached an agreement.

October 27, 2017, Bargaining Session

Near the end of October 2017, negotiations began between the two parties and consisted of multiple issues including wages.  The first meeting happened on October 27, 2017.  The groups started negotiating only a couple months before the then-current contract expired on December 31, 2017.  Carrillo testified that starting to negotiate a few months before the expiration of the contract was not an uncommon practice.  Carrillo stated that in recent bargains he would meet with Wagner and the union negotiating team two or three times before they were able to reach a tentative agreement.

One of the topics in the first session was wages.  The union raised this issue in part because on October 17, 2017, the county executive, Bruce Dammeier, sent an e-mail stating that he was proposing a 2018 salary increase of 1.8 percent for all non-represented employees.  Historically, non-interest arbitration-eligible bargaining unit employees, like the DPAs, received the same wage increase as non-represented employees.  Wagner confirmed this number with Dammeier.

Prior to the first meeting, the employer stated that retro pay would be given for the month of January if a contract could be ratified by January 31, 2018.  At this first meeting on October 27, the employer moved the deadline to have a contract ratified by February 28 in order to receive retro pay for January 1, 2018, through February 28, 2018.  Even though there were discussions on different issues, the parties did not exchange any written proposals.

November 2, 2017, Bargaining Session

The parties bargained on multiple occasions from November 2017 through March 2018.  They met on November 2 to discuss a proposed wage increase and revenue sources, comprehensive salary study, length of contract, vacation carryover, and premium sharing.  There was no discussion on the topic of retro payment at this meeting, and the date of February 28 as the deadline remained the same.  The parties did not exchange any written proposals.

November 29, 2017, Bargaining Session

The parties e-mailed each other on November 9, 22, and 24 to set up their next bargaining session.  They met on November 29 and the union offered its first written proposal to the employer.  The parties talked about the proposal, which included a wage and grid adjustment, a probable cause hearing bonus, seniority, layoff and recall, insurance, and catastrophic leave.  The employer offered its own proposal on medical, dental, and life insurance.  The employer did not change its position on the retro deadline of February 28.

January 18, 2018, Bargaining Session

The parties e-mailed each other on January 12, 13, and 16 and agreed to meet for their next bargaining session on January 18.  At this meeting the union offered a written package proposal.  Carrillo, in turn, gave the union a proposal where he stated that he was putting all his authority, up to that point, into the proposal.  The offer still stipulated that ratification of any tentative agreement had to be reached by February 28 otherwise the employer would not offer any retro pay for January or February.  Both parties submitted proposals, but they did not reach agreement.

February 7, 2018, Bargaining Session

The parties agreed to hold their next session on February 7, 2018.  According to bargaining notes, Carrillo informed the union that the employer had moved the deadline for ratification of the contract to March 30, 2018.  This meant that if the union could ratify the contract by March 30, 2018, the employer would give retro pay from January 1, 2018, through March 30, 2018.

At this meeting, the employer also explained the rationale on its wage adjustment proposal.  The employer explained that its offer of 1.8 percent in 2018 reflected the need to fund its mental health program and that there was no support from the employer for more of an increase in wages.  The union asked if other non-interest arbitration-eligible groups would be receiving more than 1.8 percent.  The employer answered that one group would be receiving more than 1.8 percent because two experienced employees had left the county and that the City of Tacoma’s wages were 22 percent more than the county’s wages for those positions.

February 14, 2018, Bargaining Session

During this bargaining session the parties continued to discuss wages.  The union raised the issue of retention problems in the bargaining unit because, in its opinion, wages had been too low and bargaining unit members were leaving for better paying opportunities.  The employer countered that since 2010, the county’s COLAs for the bargaining unit had surpassed the Seattle, Tacoma, Bremerton (now Seattle, Bellevue, Tacoma) consumer price index numbers.  Additionally, the employer talked about funding levels and sources.  On February 26 and 27 the parties exchanged e-mails to schedule their next bargaining session.

March 16, 2018, Bargaining Session

More discussion on wages and adjusting the salary grid continued in this bargaining session.  The union countered the employer’s last proposal with a verbal, three-part offer.  First, a 1.8 percent wage adjustment in 2018.  Second, adding a Step 10 to the wage scale for DPA positions 2 through 4 and promoting 10 DPA 2s to 3s and 10 DPA 3s to 4s.  Third, the union wanted to change the amount of workweek hours from 35 to 40.  Carrillo sent an e-mail to the union after the bargaining session, resubmitting the employer’s last offer.  The employer did not change the deadline for ratification to receive retro pay from March 30.  Wagner said that if the deadline remained, the union would be filing an unfair labor practice complaint.

March 28, 2018, Bargaining Session

The parties had an additional brief bargaining session before the filing of the complaint in this case.  The employer made a hypothetical, “what if” proposal adjusting the salary grid and increasing the probable cause hearing bonus.  If the union could tentatively agree to the employer’s proposal and ratify by March 30, then the employer would give full retro pay from January 1 through March 30.  The union did not ratify the proposal and proceeded with filing this unfair labor practice complaint.  All further bargaining occurred after filing of the complaint.

ANALYSIS

Breach of the Duty to Bargain in Good Faith

A public employer and a union representing public employees have a duty to bargain over mandatory subjects of bargaining.  RCW 41.56.030(4).  As an element of good faith a party is required to make proposals on mandatory subjects of bargaining.  Pasco Police Officers’ Association v. City of Pasco, 132 Wn.2d 450, 460 (1997), citing Klauder v. San Juan County Deputy Sheriffs’ Guild, 107 Wn.2d 338, 341 (1986).  “[N]either party shall be compelled to agree to a proposal or be required to make a concession . . . .”  RCW 41.56.030(4).  Thus, a balance must be struck to reflect the natural tension between the parties’ obligations to bargain in good faith and the statutory admonition that parties are not required to make concessions or reach agreements.  Cowlitz County, Decision 12483-A (PECB, 2016); Walla Walla County, Decision 2932-A (PECB, 1988); City of Snohomish, Decision 1661‑A (PECB, 1984).

Whether the employer acted in bad faith must be evaluated by its overall conduct throughout bargaining.  A party may violate its duty to bargain in good faith either by one per se violation, such as a refusal to meet at reasonable times and places or refusing to make counterproposals, or through a series of questionable acts which, when examined as a whole, demonstrate a lack of good faith bargaining, but by themselves would not be per se violations.  Snohomish County, Decision 9834-B (PECB, 2008).  When analyzing conduct during negotiations, the Commission examines the totality of the circumstances to determine whether an unfair labor practice has occurred.  Shelton School District, Decision 579-B (EDUC, 1984).

The union cites Western Washington University, Decision 9309-A (PSRA, 2008), as a case similar to the present instance, where the employer argues the union bargained in bad faith.  In Western Washington University, the employer insisted it was limited in bargaining pay increases to what “the Legislature would approve,” and imposed a deadline for bargaining.  While the Commission agreed the university’s concerns for limiting bargaining were well founded, it decided “that the collective bargaining approach used by the employer reduced bargaining with the union to an exercise of futility.”  Id.  Because the university “was unwilling to move off its initially stated position with respect to the COLA adjustment for employees, and was unwilling to consider granting employees a COLA that was different from the COLA accepted by other unions” the Commission found the university’s actions unlawful.  Id.

The difference between the present case and Western Washington University is that the university refused to bargain any other types of wage compensation.  In the present case, unlike in Western Washington University, the employer continued to bargain other elements of the wage package until they reached an agreement.  For example, the employer proposed adding an additional step to the pay scale, increasing the bonus for probable cause hearings, and creating new promotional opportunities.  Although the employer did not change its initial proposal on wages for 2018, the parties did agree on an additional year of wage compensation for 2019.

Conditional Bargaining Can Be Good Faith Bargaining

Setting a deadline for the application of retro payment is a condition of a proposal involving a mandatory subject of bargaining and is not in itself a breach of the duty to bargain in good faith.  Conditional offers are considered lawful means for exploring alternatives.  Whatcom County, Decision 7244-B (PECB, 2004).  The Commission encourages parties to engage in free and open exchanges of ideas as part of the collective bargaining process.  Wapato School District, Decision 11107 (PECB, 2011).  Similar to other offers presented by parties during the collective bargaining process, parties making conditional offers must clearly communicate the proposals that they wish the other party to consider.  Id.  Conditional offers must also be unambiguous, and if asked to do so, the party making the conditional offer must explain to the other party the conditions and the implications of a failure to satisfy those conditions.  Id.  Additionally, the party to which the condition is made must be able to reasonably identify and objectively meet those conditions.  Id.

The union contends that the employer bargained in bad faith by conditioning retro pay on the date of contract ratification.  The employer counters that the retro deadline was a lawful ratification incentive and not a bargaining deadline.  The union believes that conditioning retro pay on a deadline for contract ratification was meant to “teach unions a lesson, that they needed to complete bargaining quickly regardless of the circumstances or issues subject to bargaining.”  In past negotiations, the employer historically gave retro pay if bargaining went past the expiration date of the current CBA that was being negotiated.  During the last round of contract negotiations, the county executive decided to discontinue this practice and gave explanations for why he made this decision.

First, the employer stated as its rationale that retro payments require a significant increase in the workload for payroll, human resources, IT, and finance departments in addition to the employees’ regular responsibilities.  Second, employees would not receive the benefits of the agreement until later in the year because implementation of a contract would typically take 8–12 weeks from the time the parties reached ratification.  This is unlike employees not represented by unions who receive their increases at the beginning of the year.  The employer stated that union employees exhibited signs of lower morale because they had to wait much longer to receive the benefits of the new contract.

The present case is analogous to Southwest Snohomish County Public Safety Communications Agency (SNOCOM), Decision 11849 (PECB, 2013).  In SNOCOM, the employer provided the union its last, best, and final offer along with a separate ratification incentive that consisted of health and sick leave benefits.  Id.  The examiner found that the additional benefits were “there for the taking” if the union voted to accept the employer’s proposal.  The union was able to understand and meet the conditions of the offer, and the employer was under no obligation to provide new benefits that had not been agreed upon.  Id.  Similar to SNOCOM, the employer proposed a ratification incentive, in this case retro pay, if the union ratified the contract by the deadline.  The union understood the terms of the deadline and was able to meet the conditions of the proposal.

Permissive Subjects of Bargaining vs. Mandatory Subjects of Bargaining

The union argues that the employer bargained to impasse and conditioned the agreement for retro pay on the deadline that the employer set for union ratification.  Because the union contends that the deadline is a permissive subject, it also asserts that this means that the employer bargained to impasse on a permissive subject, which is unlawful.  The employer counters that the deadline was a lawful ratification incentive and not a bargaining deadline; that the subject of bargaining was the retro pay, a mandatory subject of bargaining; and that not all imposed deadlines are unlawful.

Chapter 41.56 RCW imposes a mutual obligation on public employers and exclusive bargaining representatives to execute a written agreement with respect to mandatory subjects of bargaining.  RCW 41.56.030(4).  Mandatory subjects of bargaining include wages, hours, and working conditions.  Permissive or nonmandatory subjects of bargaining include managerial and union prerogatives, and procedures for bargaining mandatory subjects.  Klauder v. San Juan County Deputy Sheriffs’ Guild, 107 Wn.2d at 342.

Subjects of bargaining fall along a continuum.  At one end of the spectrum are grievance procedures and “personnel matters, including wages, hours and working conditions,” also known as mandatory subjects of bargaining.  Cowlitz County, Decision 12483-A, citing RCW 41.56.030(4).  At the other end of the spectrum are matters “at the core of entrepreneurial control” or management prerogatives.  International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission, 113 Wn.2d 197, 203 (1989).

In the present case neither side disputes that retro pay is a mandatory subject of bargaining.  Retro pay, in this context, is the wages between the beginning of the successor CBA and the ratification date of the parties’ agreement.  Wages are a mandatory subject of bargaining, therefore retro pay is a mandatory subject of bargaining.

Although it would be unlawful to condition the settlement of a contract on a permissive subject of bargaining, that is not what the employer did in this present case.  The deadline to receive retroactive payment was not a permissive subject of bargaining, but rather an element of a wage proposal.  This is unlike the example the union used in its brief from Public Utility District 1 of Clark County, Decision 2045-B (PECB, 1989), where the employer insisted on the resolution of all pending litigation before settlement could be reached.  In that case, the pending litigation was not indicated to be part of a larger issue involving a mandatory subject of bargaining but rather a separate issue that was considered to be a permissive subject of bargaining.[1]

Full and Frank Discussions

The employer engaged in full and frank discussions throughout bargaining.  The obligation to bargain in good faith encompasses a duty to engage in full and frank discussions on disputed issues and a duty to explore possible alternatives that may achieve a mutually satisfactory accommodation of the interests of both the employer and the employees.  University of Washington, Decision 11414-A (PSRA, 2013).  Throughout bargaining Carrillo came to the negotiation table willing to listen to the union’s issues and interests.  This is demonstrated in the bargaining notes taken by both sides.  Although at times there was not a lot of conversation in the negotiation sessions, the employer continued to modify its proposals, suggest hypothetical proposals, and proceed on course toward a settlement.

Willing to Meet

The employer demonstrated a willingness to meet as evidenced by the back and forth seen in its scheduling e-mails.  RCW 41.56.030(4) requires the parties to meet at reasonable times and negotiate in good faith over mandatory subjects of bargaining.  To resolve their contractual differences through negotiations, parties to a collective bargaining agreement must meet in a timely fashion.  Seattle School District, Decision 10732-A (PECB, 2012), citing Morton General Hospital, Decision 2217 (PECB, 1985).  To prove a failure to meet, the complainant must demonstrate that it requested negotiations on a mandatory subject of bargaining and demonstrate that the other party failed or refused to meet with the complainant, or imposed unreasonable conditions or limitations that frustrated the collective bargaining process.  State – Washington State Patrol, Decision 10314-A (PECB, 2010), citing City of Clarkston (International Association of Fire Fighters, Local 2299), Decision 3246 (PECB, 1989).  The employer contends that it willingly met with the union to bargain throughout the entire negotiation process.  Multiple e-mails initiated by the employer show that Carrillo reached out to the union to schedule times to meet, and the meeting times were agreed to by both parties.  The parties met a total of eight times in negotiations before the complaint in this case was filed.  Both parties demonstrated a good faith effort to meet.

Surface Bargaining

The union argues that the employer engaged in surface bargaining by refusing to depart from its predetermined position of imposing a deadline on the receipt of retroactive pay.  The union concedes that the employer did move the deadline during negotiations but that even with that movement, the employer did not take into consideration that negotiations began close to the contract’s expiration date and that additional time would be needed to reach an agreement.  The employer argues that not all deadlines are unlawful and that, historically, negotiations started late in the contract cycle.

Differentiating between lawful hard bargaining and unlawful surface bargaining can be difficult in close cases.  Walla Walla County, Decision 2932-A.  This fine line in differentiating the two reflects a natural tension between the obligation to bargain in good faith and the statutory mandate that there be no requirement that concessions be made or an agreement be reached.  Id.  An adamant insistence on a bargaining position is not, by itself, a refusal to bargain.  Mansfield School District, Decision 4552-B (EDUC, 1995), citing Atlanta Hilton and Tower, 271 NLRB 1600 (1984).  However, good faith is inconsistent with a predetermined resolve not to budge from an initial position.  National Labor Relations Board v. Truitt Mfg. Co., 351 U.S. 149 (1956).  Here, the employer did not engage in surface bargaining, but rather bargained hard and maintained a position that allowed for flexibility by moving the retro deadline and providing different wage proposals.

In Northshore Utility District, Decision 10534-A (PECB, 2010), the Commission determined that the employer had not engaged in surface bargaining because the employer was able to explain why the particular issue was important and gave reasons for its proposal.  Similarly, in the present case the employer provided legitimate reasons why it wanted to maintain a deadline for retro pay.  The employer explained that the administrative burden increased with the amount of retro pay and that other represented employees were anxious and upset when they did not receive their retro pay until much later in the year.  Carrillo testified that, historically, negotiations were short and only required a few sessions to reach an agreement.  Starting to negotiate at the end of the contract cycle was not unusual.  However, during this round of negotiations the employer moved the retro deadline, multiple times, to accommodate the bargaining process.  The employer continued to bargain and add to its economic proposals showing that it was bargaining in good faith.

Conclusion

The employer did not breach its duty to bargain in good faith.  It had full and frank discussions with the union, was willing to meet, and did not engage in surface bargaining.  The deadline the employer set for union ratification in order for members to receive retro pay was a lawful condition of the employer’s proposal on wages.  The deadline was not a permissive subject of bargaining.  The employer had legitimate reasons why it did not want to extend the deadline indefinitely, and it continued to bargain and meet with the union in good faith.

FINDINGS OF FACT

1.                  Pierce County (employer) is a public employer within the meaning of RCW 41.56.030(12).

2.                  Pierce County Prosecuting Attorneys’ Association (union) is a bargaining representative within the meaning of RCW 41.56.030(2) and represents a bargaining unit employed by the employer.

3.                  The union formed in 1996 and is comprised of four classifications of deputy prosecuting attorneys (DPAs), County Attorney 1–4.

4.                  The January 1, 2016, through December 31, 2017, CBA was effective during the period of this complaint and was the successor agreement to the 2018–2019 negotiations.

5.                  The bargaining representative for the employer was Joe Carrillo, and the representative for the union was Lisa Wagner.

6.                  The first meeting happened on October 27, 2017.  The groups started negotiating only a couple months before the then-current contract expired on December 31, 2017.

7.                  Carrillo testified that starting to negotiate a few months before the expiration of the contract was not an uncommon practice.  Carrillo stated that in recent bargains he would meet with Wagner and the union negotiating team two or three times before they were able to reach a tentative agreement.

8.                  On October 17, 2017, the county executive, Bruce Dammeier, sent an e-mail stating that he was proposing a 2018 salary increase of 1.8 percent for all non-represented employees.  Historically, non-interest arbitration-eligible bargaining unit employees, like the DPAs, received the same wage increase as non-represented employees.

9.                  Prior to the first meeting, the employer stated that retro pay would be given for the month of January if a contract could be ratified by January 31, 2018.  At this first meeting on October 27, the employer moved the deadline to have a contract ratified by February 28 in order to receive retro pay for January 1, 2018, through February 28, 2018.

10.              The parties met on November 2 to discuss a proposed wage increase and revenue sources, comprehensive salary study, length of contract, vacation carryover, and premium sharing.  There was no discussion on the topic of retro payment at this meeting, and the date of February 28 as the deadline remained the same.

11.              The parties e-mailed each other on November 9, 22, and 24 to set up their next bargaining session.  They met on November 29 and the union offered its first written proposal to the employer.  The employer did not change its position on the retro deadline of February 28.

12.              The parties e-mailed each other on January 12, 13, and 16 and agreed to meet for their next bargaining session on January 18.  At this meeting the union offered a written package proposal.  Carrillo, in turn, gave the union a proposal where he stated that he was putting all his authority, up to that point, into the proposal.  The offer still stipulated that ratification of any tentative agreement had to be reached by February 28 otherwise the employer would not offer any retro pay for January or February.  Both parties submitted proposals, but they did not reach agreement.

13.              The parties agreed to hold their fifth session on February 7, 2018.  According to bargaining notes, Carrillo informed the union that the employer had moved the deadline for ratification of the contract to March 30, 2018.  This meant that if the union could ratify the contract by March 30, 2018, the employer would give retro pay from January 1, 2018, through March 30, 2018.

14.              The employer explained that its offer of 1.8 percent in 2018 reflected the need to fund its mental health program and that there was no support from the employer for more of an increase in wages.

15.              At the February 14, 2018, bargaining session, the union raised the issue of retention problems in the bargaining unit because, in its opinion, wages had been too low and bargaining unit members were leaving for better paying opportunities.  The employer countered that since 2010, the county’s COLAs for the bargaining unit had surpassed the Seattle, Tacoma, Bremerton (now Seattle, Bellevue, Tacoma) consumer price index numbers.  On February 26 and 27 the parties exchanged e‑mails to schedule their next bargaining session.

16.              On March 16, 2018, the union countered the employer’s last proposal with a verbal, three‑part offer.  First, a 1.8 percent wage adjustment in 2018.  Second, adding a Step 10 to the wage scale for DPA positions 2 through 4 and promoting 10 DPA 2s to 3s and 10 DPA 3s to 4s.  Third, the union wanted to change the amount of workweek hours from 35 to 40.  Carrillo sent an e-mail to the union after the bargaining session, resubmitting the employer’s last offer.  The employer did not change the deadline for ratification to receive retro pay from March 30.  Wagner said that if the deadline remained, the union would be filing an unfair labor practice complaint.

17.              On March 28, 2018, the employer made a hypothetical, “what if” proposal adjusting the salary grid and increasing the probable cause hearing bonus.  If the union could tentatively agree to the employer’s proposal and ratify by March 30, then the employer would give full retro pay from January 1 through March 30.  The union did not ratify the proposal and proceeded with filing this unfair labor practice complaint.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391-45 WAC.

2.                  As described in findings of fact 5 through 17, the union failed to meet its burden of proof to establish that Pierce County breached its good faith bargaining obligations regarding COLA retro pay in violation of  RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)].

ORDER

The complaint charging unfair labor practices filed in the above-captioned matter is dismissed.

ISSUED at Olympia, Washington, this  20th  day of June, 2019.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

Elizabeth Snyder, Examiner

This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.