Lincoln County (Teamsters Local 690), Decision 12844-B (PECB, 2021)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

Caleb Jon Vandenbos, Attorney at Law, Freedom Foundation, for Lincoln County.

Jack Holland, Attorney at Law, Reid, McCarthy, Ballew & Leahy, L.L.P., for Teamsters Local 690.

Background

In Lincoln County (Teamsters Local 690), Decision 12844-A (PECB, 2018), the Commission concluded that the employer and union refused to bargain when they conditioned negotiating mandatory subjects of bargaining on the other party agreeing to bargain in a predetermined manner. The Examiner ordered the parties to “[b]argain in good faith without conditioning bargaining on nonmandatory subjects of bargaining.” Lincoln County (Teamsters Local 690), Decision 12844, p. 21 (PECB, 2018). When the Commission affirmed the Examiner, it modified

the remedy. Lincoln County (Teamsters Local 690), Decision 12844-A. To remedy the unfair labor practices, the Commission ordered the parties to negotiate in good faith over how they would conduct their negotiations. Decision 12844-A at 14. The Commission also ordered the parties to engage in two good-faith negotiation sessions and, if they were unable to reach an agreement, then the Commission would appoint a mediator. Id. If the parties were still unable to come to an agreement, the Commission would then order the parties to negotiate from the status quo in private meetings. Id. Both parties appealed the Commission’s decision to court.

On November 3, 2020, the Washington State Court of Appeals, Division III, issued a decision on the employer’s and union’s appeals. Lincoln County v. Public Employment Relations Commission, 15 Wn. App. 2d 143 (2018), rev denied, 2021 Wash. LEXIS 173 (Apr. 7, 2021).[1] The Court of Appeals affirmed the Commission’s decision finding both parties committed unfair labor practices. Lincoln County v. Public Employment Relations Commission, 15 Wn. App. 2d 143 (2020), review denied 2021 Wash. LEXIS 173 (Wash. Apr. 7, 2021). The court further concluded that “status quo is not an appropriate remedy when parties are unable to agree on a permissive subject of bargaining.” Id. at 158-9. The court remanded for the Commission to reconsider the appropriate remedy. Id. at 159.

Issue

What is the appropriate remedy when a party refuses to bargain by conditioning negotiations of a mandatory subject of bargaining on agreeing to a nonmandatory subject of bargaining, i.e., bargaining publicly or privately? The appropriate remedy when a party refuses to bargain by conditioning negotiations on a nonmandatory subject of bargaining is an order to cease and desist, bargain in good faith give appropriate notice.

Analysis

Applicable Legal Standards

The Legislature created the Commission to provide uniform and impartial adjustment and settlement of disputes arising from employer-employee relations. RCW 41.58.005. To fulfill the Commission’s mission to adjust disputes, the Legislature granted the Commission the power to remedy unfair labor practices. RCW 41.56.160(1); City of Vancouver v. Public Employment Relations Commission, 180 Wn. App. 333, 347 (2014). Chapter 41.56 RCW is remedial in nature, and its “provisions should be liberally construed to effect its purpose.” International Association of Fire Fighters, Local 469 v. City of Yakima, 91 Wn.2d 101, 109 (1978).

If the Commission finds that a party has committed an unfair labor practice, “it must ‘issue [an] appropriate remedial order[].’” Amalgamated Transit Union, Local 1384 v. Kitsap Transit, 187 Wn. App. 113, 126 (2015) (citing RCW 41.56.160(1)); Benton County, Decision 12920-A (PECB, 2019). “An appropriate remedial order requires the offending party ‘to cease and desist from [the] unfair labor practice, and to take such affirmative action as will effectuate the purposes and policy of’ chapter 41.56 RCW.” RCW 41.56.160(2). The Commission has authority to issue appropriate orders that, in its expertise, the Commission “believes are consistent with the purposes of the act, and that are necessary to make its orders effective unless such orders are otherwise unlawful.” Municipality of Metropolitan Seattle v. Public Employment Relations Commission, 118 Wn.2d 621, 634–35 (1992). See also Snohomish County, Decision 9834-B (PECB, 2008).

“Parties to a collective bargaining agreement must bargain on mandatory subjects.” Kitsap County v. Kitsap County Corr. Officers Guild, 193 Wn. App. 40, 45 (2016). “Parties may bargain on permissive subjects, but they are not obligated to bargain to impasse.” Id.

Application of Standard

The sole matter for consideration by the Commission is how to remedy a situation in which both parties impermissibly conditioned negotiating mandatory subjects of bargaining on a permissive subject of bargaining, i.e., whether to negotiate in public or in private.

When parties cannot agree on the procedures for collective bargaining, the remedy is to order the parties to cease and desist from insisting on a permissive subject of bargaining as a condition of negotiating mandatory subjects of bargaining, bargain in good faith, post a notice and read the notice at a meeting of its governing body. See City of Tukwila, Decision 1975 (PECB, 1984) (ordering the union to cease and desist from insisting on the inclusion of interest arbitration in the collective bargaining agreement as a condition of executing the agreement); City of Sumner, Decision 6210 (PECB, 1998) (ordering the employer to cease and desist from condition bargaining mandatory subject on an agreement on ground rules); Columbus Printing Pressmen & Assistants’ Union No. 252, 219 NLRB 268 (1975) (ordering the respondent to cease and desist on insisting on arbitration as a method to resolve the contract); UPS Supply Chain Solutions, Inc., 208 NLRB LEXIS 216 (2018) (ordering the employer to cease and desist from insisting as a condition of bargaining that the union agree to a ground rule that the union translate its initial Spanish language bargaining proposals into English.); Mercy, Inc. d/b/a American Medical Response, 346 NLRB 1004 (2006) (ordering the employer to cease and desist from insisting on certain nonmandatory subjects as ground rules.).

Conclusion

Both the employer and union conditioned negotiations of mandatory subjects of bargaining on a nonmandatory subject of bargaining. To remedy the violation, we order the employer and the union to cease and desist, bargain in good faith and give appropriate notice.

Order –LINCOLN COUNTY

LINCOLN COUNTY, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

1.                  CEASE AND DESIST from:

a.                   Conditioning the bargaining of mandatory subjects upon agreement to bargain in public.

b.                  In any other manner interfering with, restraining, or coercing its employees in the exercise of their collective bargaining rights under the laws of the State of Washington.

2.                  TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of chapter 41.56 RCW:

a.                   Bargain in good faith without conditioning bargaining on nonmandatory subjects of bargaining.

b.                  Contact the compliance officer at the Public Employment Relations Commission to receive official copies of the required notice for posting. Post copies of the notice provided by the compliance officer in conspicuous places on the employer’s premises where notices to all bargaining unit members are usually posted. These notices shall be duly signed by an authorized representative of the respondent and shall remain posted for 60 consecutive days from the date of initial posting. The respondent shall take reasonable steps to ensure that such notices are not removed, altered, defaced, or covered by other material.

c.                   Read the notice provided by the compliance officer into the record at a regular public meeting of the BOARD OF LINCOLN COUNTY COMMISSIONERS, and permanently append a copy of the notice to the official minutes of the meeting where the notice is read as required by this paragraph.

d.                  Notify the complainant, in writing, within 20 days following the date of this order as to what steps have been taken to comply with this order and, at the same time, provide the complainant with a signed copy of the notice provided by the compliance officer.

e.                   Notify the compliance officer, in writing, within 20 days following the date of this order as to what steps have been taken to comply with this order and, at the same time, provide the compliance officer with a signed copy of the notice the compliance officer provides.

Order – TEAMSTERS LOCAL 690

TEAMSTERS LOCAL 690, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

1.               CEASE AND DESIST from:

a.                   Conditioning the bargaining of mandatory subjects upon agreement to bargain in PRIVATE.

b.                  In any other manner interfering with, restraining, or coercing its employees in the exercise of their collective bargaining rights under the laws of the State of Washington.

2.                  TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of chapter 41.56 RCW:

a.                   Bargain in good faith without conditioning bargaining on nonmandatory subjects of bargaining.

b.                  Contact the compliance officer at the Public Employment Relations Commission to receive official copies of the required notice for posting. Post copies of the notice provided by the compliance officer in conspicuous places on the employer’s premises where notices to all bargaining unit members are usually posted. These notices shall be duly signed by an authorized representative of the respondent and shall remain posted for 60 consecutive days from the date of initial posting. The respondent shall take reasonable steps to ensure that such notices are not removed, altered, defaced, or covered by other material.

c.                   The union’s Secretary-Treasurer shall read the notice provided by the compliance officer into the record at a regular meeting of the governing body or board of the union, and permanently append a copy of the notice to the official minutes of the meeting where the notice is read as required by this paragraph.

d.                  Notify the complainant, in writing, within 20 days following the date of this order as to what steps have been taken to comply with this order and, at the same time, provide the complainant with a signed copy of the notice provided by the compliance officer.

e.                   Notify the compliance officer, in writing, within 20 days following the date of this order as to what steps have been taken to comply with this order and, at the same time, provide the compliance officer with a signed copy of the notice the compliance officer provides.

ISSUED at Olympia, Washington, this  16th  day of September, 2021.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

MARILYN GLENN SAYAN, Chairperson

MARK BUSTO, Commissioner

Commissioner Kenneth J. Pedersen did not participate in the consideration or decision of this case.

This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under RCW 34.05.542.