By Rick Gautschi
In City of Bellevue, Decision 11435 (PECB, 2012) the union alleged that the employer had committed two unfair labor practices in the collective bargaining process. First, the employer proposed maintaining a “management rights” provision that listed enumerated rights in the existing collective bargaining agreement. When the union proposed deleting the provision, over the union’s objection, the employer insisted on including the provision and on certifying the enumerated items to interest arbitration. Second, the employer bargained to impasse and sought interest arbitration of an attorneys’ fees provision in existing grievance procedure language.
The Hearing Examiner explained that the enumerated items in the “management rights” provision are either management rights that exist outside of the collective bargaining agreement or union contractual waivers of bargaining rights.
The Hearing Officer concluded that in either case the enumerated provisions are permissive subjects of bargaining. Because permissive subjects of bargaining may not be bargained to impasse, the employer committed an unfair labor practice. Further, the Hearing Examiner explained that PERC case law holds that grievance procedures are mandatory subjects of bargaining. An employer does not commit an unfair labor practice by bargaining to impasse a mandatory subject of bargaining. The existing contractual grievance procedure contained the attorneys’ fees provision. Consequently, the attorney’s fees provision was a mandatory subject of bargaining. As a result, the employer did not commit an unfair labor practice by bargaining the attorneys’ fees provision to impasse.
