By Therese Norton
In Pierce County, PERC Examiner Emily Whitney concluded that Pierce County did not commit an unfair labor practice (ULP) regarding deputy sheriff’s leave use during the snow closures in 2012. The County had determined that deputy sheriff’s would be deemed essential and would have to submit paid leave in the event they were absent. The Deputy Sheriff’s Guild filed a ULP asserting that the distinction between “essential” and “nonessential” employees had not been negotiated and that no leave should be required if the deputies were unable to report to work. But Whitney concluded that there was no change to the status quo regarding deputies during the snow closures, and that the County did not unilaterally change the deputies leave utilization. Pierce County, Decision 11818.
There was no question in this case that leave use is a mandatory subject of bargaining. The issue was to define the status quo that had to be maintained under the parties’ collective bargaining obligations. The Sheriff’s Guild CBA did not address the subject and the parties were in the process of negotiating whether unit members were “essential” employees.
Examiner Whitney looked to the parties’ past practice. The County had a general policy that it had implemented on three prior occasions in the past eight years. Examiner Whitney found that because closures are rare, evidence of three prior incidents was sufficient to show a past practice. Additionally the Guild had notice of the prior practice, did not request to bargain the subject, and the County applied the policy consistent with previous snow closures.
Examiner Whitney rejected the Guild’s claim that the County’s treatment of the deputies as “disparate” from the County’s civilian employees constituted some type of ULP:
The union argues that the essential employees in this bargaining unit were treated disparately from the nonessential employees in other bargaining units or from those who are not represented. The issue here is whether the employer changed leave utilization for employees in this bargaining unit from the past practice developed with this bargaining unit. Thus, the Examiner only needs to analyze whether there was a change to how leave was utilized for essential employees in this bargaining unit through the employer’s actions on January 18 and 19, 2012.
For a complete list of mandatory subjects of bargaining, please refer to Chapter 3 of the Representative’s Manual. An on-line copy of the Manual is available on the Cline and Associates Premium Website.
