By Jim Cline
Pending in the Court of Appeals, the August ruling by Pierce County Judge James Orlando, holding that an interest arbitration order by Arbitrator Howell Lankford that Kitsap County Deputies incur a retroactive increase in their insurance premiums, was unconstitutional and unlawful. Earlier this month, we discussed the detailed legal theories involved in Orlando’s ruling. But, a new question concerning the scope of bargaining under PERC law is raised by Orlando’s ruling: if a retroactive change in health insurance premiums or benefits is unconstitutional or unlawful, does that remove it from the scope of bargaining?
This is an interesting question, and a final, definitive resolution of that question may be a few years off until after the Kitsap County retroactivity ruling is decided by the appellate courts. In the meantime, there are reasons to believe that a union resisting such a retroactive proposal could file a ULP with PERC against an employer that insisted on bargaining such a retroactive change.
A 1992 decision involving King County Police Captains provides at least some insight into that question. An application of that decision to the retroactive insurance issue suggests that, very possibly, retroactive insurance proposals, at least to the extent that the Kitsap County retroactive insurance decision is determined to be good case law, are non-mandatory subjects of bargaining. Under that analysis, such a proposal might be successful in filing a ULP and blocking such proposals from interest arbitration.
King County Decision 4236 (PECB, 1992), involved a question of retroactive wage increases for police Captains who had been recently added to the King County sheriff’s management bargaining unit. The County asserted that under the Christie decision (Christie v. Port of Olympia, 27 Wn.2d 534 (1947)) the granting of retroactive wage increases to newly represented employees was an unconstitutional “gift of public funds.” The County further claimed that since retroactivity was unconstitutional, it was an “illegal” subject to bargaining.
The King County the decision includes a detailed discussion of when it may or may not be appropriate to agree to retroactive wage increases for newly represented employees. (The collective bargaining statute contains a specific provision allowing such retroactivity to bargaining units in retroactivity in “successor” agreements to existing bargaining units which is how the “Christie” issue is circumvented.) The examiner concluded that such increases were unconstitutional the proposal was unconstitutional it was outside the scope of bargaining:
Given the facts presented, the employer could not legally negotiate retroactivity for the captains. The union’s insistence to impasse on retroactivity for the captains is an unfair labor practice. To remedy the unfair labor practice, the union shall be ordered to delete its retroactivity demand for captains from the list of issues to be submitted to interest arbitration.
PERC breaks subjects of bargaining into 3 categories: mandatory, permissive, and illegal. Only mandatory subjects of bargaining can be asserted to the point of impasse. Permissive subjects of bargaining may be proposed, but must be withdrawn upon impasse, including certification to arbitration. Illegal subjects, as inherently unlawful, can never be presented as a subject of bargaining and the presentation of an illegal subject of bargaining is a per se ULP.
A party faced with a permissive subject of bargaining in the context of an interest arbitration eligible bargaining unit, has an obligation to put the other party on notice during the course of negotiations that it views the subject as permissive. If timely notice is not presented, an objecting party waives their rights to later argue that the proposal is outside the scope of bargaining and an eligible for arbitration
No such notice, though, is required in the event the presented proposal is “illegal”. In the event of an illegal proposal, the prepared party may assert the illegality at any point in time prior to the interest arbitration hearing.
Judge Orlando agreed with Kitsap County Deputies Guild on two of the primary points concerning the illegality of the retroactive insurance. First, Orlando agreed with the Guild that increasing insurance premiums after deputies perform the work to earn the insurance constituted an unlawful “taking” of property under the due process clause of the Constitution. Second, Orlando agreed that the State wage withholding law required advance consent before wages could be deducted to pay for insurance and that a retroactive increase in premiums violated that advance consent requirement.
Again, the County is appealing this to the Court of Appeals. A final ruling is not anticipated for a year or two. But in the meantime, it appears that bargaining units have a strong claim to present to PERC that employers must withdraw such retroactive insurance change proposals.
