By Chris Casillas and Sarah Derry
In City of Walla Walla, Examiner Slone-Gomez held that the City of Walla Walla did not unilaterally change the off-duty weapon policy for police officers and sergeants. The Examiner determined that the employer provided notice and opportunity to bargain the policy, but that the Guild waived its right to bargain through inaction.
The Walla Walla Police Department’s off-duty firearm policy previously allowed officers to carry their department and personal firearms concealed while off-duty, whether or not they had a concealed carry permit. In September 2013, the employer began considering limiting officers’ ability to carry concealed weapons without a concealed weapons permit. Union members expressed concerns with the change. The employer sent the union an editable copy of the policy, and the union made changes (including limiting the proposal to department firearms, not personal firearms) and sent it back. The employer nevertheless adopted the policy without the Guild’s suggested changes. The Guild filed an unfair labor practice complaint, alleging the employer failed to bargain the policy changes and that the changes violated the officers’ legal rights by regulating private conduct.
Examiner Slone-Gomez first determined that because an officer’s ability to carry, concealed or not, firearms off-duty directly affects officer safety, the employer’s firearm policy is a mandatory subject of bargaining. The Examiner also found that the employer had notified the Guild that it was considering changing the off-duty firearm policy. Although the Guild replied to the employer’s emails with a revised version of the firearm policy, Examiner Slone-Gomez found that the Guild failed to engage in bargaining and had therefore waived its right to bargain the changes. The communication between the Guild and the employer about the Guild’s concerns, including the changes the Guild proposed, were insufficient to request bargaining. Examiner Slone-Gomez concluded:
The absence of any attempt to engage in collective bargaining over several months, despite ample opportunity and invitation, cannot be viewed in any other way except as an abandonment of the union’s right to negotiate.
The case, now on appeal, will test the Examiner’s factual determination that the union in this case did not avail itself of opportunities to bargain with the employer despite the fact that the record clearly shows that, on numerous occasions, proposals were exchanged between the parties and objections and concerns discussed. More significantly, however, the Commission will be asked to decide one of the critical legal determinations made by the Examiner—determining that when a union asserts that a policy violates various federal laws it is “not bargaining and is a matter outside the jurisdiction of this Examiner.” It is unclear, through the waiver by inaction doctrine, how a union could be found to waive its rights upon noting its objections to a proposed policy change to the employer, simply because the objections were grounded in alleged statutory violations. The Examiner was not being asked the question as to whether the policy change, in fact, violated federal law; rather, the question under the waiver doctrine was simply whether the union made a timely request to bargain. There has never been a legal requirement under the waiver by inaction doctrine requiring the union to utter certain magic words, such as “the union demands to bargain.” An assertion by the union that a new proposed policy violates federal law would, for all intents and purposes, appear to be a clear indication of the desire to bargain.
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