By: Christopher J. Casillas & Jordan L. Jones
In State – Washington State Patrol, Examiner Page A. Garcia held that the State failed to provide relevant information regarding documents and communication between the State and a consultant concerning a compensation survey, which was requested by the Union for contract negotiations. PERC further held that by the State’s refusal to make individuals from the consultant’s firm available to the Union or, in the alternative, provide the Union the information it was seeking from the consultant regarding the compensation survey, the employer breached its good faith bargaining obligations.
In this case, the Union and the State were in the process of working towards a mutual resolution to settle a new CBA. The parties had sat down with a PERC mediator, sought certification that an impasse existed, and agreed upon an arbitrator for the interest arbitration hearing. Through this process, the Union sought information on one of the issues to be decided by the arbitrator, compensation. The Union wanted all of the information related to the “compensation survey” that the State is legislatively mandated to produce biennium.
Subsequently, when the parties discussed the information that the Union did not yet have in their possession, the State only provided partial information. In addition, when the Union requested information about the “compensation survey” conducted by the consultant, the State was unable to provide answers through a “reasonable good faith effort” and did not attempt to make a consultant representative available for questions so that the Union could understand the compensation survey. Examiner Garcia noted that in 2012 in State – Washington State Patrol, PERC has previously found that the State committed a ULP by refusing to provide information regarding the consultant’s compensation survey, comparable data of jurisdictions for interest arbitration, and other information requested by the Union for use in the bargaining process.
Examiner Garcia stated that the duty to bargain in good faith extends to preparation for interest arbitration. Examiner Garcia then held that:
The employer’s defenses of inadvertence and lack of intent to frustrate the bargaining process lack merit. In order to effectuate the purposes of the statute, assist the parties in developing a good collective bargaining relationship, and educate the employer how to comply with its statutory obligations, the Examiner finds that in addition to the standard remedies, the extraordinary remedy of agency information request training is warranted. The Examiner orders that those responsible for responding to the union’s information requests, including, but not limited to representatives of the Office of Financial Management, Labor Relations Office, Department of Enterprise Services, and Washington State Patrol Human Resources, shall attend the agency information request training as directed herein.
Examiner Garcia upheld the ULP complaint charges against the State.
Across numerous cases, PERC has held that its standard basket of remedies for a ULP violation include: ordering the offending party to cease and desist and, if necessary, to restore the status quo, make employees whole, post notice of the violation, publicly read the notice, and order the parties to bargain from the status quo. But, the crafting of remedies is a discretionary act on the part of an agency, and in a recent court decision the Court of Appeals reaffirmed the statutory requirement that any remedy must “restrain… and remove or avoid the consequences of [an unfair labor practice],” and must be “tailored to the unfair labor practice it is intended to redress.” See Amalgamated Transit Union, Local 1384 v. Kitsap Transit, 187 Wn. App. 113 (2015). As a result, PERC will issue what it labels as “extraordinary remedies” to effectuate the purposes of the statute when there is a pattern of conduct demonstrating a disregard for a party’s good faith bargaining obligations or in response to a meritless or frivolous defense. In this case, the Examiner’s Order of additional training for the employer following a series of ULP findings, several of which in recent years included not turning over requested information, fell under the category of extraordinary remedies. One has to question whether, given the State’s repetitive behavior on this topic, why an award of attorney’s fees or other more forceful remedy was not justified; however, this type of extraordinary remedy was certainly justified, at a minimum, under these circumstances.
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