By: Jordan L. Jones
In City of Walla Walla, PERC held that the Walla Walla Police Guild did not waive by inaction its right to bargain a department policy change.
In September 2013, the employer wanted to make changes to various provisions of the department’s policy manual. Among the changes sought by the employer included a modification to policy 312.2.3 (Authorized Off-Duty Firearm). Subsequently, on December 24, 2013, after the employer and the union had some discussions and exchanged proposals surrounding the authorized off-duty firearm policy, the employer implemented a change without the union’s agreement. The union then filed a ULP alleging that the employer unilaterally changed the employees’ ability to own and carry firearms when off-duty which affected working conditions.
Thereafter, the Examiner held in Decision 12348 (and blogged about here) that while the employer made a unilateral change, the union had “waived by inaction its right to bargain.” The union appealed the decision to the Commission.
On review, PERC held that there was not substantial evidence to support the Examiner’s conclusion that the union waived by inaction its right to bargain. PERC found that in fact there was evidence that the parties were negotiating the authorized off-duty firearm policy when the employer unilaterally implemented the policy and therefore the union did not waive by inaction its right to bargain. PERC commented that:
There are at least two reasons why the waiver by inaction theory raised in the employer’s briefing lacks merit. Initially, it must be noted that the employer did not plead waiver by inaction as an affirmative defense. That failure should doom the attempted application of a waiver by inaction. . . . Even more remarkable to the analysis . . . of the . . . waiver by inaction argument is that it is completely inconsistent with both the employer’s opening statement and testimony from the employer’s witnesses.
PERC noted that when an employer wants to change a mandatory subject of bargaining, the employer and union must negotiate first, which in this fact pattern the employer and union actually did. However, what the employer failed to do in this situation was negotiate to impasse and then submit to mediation. If the parties could not reach an agreement during mediation, then the mediator could recommend to the Executive Director that the parties be certified for interest arbitration because commissioned police officers are eligible for interest arbitration.
PERC held that the Walla Walla Police Guild did not waive by inaction its right to bargain a department policy change.
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