By: Erica Shelley Nelson and Sarah Burke
In a precedent setting case, in Kitsap County v. Kitsap Cty. Corr. Officers’ Guild Inc., the Court of Appeals held that the County committed an unfair labor practice when it laid off two corrections officers without negotiations with the Kitsap County Corrections Guild. Facing the Guild’s demand to bargain, the County refused to bargain over the decision, asserting that the layoffs were not a mandatory subject of bargaining The Court held that negotiations must precede the lay off decision.
In 2011, Kitsap County was experiencing a budget crisis. To address this issue, the Kitsap County sheriff determined he would lay off two corrections officers and leave an open position unfilled. Upon receiving notice of this plan, the Guild president served a letter demanding to bargain over the decision to conduct layoffs and associated effects and impacts resulting from the layoffs. The Guild believed that the layoffs were a mandatory subject of bargaining, but the County believed they were only permissive, and only agreed to engage in impact bargaining before ultimately laying off the two officers.
The County sought and was granted a declaratory judgment from a superior court that the Guild had committed a ULP by insisting the layoffs were mandatory. Division Two of the Washington State Court of Appeals remanded the decision back after it found that layoffs can be either mandatory or permissive subjects and that a balancing test was appropriate to determine which applied. The superior court again concluded that the layoffs were permissive only and the Guild and PERC appealed.
Division One of the Washington Court of Appeals found that the trial court erred in its finding that the union’s demand was over budget concerns rather than the layoffs. The Court referenced two US Supreme Court decisions, Fibreboard and First National, in finding that generally, a layoff decision motivated by budget cuts is a mandatory subject of bargaining because of the impact it has on wages, hours, and working conditions, while a decision to change an agency’s programmatic priorities or scope of operations is a permissive subject because it implicates management prerogatives.
The corrections chief had stated when announcing the layoffs that “there is no other reasonable alternative available to us,” without acknowledging that the possibility existed that bargaining with the Guild could have revealed reasonable alternatives to layoffs. In fact, the union was able to show that it would have offered various concessions, such as work schedule changes, furloughs, or suspensions of premiums and specialty pay to forgo the layoffs. The layoffs were not related to programmatic changes, and they did not implicate Kitsap County’s entrepreneurial right to control the level of service provided in the jail. The fact that the County had a legitimate need to achieve budgetary savings and had a statutory duty to manage its own budget did not make the layoff decision a permissive subject of bargaining. Because of this, the Court held that the layoffs were a mandatory subject of bargaining.
The County also argued that there was not enough time to bargain layoffs, given the fact that interest arbitration can take months. The Court of Appeals was unpersuaded by this argument because it would mean that the possibility of interest arbitration that might extend beyond the current annual budget cycle could always be used to justify a refusal to bargain over wages, hours and working conditions.
In summary, Division One of the Washington Court of Appeals found that the trial court erred in granting a declaratory judgment that the sheriff did not need to bargain over the layoff of two corrections officers. The request to bargain was over the layoffs not based on the budget and did not impede on the County’s ability to maintain an entrepreneurial right to control.
This case is a significant win for union advocates because employers regularly claim that layoffs are a “management prerogative” and are a permissive subject of bargaining. The law on this issue has been a bit grey. This decision should remove some of the ambiguity in clearly holding that layoff decisions motivated by a desire to save labor costs (as opposed to programmatic changes, such as a decision to close down part of a facility) are indeed a mandatory subject of bargaining because they impact wages, hours, and working conditions. The County has filed a Petition for Review in the State Supreme Court so this decision is subject to potential further review.
This case also raises a key distinction between the often confused “decisional” bargaining v. “impact” bargaining. If the County had agreed to bargain the layoff “decision,” the County would have been obligated to maintain the status quo while the parties bargained over the layoff decision, e.g. the County could not have acted and forced the layoffs until the parties had bargained the issue to a lawful impasse. Any change to the status quo prior to bargaining would give rise to an unfair labor practice complaint. Should the County’s obligation been held to be limited only to impact bargaining, on the hand, this would have allowed the County to make the decision prior to any bargaining. Obviously, especially in this context, once the layoffs were complete, it becomes much more difficult to reverse course. Also, as set forth in the decision, had the parties bargained the layoff decision in advance, it is possible the layoffs could have been avoided altogether. The Court’s rejection of the County’s limiting “impact bargaining” only claim provides unions a much stronger right to negotiate in a layoff situation.
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