By Chris Casillas and Sarah E. Derry
In Lincoln County, PERC Unfair Labor Practice Manager Jessica Bradley dismissed a complaint, brought by Teamsters Local 690 on behalf of two unions, which challenged the County’s new open meetings rule. The policy applies Washington’s Open Public Meetings Act to collective bargaining negotiations between the County and public sector unions.
The unions were apparently concerned because the Open Public Meetings Act (RCW 42.30.060-080) requires that government meetings are open to members of the public, and that notice of the meetings, including agendas, are announced well ahead of time. The unions learned on September 7, 2016 that the County had passed a Resolution to apply the Act to bargaining meetings, which prompted the unions to file an unfair labor practice complaint, alleging that the County had committed an unfair labor practice by discriminating against the unions and for refusing to bargain the new open requirement.
The employer was not required to respond to the charges, because before any such response is necessary, PERC first must determine whether the complaint contains sufficient facts to support legal claims. ULP Manager Bradley first examined whether the unions had established enough evidence for discrimination, which requires that the employees have participated in union activity, whether they have been deprived of a right, benefit, or status, and whether there is a connection between the two. She held that this claim could not go forward because
“[The unions] do not describe any specific instances in which the employer deprived any of its employees of some ascertainable right, benefit, or status.”
Turning to the bargaining issue, ULP Manager Bradley noted that the open meeting requirement is a ground rule, and PERC does not view such ground rules as mandatory subjects of bargaining. The union argued that the employer was essentially refusing to bargain, but Bradley reasoned, the union had not shown that any refusal had occurred. She noted that
“[the unions] seem to make arguments about the potential impacts of Resolution 16-22 on future collective bargaining—specifically, the union’s ability to schedule and hold future bargaining meetings. Absent examples of specific conduct by the employer that could constitute a refusal to bargain, these types of arguments appear to be speculative and prematurely filed. The Commission has consistently held that it will not take action on speculative or prematurely filed allegations.”
Because the unions could not show that the County had actually deprived their members of anything or that the parties’ ability to negotiate had been impacted, Bradley dismissed the complaint.
Editor’s Note: The underlying topic of this case is one that unions should heed close attention to in the coming months and years; however, the case itself will likely prove to be of little value due to the fact that it was improperly plead and prosecuted by the Teamsters. The effort here to “open” contract negotiations to the public is largely spearheaded by the so-called “Freedom Foundation.” While the organization has characterized its efforts here to increase government accountability and provide the public with greater insight, and oversight, into the collective bargaining process, in reality it is a purely political move by this group to undermine collective bargaining and make it more difficult for unions to represent its membership.
In this case, the Lincoln County Commissioners had adopted a resolution requiring its collective bargaining meetings with its unions be open to the public. In response, the Teamsters immediately filed a ULP, charging that the County was discriminating against its group and membership and refusing to bargain. The problem with the nature and timing of the charge is that, as noted by PERC, any proposal to open contract meetings to the public is tantamount to a ground rule for bargaining. Beyond the fact that PERC has repeatedly found ground rules to constitute permissive subjects of bargaining, in this case it does not appear that the Teamsters and County ever formally discussed such a ground rules proposal during a bargaining meeting. Had such a discussion occurred the Teamsters could have rejected any such proposal from the County and refused to agree to such a ground rule. If the County had subsequently insisted on such a proposal or tried to force members of the public into the meeting over the union’s objection at that juncture a ULP would have been committed by the County. Unfortunately, the Teamsters filed this case prematurely and under the wrong cause of action.
The Freedom Foundation continues to try and convince some public jurisdictions both that adopting a resolution like this is good policy and that such a resolution can essentially force the union to open up the contract meetings to the public. Of course, the Freedom Foundation is wrong on both accounts. For a variety of reasons it is not good public policy, but on the legal end of things a resolution or other legislative action by a local public employer cannot force the union to open up its contract meetings with the employer to the public. Such an action would have to be the subject of a mutual agreement between the parties as an adopted ground rule for negotiations. The State Public Employees Collective Bargaining Act, which requires as much, supersedes any effort at the local level to force bargaining to open up to the public.
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