By James Cline and Stephen Hatton
In Spokane County, Decision 13435 (PECB, 2021), PERC Hearing Examiner Erin Slone-Gomez found that the County had violated its duty to bargain in good faith by insisting their negotiation sessions with the Corrections Union be open to the public. She found ground rules for negotiations to be a permissive subject of bargaining.
In 2018, the Spokane County commissioners adopted a resolution requiring all contract negotiations to be open to the public. The Corrections Union objected to the resolution in a formal demand to negotiate the impacts of the resolution’s passage, but to no avail. As the parties began to prepare for negotiations and establish ground rules, the County notified the Union that it planned to open up negotiations to the public according to the County resolution. After a lengthy back-and-forth between the County and the Union about the ground rules, which included mediation on the ground rules specifically, the Union eventually submitted opening contract proposals to the County in December 2019 and requested mediation from PERC on the open contracts in June 2020.
The County argued that they were bargaining in good faith by negotiating the open meetings rule, but it was the Union that was not. They argued that the Union attempted to sabotage bargaining and negotiate in secret by moving the process directly to mediation. After the Union submitted the contracts to mediation, the County told the Union that they would commence negotiations only if they had received a Union response on the ground rules issues.
On the other hand, the Union argued that the County could not require them to bargain publicly without the Union’s agreement. They cited the PERC ruling that bargaining procedures are a permissive subject of bargaining under Lincoln County (Teamsters Local 690), Decision 12844-B (PECB, 2021). The Union interpreted Lincoln County to permit them to proceed to negotiations without agreeing to ground rules. The Union also noted that although the parties were not required to negotiate ground rules, the Union did engage with the County about the public meetings but was ultimately unable to reach an agreement.
Hearing Examiner Slone-Gomez sided with the Union’s arguments and discussed the holding in Lincoln County in detail. According to the holding in Lincoln County, rules governing bargaining procedures are permissive subjects of bargaining. Examiner Slone-Gomez explained:
Throughout the bargaining, as well as through evidence and testimony at the hearing, neither party contested the long-held precedent that bargaining procedures, such as open or private meetings, are permissive subjects of bargaining. Given the guidance from PERC at the time of the dispute, the parties engaged in negotiations about this permissive subject. When the court remanded Lincoln County to the Commission, it did so with the guidance that the status quo was not an acceptable remedy because bargaining procedures are not mandatory subjects of bargaining. Accordingly, neither party is required to negotiate about permissive subjects. Cowlitz County, Decision 12483-A. Thus, there can be no requirement that the parties reach agreement. The union, therefore, was not required to reach an agreement with the employer on ground rules prior to the commencement of substantive contract bargaining.
Furthermore, Examiner Slone-Gomez noted that the Union had gone above and beyond its duty to bargain in good faith, since it had attempted to negotiate an agreement with the County on public meetings. When the Union finally gave up on that and requested that the County begin contract negotiations in mediation, that meant the County had to drop its “public” meeting demand. Examiner Slone-Gomez explained that the Union had twice attempted to engage in negotiations with the County: (1) the Union had emailed its opening contract proposals for multiple bargaining units to the County without an expiration date; and (2) the Union had attempted to begin mediation sessions with the employer to settle the open contracts. By refusing to engage with the Union on either of these two points, Examiner Slone-Gomez found that the County had unlawfully refused to engage in collective bargaining with the Union:
Negotiating directly, in‑person or via a teleconferencing software, is a bargaining process and thus a permissive subject. By failing to respond to the union’s proposal by writing, either at the time the proposal was made or after the parties had been unsuccessful in reaching agreement on ground rules, the employer refused to engage in collective bargaining.
. . . .
Regardless of the union’s motivation in making the request, negotiations through mediation would have allowed the parties to meet the mutual obligation on public employers and exclusive bargaining representatives to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to mandatory subjects of bargaining. RCW 41.56.030(4). By refusing to engage in contract mediation without first reaching an agreement on ground rules, the employer clearly conditioned bargaining on a permissive subject of bargaining. As highlighted above, a party commits an unfair labor practice when it conditions its willingness to bargain on a nonmandatory subject.
As a remedy, Examiner Slone-Gomez ordered the County to stop insisting on its ground rules proposal, noting that the parties never needed to agree on private or public bargaining sessions.
These unilaterally adopted Employer ordinances that require bargaining to be “in public” are a nuisance and hindrance to good faith bargaining. We believe that PERC erred by not finding that such ordinances violated the duty to bargain in good faith outright. By definition, good faith bargaining does not involve the public posturing that these ordinances call for. The Lincoln County ruling found the Unions equally liable if they demand private bargaining, creating a paradox not easy to solve.
The Union here effectively “cracked the code” created by Lincoln County. PERC has now created the blueprint to bypass these “public bargaining” ordinances: Email the written proposal, answer phone calls about it, and when the employer refuses to meet privately, file for mediation straight away.
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