Washington Labor and Employment Blog
The latest case law and legal developments in Washington labor & employment law.
By Jim Cline and Peter Haller
In WA Interpreters v. PERC and Dept of Labor & Industries, the Washington State Court of Appeals affirmed a PERC decision which ruled that the bargaining rights of interpreters were not violated when the Department of Labor and Industries (L&I) implemented a new policy during the pendency of a representation petition. The policy at issue related to working conditions as it controlled how the interpreters could schedule appointments and receive payments.
By Jim Cline & Peter Haller
In Bethel School District, Examiner Whitney partially dismissed a complaint that alleged that the Employer had engaged in direct dealing even though it had directly proposed a plan to employees without union representation present and misreported the status of the meetings to the union.
By Jim Cline
In a decision using scorching language in Snohomish County, Examiner Leonard entirely dismissed all 11 claims the Snohomish County Corrections Guild filed against Snohomish County. While the claims varied in issue, Examiner Leonard found that for each allegation, the Guild did not support their claims with sufficient evidence, failing to upload their burden of proof. The Guild’s conduct was characterized as reprehensible by the Examiner as he discussed whether to impose attorney fees for multiple frivolous claims.
By Jim Cline
In Washington State Department of Social and Health Services, Examiner Elizabeth Snyder found that the Washington State Department of Social and Health Services (Employer) unilaterally changed working conditions for two Washington Federation of State Employees (Union) employees when it removed their new positions from the bargaining unit. The Employer’s unilateral change constituted a refusal to bargain because it changed the conditions of the employees’ employment and impacted working conditions, which are a mandatory subject of bargaining.
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.
[Read more…]By Jim Cline and Stephen Hatton
In Ben Franklin Transit, Hearing Examiner Dario De La Rosa found that a Teamsters Union Representative had engaged in bad faith bargaining because of his hostile, discriminatory, and abusive conduct at the bargaining table.
[Read more…]By Jim Cline and Stephen Hatton
In City of Cashmere, Decision 13429 (PECB, 2021), PERC Hearing Examiner Elizabeth Snyder dismissed a Teamsters Local 760 complaint alleging that the City had refused to bargain over its decision to implement a facial-recognition timekeeping system. Examiner Snyder rejected the City claim that the Teamsters had waived their right to bargain in their contract. But she also found that City’s decision to implement the system was a permissive subject of bargaining, and therefore she dismissed the Teamsters’ complaint.
By Jim Cline and Mark Anderson
Recent COVID Guidance on vaccinations and vaccines issued by Labor and Industries and the Governor’s Office has been passed through local agencies and has resulted in quite a bit of confusion. This article is our attempt to clear up that confusion and provide direct guidance from Cline and Associates as to the current state of vaccine and mask requirements.
By Jim Cline
COVID-19 is creating significant operational issues and the related economic downturn is creating financial issues. COVID-19 also drove further usage of digital payments during the pandemic. For small businesses today, having access to the cheapest card machine is crucial for growth and success. Consider seeking company insolvency register uk services if you need to liquidate your company assets to pay off the debts that you accumulated during the pandemic.
An important question many are wondering is whether or when these developments can trump the right of labor organizations to maintain existing working conditions or labor contract protections. Those rights are essentially protected by two different sets of rights, which overlap to a certain extent: the terms of your CBA and the statutory right to maintain existing practices. The existence of a claimed emergency might impact those rights, but different considerations arise under the PERC regulated right to bargain and the arbitrator enforced rights under your labor contract.
So, we’ll separately break out those two sets of rights – those related to your right to engage in collective bargaining and the right to enforce the terms of your CBA. In this article, we first turn to the duty to bargain and how that is impacted by claimed “emergencies.” We’ll follow in a future newsletter article as to how this may impact your labor contract in front of an arbitrator.
Washington law requires public employers to engage in collective bargaining with the exclusive bargaining representative of their employees concerning mandatory subjects of bargaining, including wages, hours, and working conditions of employment. The scope of Mandatory Subjects of Bargaining is broad. Cline and Associates maintains an extensive case table detailing which subjects have been ruled to be “mandatory,” “permissive,” or “illegal” subjects of bargaining. To understand whether a working condition can be changed – with or without an “emergency” we advise labor organizations to review the breadth of bargainable “wages, hours, and working conditions” demonstrated in great detail in our Subjects of Bargaining case table.
PERC has recognized certain exceptions to the bargaining obligation. A unilateral change of a mandatory subject of bargaining can be lawfully implemented where (1) a party waives its bargaining rights by inaction, after adequate notice of the proposed change has been provided; or (2) the employer establishes a “business necessity” to impose the change. The focus of this article is on when the “business necessity” or “emergency” defense can excuse the general duty to bargain.
PERC has held that the business necessity defense may be applicable where a party to a collective bargaining relationship is faced with a compelling legal or practical need to make a change affecting a mandatory subject of bargaining. It may then be relieved of its bargaining obligation but only to the extent necessary to deal with the emergency.
If an employer raises this necessity defense to an otherwise unlawful unilateral change, they must show that: (1) a legal necessity existed; (2) they provided adequate notice of the proposed change; and (3) that bargaining over the effects of the change did, in fact, occur or the complainant waived bargaining over the effects of the change. If these elements are met, this may relieve the employer of its bargaining duty even if the decision to implement a unilateral change was presented as a fait accompli.
My Associate Troy Thornton and I have written a more detailed memo on this subject, available on our Premium Website. We’ve also assembled a detailed PERC case table that identifies the various cases in which the emergency defense has been raised by employers and how PERC has addressed that defense.
A review of those cases suggests that this defense is hardly a “slam dunk” for employers. In fact, the defense is generally rejected:
These rulings indicate a reluctance by PERC to allow employers to evade bargaining simply by claiming an emergency. The emergency must be real and, even if found valid, it generally only excuses bargaining for the short term.
As always, you should be ready to assert your bargaining rights. If the employer claims the emergency excuse from bargaining, it should be viewed skeptically, and with the assistance of legal counsel.
By: Jim Cline and Shanleigh Kennedy
The Public Employment Relations Commission held that Whatcom County committed a refusal to bargain ULP by unilaterally deciding to deduct Paid Family Medical Leave Act premiums from wages without bargaining. PERC reasoned that since this deduction affected “wages” it was a mandatory subject of bargaining. Decision 13082-A: Whatcom County. [Read more…]
