Kitsap Co. & Kitsap Co. Sheriff, Resp. v. Kitsap Co. Correctional Officers Guild, Inc. App. ( 2014 )


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  •                                                                                                                    FILED
    COURT OF APPEALS
    DI'v' IS10: 1 I
    -
    2 0 1 4 MAR 13   AM 10: 17
    IN THE COURT OF APPEALS OF THE STATE OF W
    DIVISION II
    KITSAP COUNTY and KITSAP COUNTY                                                          No. 4411
    SHERIFF,
    Respondents,
    VA
    KITSAP            COUNTY                 CORRECTIONAL                             PUBLISHED OPINION
    OFFICERS' GUILD, INC.,
    1—
    PENOYAR, J. P. T.                This action arises from Kitsap County' s decision to lay off two
    corrections officers       for    budgetary     reasons.     The officers' union, the Kitsap County Correctional
    Officers Guild ( Guild), demanded to bargain the decision to                        lay   off    the   officers.   The County
    agreed to bargain the effects of the layoffs but not the decision. The County sought a declaratory
    judgment in superior court stating that layoffs are a permissive bargaining subject and the Guild
    committed an unfair         labor       practice when      it demanded to bargain the decision. The Guild filed a
    cross   motion      for summary judgment seeking ( 1)                    a declaration that layoffs are a mandatory
    2)        injunction               further layoffs    without      bargaining.     The trial
    bargaining       subject   and (         an                 against
    court granted declaratory judgment in the County' s favor.
    The Guild appeals, arguing that the County' s claim was not justiciable, layoffs are a
    mandatory       bargaining        subject, and    it is   entitled    to attorney fees   on appeal.       The County argues
    that,   even    if the layoffs     are   a mandatory       subject,   the Guild   waived   its   right   to bargain.   We hold
    that the parties have an actual, present dispute regarding the right to bargain the layoffs; thus, the
    County' s      claim   is justiciable.        Additionally, the Guild did not waive its right to bargain over
    1 Judge Joel Penoyar is serving as a judge pro tempore of the Court of Appeals, Division II,
    pursuant       to CAR 21(   c).
    44183 -7 -II
    layoffs because the        contractual waivers        had   expired.       However, the trial court was required to
    conduct a balancing test to determine whether the layoffs in this case are a mandatory bargaining
    subject.    The   record     does   not reflect   that the   court engaged            in this    analysis.      Accordingly, we
    remand     for the trial   court    to    conduct a   balancing     test based       on   the   facts   of   this   case.   Attorney
    fees are not appropriate at this stage of the proceedings, but they may be awarded on remand.
    FACTS
    I.        LAYOFFS
    The    County' s    2012 jail budget        projected     a $   935, 000       revenue    loss.      Consequently, on
    October 24, 2011, the County informed two corrections officers that they would be laid off on
    January 1,     2012.   The County stated that the layoffs were the result of budget reductions. When
    the officers informed the Guild of the impending layoffs, the Guild sent a letter to the County
    demanding        to bargain the decision to           conduct   layoffs.        The Guild also requested information
    related to the County' s budget.
    The   parties met on     November 8, 2011,         and    discussed the         effects of    the layoffs.       After the
    meeting, the County sent the Guild a draft letter of understanding,. stating that there would be two
    layoffs.   The
    layoffs    and   allowing for voluntary layoffs in            place       of   the   scheduled     involuntary
    Guild responded by clarifying that its original demand letter requested that the County bargain
    over   both the decision to         lay   off employees and     the   effects of       that decision. Because the parties
    did not reach an agreement on the decision to lay off the officers, which the Guild argued was a
    subject of   bargaining,      the Guild     requested         further    meetings      with   the    County.    The
    mandatory
    County agreed to meet again and discuss the effects of the layoffs, but it stated that it believed
    the Guild had waived the right to bargain the decision based on provisions in the collective
    bargaining agreement and the Guild' s failure to raise bargaining over the decision at the
    2
    44183 -7 -II
    November meeting.             The parties did not meet again, and the County laid off the two officers on
    January 1, 2012.
    II.        2010 -12 COLLECTIVE BARGAINING AGREEMENT
    The parties' collective bargaining agreement expired on December 31, 2009, and they
    were unable         to   reach an agreement over a new contract.                    The 2007 -09 agreement contained the
    following provisions:
    SECTION I— RIGHTS OF MANAGEMENT
    1.     All    management        rights,   powers,     authority        and   functions ...         shall   remain
    vested        exclusively in Employer.               It is expressly recognized that such rights,
    powers,        authority      and   functions include . . .             the right to       establish, change,
    combine or eliminate           jobs,   positions,    job    classifications and       descriptions ... [     and]
    the determination of the number of employees.
    Clerk' s Papers ( CP) at 155 -56.
    U
    SECTION J— RELATIONSHIP TO CIVIL SERVICE RULES
    1. Except as expressly limited by its terms, nothing in this Agreement shall
    supersede any matter delegated to the Kitsap County Civil Service Commission
    by State law or by ordinance, resolution or laws of or pertaining to the County of
    Kitsap and such Commission shall continue to have primary authority over the
    subjects within         the   scope of    its jurisdiction       and   authority. If there then should be
    a conflict between any provisions of this Agreement and Civil Service, then the
    provisions of this Agreement shall govern.
    CP    at   156. The Civil Service Rules              state, "   The Appointing Authority may lay off any employee
    in the Classified Service whenever such action is made necessary by reason of a shortage of
    work or         funds." CP at 162. The rules also include the process for layoffs and reinstatement.
    2
    The     parties   sought       arbitration     over    the      2010 -12      collective    bargaining      agreement.
    held in                  2012,          the                    issued                in June 2012.    The
    Hearings         were               February              and             arbitrator             an   award
    2
    The new agreement is not in the record.
    3
    44183 -7 -II
    provisions relating to management rights and the Civil Service Rules were not at issue in the
    arbitration.
    III.       SUPERIOR COURT ACTION
    In June 2012, the County filed a motion for declaratory judgment in superior court,
    seeking a declaration that ( 1) the County had no legal duty to bargain the decision to " reduce the
    jail budget,     operations, or     staffing levels," ( 2) the Guild' s demand to bargain the decision was an
    unfair    labor    practice, (   3) the Guild' s demand to bargain the decision breached the collective
    bargaining agreement, and ( 4) under the collective bargaining agreement, the Guild waived its
    rights to bargain layoffs resulting from " reductions in the jail' s budget, operations, or staffing
    levels."     CP     at   338 -39.    The Guild filed a cross motion for summary judgment, seeking a
    declaratory judgment that the layoffs are a mandatory subject of bargaining and that the County
    layoffs.   The
    committed an unfair          labor   practice   by   refusing to bargain the decision to           conduct
    Guild also sought an injunction barring the County from conducting further layoffs until it
    satisfied its obligation to bargain with the Guild.
    The trial court .granted the County' s motion for declaratory judgment and denied the
    Guild' s cross motion for summary judgment. The Guild appeals.
    ANALYSIS
    I.         JUSTICIABILITY
    The Guild first argues that the County' s claim was not justiciable because it did not
    present an actual, present, and existing dispute between the parties. We disagree.
    The     County' s     complaint   alleged     that the Guild demanded to " bargain to impasse the
    decision to       reduce   the jail budget,     operations,   or    staffing levels."   CP   at   338.   The Guild argues
    that it    never   demanded to bargain          over   the " jail budget,   operations, or    staffing levels "; rather, it
    F.
    44183 -7 -II
    demanded that the              County bargain " the decision to conduct any layoffs plus any associated
    impacts."
    effects /                 Appellant' s Br.       at   12; CP    at   336.    The Guild asserts, therefore, that there is no
    present dispute between the parties concerning the County' s budget, operations, or staffing
    levels.
    We       review   the   justiciability      of a claim      de    novo.   City of Longview v. Wallin, 174 Wn.
    App. 763, 777, 
    301 P.3d 45
    ( quoting Am. Traffic Solutions, Inc. v. City of Bellingham, 163 Wn.
    App.   427, 432, 
    260 P. 34
    245 ( 2011)),                review   denied, 
    178 Wash. 2d 1020
    ( 2013).                  A party invoking
    the jurisdiction of the court under the Uniform Declaratory Judgment Act must first present a
    justiciable controversy.               
    Wallin, 174 Wash. App. at 777
    ( quoting To -Ro Trade Shows v. Collins,
    
    144 Wash. 2d 403
    , 411, 
    27 P.3d 1149
    ( 2001)).                     A justiciable controversy requires
    1) .         an actual, present[,]         and existing dispute, or the mature seeds of one, as
    distinguished           from    a    possible,      dormant,       hypothetical,     speculative          or   moot
    disagreement, ( 2) between                  parties   having      genuine   and     opposing interests, ( 3)
    which involves interests that must be direct and substantial, rather than potential,
    theoretical, abstract[,] or academic, and ( 4) a judicial determination of which will
    be final and conclusive."
    Wallin, 
    174 Wash. 777
    -78 ( quoting To -Ro Trade 
    Shows, 144 Wash. 2d at 411
    ).   Courts must
    App.    at
    liberally construe complaints. CR 8( f).
    Courts        must    liberally     construe    complaints.         CR 8( f).   Here, although the parties each
    characterize the dispute differently, the core issue is the same for both parties: whether the
    County had          a   mandatory      duty   to bargain the decision to implement layoffs.                      And the County' s
    own argument before the trial court included discussion over the justiciable issue of whether the
    County    had       a   mandatory      duty   to bargain the decision to            conduct    layoffs.     This is an actual and
    present    dispute between the              parties    that   will   continue until    there    is   a   judicial   resolution.   The
    County presented a justiciable controversy.
    5
    44183 -7 -II
    II.        WAIVER
    The County argues that the Guild contractually waived its rights to bargain over the
    layoffs.    We disagree because any waivers expired in 2010 with the former collective bargaining
    agreement.
    Waiver is an affirmative defense to a " unilateral change /refusal to bargain" unfair labor
    practice.       Pasco Police Officers' Ass' n v. City of Pasco, 
    132 Wash. 2d 450
    , 463, 
    938 P.2d 827
    1997) (    quoting Seattle Police Mgmt. Ass' n v. City of Seattle, No. 8937 -U -90 -1967, 
    1992 WL 753329
    ,     at *   13 ( Wash. Pub.        Emp' t   Relations Comm' n Sept. 24, 1992)).             The employer bears the
    burden     of   proving that the         union     waived bargaining         rights.    Yakima County Law Enforcement
    Officer' s Guild v. Yakima County, No. 23986 -U -11 - 6135, 
    2013 WL 6773512
    , at * 4 ( Wash. Pub.
    Relations Comm' n Dec. 10, 2013).                   A                   be "`   clear and unmistakable. "'   Pasco.
    Emp' t                                                             waiver must
    Police Officers' Ass' 
    n, 132 Wash. 2d at 462
    ( quoting Metro. Edison Co. v. NLRB, 
    460 U.S. 693
    ,
    708, 
    103 S. Ct. 1467
    , 
    75 L. Ed. 2d 387
    ( 1983)).                            It must also be knowingly made and must
    specifically address the subject upon which the waiver is claimed. Pasco Police Officers' Ass' 
    n, 132 Wash. 2d at 462
    . A waiver can be found by action, such as agreeing to a contract provision, or
    by     inaction,   such as     failing    to   object   to   an act or proposal.        Pasco Police Officers' Ass' 
    n, 132 Wash. 2d at 462
    ( quoting WSCCCE v. Spokane County, No. 5187 -U -84 -913, 
    1985 WL 291967
    , at
    12 ( Wash. Pub.         Emp' t    Relations Comm'            n   Mar. 15,     1985)).     Courts will not find a waiver
    unless it is clear that the parties were aware of their rights and made the conscious choice ...
    to    waive   them. "'    Pasco Police Officers' Ass' 
    n, 132 Wash. 2d at 462
    ( quoting NLRB v. New York
    Tel. Co., 
    930 F.2d 1009
    , 1011 ( 2d Cir. 1991)).
    We must first determine whether the waivers from the 2007 -09 collective bargaining
    agreement were          in   effect at   the time the layoffs           occurred.     During the pendency of proceedings
    6
    44183 -7 -II
    before an arbitration panel, existing hours, wages, and working conditions shall not be changed
    by   either   party'   s unilateral action.   RCW 41. 56. 470.       But waivers are permissive subjects that
    expire with the collective bargaining agreement unless they are renewed by mutual consent. City
    of Spokane Managerial &              Prof'l Ass' n v. City of Spokane, No. 23815 -U -11 -6077, 
    2012 WL 440798
    ,       at *   2 ( Wash. Pub.     Emp' t   Relations Comm' n Feb 8,       2012)     Here, the agreement
    containing the alleged waivers had expired in 2010 and the parties had not yet negotiated a new
    agreement.           The decision to implement layoffs occurred in October 2011 and the employees
    were laid off in January 2012. There is no evidence at the time of the layoffs that the parties had
    agreed to renew the alleged waivers. Therefore, the alleged waivers expired in 2010.
    The County additionally argues that the Guild waived its rights to bargain the layoff
    decision because it allowed layoffs in the past without demanding the right to bargain the
    decision. Although the waivers in the collective bargaining agreement had expired, we may look
    to the parties' bargaining history for evidence that the Guild waived the right to bargain the
    layoffs.      See Intl Ass' n of Fire Fighters, Local 469 v. City of Yakima, No. 7900 -U -89 -1699,
    
    1991 WL 733702
    ,           at *   13 ( Wash. Pub.   Emp' t   Relations Comm' n 1991).    In 2010, the County laid
    off four officers because of budget cuts. The parties met and bargained the effects of the layoffs.
    The County implies that the Guild did not demand to bargain the decision, but the record only
    contains evidence of the outcome of the bargaining, it does not contain evidence of what the
    Guild demanded to bargain.             The County has the burden of proving that the Guild clearly and
    unmistakably waived its bargaining rights. The County has not met its burden here.
    III.      MANDATORY SUBJECT
    Next, the Guild argues that the trial court erred when it denied the Guild' s summary
    judgment motion because layoffs are a mandatory bargaining subject and the County committed
    7
    44183 -7 -II
    an unfair    labor    practice when      it   refused   to bargain the decision to        lay   off   two   officers.   Because
    the trial court failed to first conduct the balancing test to determine whether the layoffs in this
    case are mandatory or permissive subjects, we hold that the trial court erred and remand for the
    court to conduct the balancing analysis.
    We review a summary judgment order de novo, engaging in the same inquiry as the trial
    court.    Folsom      v.   Burger   King,     
    135 Wash. 2d 658
    , 663, 
    958 P.2d 301
    ( 1998).                Summary judgment
    is appropriate when there is no genuine issue of material fact and the moving party is entitled to
    judgment     as a matter of         law. CR 56( c); 
    Folsom, 135 Wash. 2d at 663
    .       We construe the facts and
    reasonable        inferences in favor        of   the nonmoving party.     Korslund v. DynCorp Tri- Cities Servs.,
    Inc., 
    156 Wash. 2d 168
    , 177, 
    125 P.3d 119
    ( 2005).                  Summary judgment is appropriate if reasonable
    persons could reach          only    one conclusion      from the     evidence presented.        
    Korslund, 156 Wash. 2d at 177
    .
    There are three broad categories of collective bargaining subjects: mandatory, permissive,
    and    illegal.    Yakima County v. Yakima County Law Enforcement Officers' Guild, 
    174 Wash. App. 171
    , 181, 
    297 P.3d 745
    ( quoting Patrol Lieutenants Ass' n v. Sandberg, 
    88 Wash. App. 652
    , 657,
    
    946 P.2d 404
    ( 1997)),        review    denied, 
    178 Wash. 2d 1012
    ( 2013).             Parties to a collective bargaining
    agreement must bargain in good faith on mandatory subjects; they may bargain on permissive
    subjects, but they are not obliged to bargain to impasse. 
    Sandberg, 88 Wash. App. at 657
    (quoting
    Pasco Police Officers' Ass'             
    n, 132 Wash. 2d at 460
    ).   Even if an employer makes a unilateral
    decision regarding a permissive bargaining subject, the employer is still required to bargain over
    the effects of the decision on mandatory bargaining subjects. Pub. Sch. Emps. of Wash. v. Wash.
    State Univ., No. 24440 - - - 6258, 
    2013 WL 1561271
    ,
    U 11                                                   at *   2(   Wash. Pub. Emp' t Relations
    Comm' n Apr. 9, 2013).
    N.
    44183 -7 -II
    Mandatory bargaining subjects include wages, hours, and working conditions. Klauder v.
    San Juan        County Deputy             Sheriffs'       Guild, 
    107 Wash. 2d 338
    ,    341;    
    728 P.2d 1044
    ( 1986).
    Permissive       bargaining        subjects          include "[    m]        agerial decisions that only remotely affect
    personnel matters,'         and    decisions that         are   predominantly ` managerial                 prerogatives. "'    Int' l Ass' n
    of Fire Fighters, Local Union 1052 v. Pub. Emp' t Relations Comm' n, 
    113 Wash. 2d 197
    , 200, 
    778 P.2d 32
    ( 1989).       It is an unfair labor practice to refuse to bargain a mandatory subject to impasse.
    and   to demand to        argue a permissive subject                to impasse.             RCW 41. 56. 140( 4);           Yakima 
    County, 174 Wash. App. at 182
    .
    Where an issue involves both mandatory and permissive subjects, courts use a balancing
    test to determine        whether     it is mandatory            or permissive.             Yakima County, 174 Wn. App. at 1,82.
    On   one side of       the balance       is the relationship the            subject       bears to ` wages, hours[,] and working
    conditions.'        On the         other       side    is the     extent      to    which     the    subject       lies ` at the core of
    entrepreneurial         control'    or    is    a   management prerogative."                   Intl Ass' n of Fire 
    Fighters, 113 Wash. 2d at 203
    (   quoting Spokane Educ. Ass' n v. Barnes, 
    83 Wash. 2d 366
    , 376, 
    517 P.2d 1362
    1974)).        Where the subject both relates to conditions of employment and is a management
    prerogative,      the court       must     determine       which        characteristic        predominates.          Int' l Ass' n of Fire
    
    Fighters, 113 Wash. 2d at 203
    .        This involves a case -by -case analysis. Int' l Ass' n ofFire 
    Fighters, 113 Wash. 2d at 203
    .
    In International Ass' n of Fire Fighters, our Supreme Court held that the Washington
    Public Employees Relations Commission ( PERC) erred when it determined that a subject was
    permissive       without     first conducting the               balancing          
    test. 113 Wash. 2d at 207
    .     There, PERC
    concluded,        and the superior court affirmed, that equipment staffing was a nonmandatory
    bargaining       subject.    Intl Ass'         n    of Fire Fighters, 
    113 Wash. 2d 202
    .                   In reaching this conclusion,
    9
    44183 -7 -II
    PERC did not balance the specific facts relating to the management prerogatives at issue and the
    decision' s impact on working conditions; instead, it declared, based on previous decisions, that
    equipment staffing was a nonmandatory subject. Int' l Ass' n ofFire 
    Fighters, 113 Wash. 2d at 202
    .
    The   court    held that PERC      erred      by failing   to   conduct a   fact -
    specific     balancing,     noting, "[ e] very
    case presents unique circumstances, in which the relative strengths of the public employer' s need
    for managerial control on the one hand, and the employees' concern with working conditions on
    the   other,   will   vary."    Int' l Ass'   n   of Fire Fighters, 113 Wn:2d            at   207.       Therefore, the court
    remanded       for PERC to       conduct       the   proper     balancing   test.    Int' l Ass' n of Fire 
    Fighters, 113 Wash. 2d at 207
    .
    The trial court in this case similarly failed to balance on the record the County' s
    management prerogatives             against       the   layoffs' impact     on   working      conditions.      Arguably, the
    layoffs heavily impact employees' working conditions, but, on these facts, the County' s duty to
    implement        a   budget    weighs    on   the    management        prerogative    side    of   the   balance.   With such
    significant interests on each side of the balance, it is important that the trial court carefully
    consider the specific facts of this case and balance the competing interests.
    The trial court erred when it failed to conduct the balancing test to determine whether the
    layoffs in this situation are mandatory or permissive bargaining subjects. We remand for the trial
    court to engage in the balancing analysis.
    IV.         ATTORNEY FEES
    The Guild    requests       attorney fees      on    appeal under       RCW 49. 48. 030.         RCW 49. 48. 030
    states, "   In any action in which any person is successful in recovering judgment for wages or
    salary owed to him or her, reasonable attorney' s fees, in an amount to be determined by the
    court,   shall   be   assessed against said employer."             Because we are remanding to the trial court for
    10
    44183 -7 -II
    further proceedings, the Guild has not yet successfully recovered employee wages or salaries.
    Attorney fees may be appropriate on remand, but they are not recoverable here under RCW
    49. 48. 030.
    We remand for the trial court to conduct a balancing test based on the facts of this case.
    r
    fienoya , TP .T.
    We concur:
    Maxa, J.
    11