Kitsap Co & Kitsap Co Sheriff, Resps v. Kitsap Co Correctional Officers Guild & Perc , 193 Wash. App. 40 ( 2016 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KITSAP COUNTY and KITSAP
COUNTY SHERIFF, No. 73637-0-1
Respondents, DIVISION ONE
KITSAP COUNTY CORRECTIONAL
OFFICERS' GUILD, INC., and PUBLIC
EMPLOYMENT RELATIONS PUBLISHED OPINION
COMMISSION,
FILED: March 21, 2016
Appellants.
Becker, J. — Faced with a directive from the board of county
commissioners to cut the budget of the sheriff's office, the Kitsap County Sheriff
laid off two jail officers. The officers' union, appellant Kitsap County Correctional
Officers' Guild, demanded to bargain the layoff decision. Kitsap County and the
Kitsap County Sheriff (the county) refused and proceeded to obtain a declaratory
judgment that the layoff decision was not a mandatory subject of bargaining. The
court perceived the Guild's position as a demand to bargain the level of funding
allocated to the jail's budget. This was error. The subject of the demand to
bargain was the layoff decision, not the budget. Adopting a budget is a
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management prerogative. But when a public sector employer proposes to
balance the budget by laying off workers who are represented by a union, the
union must have the opportunity to bargain over whether the cost saving can be
achieved by other means.
The Public Employees' Collective Bargaining Act, chapter 41.56 RCW,
requires a public employer to bargain collectively with a union representing its
employees. Mandatory bargaining subjects include wages, hours, and working
conditions. Permissive bargaining subjects include managerial decisions that
only remotely affect personnel matters and decisions that are predominantly
managerial prerogatives. Kitsap County v. Kitsap County Corn Officers' Guild,
Inc.. 179 Wn. App. 987, 998, 320 P.3d 70 (2014). Parties to a collective
bargaining agreement must bargain on mandatory subjects. They may bargain
on permissive subjects, but they are not obliged to bargain to impasse. Ifan
employer makes a unilateral decision regarding a permissive bargaining subject,
the employer is still required to bargain over the effects of the decision upon a
mandatory subject such as wages, hours, and working conditions. Kitsap
County, 179 Wn. App. at 997-98.
In February 2011, the county was still experiencing budgetary problems
stemming from the 2008 recession. The board of county commissioners notified
all county employees to expect more budget cuts in the 2012 budget as revenues
were still declining.
The sheriff operates and supervises the county jail. Of the portion of the
overall budget allocated to the sheriff by the county commissioners, the sheriff
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has the authority to determine how funds will be distributed and utilized within the
programs of the sheriff's office.
In 2011, the most recent collective bargaining agreement between the
county and the Guild had expired two years earlier. Negotiations for a new
agreement had twice reached an impasse. The parties were certified for an
interest arbitration that had not yet occurred.
In the last quarter of the year, the jail projected that its revenues would be
reduced by $935,000. On October 24, 2011, corrections chief Ned Newlin sent
an email to all correctional officers entitled "2012 Budget Update." He explained
that even after some significant cuts had been made to supplies and services,
"the bottom line is that the Sheriff's Office (including the jail) is now directed to
take an additional $513,000 cut from our budget requests for 2012."
Newlin announced that the sheriff's office would take the cut by eliminating
three positions in the jail—the two correctional officer positions lowest in seniority
and an open position. Newlin stated in the letter, "This is not a decision that was
made lightly and it causes me great angst to do so, but there is no other
reasonable alternative available to us."
The next day, Newlin received a demand to bargain letter from the
president of the Guild. The Guild represents correctional officers who are
responsible for the housing, control, and care of the inmates. The letter stated,
"We are demanding to bargain the decision to conduct any layoffs plus any
associated effects/impacts. Layoffs are a mandatory subject of bargaining [and]
our input was not invited or incorporated in the discussions you held with two of
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our bargaining unit members this afternoon." The Guild requested that the status
quo be maintained until the parties had bargained the layoff decision and
reached an agreement. The Guild was prepared to "explore some potential cost
saving measures with the County to at least avoid one of the layoffs, if not both."
The county engaged only in impacts bargaining, limited to voluntary layoff
procedures, changes in duties as a consequence of the layoffs, and safety
issues. The county did not retreat from its refusal to bargain the layoff decision
itself. The layoff of two correctional officers was effective on January 1, 2012.
The county brought the dispute directly to superior court through a
complaint for a declaratory judgment. The Public Employee Relations
Commission (PERC) is empowered to enforce the act, but its jurisdiction is not
exclusive. Because interpretation of a statute is a question of law, the superior
court may also decide in the first instance whether an unfair labor practice exists
under a particular set of facts. State ex rel. Graham v. Northshore Sch. Dist. No.
417, 99 Wn.2d 232, 239-40, 662 P.2d 38 (1983). The county chose the superior
court as a forum rather than PERC because in the county's view, PERC's
decisions have created uncertainty about when layoffs are a mandatory subject
of bargaining.1
It is an unfair labor practice to refuse to bargain a mandatory subject to
impasse. It is also an unfair labor practice to demand to bargain a permissive
subject to impasse. Kitsap County, 179 Wn. App. at 998. The county's complaint
asked the court to declare that the Guild committed an unfair labor practice when
1 Brief of Respondents at 32.
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it insisted that the layoff decision was a mandatory subject. The Guild cross-
claimed and moved for summary judgment declaring that the county had
committed an unfair labor practice by refusing to bargain the layoff decision.
After a hearing, the court signed a proposed order granting the county's motion
and denying the Guild's motion. The Guild appealed.
That first appeal was decided by Division Two of this court in March 2013.
Kitsap County, 179 Wn. App. at 987. The court determined that the issue of
layoffs was related both to a mandatory subject of bargaining and a permissive
subject. In such a case, a balancing test is used to determine which
characteristic predominates. Int'l Ass'n of Fire Fighters, Local Union 1052 v. Pub.
Emp't Relations Comm'n, 113 Wn.2d 197, 203, 778 P.2d 32 (1989).
Under RCW 41.56.030(4), the duty to bargain extends to "personnel
matters, including wages, hours and working conditions."2 "The scope of
mandatory bargaining thus is limited to matters of direct concern to employees.
Managerial decisions that only remotely affect 'personnel matters', and decisions
that are predominantly 'managerial prerogatives', are classified as nonmandatory
subjects." Int'l Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 200.
2As defined by the act:
"Collective bargaining" means the performance of the mutual
obligations of the public employer and the exclusive bargaining
representative to meet at reasonable times, to confer and negotiate
in good faith, and to execute a written agreement with respect to
grievance procedures and collective negotiations on personnel
matters, including wages, hours and working conditions, which may
be peculiar to an appropriate bargaining unit of such employer.
RCW 41.56.030(4).
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The court found the record inadequate to determine whether the trial court
had engaged in the balancing analysis.3 "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." Kitsap County, 179 Wn. App. at 999. Following
International Association of Fire Fighters, the court remanded "for the trial court
to conduct a balancing test based on the facts of this case." Kitsap County, 179
Wn.App. at 1000.
On remand, PERC moved for permission to intervene in view of its interest
in promoting uniform application of the law of labor relations in the area of public
employment, see RCW 41.58.005(1), particularly its interest in developing
uniform standards for determining what subjects of bargaining are mandatory.
The trial court allowed intervention. The parties submitted additional evidence
and briefing. In August 2014, the trial court again ruled in favor of the county.
This time, to demonstrate application of the balancing test, the court adopted and
entered findings and conclusions prepared by the county. The findings of fact
are undisputed:
1. The evidence before this Court was well developed, including
testimony and exhibits submitted to the Court from the record in
a four-day interest arbitration hearing.
3 The trial court had inquired of the parties whether the order was
sufficiently detailed and was advised by both parties that it was.
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2. The Kitsap County Board of Commissioners adopts an annual
budget fixing revenues and expenditures for the ensuing fiscal
year.
3. In adopting a budget the Board of County Commissioners
takes into consideration revenue sources including revenue
from property and sales taxes, reductions in revenue from
annexations, the existence or elimination of grant funding, the
County's debt servicing obligations, and managing reserves.
4. In adopting a budget the Board of County Commissioners
takes into consideration expenditures necessary to provide
public services, including whether the services are mandated
by law or proprietary, the level of services needed, and the
amount of revenues available to fund particular services.
5. The Kitsap County Sheriff's Office is limited in the making of
expenditures or incurring of liabilities as fixed in the budget by
the Board of County Commissioners.
6. For year 2012, the Kitsap County Board of County
Commissioners adopted a budget reducing the Sheriff's jail
budget by $935,000 because of declining County revenues.
7. The Sheriff's Office reduced the jail's budget by $935,000 as
established in the budget adopted by the Board of County
Commissioners.
8. The Sheriff's Office reduced the jail's budget in part by
eliminating two corrections officer positions.
9. On October 24, 2011, two corrections officers were informed
that their positions would be eliminated and they would be laid
off as of January 1, 2012, due to the budget reduction.
10. The Corrections Officers' Guild demanded to bargain the
layoffs, and the County agreed to bargain the impact of layoffs,
and did bargain the impact with the Guild.
11. Two corrections officers were laid off on January 1, 2012.
12. No allegation or evidence exists that the reduction of the
County's or Sheriff's budget, the elimination of two corrections
officer positions, or the layoff of two corrections officers was
motivated by retaliation.
The court concluded from the findings that the layoff decision was a
permissive subject of bargaining. The Guild and PERC appeal from this
decision.
We must first decide what standard of review to apply. The county
suggests that the findings of fact entered by the court are entitled to deference.
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But the findings of fact do not resolve conflicts in evidence. Because there is no
genuine issue of material fact and only the court's conclusions are disputed, it is
appropriate to treat the declaratory judgment as an order resolving cross motions
for summary judgment. Our review is de novo. CR 56(c); Kitsap County. 179
Wn. App. at 997.
Two United States Supreme Court cases provide the framework for
analyzing whether a layoff decision will be classified as permissive or mandatory:
Fibreboard Paper Products Corp. v. National Labor Relations Board, 379 U.S.
203, 85 S. Ct. 398, 13 L. Ed. 2d 233 (1964), and First National Maintenance
Corp. v. National Labor Relations Board, 452 U.S. 666, 101 S. Ct. 2573, 69 L.
Ed. 2d 318 (1981). In Fibreboard, employees were laid off as a result of the
employer's decision to contract out the work union employees had been
performing. In that situation, the Court held the layoffs to be a mandatory
bargaining subject. Because the decision did not alter the employer's basic
operation, requiring the employer to bargain "would not significantly abridge his
freedom to manage the business." Fibreboard, 379 U.S. at 213. The Court
noted that the employer was induced to contract out the work by assurances that
economies could be derived by reducing the work force, decreasing fringe
benefits, and eliminating overtime payments, all of which had "long been
regarded as matters peculiarly suitable for resolution within the collective
bargaining framework." Fibreboard, 379 U.S. at 213-14.
Yet, it is contended that when an employer can effect cost savings
in these respects by contracting the work out, there is no need to
attempt to achieve similar economies through negotiation with
existing employees or to provide them with an opportunity to
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negotiate a mutually acceptable alternative. The short answer is
that, although it is not possible to say whether a satisfactory
solution could be reached, national labor policy is founded upon the
congressional determination that the chances are good enough to
warrant subjecting such issues to the process of collective
negotiation.
. . . While "the Act does not encourage a party to engage in
fruitless marathon discussions at the expense of frank statement
and support of his position." [National! Labor [Relations] Board v.
American Nat. Ins. Co., 343 U.S. 395, 404, [72 S. Ct. 824, 829, 96
L. Ed. 1027 (1952)] it at least demands that the issue be submitted
to the mediatory influence of collective negotiations. As the Court
of Appeals pointed out, "[i]t is not necessary that it be likely or
probable that the union will yield or supply a feasible solution but
rather that the union be afforded an opportunity to meet
management's legitimate complaints that its maintenance was
unduly costly."
Fibreboard. 379 U.S. at 214.
By contrast, First National is a case where the employer made an
economically motivated decision to shut down a part of its business. First Nat'l,
452 U.S. at 680. As a result of a financial dispute with one of its customers, the
employer terminated the contract and discharged the employees who worked for
that customer. The employer claimed it had no duty to bargain about its decision
to terminate operations, and the court agreed. The issue raised was whether the
shutdown decision should be considered part of the employer's "retained
freedom to manage its affairs unrelated to employment." First Nat'l, 452 U.S. at
677. The Court concluded that "the harm likely to be done to the employer's
need to operate freely in deciding whether to shut down part of its business
purely for economic reasons outweighs the incremental benefit that might be
gained through the union's participation in making the decision." First Nat'l, 452
U.S. at 686.
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Washington courts and PERC follow Fibreboard and First National. The
parties agree that under First National, there is no duty to bargain when layoffs
are an indirect result of programmatic or service changes by the employer. They
also agree that under Fibreboard, bargaining the layoff decision is mandatory
when an employer decides to reduce labor costs by replacing union workers with
nonunion workers. The county argues that when a public employer lays off
employees in response to a budget shortfall, it is more like the partial shutdown
of operations in First National. In the county's view, the decision to layoffthe two
correctional officers implicated a core management prerogative: the county's duty
to maintain a balanced budget.
The trial court ratified the county's position that the layoff decision was a
component of the decision to reduce the jail's budget. Although the findings of
fact correctly state that the Guild "demanded to bargain the layoffs," the court did
not balance the competing interests involved in the layoff decision. Rather, the
court balanced the competing interests in "the decision to reduce the budget,
reduce staffing levels, and layoff employees."
Balancing the relationship between the decision to reduce the
budget, reduce staffing levels, and layoff employees bears to
conditions of employment on the one side, and to entrepreneurial
control or management prerogative on the other, the Court must
determine which characteristic predominates.141
The court concluded, "The decision to reduce the budget and staffing levels lies
at the core of entrepreneurial control and management prerogative."5 The court
reasoned that the layoff decision was a result of the decision to reduce the
4 Conclusion of Law B.
5 Conclusion of Law D.
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budget and was therefore necessarily and inherently a management prerogative:
"the decision involves the performance of statutory duties in that the Board of
County Commissioners has a statutory duty to adopt a budget and the Kitsap
County Sheriff's Office must abide by the budget adopted for it by the
Commissioners."6 The court concluded that bargaining over the layoffs could not
be fruitful "because the employer cannot negotiate the level of revenues and
expenditures fixed and adopted in the budget."7
In applying the balancing test, the first step is to characterize accurately
the decision that is the subject of the bargaining demand. The county's position
on appeal depends entirely on redefining the Guild's position as a demand to
bargain over the reductions in the budget. The county claims the Guild
demanded to bargain "the Board's decision to reduce the budget in order to
balance expenditures with revenues."8 If that were true, the county's position
would likely prevail. A public employee organization does not have the right to
negotiate with the employer "upon the subject of budget allocations." Spokane
Educ. Ass'n v. Barnes. 83 Wn.2d 366, 374, 517 P.2d 1362 (1974). As stated in
PERC's brief, "Funding rates, allocation of county budget among county
agencies and similar decisions are properly decisions of the voters and elected
public officials."9
Contrary to the county's rhetoric about the budget, however, the record is
clear that the Guild's demand was only to bargain over the layoff decision. The
6 Conclusion of Law F.
7 Conclusion of Law G.
8 Brief of Respondents at 27.
9 Brief of Appellant PERC at 29.
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Guild consistently recognized that it was the prerogative of the county
commissioners to reduce the jail's budget to meet the shortfall in revenues. The
budget set for the jail by the county commissioners did not specifically require or
itemize layoffs of employees. The Guild demanded to bargain over the jail's
decision to achieve the reduction by laying off two employees. By
mischaracterizing the Guild's position as a demand to bargain the budget, the
county thoroughly undermines its argument. The layoff decision alone was the
subject of the Guild's demand to bargain.
It is also inaccurate for the county to say that the Guild was demanding to
bargain over "staffing levels." In using that phrase, the county invokes the
principle that "general staffing levels are fundamental prerogatives of
management." Int'lAss'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 205.
That principle, however, refers to programmatic decisions about how large or
how small an agency should be as a matter of policy—for example, whether a
community "'will have a large police force, a small one, or none at all.'" Int'l Ass'n
of Fire Fighters, Local Union 1052, 113 Wn.2d at 205, quoting Yakima v. Yakima
Police Patrolman's Ass'n, Pub. Empl. Relations Comm'n Dec. 1130-PECB, at 4
(1981) (examiner's opinion). Chief Newlin did not decide as a matter of policy
that the jail staff had become too large. He did not announce a programmatic
decision to reduce inmate population or reorganize the jail's services in a way
that could be managed with fewer correctional officers. Indeed, he expressed
"great angst" at having to cut staff. His layoff decision represented his unilateral
judgment that laying offthe two officers was the only way to comply with the
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No. 73637-0-1/13
budget set by the county commissioners after all other possible cuts had been
considered and implemented. For this reason, his layoff decision was not
analogous to the employer's decision in First National to shut down the part of
the operation affected by the loss of a customer. It was a decision to reduce
labor costs in order to meet the budget cut.
All parties cite and discuss decisions by PERC in support of their
respective positions. Administrative decisions are not binding on a court, but a
court may find guidance in an agency's interpretation of the law. Miotke v.
Spokane County, 181 Wn. App. 369, 325 P3d 434, review denied, 181 Wn.2d
1010(2014).
The county claims PERC's decisions are inconsistent with each other.
The county cites 10 cases to demonstrate the alleged inconsistency.10 The cited
10 Pub. Sch. Emps. of Wenatchee v. Wenatchee Sch. Dist., No. 7425-U-
88-1542, 1990 WL 656165 (Wash. Pub. Emp't Relations Comm'n Sept. 1, 1990);
Pub. Sch. Emps. of Wash, v. N. Franklin Sch. Dist., No. 12665-U-96-3022, 1998
WL 84382 (Wash. Pub. Emp't Relations Comm'n Feb. 1, 1998); Anacortes Police
Guild v. City of Anacortes, No. 13634-U-98-03336, 2000 WL 1448857 (Wash.
Pub. Emp't Relations Comm'n July 5, 2000); Wash. State Council of County &
City Emps. v. Tacoma-Pierce County Health Dep't, No. 14710-U-99-03693, 2001
WL 1069585 (Wash. Pub. Emp't Relations Comm'n April 26, 2001); Wash. Fed'n
of State Emps. v. State Attorney Gen., No. 21156-U-07-5399, 2010 WL 1644961(Wash. Pub. Emp't Relations Comm'n April 16, 2010); Wash. Fed'n of State
Emps. v. State Corrs., No. 23325-U-10-5941, 2011 WL 1979692 (Wash. Pub.
Emp't Relations Comm'n May 10, 2011); Kirkland Police Officers' Guild v. City of
Kirkland, No. 22415-U-09-5718, 2012 WL 1385445 (Wash. Pub. Emp't Relations
Comm'n April 13, 2012); Bellevue Police Support Guild v. City of Bellevue, No.
22416-U-09-5719, 2012 WL 1385444 (Wash. Pub. Emp't Relations Comm'n April
13, 2012); Int'l Ass'n of Fire Fighters. Local 451 v. City of Centralia, No. 11233-U-
94-2625, 1996 WL 387999 (Wash. Pub. Emp't Relations Comm'n June 1, 1996);
Teamsters Local Union 252 v. Griffin Sch. Dist., No. 22170-U-08-5653, 2010 WL
2553112 (Wash. Pub. Emp't Relations Comm'n June 18, 2010).
13
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cases, however, show PERC to be consistent.11 In seven of them, PERC ruled
that a reduction in staffing was not a mandatory subject of bargaining where the
employer was closing operations, reorganizing, or changing the scope of
services.12 Another was decided on the ground that although the decision to
conduct layoffs was "within the 'mandatory' category," the union waived its right to
bargain layoff decisions.13 In two cases that did not involve a change in
operations or services, PERC ruled that the employer had a duty to bargain the
layoff decisions because the employer was making layoffs to save labor costs.14
In these cases and others, PERC has maintained the distinction that flows from
Fibreboard and First National: 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.
11 It is true that two different PERC hearing examiners heard nearly
identical cases and ruled opposite on the duty to bargain issue. See Kirkland
Police Officers' Guild v. City of Kirkland, No. 22415-U-09-5718, 2010 WL
4058051 (Wash. Pub. Emp't Relations Comm'n Oct. 7, 2010); Bellevue Police
Support Guild v. City of Bellevue, No. 22416-U-09-5719, 2010 WL 3283656(Wash. Pub. Emp't Relations Comm'n Aug. 12, 2010). But PERC has since
reconciled these conflicting decisions. See City of Kirkland, 2012 WL 1385445;
City of Bellevue, 2012 WL 1385444.
12 Wenatchee Sch. Dist., 1990 WL 656165; State Attorney General, 2010
WL 1644961; City of Anacortes, 2000 WL 1448856; Tacoma-Pierce Health, 2001
WL 1069585; State Corrs., 2011 WL 1979692; City of Kirkland, 2012 WL
1385445; City of Bellevue, 2012 WL 1385444.
13 N. Franklin Sch. Dist., 1998 WL 84382, at *2.
14 City of Centralia, 1996 WL 387999: Griffin Sch. Dist, 2010 WL 2553112.
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Three PERC decisions in particular are illustrative. The first involved the
Wenatchee School District's decision to convert from half-day to full-day
kindergarten as a means of managing a budget crisis.15 Making the change to
full day kindergarten resulted in the elimination of mid-day bus runs, and that
saved the school district the wages and benefits for the bus drivers who had
driven those runs. PERC rejected the union's argument that the decision to
convert to full-day kindergarten had to be bargained. PERC's decision cited
Spokane Educ. Ass'n, 83 Wn.2d at 366, recognizing and applying the principle
that an employer has "no duty to bargain the decision to reduce its budget."16
Noting that the decision was "clearly a decision regarding the educational
program to be offered," PERC concluded that the employer's prerogative of
defining the curriculum outweighed the decision's relationship to the wages,
hours and working conditions of the employees.17
In PERC's Wenatchee School District decision, like in First National,
management interests predominated because the decision at issue involved a
change in services or a closure of facility or operations. On the other side of the
spectrum is a PERC case where the Griffin School District responded to a budget
squeeze by reducing the school calendar from 260 working days to 240 working
days, with the result that union employees lost 20 days of paid work.18 PERC
concluded that the reduction in the work calendar was a mandatory subject of
bargaining. The district was not reducing its services or closing its facilities on
15 Wenatchee Sch. Dist., 1990 WL 656165.
16 Wenatchee Sch. Dist., 1990 WL 656165, at *4.
17 Wenatchee Sch. Dist. 1990 WL 656165, at *4.
18 Griffin Sch. Dist., 2010 WL2553112.
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certain days. Thus, its decision did not implicate the entrepreneurial right of
employers to control the level of service they provide. "Despite the employer's
legitimate need to achieve budgetary savings, the decision to close facilities for
20 days impacted employee wages and hours so substantially that the decision
must be bargained."19 The union, PERC concluded, had a "legitimate interest in
being afforded the opportunity to work with the employer through collective
bargaining to provide possible alternatives to reducing the wages and hours of
certain of its bargaining unit employees."20
In the third case, PERC ruled that King County's decision to furlough its
employees was a mandatory subject of bargaining.21 King County faced budget
deficits and revenue shortfalls as a result of the 2008 financial crisis. The county
decided to shut down all nonessential services and furlough the affected
employees for 10 days in order to save enough money to balance the budget.
PERC acknowledged that the county had the right to determine and manage its
own budget. But that "did not make the decision to furlough employees a
permissive one."22 The county's chief motivation for imposing the furloughs was
to reduce labor costs. Unlike the Wenatchee School District case, where the
respondent made a wholesale change to the scope of its operation, "this
19 Griffin Sch. Dist., 2010 WL 2553112, at *6.
20 Griffin Sch. Dist, 2010 WL 2553112, at *7.
21 Tech. Emps. Ass'n v. King County. No. 22175-U-09-5658, 2010 WL
2553113 (Wash. Pub. Emp't Relations Comm'n).
22 King County. 2010 WL 2553113, at *7.
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employer's decision to close its offices does not constitute a programmatic
change to any employer service."23
Here too, the decision to layoff the two officers was a decision to meet
budget cuts by reducing labor costs. 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.
The bargaining unit employees clearly had an interest in the county's
decision to implement layoffs. "There is no greater possible impact on an
employee than the complete loss of the employment relationship."24 Even the
county concedes that the impact of layoffs on employees was "obvious and
significant." A declaration in the record details the financial, personal, and
emotional impacts of these two layoffs on the officers who lost their jobs.
No one accuses the county of having an anti-union or retaliatory motive to
make the layoffs. But contrary to the county's argument, that does not bring this
situation back to the First National side of the spectrum. What is critical is that
bargaining the layoffs would not significantly abridge the prerogative and duty of
the county commissioners to adopt a budget. The predominant impact of the
layoff decisions was on wages, hours, or working conditions in the bargaining
23 King County. 2010 WL 2553113, at *7.
24 Bellevue Police Support Guild. 2010 WL 3283656, at *12.
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unit. The reason why such a decision must be subject to negotiation has been
succinctly explained by Judge Richard Posner:
The rule that requires an employer to negotiate with the union
before changing the working conditions in the bargaining unit is
intended to prevent the employer from undermining the union by
taking steps which suggest to the workers that it is powerless to
protect them. Of course, ifthe change is authorized by the
collective bargaining agreement, it is not in derogation of the union
and is not an unfair labor practice. But there was no agreement
here. Laying off workers works a dramatic change in their working
conditions (to say the least), and if the company lays them off
without consulting with the union and without having agreed to
procedures for layoffs in a collective bargaining agreement it sends
a dramatic signal of the union's impotence.
Nat'l Labor Relations Bd. v. Advertisers Mfg. Co.. 823 F.2d 1086, 1090 (7th Cir.
1987).
Corrections chief Newlin stated when announcing the layoffs that "there is
no other reasonable alternative available to us." His announcement made the
layoff decision a fait accompli before the Guild had the opportunity to suggest
alternatives. Yet the possibility existed that bargaining with the Guild could have
revealed reasonable alternatives to layoffs.
The Guild claims it could have offered various concessions, such as
changes in the work schedule, furlough days for officers, or suspension of certain
premium or specialty pays. A declaration from Guild president Terry Cousins
confirms that the Guild was "ready and willing to explore some potential cost
saving measures with the County to at least avoid one of the layoffs, if not both."
Although it is not possible to say that bargaining will necessarily result in a
satisfactory solution, "national labor policy is founded upon the congressional
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determination that the chances are good enough to warrant subjecting such
issues to the process of collective negotiation." Fibreboard. 379 U.S. at 214.
In the King County furlough case, PERC commented that "no outside
force compelled the employer to choose furloughs as the means by which to
reduce its budget."25 Similarly here, no outside force compelled the sheriffto
reduce the jail budget by laying off members of the Guild.
The county contends there was not enough time to bargain the layoffs.
The county analogizes to the time crunch faced by the school board in Spokane
Educ. Ass'n. 83 Wn.2d 366. In that case, the school board had a statutory
deadline for giving notices of nonrenewal to employees who were not going to be
rehired for the ensuing school year. Four days before the deadline, voters
rejected a special levy, necessitating a reduction in the budget. The next day, the
teachers' association made a request to negotiate "'budget allocations and other
policy decisions related to the reduced school program.'" Spokane Educ. Ass'n.
83 Wn.2d at 370. The school board, while willing to negotiate to explore the
possibility of rehiring, nevertheless felt compelled to send out the nonrenewal
notices before the looming deadline. The teacher's association unsuccessfully
sought a writ to prevent the notices from being sent. Affirming, the Supreme
Court took the view that the request was not made within a reasonable time.
Spokane Educ. Ass'n, 83 Wn.2d at 372. The situation here was not comparable.
The Guild requested to bargain the layoffs on October 25, 2011. More than two
months remained before the layoffs were to occur. The record does not contain
25 King County. 2010 WL 2553113, at *9.
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No. 73637-0-1/20
evidence that two months was too short to engage in potentially fruitful
negotiations.
The county emphasizes its statutory responsibility to finalize a balanced
budget for 2012 by the end of the year. The county contends that agreeing to
bargain the allocation of funds within the county budget would have presented an
intolerable risk of creating a large budget deficit. Again, though, the demand was
to bargain layoffs, not the budget. The county also argues there was not enough
time to bargain layoffs, given the fact that interest arbitration can take months to
resolve an issue bargained to impasse. This argument too must fail, as 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. When a demand to bargain about a
mandatory subject arises after a budget is set, the employer does not have to
agree to a specific proposal. But the employer must be willing to consider
alternatives suggested by the union and potentially agree on them, even if it
means an adjustment to a previously established budget amount. See City of
Spokane v. Spokane Police Guild. 87 Wn.2d 457, 465, 553 P.2d 1316 (1976).
In the Griffin School District case, PERC provided guidance for public
employers when faced with a budget crisis:
Chapter 41.56 RCW does not handcuff employers from taking
action in the wake of a financial crisis. Should an employer be
faced with a situation where it needs to make a change to a certain
mandatory subject of bargaining, it should inform the union of the
issue, the importance of the issue to the employer (including the
timeline in which the employer needs to complete bargaining), and,
upon request, bargain in good faith. Ifthe employer and union
reach a lawful impasse, then the employer is permitted to lawfully
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No. 73637-0-1/21
implement its last offer on that topic, while remaining willing to
bargain all other mandatory subjects of bargaining, and remain
willing to return to bargaining regarding the subject of bargaining
implemented by the employer if the union makes such a request.'261
PERC's guidance is sensible. The county's assertion that bargaining the layoffs
would have introduced intolerable risk into the budget process is speculation not
supported by the record.
Balancing the interests, we conclude that although the county's need to
achieve budgetary savings was a legitimate interest, the county's interest in the
method by which the savings would be achieved was not at the core of its
management prerogatives. The decision to achieve budget savings by laying off
the officers was suitable for collective bargaining, and it so substantially impacted
wages, hours, and working conditions in the bargaining unit that the decision was
a mandatory subject of bargaining.
WAIVER
The county argues that even if the layoffs are a mandatory subject of
bargaining, the Guild waived its right to bargain over layoffs.
The collective bargaining agreement that expired in 2009 included
language stating that nothing in the agreement supersedes "any matter
delegated to" the Kitsap County Civil Service Commission by state law or
ordinance. The civil service rules applicable to the sheriff's employees provide
that layoffs made necessary by a shortage of funds will be done through
seniority. "TheAppointing Authority may layoff any employee . . . whenever such
26 Griffin Sch. Dist.. 2010 WL 2553112, at *10.
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No. 73637-0-1/22
action is made necessary by reason of a shortage of work or funds ... in inverse
of seniority."
In the first appeal, the county argued that the Guild had waived its right to
bargain layoffs by the provision in the collective bargaining agreement delegating
certain matters to the civil service commission. The court did not reach the
question of whether the quoted language amounted to a waiver of the right to
bargain layoffs. Instead the court determined that "waivers are permissive
subjects that expire with the collective bargaining agreement unless they are
renewed by mutual consent." Kitsap County, 179 Wn. App. at 996. Because the
agreement containing the alleged waivers had expired in 2010, the parties had
not yet negotiated a new agreement, and there was no evidence at the time of
the layoffs that the parties had agreed to renew the alleged waivers, the court
concluded the alleged waivers expired in 2010. Kitsap County, 179 Wn. App. at
996.
The single issue on remand was for the court to conduct the balancing
test. The trial court did not reconsider waiver on remand. Nevertheless, the
county renews the waiver argument in the present appeal, with this addition: that
the civil service rules govern layoffs regardless of what was in the collective
bargaining agreement.
To a great extent, the county's argument is barred by the law of the case
doctrine. The law of the case doctrine stands for the proposition that once there
is an appellate holding enunciating a principle of law, that holding will be followed
in subsequent stages of the same litigation. The doctrine seeks to promote
22
No. 73637-0-1/23
finality and efficiency in the judicial process. Roberson v. Perez. 156 Wn.2d 33,
41, 123 P3d 844 (2005). The law of the case doctrine is discretionary, not
mandatory. Subsequent appellate reconsideration of an identical issue will be
granted only where the holding of the prior appeal is clearly erroneous and
application of the doctrine would result in manifest injustice. Folsom v. County of
Spokane. 111 Wn.2d 256, 759 P.2d 1196 (1988); see ajso RAP 2.5(c)(2). The
holding in the first appeal—that a waiver expires when the agreement expires—is
not clearly erroneous. And the county does not persuasively demonstrate that
reconsidering that holding is necessary to avoid a manifest injustice.
To the extent that the first appeal leaves room for the county to argue that
the civil service rules preclude bargaining over layoffs, we reject the argument. A
waiver of a right to bargain must be clear, unmistakable, and knowingly made,
and it must specifically address the subject upon which the waiver is claimed.
Kitsap County. 179 Wn. App. at 995. By this standard, we cannot say that the
prior collective bargaining agreement included a waiver of the right to bargain
layoffs by its reference to the civil service rules.
REMEDY
The trial court provided declaratory relief only. The county contends a
declaratory order suffices to clarify the parties' bargaining obligations. PERC and
the Guild ask for a more detailed remedial order.
Under the act, PERC has the authority to issue "appropriate remedial
orders." RCW 41.56.160(1). The act is to be liberally construed to accomplish its
purpose. Mun. of Metro. Seattle v. Pub. Emp't Relations Comm'n. 118 Wn.2d
23No. 73637-0-1/24
621, 633, 826 P.2d 158 (1992). The purpose of the act "is to provide public
employees with the right to join and be represented by labor organizations of
their own choosing, and to provide for a uniform basis for implementing that
right." City of Yakima v. Int'l Ass'n of Fire Fighters. AFL-CIO Local 469. 117
Wn.2d655, 670, 818P.2d 1076 (1991). guoted in Mun. of Metro. Seattle. 118
Wn.2d at 633. With that purpose in mind, the Supreme Court has interpreted the
statutory phrase "appropriate remedial orders" to be those necessary to
effectuate the purposes of the collective bargaining statute and to make PERC's
lawful orders effective. Mun. of Metro. Seattle, 118 Wn.2d at 633.
Considering that the purpose of the act is to provide "a uniform basis" for
implementing the right of collective bargaining, we hold that the court has the
same authority and obligation as PERC to issue an appropriate remedial order. If
PERC determines that any person has engaged in an unfair labor practice, a
cease and desist order is appropriate, and PERC may also take affirmative action
such as ordering the payment of damages and the reinstatement of employees.
RCW 41.56.160(2). PERC's authority to fashion a remedy that suits the case is
broad. Mun. of Metro. Seattle. 118 Wn.2d at 633.
The situation in the present case is clear-cut: either the county committed
an unfair labor practice by refusing to bargain the layoffs, or the Guild committed
an unfair labor practice by insisting on the right to bargain to impasse. Because
we conclude that the layoff decision was a mandatory subject of bargaining, it
follows that the county is the party who committed an unfair labor practice and
that an appropriate remedial order should be entered. We remand for the trial
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No. 73637-0-1/25
court to decide what directives to include in the order. The court should consider
PERC's precedent and practice in the matter of remedies. See Mun. of Metro.
Seattle, 118 Wn.2d at 634 (recognizing PERC's expertise in the relation of
remedy to policy). The trial court may also consider on remand the Guild's
arguments for an award of attorney fees.
We reverse and remand for entry of judgment in favor of the Guild and an
appropriate remedial order.
WE CONCUR:
A-*/ "vy-
25