State - Office of the Governor, Decision 10313 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
WASHINGTON STATE PATROL TROOPERS )
ASSOCIATION, )
) CASE 22171-U-09-5654
Complainant, )
) DECISION 10313 - PECB
vs. )
)
STATE - OFFICE OF THE GOVERNOR, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Aitchison & Vick, by Jeffrey Julius, Attorney at Law, for the
union.
Attorney General Robert M. McKenna, by Morgan Damerow,
Assistant Attorney General, for the employer.
On January 2, 2009, the Washington State Patrol Troopers Association
(union) filed an unfair labor practice complaint against the State
of Washington (employer). The complaint alleges that Governor
Christine Gregoire (Governor) failed to submit a request to the
Legislature for the funds necessary to implement wage increases
awarded by an interest arbitrator. In failing to do so, the union
alleges the employer refused to engage in collective bargaining and
interfered with employee rights in violation of RCW 41.56.140(4) and
(1). The Commission appointed Jamie L. Siegel as the Examiner. The
union filed a motion for summary judgment and the parties submitted
briefs, the last of which was filed on February 20, 2009.
ISSUES
1. Are there disputed issues of material fact that prevent
granting summary judgment?
2. Did the employer refuse to bargain in violation of RCW
41.56.140(4) and (1) when the Governor failed to submit a
request to the Legislature for the funds necessary to implement
wage increases awarded by an interest arbitrator?
After fully considering the parties' briefs, supporting
declarations, exhibits, and the applicable law, I grant the union's
motion for summary judgment. The parties do not dispute any
material facts and the union is entitled to judgment as a matter of
law. The employer committed a refusal to bargain violation when the
Governor failed to submit a request to the Legislature for the funds
necessary to implement wage increases awarded by an interest
arbitrator.
ISSUE 1 - MOTION FOR SUMMARY JUDGMENT
APPLICABLE LEGAL STANDARDS
The law authorizes the Commission and its examiners to grant a
motion for summary judgment "if the written record shows that there
is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." WAC 10-08-135.
The courts and the Commission define a material fact as one upon
which the outcome of the litigation depends. Clements v. Travelers
Indem. Co., 121 Wn.2d 243 (1993); State - General Administration,
Decision 8087-B (PSRA, 2004). The Commission does not grant summary
judgment motions lightly since doing so involves making a final
determination without the benefit of a hearing. City of Orting,
Decision 7959-A (PECB, 2003). A summary judgment is only granted
where the party responding to the motion cannot or does not deny any
material facts alleged by the party making the motion.
In ruling on a motion for summary judgment, the Commission must
consider the material evidence and all reasonable inferences most
favorably to the nonmoving party and deny the motion if reasonable
people might reach different conclusions as to the facts. Wood v.
City of Seattle, 57 Wn.2d 469 (1960).
ANALYSIS
The employer does not deny any material facts. Neither the
employer's answer to the complaint nor the employer's brief raises
any factual issues. Rather than disagreeing on factual issues, the
parties interpret the law differently. As a result, I find that a
hearing is unnecessary and I will decide this case as a matter of
law based upon the undisputed facts.
ISSUE 2 - REFUSAL TO BARGAIN
APPLICABLE LEGAL STANDARDS
Under Chapter 41.56 RCW, a public employer has a duty to bargain
with the exclusive bargaining representative of its employees over
wages, hours, and working conditions. RCW 41.56.030(4). An
employer that fails or refuses to bargain in good faith on a
mandatory subject of bargaining commits an unfair labor practice.
RCW 41.56.140(4).
The union represents troopers and sergeants of the Washington State
Patrol (state patrol). Under RCW 41.56.473, those employees are
uniformed personnel. Chapter 41.56 RCW defines some key aspects of
the collective bargaining process for uniformed personnel. If an
employer and union representing uniformed personnel do not reach
agreement on the terms of a collective bargaining agreement through
negotiations or mediation, interest arbitration is used to determine
the terms of the agreement between the parties. The Legislature
granted interest arbitration to uniformed employees, recognizing
that:
[T]here exists a public policy in the state of Washington
against strikes by uniformed personnel as a means of settling
their labor disputes; that the uninterrupted and dedicated
service of these classes of employees is vital to the welfare
and public safety of the state of Washington; that to promote
such dedicated and uninterrupted public service there should
exist an effective and adequate alternative means of settling
disputes.
RCW 41.56.430.
Interest arbitration represents a continuation of the collective
bargaining process and a continuation of the obligation to bargain
in good faith. City of Bellevue, Decision 3085-A (PECB, 1989),
aff'd, 119 Wn.2d 373 (1992).
RCW 41.56.475 is applicable to uniformed personnel of the state
patrol. That statute and WAC 391-55-200 et seq., sets forth a
detailed process with time lines for selecting an interest
arbitrator or panel, scheduling the hearing, and other related
matters. After the arbitrator has held the hearing and issued his
or her decision, RCW 41.56.473(5) describes the next step in the
process as follows:
The governor shall submit a request for funds necessary to
implement the wage and wage-related matters in the collective
bargaining agreement or for legislation necessary to implement
the agreement. Requests for funds necessary to implement the
provisions of bargaining agreements may not be submitted to the
legislature by the governor unless such requests:
(a) Have been submitted to the director of financial
management by October 1st before the legislative session at
which the requests are to be considered; and
(b) Have been certified by the director of financial
management as being feasible financially for the state or
reflects the decision of an arbitration panel reached under RCW
41.56.475.
Chapter 41.56 RCW distinguishes between how the Legislature treats
interest arbitration awards involving uniformed personnel of the
state patrol and how local government employers treat interest
arbitration awards involving other uniformed personnel. RCW
41.56.475(3), applicable only to uniformed personnel of the state
patrol, provides that interest arbitration awards are not binding on
the Legislature and that:
[I]f the legislature does not approve the funds necessary to
implement provisions pertaining to wages and wage-related
matters of an arbitrated collective bargaining agreement, [the
award] is not binding on the state or the Washington state patrol.
Chapter 41.56 RCW does not, however, require local government
employers for uniformed personnel to approve funds to implement
interest arbitration awards; those awards are final and binding.
ANALYSIS
The Washington State Patrol (state patrol) is an agency of the State
of Washington (employer). The union represents a bargaining unit of
the state patrol's commissioned employees through the rank of
sergeant. The unit includes troopers and sergeants. The employer
and union are parties to a collective bargaining agreement effective
from July 1, 2007, through June 30, 2009. Consistent with RCW
41.56.473(2), the Governor designated the State Office of Financial
Management's (OFM) Labor Relations Office (LRO) as her
representative to negotiate a successor agreement. The employer and
union engaged in collective bargaining for a successor agreement but
did not reach agreement on all issues. After the parties
participated in mediation and did not reach an agreement, the
Commission's Executive Director certified the unresolved issues for
interest arbitration.
Interest Arbitrator Howell Lankford (arbitrator) conducted a hearing
and issued his Findings, Discussion and Award on September 25, 2008.
The arbitrator's award included wage increases effective July 1,
2009, January 1, 2010, July 1, 2010, and January 1, 2011.
When the Governor submitted her budget for the July 1, 2009, through
June 30, 2011, biennium to the Legislature, she did not include a
request for the funds necessary to implement the wage increases
awarded by the arbitrator.
Union Not Seeking Writ of Mandamus
The employer frames much of its defense within the argument that the
union seeks "in essence," a writ of mandamus and that the union
fails to satisfy the requirements for mandamus. The employer's
argument fails. RCW 7.16.160 limits the issuance of writs of
mandamus to certain courts. The Commission is not charged with
granting writs of mandamus. Furthermore, the union does not seek a
writ of mandamus with the Commission; the union does not seek a
remedy that lies only through a writ of mandamus.(fn:1)
____________________
fn:1 In Wash. State Council of City & County Employees Council 2 v.
Hahn, 151 Wn.2d 163 (2004), one of the cases the employer cites,
Council 2 petitioned for a writ of mandamus directing the public
employer to engage in collective bargaining. The Washington State
Supreme Court rejected the petition, holding that Council 2
possessed an adequate remedy at law under Chapter 41.56 RCW.
The union has filed an unfair labor practice complaint with the
Commission. RCW 41.56.160 directs the Commission to prevent unfair
labor practices. The law also directs the Commission to issue
appropriate remedial orders, including requiring those found to have
committed unfair labor practices to cease and desist from such
actions and to take affirmative action to effectuate the purposes
and policy of Chapter 41.56 RCW. This is precisely what the union
seeks in this case.
The Meaning of RCW 41.56.473(5)
Within its mandamus argument, the employer engages in a statutory
construction analysis of RCW 41.56.473(5), concluding that the law
does not require the Governor to submit a request to the Legislature
for funds to implement the arbitration award. It is neither
necessary nor appropriate to engage in a statutory construction
analysis in this case. When interpreting a statute the Commission
administers, the Commission gives the statute its plain and ordinary
meaning unless the statute is ambiguous. State - Transportation,
Decision 8317-B (PSRA, 2005). It is only when a statute is
ambiguous that rules of statutory construction and legislative
history come into play. Vancouver School District (Vancouver
Education Association), Decision 9959, aff'd, Decision 9959-A (EDUC,
2008). The Commission finds a statute ambiguous when it is subject
to more than one reasonable interpretation. Central Washington
University, Decision 8127-A (FCBA, 2004).
Recently the Washington State Supreme Court reinforced these
principles in Delyria v. State, Docket No 80602-1 (01/29/2009), as
follows:
The court's fundamental objective is to ascertain and carry out
the legislature's intent. If the statute's meaning is plain on
its face, then the court must give effect to that plain meaning
as an expression of legislative intent. We determine the plain
meaning of a statutory provision based on the statutory
language and, if necessary, in the context of related statutes
which disclose legislative intent about the provision in
question. If the statutory language is clear, our inquiry
ends. However, if after this inquiry, the statute remains
susceptible to more than one reasonable meaning, the statute is
ambiguous and it is appropriate to resort to aids of statutory
construction, including legislative history. (Citation omitted)
In this case, RCW 41.56.473(5) is clear on its face. Its meaning
demonstrates no ambiguity and it is not susceptible to more than one
reasonable meaning. Provided certain conditions are met, the
Governor "shall submit a request for funds necessary to implement
the wage and wage-related matters in the collective bargaining
agreement or for legislation necessary to implement the agreement."
The conditions in this case include (1) submitting a request to the
director of OFM by October 1, 2008, and (2) reflecting the decision
of an arbitration panel under RCW 41.56.475.
The parties met these conditions. The Legislature does not subject
arbitration awards issued under RCW 41.56.475 to a requirement that
the director of OFM certify the award as being feasible financially
for the state.(fn:2)
____________________
fn:2 See, for example, RCW 41.80.010(3)(b) which requires
certification of financial feasibility.
The law clearly and unequivocally obligated the Governor to request
the funds necessary to implement the wage increases awarded by the
arbitrator. This required action constitutes a key part of the
statutory collective bargaining process. The Governor's failure to
comply with the requirement constitutes a refusal to bargain.
"Shall" Used in Mandatory Sense
Despite the fact that RCW 41.56.473(5) is clear on its face and
statutory construction is unwarranted, I will briefly address the
employer's argument concerning the word "shall." Within the
framework of its writ of mandamus argument, the employer states that
"in the context of RCW 41.56.473, the Legislature employed the word
'shall' in a permissive sense."
In essence, the employer argues that the requirement of RCW
41.56.473(5), that the Governor submit a request for funds to
implement arbitration awards, cannot be reconciled with Chapter
43.88 RCW which contemplates the Governor exercising broad authority
in developing the budget. The employer articulates concern that if
RCW 41.56.473(5) imposes a mandatory obligation on the Governor, she
will be compelled to submit a budget to the Legislature that is
based upon financial information that underestimates the revenue
deficit,(fn:3) which does not reflect her spending priorities, and
which is not financially feasible.
____________________
fn:3 It is undisputed that Washington State's economy has worsened
since the parties began negotiations. The economic forecast used in
the interest arbitration hearing showed a smaller deficit than
existed at the time the Governor submitted her budget to the
Legislature. Since the Governor submitted her budget to the
Legislature, the estimated budget deficit has grown even larger.
The argument that the statute's use of "shall" is permissive is
without merit. In Erection Company v. Department of Labor and
Industries, 121 Wn.2d 513 (1993), the Washington State Supreme Court
explained:
The court must give words in a statute their plain and ordinary
meaning unless a contrary intent is evidenced in the statute.
It is well settled that the word 'shall' in a statute is
presumptively imperative and operates to create a duty. The
word 'shall' in a statute thus imposes a mandatory requirement
unless a contrary legislative intent is apparent. (Citations
omitted)
Nothing in RCW 41.56.473 or Chapter 41.56 RCW suggests the
Legislature intended "shall" to convey anything other than a
mandatory obligation. Provisions within Chapter 41.56 RCW include
the word "may" in addition to "shall," demonstrating that the
Legislature draws a distinction between mandatory and discretionary
provisions.
Furthermore, RCW 41.56.905 directs: "Except as provided in RCW
53.18.015, if any provision of this chapter conflicts with any other
statute, ordinance, rule or regulation of any public employer, the
provisions of this chapter shall control."
Business Necessity, Changed Circumstance Not Applicable
The employer raises business necessity and changed circumstances as
reasons why the Governor was not required to submit a request for
funds necessary to implement the wage increases included in the
arbitrator's award. Neither defense applies in this case.
Business necessity may serve as an affirmative defense to a party's
unilateral implementation of a mandatory subject of bargaining.
City of Tukwila, Decision 9691-A (PECB, 2008). Here, the union does
not claim unilateral implementation and the business necessity
defense is not applicable.
The employer also raises a changed circumstances defense, likening
this case to a situation where a party withdraws a tentative
agreement or a bargaining proposal due to changed economic
circumstances. This comparison fails. This matter does not present
a case of regressive bargaining. Instead, this case involves the
employer's failure to satisfy a mandatory step in a statutory
collective bargaining process.
CONCLUSION
I find that RCW 41.56.473(5) requires the Governor, as part of the
bargaining process set forth by the Legislature, to submit a request
for funds necessary to implement the wage increases awarded by the
arbitrator. The Governor's failure to do so constitutes an employer
refusal to bargain violation. To remedy this unfair labor practice,
the Order includes a requirement that the Governor submit a
supplemental budget to the Legislature requesting the funds
necessary to implement the wage increases awarded by the arbitrator.
The Order places no obligation on the Legislature. The Order
simply allows the Legislature the opportunity, consistent with RCW
41.56.475(3), to make a decision whether to fund the interest
arbitration award.
FINDINGS OF FACT
1. The State of Washington is a public employer within the meaning
of RCW 41.56.030(1) and .473. The Washington State Patrol is
an agency of the State of Washington.
2. Christine Gregoire is the Governor of the State of Washington
and she or her designee represents the State of Washington for
purposes of bargaining under RCW 41.56.473(2).
3. The Governor designated the Office of Financial Management's
Labor Relations Office to represent her and the state for
purposes of bargaining under RCW 41.56.473(2).
4. The Washington State Patrol Troopers Association (union) is a
bargaining representative under RCW 41.56.030(3) and represents
all commissioned employees of the state patrol through the rank
of sergeant.
5. The employer and union are parties to a collective bargaining
agreement effective from July 1, 2007, through June 30, 2009.
6. The parties engaged in collective bargaining for a successor
collective bargaining agreement but did not reach agreement.
They proceeded to mediation and then to interest arbitration.
7. Interest Arbitrator Howell Lankford conducted a hearing. On
September 25, 2008, he issued his Findings, Discussion and
Award which included wage increases effective July 1, 2009,
January 1, 2010, July 1, 2010, and January 1, 2011.
8. In her budget submitted to the Legislature, Governor Gregoire
did not submit a request for the funds necessary to implement
the wage increases awarded by the arbitrator.
9. The parties presented no disputed facts.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.56 RCW and Chapter 391-45 WAC.
2. No genuine issue of material fact exists and, under WAC
10-08-135, the union's motion for summary judgment is granted.
3. By failing under RCW 41.56.473(5) to submit a request to the
Legislature for the funds necessary to implement the wage
increases awarded by the interest arbitrator as described in
findings of fact 7 and 8, the Governor and the State of
Washington refused to bargain and violated RCW 41.56.140(4) and
(1).
ORDER
The OFFICE OF THE GOVERNOR shall immediately take the following
actions to remedy its unfair labor practices:
1. CEASE AND DESIST from:
a. Refusing to engage in collective bargaining.
b. Failing to fulfill its statutory obligations under RCW
41.56.473(5) that the Governor submit a request to the
Legislature for funds necessary to implement the wage
increases included in Howell Lankford's interest
arbitration award.
c. In any other manner interfering with, restraining or
coercing its employees in the exercise of their collective
bargaining rights under the laws of the state of Washington.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the
purposes and policies of Chapter 41.56 RCW:
a. Within twenty days following the date of issuance of this
Order, Governor Gregoire shall submit to the Legislature a
supplemental budget for the July 1, 2009, through June 30,
2011, biennium that includes the funds necessary to
implement the wage increases awarded by Howell Lankford in
his Findings, Discussion and Award issued on September 25,
2008.
b. Post copies of the notice provided by the Compliance
Officer of the Public Employment Relations Commission in
conspicuous places on the premises of the State Patrol
where notices to all bargaining unit members located
throughout the state are usually posted. These notices
shall be duly signed by an authorized representative of
the respondent, and shall remain posted for 60 consecutive
days from the date of initial posting. The respondent
shall take reasonable steps to ensure that such notices
are not removed, altered, defaced, or covered by other
material.
c. Notify the complainant, in writing, within 20 days
following the date of this order, as to what steps have
been taken to comply with this order, and at the same time
provide the complainant with a signed copy of the notice
provided by the Compliance Officer.
d. Notify the Compliance Officer of the Public Employment
Relations Commission, in writing, within 20 days following
the date of this order, as to what steps have been taken
to comply with this order, and at the same time provide
the Compliance Officer with a signed copy of the notice.
ISSUED at Olympia, Washington, this 26th day of February, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
JAMIE L. SIEGEL, Examiner
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.
CASE 22171-U-09-5654
DECISION 10313 - PECB
PUBLIC EMPLOYMENT RELATIONS COMMISSION
NOTICE
TO EMPLOYEES
THE WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION CONDUCTED A LEGAL
PROCEEDING IN WHICH ALL PARTIES HAD THE OPPORTUNITY TO PRESENT EVIDENCE AND
ARGUMENT. THE COMMISSION RULED THAT THE OFFICE OF THE GOVERNOR COMMITTED
UNFAIR LABOR PRACTICES IN VIOLATION OF STATE COLLECTIVE BARGAINING LAWS:
WE UNLAWFULLY refused to bargain when the Governor did not submit a request
to the Legislature for funds necessary to implement the wage increases
included in Howell Lankford's interest arbitration award.
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL fulfill our statutory obligations under RCW 41.56.473(5) and within
twenty days following the date of issuance of the order in this case,
Governor Gregoire shall submit to the Legislature a request for funds
necessary to implement the wage increases awarded by the arbitrator.
WE WILL NOT, in any other manner, interfere with, restrain, or coerce our
employees in the exercise of their collective bargaining rights under the
laws of the State of Washington.
DO NOT POST OR PUBLICLY READ THIS NOTICE.
AN OFFICIAL NOTICE FOR POSTING
WILL BE PROVIDED BY THE COMPLIANCE OFFICER.
The full decision is published on PERC's website, www.perc.wa.gov.