City of Yakima, Decision 9062-B (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
YAKIMA POLICE PATROLMEN'S )
ASSOCIATION, )
)
Complainant, ) CASE 19206-U-05-4882
)
vs. ) DECISION 9062-B - PECB
)
CITY OF YAKIMA, )
)
Respondent. ) DECISION OF COMMISSION
)
___________________________________)
Cline and Associates, by James M. Cline, Attorney at Law, for
the union.
Summit Law Group, PLLC, by Bruce Schroeder, Attorney at Law,
and Kristin D. Anger, Attorney at Law, for the employer.
This case comes before the Commission on a timely appeal filed by
the City of Yakima (employer) and a timely cross-appeal filed by the
Yakima Police Patrolmen's Association (union), each seeking review
and reversal of certain Findings of Fact, Conclusions of Law, and
Order issued by Examiner Christy L. Yoshitomi.(fn:1)
____________________
fn:1 City of Yakima, Decision 9062-A (PECB, 2006).
ISSUES PRESENTED
1. Did the employer circumvent the exclusive bargaining
representative in violation of RCW 41.56.140(1) through its
communications with Officer Brian Dahl regarding his return to
work agreement?
2. Did the employer refuse to bargain with the exclusive
bargaining representative in violation of RCW 41.56.140(1) by
failing to bargain the provisions of Dahl's return to work
order?
3. Did the employer refuse to bargain a drug testing procedure for
all bargaining unit employees in violation of RCW 41.56.140(1)?
For the reasons set forth below, we affirm the Examiner's decision
that the employer did not circumvent the union when it discussed the
terms of the return to work order directly with Dahl and did not
refuse to bargain the terms of Dahl's return to work order. This
record supports the Examiner's findings and conclusions that the
employer's discussions regarding the return to work order with Dahl
occurred while the union was present. Additionally this record also
supports the Examiner's findings and conclusions that the union was
afforded the opportunity to negotiate with the employer regarding
the return to work order. Finally, we affirm the Examiner's
findings and conclusions that the employer refused to bargain a
random drug testing procedure. When the employer expressed its
desire for a random drug testing program that covered all bargaining
unit employees and the union presented the employer with its
proposal, the employer was obligated to engage in bargaining with
the union.
FACTUAL SITUATION
A brief summation of the facts is prudent here to place the issues
in their proper context. On March 31, 2004, Officer Brian Dahl, a
patrol officer and bargaining unit member, approached Lieutenant
Steve Finch, a member of management, to disclose an addiction to
prescription medications. Finch immediately contacted Chief Sam
Granato and the two discussed the matter with Dahl. Granato placed
Dahl on administrative leave and required Dahl to visit a
psychologist, Dr. L Paul Schneider, for an evaluation. Schneider
examined Dahl and reported to the employer that Dahl could return to
work, but also stated that any return to work should be subject to
numerous conditions, including the avoidance of all narcotics and
random urinalysis.
Following receipt of Schneider's report, the employer and union met
to discuss the possibility of Dahl returning to work. Dahl
testified that he said he could comply with Schneider's terms, but
the union argued Schneider was not qualified to make the
fitness-for-duty recommendation. The employer and union then agreed
to have a psychiatrist, Dr. Kathleen Decker, evaluate Dahl.
Decker examined Dahl and returned a report that was significantly
less favorable to Dahl. Specifically, Decker expressed reservation
regarding Dahl's long-term prognosis for recovery, and also thought
Dahl was at high risk for relapse. Like Schneider, Decker also
recommended that Dahl's return to work be subject to random
urinalysis.
Before consulting with the employer over Decker's recommendation,
Boyle and Walls urged Dahl to sign the return to work order to avoid
the possibility of termination.
Return to Work Agreement
The parties subsequently met on August 18, 2004, to discuss Dahl's
return to work. Attendees at this meeting included Granato, Finch,
Dahl, Captain Greg Copeland, Officer Eric Walls, who was the current
president of the union, and Officer Shawn Boyle. Boyle, who served
as the secretary of the union's executive board, had been
representing Dahl during the investigation. During this meeting,
the employer presented Dahl with a return to work agreement that
included random urinalysis. Granato explained that if Dahl could
follow the terms of the agreement, there should not be any problems.
Dahl stated that he could follow the terms of the agreement.
At this point in the discussions, Walls raised several questions
about the return to work agreement, including asking questions about
which controlled substances Dahl would be tested for, whether the
employer would continue to pay for Dahl's psychiatric treatment, and
the manner and location of the testing.(fn:2)
____________________
fn:2 The union did not want Dahl to be tested in a police uniform,
and also wanted to secure the use of an employer-owned vehicle for
Dahl to travel to the testing location.
Following an explanation from the employer on how the return to work
order would be implemented, Dahl signed the agreement. Boyle also
signed the agreement as a witness. However, Walls declined to sign
the agreement as the union representative, asserting that he did not
want to set any precedent regarding a random drug testing program.
Although Walls did not sign the agreement, he recognized the
uniqueness of Dahl's situation, and he also noted that a random drug
testing policy for all bargaining unit employees could be negotiated
in the future.
Shortly after the meetings with Officer Dahl, the union presented
the employer with a comprehensive drug testing policy. At the
subsequent labor management meetings, the union continued to bring
up the issue of random drug testing. The parties did not have
meaningful discussions regarding a comprehensive drug testing policy
until the parties commenced negotiations for the next collective
bargaining agreement.
The union filed this complaint alleging the employer circumvented
the exclusive bargaining representative by directly dealing with
Dahl, that the employer refused to bargain with the union regarding
Dahl's return to work agreement, and refused to bargain a random
drug testing program for all bargaining unit employees.
ISSUE 1 - CIRCUMVENTION OF THE EXCLUSIVE BARGAINING REPRESENTATIVE
Changes to the Status Quo - Applicable Legal Standard
All three issues in this case concern the parties' obligation to
bargain collectively under the Public Employees' Collective
Bargaining Act, Chapter 41.56 RCW. The duty to bargain is defined
in RCW 41.56.030(4), as follows:
"Collective bargaining" means . . . 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 . . . .
That duty is enforced on employers through RCW 41.56.140(4) and
unfair labor practice proceedings under RCW 41.56.160 and Chapter
391-45 WAC. Where an unfair labor practice is alleged, the
complainant has the burden of proof. WAC 391-45-270(1)(a). The
burden to establish affirmative defenses lies with the party
asserting the defenses. WAC 391-45-270(1)(b).
The parties' collective bargaining obligations require that the
status quo be maintained regarding all mandatory subjects of
bargaining, except where such changes are made in conformity with
the statutory collective bargaining obligation or the terms of a
collective bargaining agreement. City of Yakima, Decision 3501-A
(PECB, 1998), aff'd, 117 Wn.2d 655 (1991); Spokane County Fire
District 8, Decision 3661-A (PECB, 1991).
The duty to bargain requires a party proposing a change to a
mandatory subject of bargaining in an interest arbitration eligible
unit: (1) give notice to the other party; and (2) provide
opportunity to request bargaining on the subject; and (3) bargain in
good faith, if requested, and reach an agreement or if no agreement
is reached, take the dispute or issue to an interest arbitrator.
RCW 41.56.430 through 41.56.490; See also, e.g., City of Seattle,
Decision 1667-A (PECB, 1984).
We begin by noting that under long-standing Commission precedent,
employee discipline is a mandatory subject of bargaining. City of
Yakima, Decision 3503-A (PECB, 1990), aff'd, 117 Wn.2d 655 (1991).
Neither party disagrees with this conclusion.
Where public employees exercise their rights under Chapter 41.56 RCW
to organize and select a labor organization as their exclusive
bargaining representative, the public employer's obligation is to
bargain with that organization to the exclusion of all others and
also to the exclusion of direct dealings with employees on matters
that are mandatory subjects of collective bargaining. City of
Wenatchee, Decision 2216 (PECB, 1985). An employer who circumvents
that obligation commits a violation of RCW 41.56.140(4) by refusing
to bargain with the exclusive bargaining representative and
derivatively interfering with employees' rights in violation of RCW
41.56.140(1).
Application of Standards
This record supports the Examiner's findings and conclusions that
the union was involved in Dahl's return to work order to such an
extent that the employer did not commit a circumvention violation.
Not only was the union present during the conversations with Dahl
regarding his return to work agreement, the union's questions about
Schneider's qualification led the employer to have Dahl evaluated by
Decker.
The union relies upon State - Patrol, Decision 4757-A (PECB, 1995).
In State - Patrol, this Commission affirmed an examiner's finding
that an employer committed a circumvention violation when a
supervisor directed an employee to sign a last chance agreement. The
legal standard announced in State - Patrol is sound, but the facts
of that case are substantially different from this one.
Specifically, in State - Patrol, the employer completely bypassed
the union in its discussions with the employee, whereas here the
union was consulted and its input affected the decision making
process.
ISSUE 2 - REFUSAL TO BARGAIN RETURN TO WORK AGREEMENT
As previously noted, employee discipline is a mandatory subject of
bargaining. We must now examine whether the Examiner properly
concluded that the union waived its right to bargain the terms of
Dahl's return to work agreement.
Waiver by Inaction and Fait Accompli
The "waiver by inaction" defense is apt where appropriate notice of
a proposed change has been given, and the party receiving notice
does not request bargaining in a timely manner. City of Edmonds,
Decision 8798-A (PECB, 2005); see also City of Yakima, Decision
1124-A (PECB, 1981) (union responded to notice of a bargaining
opportunity with a public information campaign, but never requested
bargaining); Lake Washington Technical College, Decision 4721-A
(PECB, 1995) (union filed a grievance under a collective bargaining
agreement, but never requested bargaining). The key ingredient in
finding a waiver by inaction by a union is:
[A] finding that the employer gave adequate notice to the
union. Notice must be given sufficiently in advance of the
actual implementation of a change to allow a reasonable
opportunity for bargaining between the parties. If the
employer's action has already occurred when the union is given
notice, the notice would not be considered timely and the union
will be excused from the need to demand bargaining on a fait
accompli.
Washington Public Power Supply System, Decision 6058-A (PECB, 1998)
(footnotes omitted).
Application of Standard
The Examiner found that the union waived its right to bargain the
terms of Dahl's return to work order by inaction. Specifically, the
Examiner determined that during all of the discussions regarding
Dahl's return to work order, the union failed to demand bargaining
over the terms of the return to work order. We agree.
This record supports the Examiner's findings and conclusions that
the union was provided ample opportunity to weigh in on the matter,
but that the union failed to demand bargaining over the order. Nor
do we find that the employer presented the return to work order as a
fait accompli. This record supports a finding that the union was
fully aware that Dahl's return to duty was going to be predicated on
the medical evaluations. The union's insistence that a second
evaluation be undertaken supports the conclusion that the union was
involved with Dahl's reinstatement process. Finally, when the time
came for Dahl to sign his return to work order, the union's chief
concern was whether the employer was going to use Dahl's return to
work order as a springboard for a drug testing program covering all
bargaining unit employees.
Because we find that substantial evidence supports the Examiner's
findings and conclusions that the union waived its right to bargain
Dahl's return to work order, we need not address the union's or
employer's other arguments on appeal.
ISSUE 3 - FAILURE TO BARGAIN UNIT WIDE DRUG TESTING PROGRAM
The final question presented by this appeal is whether the employer
was obligated to bargain immediately, on the union's request, a
random drug testing policy for all bargaining unit employees. The
Examiner found that the union desired to negotiate the policy
because the parties' collective bargaining agreement was silent on
the issue, and that the employer failed to respond to the union's
request for bargaining.
Duty to Bargain
During the term of a collective bargaining agreement, the duty to
bargain continues to exist between the employer and union as to
matters which are mandatory subjects of bargaining but are not
mentioned in the specific terms and conditions of the collective
bargaining agreement. City of Seattle, Decision 1667-A. If
mandatory subjects of bargaining have not been raised by either
party during bargaining, or if such issues are entirely new, they
may not be acted upon unilaterally by either party without first
satisfying its statutory bargaining obligation.
Situations frequently arise where one of the parties to a collective
bargaining relationship finds it necessary, desirable or convenient
to make changes during the term of a collective bargaining
agreement. If those changes affect terms or conditions of
employment of represented employees, the moving party will need to
give notice of the contemplated changes to the other party
sufficiently in advance of making the decision to allow time for
bargaining prior to making a decision on the change of practice. If
the other party makes a timely request for bargaining, the moving
party must bargain in good faith concerning the proposed change.
City of Pasco, Decision 4197 (PECB, 1992). Parties can negotiate to
an impasse in situations involving bargaining units not eligible for
interest arbitration. If parties dealing with interest arbitration
eligible employees reach a lawful impasse, then the interest
arbitration procedures under Chapter 41.56 RCW and Chapter 391-55
WAC apply.(fn:3) Where one party does not believe that the other party
has fulfilled its statutory obligation, it may file unfair labor
practice charges.
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fn:3 When the parties reach a lawful impasse in negotiations, the
employer may be entitled to implement its proposed change(s) without
the consent or agreement of the union for bargaining units that are
not eligible for interest arbitration. Pierce County, Decision 1710
(PECB, 1983).
Application of Standard
Here, we find that substantial evidence supports the Examiner's
findings and conclusions that the employer failed to bargain with
the union regarding a comprehensive drug testing policy. The
Examiner found that when the union presented a sample drug testing
policy in August 2004, it conveyed its desire to bargain a policy.
Following this request, which was repeated at the subsequent labor
management meeting in January 2005, the employer failed to respond.
The employer's witness testified that although he expressed a desire
for a comprehensive random drug testing policy to the union, he
thought that bargaining would be more appropriate when the entire
collective bargaining was open for negotiations. However, once the
union stated its intention and presented its proposal to the
employer, the employer should have responded to the union's request.
NOW, THEREFORE, it is
ORDERED
The Findings of Fact, Conclusions of Law, and Order issued by
Examiner Christy L. Yoshitomi are AFFIRMED and ADOPTED as the
Findings of Fact, Conclusions of Law, and Order of the Commission.
Issued at Olympia, Washington, the 25th day of April, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
DOUGLAS G. MOONEY, Commissioner