Yakima County, Decision 9338 (PECB, 2006) STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION YAKIMA COUNTY LAW ENFORCEMENT ) GUILD ) ) CASE 19234-U-05-4887 Complainant, ) ) DECISION 9338 - PECB vs. ) ) FINDINGS OF FACT, YAKIMA COUNTY, ) CONCLUSIONS OF LAW, ) AND ORDER Respondent. ) ___________________________________) Christopher Casillas, Attorney at Law, for the union. Rocky J. Jackson, Attorney at Law, for the employer. On February 28, 2005, the Yakima County Law Enforcement Officers Guild (union) filed a complaint charging unfair labor practices with the Public Employment Relations Commission, naming Yakima County (employer) as respondent. The employer operates a Sheriff's Department and the union is the exclusive bargaining representative of a unit of commissioned deputy sheriffs. The parties had a collective bargaining agreement for the period from January 1, 2003, though December 31, 2004. The union's complaint was reviewed under WAC 391-45-110 and a Preliminary Ruling was issued on April 11, 2005. The employer filed an answer. The union and the employer filed motions for summary judgement. Examiner Emily Martin denied both motions and held a hearing on September 13, 2005. The parties filed post hearing briefs. ISSUES PRESENTED 1. Did the employer change a mandatory subject of bargaining when it imposed changes in the employees' medical insurance program? 2. Was the union aware of the change and did it have an opportunity to bargain the change? 3. Did the union make a timely demand to bargain? 4. Did the union waive its right to bargain the change through inaction? 5. Does the employer have a business necessity defense? 6. Was there a contractual waiver? On the basis of the record presented as a whole, the Examiner finds that the employer has failed to bargain in good faith in conformity with RCW 41.45.030(5) and has committed an unfair labor practice in violation of RCW 41.56.140(4) by unilaterally imposing a change in a mandatory subject of bargaining, its health insurance plan. The employer gave the union notice and an opportunity to bargain regarding the matter. The union requested to bargain the change. The parties did not bargain the change. The employer did not have a business necessity defense. The union did not waive its rights through inaction or by contract. The employer did not satisfy its bargaining obligation. Issue 1: Did the employer change a mandatory subject of bargaining? The specific changes at issue involve health insurance plan specifications. Commission case law has long recognized that health insurance benefits are a form a wages and thus a mandatory subject of bargaining. Spokane County, Decision 2167-A (PECB, 1985) and City of Edmonds, Decision 8798-A (PECB, 2005). The employees incurred an increase in out of pocket expenses so the change was material. In Whatcom County, Decision 7288-A (PECB, 2002) the Commission stated that a union alleging a unilateral change must establish a relevant status quo or past practice, and a past practice is a "course of dealing acknowledged by the parties over an extended period of time, becoming so well understood that its inclusion in a collective bargaining agreement is deemed superfluous." In this case, the status quo for health insurance specifications was the 2004 specifications. The change from the 2004 specifications to the 2005 specifications coincided with the parties' preparation for bargaining of the 2005 collective bargaining agreement. In 2004, as in years before, the employer used an employee benefits committee (EBC) as a resource in making choices about purchasing health insurance for its employees. The committee was composed of the director of human relations and about six county employees. One of the employees was a union member employed in the sheriff's department. The committee made recommendations to the county commissioners about funding and plan specifications of the employee health insurance plans, and the county commissioner made the ultimate purchasing decisions. Although, the union never formally objected to the EBC process, it declined to participate and did not give the union member on the committee any authority to act on its behalf. The employee benefits committee met in late August or early September 2004 with the employer's insurance broker to discuss costs and specifications. The committee explored how plan specification changes could control costs and reached a decision on what changes it would recommend to the county commissioners. As in years past, the union was not consulted about the committee's recommendations. On November 2, 2004, the commissioners voted to adopt the committee's recommendations which increased some employee service copayments by $10, reduced the yearly benefit for vision hardware by $100 and increased the Group Health prescription drug copayment by $15. Union officials then learned, through "the grapevine," that the employer intended to change plan specifications. As a result, a union official, Eric Wolfe, met with the human resource director, Linda Dixon, on November 9, 2004, and informed her that the union had a right to bargain mandatory subjects such as health insurance and that the employer was not to make any unilateral changes to this subject without bargaining with the union. The union's attorney, James M. Cline, reiterated this message by letter. His letter dated November 10, 2004, stated: I am writing on behalf of the Yakima County Deputy Sheriff Guild concerning the 2005 health insurance benefits. It is my understanding that the Medical Committee, of which the Guild is not a participant, has been meeting to review benefit levels for the fiscal year 2005. The purpose of this letter is to remind you that the medical benefits for the Guild members are subject to collective bargaining and cannot be changed without the concurrence of the Guild. This includes not only the coverage levels, it also includes the rate structure. Unless and until a new agreement is reached between the Guild and the County, the existing benefits should be maintained as status quo. The employer did not respond to Cline's letter. In a November 10, 2004, newsletter to county employees, the employer announced the intended changes to the health insurance. On December 22, 2004, the parties had their first bargaining session for the successor agreement to their 2003-04 contract. Medical insurance was one of several open issues. The union's proposal was to reduce the employee's portion of cost sharing of monthly premiums but the parties did not discuss the 2005 changes to plan specifications. On January 10, 2005, union officials, Wolfe and David Hilton, met informally with Dixon, the human resources director. Wolfe and Hilton asked whether the bargaining unit could be offered plans with different specifications than the plans offered to the other county employees. After this conversation, Dixon spoke with the employer's insurance broker and determined that it was too late to offer separate plans. The employer argued that the EBC process was a past practice which allowed the employer to unilaterally impose the 2005 changes to the health care insurance specifications. The EBC process, although advisory, had been used for years and the union never before objected to this process as a way of making unilateral changes to health insurance benefits. The union's failure to object does not mean that the process authorized the changes. A union does not lose its right to object to a unilateral change and insist of submitting the matter to collective bargaining merely because it failed to object to similar changes in the past. See Washington Public Power Supply System, Decision 6058-A (PECB, 1998). If a union's failure to object to a change put its ability to object to future changes at risk, the collective bargaining process would be impaired because a union would be forced to bargain issues it has little or no interest in merely to preserve future bargaining rights. The union did not participate in the EBC in any formal way and there is no evidence that it ever agreed that the EBC process authorized changes. So the EBC process is not a past practice which authorized unilateral changes to the health care plans. Issue 2: Was the union aware of the change and did it have an opportunity to bargain the change? In general, an employer's collective bargaining obligation requires giving the union notice and an opportunity to bargain any unilateral change. Formal notice is not required if it can be shown that the union had actual, timely knowledge of the contemplated change. Washington Public Power Supply System, Decision 6058-A (PECB, 1998), and City of Edmonds, Decision 8798-A (PECB, 2005). In this case, a union official, Wolfe, had actual knowledge of the change, even before learning of the specific details. When Wolfe spoke with Dixon, the human resource director, on November 9, 2004, Wolfe had already learned through informal channels that a change was planned. He had enough actual knowledge to know that he wanted to preserve the union's right to bargain. Wolfe's actual knowledge establishes that the union was aware of the change and had a opportunity to bargain. Issue 3: Did the union make a timely demand to bargain? In unilateral change cases, the Commission has ruled that once an employer had provided sufficient notice of a proposed change, the union must establish that it made a timely request for bargaining. Lake Washington Technical College, Decision 47210-A (PECB, 1995) Clover Park Technical College, Decision 8534-A (PECB, 2004). The record shows that the union did make a timely request to bargain on at least two occasions. First, in the conversation on November 9, between Wolf and Dixon, the union asserted the right to negotiate and reminded the employer that changes to health care benefits must be bargained. This conversation was followed by the November 10, 2004, letter from the union's attorney which restated the union's interest in bargaining. This letter reminded the employer that such changes can not be made unilaterally and that until a new agreement is reach, status quo should be maintained. Within the context of the situation, this letter is a request to bargain. This letter, in essence, says that the union does not approve of the changes and the changes must be bargained. Such a warning also inherently includes the message that the union requests bargaining. Issue 4: Did the union waive its right to bargain the change through inaction? After Cline's letter, the union did not raise the issue of plan specifications again until January 10, 2005, when it was too late to put the bargaining unit on a separate plan from the rest of the county employees. The employer has argued that this demonstrates that the union waived its right to bargain though inaction. For the union's action to be a waiver by inaction, the union's conduct must be such that the only reasonable inference is that it has abandoned it right to negotiate. Clover Park Technical College, Decision 8534-A (PECB, 2004). The union did not abandon it right to negotiate. Cline's November 10 letter was essentially a request for bargaining and a proposal to maintain status quo. Thus, it was the employer's duty to respond to this proposal in a timely manner, and an inference could be made that the union was waiting for a response from the employer. Because an inference can be made that the union did not intend to abandon its right to negotiate, there is no waiver by inaction. Issue 5: Does the employer have a business necessity defense? The business necessity defense is apt where a party to a collective bargaining relationship is faced with a compelling legal or practical need to make a change affecting a mandatory subject of bargaining. Cowlitz County, Decision 7007-A (PECB, 2005). The employer argued that it had a compelling need to make the 2005 changes because it was in the best interest of all of the county's entire workforce to keep the health care cost low. This argument assumes that the employer only had two options, to accept the changes proposed in 2005 for everyone or to keep the 2004 level of benefits for everyone. The record does not support a finding that these were the only options available in November when the union made its request to bargain. The parties had enough time to generate and consider more options and discuss them at the bargaining table. There was no legal or practical need that prevented the employer from exploring the options other than the union's initial proposal to maintain the status quo. One option may have been to offer the bargaining unit plans with the 2004 level of benefits but to move the rest of the workforce to less expensive plans. The record shows that this option was explored, at the suggestion of the union, in January 2005. However, by January 2005, it was too late to have separate plans. Especially since the record does not show whether the employer had this option available in November or December 2004, the record does not warrant a finding of a business necessity defense. Issue 6: Was there a contractual waiver? Under sections 4.3 through 4.5 of the parties collective bargaining agreement, the union is required make a written request to bargain within 20 days of when the employer has provided notice that it intends to make a change to a mandatory subject of bargaining. The employer contends that the union never made this required written request and so the union has contractually waived its right to bargain the change. The employer argued that Cline's letter was not a request to bargain. As explained above, the Examiner finds that Cline's letter was a request to bargain. The record show that union has complied with clauses 4.3 though 4.5 of the collective bargaining agreement and there is no contractual waiver. FINDINGS OF FACT 1. Yakima County is a public employer within the meaning of RCW 41.56.030(1). The employer maintains and staffs a sheriff's department. 2. The Yakima County Deputy Sheriff's Guild, a bargaining representative within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative for a unit of Deputy Sheriffs who are uniform personnel within the meaning of RCW 41.56.030(7). 3. For several years, including in 2004, the employer used a group of employees known as the Employee Benefits Committee to make recommendations about changes to health insurance plans which the employer provides for its employees. 4. The union did not participate in the Employee Benefits Committee and never agreed that this process waived its bargaining rights and authorized the employer to make these changes unilaterally. 5. In 2004, the Employee Benefits Committee made a recommendation which was adopted by the County Commissioners for the purchase of plans to be offered to employees for the year beginning on January 1, 2005. 6. These changes included an increase in some service copayments by $10, reduced the yearly benefit for vision hardware by $100 and increased the Group Health prescription drug copayment by $15. 7. Prior to receiving formal notice of the upcoming changes, the union learn informally, that changes were forthcoming and gave the employer a demand to bargain these changes. 8. The union's demand to bargain was embodied in both the union official's conversation with the county's human resource director reminding her that health care insurance changes must be bargained and in the union's attorney's letter, reiterating this reminder. The conversation occurred on November 9, 2005. The letter and the employer's formal notice announcing the change was dated November 10, 2004. 9. The employer did not respond to the union's letter. 10. The parties met at the bargaining table in December 2004 but did not discuss the impending changes that would go into effect on January 1, 2005. 11. The changes went into effect on January 1, 2005, without the agreement of union or an award by an interest arbitrator. Some bargaining unit members had an increase in out of pocket expenses as a result. CONCLUSION OF LAW 1. The Public Employment Relations Commission had jurisdiction in this matter under Chapter 41.56 RCW and 391-45 WAC. 2. The changes which were described in finding of fact 6 was a mandatory subject of bargaining which must be bargained prior to a unilateral change under RCW 41.56.140(4). 3. The parties did not have a past practice which relieved the employer of its Chapter 41.56 RCW bargaining obligation. 4. By implementing this change without first bargaining to impasse and submitting the matter to interest arbitration, the employer failed to bargain in good faith and has committed an unfair labor practice in violation of RCW 41.56.140(4) and (1). 5. The parties' collective bargaining agreement did not provide a specific waiver which relieved the employer of its Chapter 41.56 RCW bargaining obligations. 6. The union did not demonstrate inaction which would relieve the employer of its Chapter 41.56 RCW bargaining obligation. 7. The employer did not face a business necessity that relieved it of its bargaining obligation under Chapter 41.56 RCW. ORDER Yakima County, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices: 1. CEASE AND DESIST from: a. Making unilateral changes to the union member health insurance benefits without satisfying its bargaining obligations. b. In any other manner interfering with, restraining or coercing its employees in the exercise of their collective bargaining rights under by 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. Restore the status quo ante by reinstating the wages, hours and working conditions which existed for the employees in the affected bargaining unit prior to the unilateral change in health insurance benefits found unlawful in this order. b. Give notice to and, upon request, negotiate in good faith with Yakima County Law Enforcement Guild, before making unilateral changes to mandatory subject of bargaining related to health insurance. c. Post copies of the notice attached to this order in conspicuous places on the employer's premises where notices to all bargaining unit members 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. d. Read the notice attached to this order into the record at a regular public meeting of the Board of County Commissioners of Yakima County, and permanently append a copy of the notice to the official minutes of the meeting where the notice is read as required by this paragraph. h. 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 attached to this order. e. 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 attached to this order. ISSUED at Olympia, Washington, this 2nd day of June, 2006. PUBLIC EMPLOYMENT RELATIONS COMMISSION EMILY H. MARTIN, 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.
PUBLIC EMPLOYMENT RELATIONS COMMISSION NOTICE 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 WE COMMITTED UNFAIR LABOR PRACTICES IN VIOLATION OF STATE COLLECTIVE BARGAINING LAWS, AND ORDERED US TO POST THIS NOTICE TO EMPLOYEES: WE UNLAWFULLY failed to bargain in good faith with Yakima County Law Enforcement Guild in connection with our implementing unilateral changes concerning health insurance benefits of the employees in the Yakima County Law Enforcement Guild. TO REMEDY OUR UNFAIR LABOR PRACTICES: WE WILL restore the benefits to status quo and satisfy our bargaining obligations. 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. DATED: _________________ YAKIMA COUNTY BY: ______________________________ Authorized Representative THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE. This notice must remain posted for 60 consecutive days, and must not be altered or covered by any other material. Questions about this notice or compliance with the Commission's order may be directed to the Public Employment Relations Commission (PERC), 112 Henry Street NE, PO Box 40919, Olympia, Washington 98504-0919. Telephone: (360) 570-7300. The full decision will be published on PERC's web site, www.perc.wa.gov.