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.