Snohomish County, Decision 9770 (PECB, 2007)


                         STATE OF WASHINGTON
                                   
          BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
                                   
                                   
SNOHOMISH COUNTY CORRECTIONS GUILD,)
                                   )
                    Complainant,   )    CASE 20302-U-06-5170
                                   )    
          vs.                      )    DECISION 9770 - PECB
                                   )
SNOHOMISH COUNTY,                  )    FINDINGS OF FACT,
                                   )    CONCLUSIONS OF LAW
                    Respondent.    )    AND ORDER
___________________________________)


     Cline & Associates, by Aaron Jeide, Attorney at Law, for the 
     union.

     Janice E. Ellis, Prosecuting Attorney, by Steven J. Bladek,
     Deputy Prosecuting Attorney, for the employer.


On March 29, 2006, Snohomish County Corrections Guild (union) filed
a complaint charging unfair labor practices with the Public
Employment Relations Commission under Chapter 391-45 WAC, which
named Snohomish County (employer) as respondent. The employer
operates a correctional facility and the union is the exclusive
bargaining representative of the employees who work in that
facility.  The employees in the bargaining unit had been covered
under a collective bargaining agreement that expired on December 31,
2004.  At the time of the hearing, the parties had not concluded
negotiations for a first collective bargaining agreement and had
requested interest arbitration to adjudicate contractual
dispositions on which the parties could not agree.  The
controversies concern alleged unilateral changes in working
conditions without affording the union an opportunity to bargain.

Agency staff reviewed the complaint under WAC 391-45-110 and issued
a preliminary ruling, finding that a cause of action existed under
RCW 41.56.140(1).  Examiner Carlos R. Carrion-Crespo held a hearing
on the case on October 3 and 4, 2006, and November 7, 14, 15, 16 and
17, 2006.  The parties submitted post-hearing briefs.

ISSUES PRESENTED

1.   Did the employer change the working conditions of employees
     without affording the union an opportunity to bargain when it
     increased the number of inmates that employees supervise during
     other employees' rest breaks?

2.   Did the employer change the working conditions of employees
     without affording the union an opportunity to bargain when it
     refrained from assigning Michael Smith work as field training
     officer pending the result of an internal investigation?

3.   Did the employer change the working conditions of employees
     without affording the union an opportunity to bargain when it 
     did not relieve John Rogers before he worked 18 straight hours? 

4.   Did the employer change the working conditions of employees
     without affording the union an opportunity to bargain when it
     did not provide rest breaks for employees in hospital transport 
     duty?

5.   Did the employer change the working conditions of employees
     without affording the union an opportunity to bargain when it
     prorated the sick leave accrual for employees who went on leave
     without pay?

On the basis of the record presented as a whole, the Examiner holds
that the union showed that the employer unilaterally changed working
conditions regarding the use of changed the procedure to operate
doors that connect the modules.  The union did not show that the
employer changed working conditions unilaterally in the other four
instances described in the complaint.
 
ANALYSIS

Legal Principles Regarding Unilateral Changes in Working Conditions

In a complaint alleging a unilateral change in a mandatory subject
of bargaining, the complainant must prove that the dispute affects
employees' wages, hours, and working conditions, and that the
employer made a decision that changes an express agreement or past
practice regarding such a subject.  Kitsap County, Decision 8292-B
(PECB, January 31, 2007).  Issues related to leave time and employee
schedules are mandatory subjects of bargaining.  City of Yakima,
Decision 3564-A (PECB, 1991); Clark County Public Transportation
Benefit Area, Decision 8489-A (PECB, 2004).  Rest breaks also are a
mandatory subject of bargaining. City of Bellevue, Decision 2788
(PECB, 1987).

The complainant must also establish what the relevant status quo is.
Municipality of Metropolitan Seattle, Decision 2746-B (PECB, 1989).
The complainant must then establish that the respondent has
effectuated a change in the status quo and that it did not provide
the complainant an opportunity to bargain regarding the change. 
Kitsap County, Decision 8292-B; Port of Seattle, Decision 7000-A
(PECB, 2000).  The nature of the impact on the bargaining unit
determines whether an employer has a duty to bargain the matter. 
Spokane County Fire District 9, Decision 3661-A (PECB, 1990).
 
A "past practice" exists when the parties have observed a prior
course of conduct and the parties have an understanding that such
conduct is the proper response to the circumstances.   The practice
may help to interpret ambiguous provisions of an agreement, or
establish the status quo when the contract is silent as to a
material issue.  Snohomish County, Decision 8852-A (PECB, January
31, 2007).  The practice that a party represents as controlling must
be of the same nature as the action object of the complaint. 
Snohomish County Public Utility District 1, Decision 8727-A (PECB, 
2006).

An isolated incident does not constitute a unilateral change in
working conditions if there is no evidence that the employer changed
a specific past practice or policy regarding a mandatory subject of
bargaining.  Neither does the hypothetical vulnerability of
employees not involved in the incident.  Kennewick School District,
Decision 6427-A (PECB, 1998).  The complainant must also show that
the change was material, substantial, and significant.  City of
Burlington, Decision 5841-A (PECB, 1997).

If an employer provides timely and appropriate notice of a proposed
change and the union does not request bargaining in a timely manner,
the employer can argue that the union has waived by inaction the
right to bargain over the change.  City of Anacortes, Decision
9004-A (PECB, May 9, 2007). In that case, the complaint was
dismissed because the union had demanded to bargain regarding a
specific aspect of the employer's decision, but had failed to do so
regarding the specific point addressed in the complaint.  However,
"[i]f 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."  Snohomish County Public Utility District 1, Decision
8727-A (PECB, 2006). 
 
Managerial decisions that only remotely affect terms and conditions
of employment, and decisions that are predominantly "managerial
prerogatives," are classified as permissive subjects.  While
management decisions concerning permissive subjects need not be
bargained to impasse, the effects of such decisions on employee
wages, hours, and working conditions are still "mandatory" subjects.
The employer must bargain regarding a decision on a mandatory
subject of bargaining and the effects of that decision, but only
regarding the effects of a managerial decision on a permissive
subject of bargaining.  Kitsap County, Decision 8402-B (PECB, May 9,
2007).  

Although the changes described in the complaint must be meaningful,
the Commission has been reluctant to dismiss complaints based on the
defense that the changes do affect mandatory subjects of bargaining,
but in a minimal fashion ("de minimis").  In Mason General Hospital,
Decision 7203 (PECB, 2000), a change in two employees' schedules
from working Mondays through Fridays to working Sundays through
Thursdays was not considered de minimis because it had the potential
to create limitless changes in employee working conditions in the
future.  The defense was upheld in City of Dayton, Decision 1990
(PECB, 1984), where a change in medical carriers did not deprive
employees of any significant insurance benefits.

Issue 1: Supervision Responsibility During Breaks

The employer opened a second jail building in March 2005. Before
that date, its practice was that each employee supervised up to 79
inmates.  The employer also had a practice of employing relief
officers to supervise inmates during the employees' break periods. 
The employer's design for the new building that expanded the
facility included placing "roll-up" doors between the modules, which
would allow employees to transit from one module to the next.  Each
module houses up to 64 inmates.

The new design was intended to allow officers to take breaks away
from the modules, including lunch breaks, and to leave the modules
in emergencies without calling relief officers.  Employees were
allowed to review and comment on the idea before it was incorporated
in the final design.  The employer also provided employees training
on how to operate the doors before they began to work in the
building.  The employer did not advise the union that any of the
working conditions of the employees would change.

During the initial stages of the operation of the new building, the
employer required employees to work as relief officers to escort
contractors during the last stages of construction, which resulted
in more overtime pay than it had budgeted and more difficulty in
relieving employees during their breaks.  In order to alleviate
these concerns, the employer instituted a trial period beginning
September 14, 2005, during which the afternoon ("swing shift")
employees in two specific adjacent modules would open the doors and
take their breaks simultaneously.  A single relief officer would
substitute them during their break.  Employees in the morning shift
also observed the practice during weekends.  On October 9, 2005, the
practice became permanent on one level of the new building and two
modules of another.  At this time, the employer reduced by one the
number of relief officers assigned to each of the two shifts.  The
employer notified the union about this change on October 7, 2005. 
There is no evidence that the union was notified of the trial period.

On October 18, 2005, the employer instructed Officer Charles Carrell
to open the door between the module he supervised and the adjacent
module in order to take a morning break, instead of calling for a
relief officer.  Carrell objected that the modules housed different
genders.  Carrell did not open the door because a relief officer
arrived, but he requested the employer to clarify the issue with 
supervisors.

According to the union, the new practice doubled the quantity of
inmates that each employee supervised during the time they were
open.  The employer counters that the practice of limiting the
number of inmates each employee supervised did not extend to the
expanded facilities.  The employer adds that housing units in the
new building are larger, that the technology allows employees to
supervise both modules, and that there are no more than 30 inmates
outside their cells at a given time.  

Past practice
The employer admits that there was a past practice of limiting each
employee to supervise 79 inmates, but alleges that the policy did
not carry into the new building.  However, the Examiner finds that
the fact that a working environment is different does not mean that
a past practice does not apply.  In fact, changing work environments
carry with them the potential of new working conditions to which the
existing bargaining relationship must adjust through bargaining. 
The practice was intended to give employees a manageable amount of
work to ensure their safety.  Therefore, the policy to limit the
amount of inmates that each employee supervises to 79 is the
relevant past practice in this case, affected working conditions and
constituted a mandatory subject of bargaining.

Alleged change in working conditions 
The amount of inmates under an employees' supervision during the
breaks, 128, represented a substantial increase from the 79 under
the past practice.  The employer argues that locking prisoners up
prior to each rest break counteracts any increase in work load, but
the union showed that the previous practice of limiting employees'
work load to 79 inmates included those inmates who were locked up.  
Managerial prerogative allowed the employer to make decisions
regarding the building design and the way that breaks were
administered without bargaining.  However, the resulting increase in
inmates that each employee supervises during the time another
employee enjoys a rest break, and the resulting mix of inmates that
are housed separately for security reasons increase employees'
responsibility and safety risks, as the testimony provided by both
parties demonstrates.  The fact that the change only impacted each
employee for two fifteen-minute periods every day does not reduce
the importance of the change.  The union presented extensive
evidence that the lack of proper supervision of inmates poses severe
safety risks, like the danger of riots and uncontrolled entry of
visitors.  Therefore, the employer's decision to assign employees to
supervise two modules at a time during rest breaks constituted a
meaningful change in a past practice affecting working conditions.

Fait accompli 
The parties also disagree on whether the employer provided
sufficient notice of the change and whether the union exercised its
right to request bargaining.  The evidence shows that the change was
implemented on September 14, 2005, but that the union did not know
until October 7, 2005, that the change had taken place.  The union
was not represented in any of the stages of design or building of
the modules.  There is no evidence that, prior to occupying the new
facilities, the employer actively or constructively notified the
union that it would use the doors to facilitate rest breaks.  The
employer's electronic message notifying the trial period was sent to
supervisors, but not to the union.  

In a labor-management meeting held October 11, 2005, the union
objected to the fact that the employer had conducted a trial period
without notifying the union.  The employer claims that the union
waived its right to bargain by inaction because it only objected to
the security aspects of mixing certain inmates.  However, the
employer does not state, nor does the evidence show, that it
notified the union before implementing the change.  Therefore, the
union was faced with a fait accompli on October 7, 2005, and
Commission precedent did not require it to request bargaining before
filing the present complaint.  Further, the union's witnesses
testified that in labor-management meetings held in October 2005,
November 2005, December 2005, and January 2006, the union requested
that the employer keep the status quo, but the employer decided to
keep opening the doors during rest breaks.  Therefore, the union had
no meaningful opportunity to bargain regarding the implemented
changes.  As a result, the employer committed the alleged violation.

Issue 2: Field Training Assignment Qualifications

The employer trains and evaluates new employees through Field
Training Officers.  As per the expired collective bargaining
agreement, the employer awarded employees premium pay for the time
they performed such duties, and employees had to apply to perform
the duties.  The employer detailed the duties of the training
officers in a job description, which specified that every training
officers would carry out regular corrections officer duties in an
exemplary fashion, with a higher sense of ethics than other
employees.  A training officers was also expected to be a mentor,
guide, and role model to the trainee that was assigned to work with
the Training officers.  One of the requirements to apply was to have
no sustained disciplinary action in the 12 months prior to applying.

On September 9, 2005, the employer initiated an internal
investigation regarding an inmate complaint that Officer Michael
Smith, a field trainer, used excessive force when dealing with an
inmate.  On September 18, 2005, the employer transferred an employee
who Smith was training to another employee.  The employer informed
Smith that he would not train new employees during the course of the
investigation.  Smith filed a complaint on September 19, 2005, and
the employer agreed to pay Smith for one week of training that he
had been scheduled to provide.  The union agreed not to submit the
grievance to the next step of the grievance procedure.  The employer
did not assign him to train any new employees and Smith resigned his
appointment as a training officer on November 20, 2005.

The union alleges that the past practice was that an employee hired
as a training officer would be suspended if a disciplinary action
was sustained.  The union argues that the employer had the duty to
provide an opportunity to bargain regarding a decision to suspend a
training officers before the action was sustained.  The employer
counters that the training officers duties are a specialized
assignment, and that it was entitled to suspend Smith as a training
officer because he would not be able to concentrate on the
specialized duties while preparing for the investigation, and
because trainees under Smith's supervision would not be certain of
his authority.

The employer's requirement that an applicant have no sustained
discipline on record during the previous 12 months is a past
practice applicable to those employees who are applying for the
position.  However, the situation at hand concerns employees who
already perform the duties of training officers.  The union has not
presented evidence of a past practice regarding those employees. 
Therefore, the union has not discharged its burden of proving that
the employer changed an established past practice.  Further, the
assignment as training officer is occasional and is conditioned upon
continuously maintaining a higher ethical standard, which might well
be questioned when an employee is under investigation.  The
suspension of Smith's activities as a training officer cannot be
construed as discipline but as the application of the higher ethical
requirements spelled out in the job description.

In view of this result, the Examiner denies the union's petition for
an order to compensate Smith for missed training opportunities. 
Smith had the right to additional compensation only when assigned to
train new employees, not on a regular basis.  Since the employer was
not forced to assign Smith any training while under investigation,
it was not bound to compensate him for any training he did not provide.

Issue 3: Overtime/Double Shifts

The employer required Officer John Rogers to work 16 straight hours
on September 11, 2005; 18 straight hours on September 12, 2005; and
eight hours on September 13.  The afternoon of September 12, 2005,
Rogers advised the employer that he would not report to work on
September 13, 2005, because he only had six hours to rest.  On
September 21, 2005, the union filed a grievance regarding these
incidents, alleging that the employer had violated Section 5.6.2 of
the expired contract.  Jail Director Steve Thompson denied the
grievance and advised the union that he would direct supervisors to
limit hospital assignments to eight hours whenever possible.  The
union argues that the employer unilaterally changed its past
practices on overtime. 

Procedural Issue
While the union alleges that the employer changed past practice
without bargaining, it also alleges that the employer applied the
wrong section of the expired collective bargaining agreement to
these situations.  This allegation must be analyzed in light of the
Commission's expressions in Asotin County, Decision 9549-A (May 9,
2007).  In that decision, the Commission assumed jurisdiction over
an alleged unilateral change to the requirement that the employer
discharge  employee for just cause, even though that clause was
contained in an expired collective bargaining agreement.

In the present case, the parties are in negotiation for a first
collective bargaining agreement, but have signed a Memorandum of
Understanding which implements a grievance procedure to resolve
issues while they complete negotiations.  In this Memorandum, they
recognized that the expired agreement was the legal status quo
between the parties.  The parties also agreed that if the grievance
procedure did not yield a resolution, the parties would determine
the steps to follow on a case-by-case basis, but did not include
arbitration.  The plain language of this memorandum shows that the
parties expressly agreed that the arbitration procedure would not
survive the expired agreement unless they bilaterally invoked it for
a specific case.  There is no evidence that the parties agreed to
submit this overtime issue to arbitration.

The Commission does not assert authority to remedy violations of
collective bargaining agreements.  Clark County Public
Transportation Benefit Area, Decision 8489-A (PECB, 2004).  This is
a discretionary policy that the Commission has exercised in order to
harmonize its unfair labor practice jurisdiction with the grievance
arbitration process, and will assume jurisdiction if the parties
have not agreed to accept an arbitration award as "final and
binding."  City of Yakima, Decision 3564-A (PECB, 1990).  The
Examiner will thus assert jurisdiction on this claim because there
is no indication that multiple claims may be filed in different
venues regarding the alleged facts.

Past practice
Section 5.6.2 of the expired agreement established that: 

     [e]mployees shall not work more than two consecutive double
     eight (8) hour shifts.  Employees must work a single regular
     eight (8) hour shift or have a scheduled day off between
     consecutive double shifts (this is a safety and security
     issue).   


The rule spelled out in this section was the relevant past practice
in this case and the record does not show that the employer had a
practice of scheduling employees to work double shifts on three or
more consecutive days.

The employer presented testimony that for several years, it had
required employees to work in excess of 16 straight hours when there
were not enough employees qualified to bear arms to provide relief. 
The union cites no evidence in its brief to support its claim that
this had been the first time that it had happened.  The employer
also presented testimony that the situation had occurred when there
was a discrepancy in the accounting of inmates and when law
enforcement officers had to perform preliminary criminal
investigations.  The plain language of Section 5.6.2 did not
preclude the employer from extending the shifts.  The union's
testimony to the contrary was limited to restating its
interpretation of Section 5.6.2.  The union's testimony did not cite
concrete instances to support its contention beyond Carrell's
general assertion that, except in emergencies, "it didn't matter who
else was there, if you were there for 16 hours you were leaving." 
Therefore, the past practice supported by the evidence was that an
employee would not work two consecutive shifts for more than two
days in a row, but could work more than 16 hours in one day.

Alleged change in working conditions
Rogers worked two consecutive double eight hour shifts on September
11 and 12, 2005, plus two additional hours on the second day.  The
employer explained that on September 12, 2005, there were many
prisoners under hospital watch and not enough employees who were
qualified to bear arms to be able to relieve Rogers.  Rogers was
scheduled to work a single eight-hour shift on September 13, which
complied with the plain language of the second sentence of Section
5.6.2 of the expired agreement.  Rogers did not work on September
13, 2005, nor was he expected to work more than a single shift on
that day.  Therefore, the employer did not trespass the limits that
Section 5.6.2 imposed upon its authority, and Roger's 18-hour work
day on September 12, 2005, followed past practice.  Therefore, the
employer did not commit the alleged violation.

Issue 4: Rest breaks

Rogers did not enjoy rest breaks during the hospital transport duty
he performed in second eight-hour shift that he worked on September
11 nor during the entire day on September 12.  Rogers remained
beside an inmate at all times while in the hospital and was able to
go to the restroom, but could not take full rest breaks, because the
employer did not provide relief when Rogers requested it.  The
employer compensated Rogers for the missed rest breaks at a rate of
one and a half times his regular rate of pay.

On September 21, 2005, the union filed a grievance regarding these
incidents, alleging that the employer had violated Section 5.3 of
the expired contract.  It stated that paying overtime for the missed
rest breaks did not cover the inconvenience caused to Rogers. 
Director Thompson responded that he concurred that employees had a
right to take rest breaks and that the department would attempt to
ensure that employees could take rest breaks.  However, Thompson
found no contract violation and denied the grievance.

Past practice
Section 5.3 of the expired agreement states that "all employees
shall receive two (2) fifteen (15) minute rest breaks during their
assigned work shift."  Section 5.3.1, in turn, states that the
employer will compensate an employee who is denied a rest break at
the rate of one and one-half times the employee's regular rate of
pay for such fifteen minutes.  Rogers testified that he had escorted
inmates in hospitals 30 to 40 times since 1997.  The employer
provided relief for rest breaks at first, but stopped doing so
"quite a while" before he filed his grievance.  The employer, in
turn, presented testimony that in the past decade employees have
been allowed to take a bathroom break upon handcuffing the inmate to
the bed, and have been compensated for the missed rest breaks
according to the contract.  Therefore, the relevant past practice is
consistent with the language of the expired agreement.

Alleged change in working conditions
The employer states that Rogers' situation was not new and that it
met its commitment under Section 5.3.1 by compensating Rogers time
and a half for the missed rest breaks.  The union alleges that the
employer changed past practice by not relieving Rogers so he could
take rest breaks.  The union's brief does not discuss Section 5.3.1
of the expired agreement, and Roger's grievance claims that such a
remedy did not compensate his discomfort.  The union's argument
fails in that it rests on one clause of the expired agreement while
ignoring another.  Notwithstanding the discomfort that Rogers
suffered, compensating employees in lieu of rest breaks did not
alter the practice established both by agreement and custom. 
Therefore, the employer did not commit the alleged violation.(1)
____________________
     1The union alleges in its brief that the short rest period
between the time Rogers was relieved on September 12, 2005 and the
beginning of his scheduled shift on September 13, 2005, was a change
in the past practice.  Although the union mentioned the incident in
the complaint, it did not charge that it constituted a unilateral
change.  Therefore, the Examiner will not discuss it in this decision.


Issue 5: Prorated Sick Leave

In early February 2006, Officer Camille Janssen advised the employer
that she could not work her scheduled shift because she was sick. 
Since she did not have any sick leave, she took leave without pay. 
The employer awarded her a prorated amount of sick leave for the
month of February 2006 because she had not worked the full month. 
It was the ninth time that the employer had prorated Janssen's sick
leave accrual since September 1999.

Past practice
The union alleges that employees accrued eight hours of sick leave
every month that they were full-time employees, regardless of the
amount of time worked.  Section 9.2.1 of the expired agreement
stated that: 

     [e]ach full time forty (40) hour per week employee shall accrue
     eight (8) hours sick leave for each calendar month of the
     employee's active service.  Part-time employees shall accrue
     sick leave on a pro-rata basis. 

The Snohomish County Code defines "full-time employee" as those with
"a regular appointment and who are employed 20 hours per week or
more."  

The union contends that it was a status-based benefit, and not
contingent upon working a minimum amount of hours.  The employer
agrees that Section 9.2.1 "has been the operative language" in the
past, but alleges that it applies to "each month in which
[employees] have forty hours of paid time for each week Sunday
through Saturday during the month," including paid leave.  The issue
then is which reading of the language constitutes the past practice,
even if the contract clause does not appear to sustain it.

Deborah Payne, administrative operations coordinator of the
employer, testified that her job since 1999 has included crediting
employees with accrued leave and that the language in Section 9.2.1
has existed since before the expired contract was signed in 2002. 
Payne also testified that she had considered "full-time employee"
for leave accrual purposes to be an employee who had worked or
enjoyed leave during 40 hours every week in a pay period, and had
not been on leave without pay.  The employer also submitted
documents reflecting that the employer had prorated employees' sick
leave accrual for being on leave without pay as early as January
1999 and as recently as October 2005.  Even union president Charles
Carrell had accrued prorated sick leave throughout 1999.  Therefore,
the evidence sustains the employer's assertion that this procedure
constitutes the parties' past practice.

The union also argues that the employer did not show employees the
prorated accrual when they signed the time sheets, and therefore
these time sheets do not constitute evidence of a past practice to
that effect.  Asking employees to sign documents with erroneous
information and altering the information afterwards is certainly an
unfortunate practice.  However, the employer had engaged in the
practice long before the collective bargaining agreement expired and
the union had recourse to grievance arbitration when it occurred. 
Unfair labor practice proceedings cannot be a substitute for the
union's lack of prosecution of these alleged contract violations.

Alleged change in working conditions
The union alleges that the employer changed past practice
unilaterally when it prorated Janssen's sick leave accrual for being
on leave without pay for one day.  Since the employer proved that
doing so was the past practice, the union's allegations really
constituted a restatement of the past practice.  Therefore, the
employer did not contravene the statute.

                          Final Conclusions

The employer unilaterally changed working conditions regarding the
supervision of inmates during employee breaks.  The union did not
prove that the employer changed working conditions unilaterally
regarding work as field training officer pending an internal
investigation, rest breaks during hospital transport duty, relieving
employees on double shifts or prorated sick leave accrual for
employees who take leave without pay.

                                Remedy

The union requests that the Examiner issue an order that the
employer restore the situation that existed before the employer
violated the statute, and that it cease and desist from refusing to
bargain in good faith with the union.  The Examiner adopts the
requested remedy for the single issue in which the union has
prevailed.  The Examiner will dismiss the remaining charges
contained in the complaint.

The union also requests that the examiner grant attorney's fees. 
Commission and judicial precedent allows an award of attorney fees
as part of a remedial order where such award is necessary to make
the order effective and where the defenses are frivolous.  See Lewis
County v. PERC, 31 Wn. App. 853 (1982) and City of Tukwila, Decision
2434-A (PECB, 1987).  Neither of those factors are present in the
case at hand.  Therefore, the Examiner denies the union's request
for attorney's fees.

                           FINDINGS OF FACT
 
1.   Snohomish County is a "public employer" within the meaning of
     RCW 41.56.030(1).

2.   The Snohomish County Corrections Guild is a "bargaining
     representative" within the meaning of RCW 41.56.030(3), and is
     the exclusive bargaining representative of an appropriate
     bargaining unit of corrections officers.

3.   At all pertinent times, Corrections Officers Charles Carrell,
     Michael Smith, John Rogers, and Camille Janssen were members of
     the bargaining unit described in Finding of Fact 2 above. 
     Carrell has been union president since February 2005.

4.   Beginning September 14, 2005, the employer instituted a trial
     period during which the afternoon ("swing shift") employees in
     two specific adjacent modules would open the doors between the
     modules and take their breaks simultaneously.  A single relief
     officer would then substitute for them during their break. 
     Employees in the morning shift also observed the practice
     during weekends.  On October 9, 2005, the practice became
     permanent on one level of the new building and two modules of
     another.  At this time, the employer reduced by one the number
     of relief officers assigned to each of the two shifts.  The
     employer notified the union about this change on October 7,
     2005.  There is no evidence that the union was notified of the
     trial period.

5.   On September 9, 2005, the employer initiated an internal
     investigation regarding an inmate complaint that Officer
     Michael Smith used excessive force when dealing with an inmate.
     On September 18, 2005, the employer transferred an employee
     who Smith was training to another employee.  The employer
     informed Smith that he would not train new employees during the
     course of the investigation.  The employer paid Smith for one
     week of training that he had been scheduled to provide.  The
     employer did not assign him to train any new employees until
     November 20, 2005, when Smith resigned his appointment as a
     training officer.

6.   The employer required Officer John Rogers to work 16 straight
     hours on September 11, 2005; 18 straight hours on September 12,
     2005; and eight hours on September 13. 

7.   Rogers did not enjoy rest breaks during the hospital transport
     duty he performed in second eight-hour shift that he worked on
     September 11 nor during the entire day on September 12.  Rogers
     remained beside an inmate at all times while in the hospital
     and was able to go to the restroom but could not take full rest
     breaks, because the employer did not provide relief when Rogers
     requested it.  The employer compensated Rogers for the missed
     rest breaks at a rate of one and a half times his regular rate
     of pay.

8.   In early February 2006, Officer Camille Janssen advised the
     employer that she could not work that day because she was sick.
     Since she did not have any sick leave, she took leave without
     pay.  The employer then awarded her a prorated amount of sick
     leave for the month of February 2006 because she had not worked
     the full month. 

                          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.   By changing the procedure to provide employees with breaks as
     described in paragraph 4 of the foregoing findings of fact,
     Snohomish County failed to bargain in good faith and interfered
     with employee rights in violation of RCW 41.56.140(1) and (4).
 
3.   As described in paragraphs 6, 7, and 8 of the foregoing
     findings of fact, the union failed to discharge its burden of
     proof to establish that Snohomish County breached its good
     faith obligation in violation of RCW 413.56.140(4) regarding
     work as field training officer pending an internal
     investigation, rest breaks in hospital transport duty,
     relieving employees on double shifts or prorated sick leave
     accrual for employees who take leave without pay.

                                ORDER

Snohomish County, its officers and agents, shall immediately take
the following actions to remedy its unfair labor practices:

1.   CEASE AND DESIST from:

     a.   Refusing to bargain collectively with the Snohomish County
          Corrections Guild, as the exclusive bargaining
          representative of the appropriate bargaining units
          described in paragraph 2 of the foregoing findings of fact.

     b.   In any other manner interfering with, restraining, or
          coercing its employees in the exercise of their collective
           bargaining rights secured 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 working
          conditions which existed for the employees in the affected
          bargaining unit prior to the unilateral change in the
          number of inmates that employees will supervise  while
          other employees take their rest breaks, which is found
          unlawful in this order.

     b.   Give notice to and, upon request, negotiate in good faith
          with the Snohomish County Corrections Guild, before
          increasing the number of inmates that employees will
          supervise while other employees take their rest breaks.

     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 Commissioners of
          Snohomish 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.

     e.   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.

     f.   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  25th  day of June, 2007.


                    PUBLIC EMPLOYMENT RELATIONS COMMISSION



                    CARLOS R. CARRION-CRESPO, 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 20302-U-06-5170 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 violated our obligation to bargain in good faith under RCW 41.56.030(4) by unilaterally increasing the number of inmates that employees represented by the Snohomish County Corrections Guild supervised while other employees took their rest breaks. TO REMEDY OUR UNFAIR LABOR PRACTICES: WE WILL give notice to and, upon request, negotiate in good faith with the Snohomish County Corrections Guild, before increasing the number of inmates that employees will supervise while other employees take their rest breaks. WE WILL NOT refuse to bargain in good faith with the Snohomish County Corrections Guild regarding changes to the number of inmates that employees represented by the Snohomish County Corrections Guild supervise while other employees take their rest breaks. 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: _________________ SNOHOMISH 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, Suite 300, 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.