Yakima County, Decision 10204 (PECB, 2008)


                         STATE OF WASHINGTON
                                   
          BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
                                   
                                   
YAKIMA COUNTY,                     )    
                                   )    
                    Complainant,   )    CASE 21632-U-08-5519
                                   )    
          vs.                      )    DECISION 10204 - PECB
                                   )
YAKIMA COUNTY LAW ENFORCEMENT      )
OFFICERS' GUILD,                   )    FINDINGS OF FACT, 
                                   )    CONCLUSIONS OF LAW 
                    Respondent.    )    AND ORDER
___________________________________)

     Menke Jackson Beyer Elofson Ehlis & Harper, LLP, by Rocky L.
     Jackson, for the complainant.

     Cline & Associates, by James M. Cline, Attorney at Law, for the 
     union.

On April 2, 2008, Yakima County (employer) filed an unfair labor
practice complaint against the Yakima County Law Enforcement
Officers Guild (guild) charging the guild with inducing the employer
to commit an unfair labor practice and refusal to bargain by
insisting to impasse on two bargaining proposals.  On April 15,
2008, the Commission issued a preliminary ruling finding that a
cause of action existed and Examiner Robin A. Romeo was designated
to conduct further proceedings.  The preliminary ruling also
suspended the interest arbitration proceeding on the two issues. 
Following the Examiner's pre-hearing conference, the employer
submitted a motion for summary judgment.  The guild responded and
both parties submitted reply briefs.

ISSUES

1.   Should the motion for summary judgment be granted?

2.   Did the guild commit an unfair labor practice when it submitted
     a proposal concerning union release time for guild training to
     interest arbitration?
3.   Did the guild commit an unfair labor practice when it submitted
     a proposal concerning union release time for guild meetings to
     interest arbitration? 

Based upon the submissions of the parties, the Examiner finds that
there are no genuine issues of fact, that the proposals are both
mandatory subjects of bargaining, and that the union did not commit
an unfair labor practice by insisting on submitting the proposals to
interest arbitration.  Therefore, the complaint is DISMISSED in its 
entirety.

ISSUE - 1 MOTION FOR SUMMARY JUDGMENT

APPLICABLE LEGAL STANDARDS

Motions for summary judgment are processed under WAC 10-08-135,
which states in pertinent part:

     A motion for summary judgment may be granted and an order
     issued if the written record  shows that there is no genuine
     issue as to any material fact and that the moving party is
     entitled to judgment as a matter of law.

A motion for summary judgment invites the Examiner to make final
determinations without the benefit of a full evidentiary hearing and
should only be done where it is plain that there are no material
facts in question. Snohomish County, Decision 8733-C (PECB, 2006);
Port of Seattle, Decision 7000 (PECB, 2000).

ANALYSIS

During negotiations for a successor collective bargaining agreement,
the employer introduced a demand to alter Article 7.3A, Guild
Meetings by changing the time off to leave without pay.  The union
response at issue here is to continue the current contract language
but restrict the time off to training in labor issues concerning
administration of the contract.

The employer also introduced a demand during negotiations to delete
Article 7.3B, Guild Meetings, which grants employees leave to attend
meetings concerning guild business.  The union response at issue
here is the demand to continue the current contract language but
restrict the type of meetings to those concerning collective
bargaining or enforcement of the agreement.

My examination of the record reveals that there is no genuine issue
as to any material fact.   The employer has argued that the union
committed an unfair labor practice when it submitted two bargaining
proposals for consideration in the interest arbitration proceedings.
The union agrees that the facts are not in dispute. Therefore, the
only remaining question is whether the employer is entitled to
judgment as a matter of law and the employer's motion for summary
judgment is granted. 

ISSUES 2 AND 3 - UNFAIR LABOR PRACTICES

APPLICABLE LEGAL STANDARDS

Applicable provisions of Chapter 41.56 provide:

          RCW 41.56.150 Unfair Labor Practices for bargaining
     representative enumerated. 
     It shall be an unfair labor practice for a bargaining 
     representative:

          (2) To induce the employer to commit an unfair labor 
     practice.
     . . . .
          (4) To refuse to engage in collective bargaining.

A union commits an unfair labor practice when it insists to impasse
a subject which is deemed to be a non-mandatory subject of
bargaining.  Klauder v. San Juan County Deputy Sheriff's Guild, 107
Wn2d. 338 (1986); Snohomish County Decision 8733-C (PECB, 2006). 

In determining whether a matter is a mandatory subject of
bargaining, the Commission analyzes whether it directly impacts the
wages, hours, or working conditions of bargaining unit employees. 
Port of Seattle, Decision 7271-B (PECB, 2003).  When a subject does
not directly affect wages, hours or working conditions, the
Commission uses a balancing test, analyzing the employer's need for
entrepreneurial judgment against the employees' interest in the
terms and conditions of employment.

In general, leave to conduct union business is a mandatory subject
of bargaining. Axelson, Inc v. NLRB, 599 F.2d 91 (5th
Cir.,1979)(remunerating members of a collective bargaining unit for
time spent in negotiation is a mandatory subject); Media General
Operations, 181 LRRM 2632 (2007); NLRB v. BASF Wyandotte Corp., 798
F.2d 849 (5th Cir, 1986) (Four hours of paid leave time a day to
employees to conduct union business was similar to other types of
leave such as sick leave, military leave and jury duty leave and was 
bargainable).

Numerous state courts and public employment boards have also held
that the issue of union leave is a mandatory subject of bargaining.
Mich. State AFL-CIO v. Mich. Civil Serv. Comm, 566 N.W. 2d 258
(reasoning that union leave provides a mutual benefit to the union
and the employer by contributing to a peaceful and productive
relationship between the state and its employees); Pinto v. State
Civil Service Comm. 912 A. 2d 787.  See also In re: Petition of the
Assoc. Of Mental Health Specialists, WI.Emp.Rel.Com. Dec. No. 30787-A.

The question of whether union leave equates to direct financial
assistance to a union in violation of 302(a)(1) of the LMRA has also
been addressed by several circuit courts, and their findings  are
that it does not.  Caterpillar, Inc., v. International Union, United
Auto., Aerospace and Agr. Implement Workers of America, 26 F.3d. 121
(3rd Cir. 1997) cert dism 523 U.S. 1015 (1998)(payments of salary
and benefits to union grievance chairpersons did not violate
provisions of LMRA); International Association of Machinists and
Aerospace Workers v. B.F. Goodrich, 387 F.3d 1046 (9th Cir. 2004);
(the court also examined section 8(a)(2) of the NLRA which provides
an exception to the payment of an employee's wages while performing
union duties, known as "no docking" provisions); BASF Wyandotte
Corp. v. Local 227, Intern. Chemical Workers Union, AFL-CIO, 791
F.2d 1046 (2nd. Cir 1986).  See also, 13 A.L.R. 3d 569, section 10;
(payment for services by a union representative are not barred where
a valid employer-employee relationship exists).

The Washington State Supreme Court has also issued a decision that
including a provision in a collective bargaining agreement for union
leave was not an unfair labor practice.  State v. Northshore School
District, 99 Wn.2d 232 (1983).  The court cited NLRB cases which
recognized a distinction between illegal support and desirable
cooperation between a company with a union. 

The Commission has narrowed the grounds for finding union leave an
appropriate subject of bargaining.  In 1977, using NLRB precedent,
the Commission issued a declaratory ruling that a union proposal
concerning union leave was legal in part and illegal in part.
Enumclaw Education Association, Decision 222 (EDUC, 1977).  The
acceptable part of the demand was a request for union leave time for
the union president for one class period a day to conduct union
business where the association would recompense the school district
for that portion of salary.  The unacceptable portion was the
request for twenty days of pay to employees to use for union
business.  The rationale for finding the later part illegal was that
the use of the leave was unspecified and therefore, could be used
for any other union business including organizing another employer.

In 1991, the Commission affirmed a decision of the Executive
Director on a motion for summary judgment finding that a union
insistence to impasse on a proposal for ninety-six hours of union
leave was an unfair labor practice.  City of Pasco, Decision 3582-A,
(PECB, 1991).  The Executive Director carefully reviewed the history
of the Wagner Act and the legislative history of the Act seeking to
prevent "company unions."  The Wagner Act prohibition was
memorialized in section 302(a)(1) which disallows direct payments by
an employer to a union.  The Executive Director also relied on NLRB
cases, the Developing Labor Law and distinguished the court's
decision in Northshore by stating that the court there had examined
existing contract language as opposed to a bargaining demand which
would potentially bind the parties in the future.  A similar
analysis was enunciated in Washington State Patrol, Decision 2900,
(PECB, 1988).  The Commission affirmed the decisions in Enumclaw and
Pasco in 1997, and in City of Burlington, Decision 5840 (PECB,
1997), finding that a proposal for paid union leave to attend labor
conventions, conferences, or seminars was illegal as it would induce
the employer to dominate or interfere with the bargaining
representative by financially contributing to the union.

UNION RELEASE TIME FOR TRAINING

The current contract language in Article 7.3A, grants employees
twelve days of leave time to attend state or national guild meetings
or conferences.  In bargaining, the employer introduced a proposal
to alter the contract language to grant the leave but without pay. 
The guild responded by demanding an increase in the number of days
of leave from twelve to twenty.  Following an objection by the
employer to the union's proposal that the language was not
mandatory, the union added language to the demand to include the
caveat that the meetings concern "training in labor issues
concerning administration of the agreement."  The employer objects
to the demand arguing that it is permissive or illegal.

The union's proposal is a mandatory subject of bargaining. Its
proposal is for employees to have time off with pay to conduct union
business and it does not differ from requests for sick leave,
vacation leave or military leave.  Therefore, it directly impacts
the wages, hours, or working conditions of bargaining unit
employees. 

The employer has argued that the demands are not negotiable based on
Commission decisions in Pasco and Burlington.  Those cases are
distinguishable.  In Pasco, the union's proposal had no parameters
on the way the union leave could be used.  In Burlington, the leave
requested was for the purpose of attending unspecified union
meetings and conferences.  Here, the proposal was modified to state
that the leave would be used for the specific purpose of training
related to the administration of the collective bargaining
agreement.  There is no danger that the leave could be used for
union purposes unrelated to the employer.  Thus, the use of the
leave is not unrestricted. 

The employer's concern that the leave will be used for matters
besides the relationship between the employer and the guild, such as
organizing another employer, are speculative at best.  The employer
can monitor the use of the leave as it monitors other types of leave
and the union members can monitor the use of the benefit under the
collective bargaining agreement.  The members can also weigh whether
to submit the proposal to interest arbitration when measured against
all bargaining demands.  Such is the nature of bargaining which
should be encouraged, not restricted.

The union's proposal would not induce the employer to commit an
unfair labor practice.  An unfair labor practice would exist if the
employer were interfering or dominating the union by giving it
direct financial assistance (thus in effect being a "company
union").  Granting the union leave will not amount to a payment to
the union but will grant employees time off from work with pay to
conduct the business of representing other employees in the
relationship between the employer and the guild.  Therefore, the
proposal is not illegal.

UNION RELEASE TIME FOR GUILD MEETINGS

The union's proposal sought to continue an existing contract
provision, Article 7.3B, that granted leave to attend union
meetings.  The proposal to continue current contract language was 
in response to the employer's demand to delete it.  Following the
employer's objection to the union's demand, the union resubmitted
the proposal but deleted language in the provision that allowed
leave to attend meetings "concerning union business" and added the
caveat that the meetings had to be "concerning collective bargaining
or enforcement of the agreement." 

The employer argues that the proposal is permissive or illegal on
the same grounds as the proposal concerning Article 7.3A.  Again, I
find that it is distinguishable from those cases for the same
reasons enunciated above.  The leave is specifically for meetings
concerning enforcement of the agreement.   Thus, the leave is
directly related to the relationship between the employer and the 
guild.

CONCLUSION

The bargaining proposals as refined by the bargaining precess and
eventually submitted to interest arbitration involve mandatory
subjects of bargaining.  The union did not commit an unfair labor
practice by submitting them to interest arbitration.  The bargaining
proposals did not induce the employer to commit an unfair labor
practice by financially assisting the union.  Therefore, the
complaint is dismissed.

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

2.   The Yakima Law Enforcement Officers Guild, a bargaining
     representative within the meaning of RCW 41.56.030(3), is the
     exclusive bargaining representative of commissioned deputies
     and sergeants employed by Yakima County.

3.   The employer and the guild are parties to a collective
     bargaining agreement that expired on December 31, 2006. 

4.   During negotiations for a successor collective bargaining
     agreement, the employer introduced a demand to alter Article
     7.3A, Guild Meetings by changing the time off to leave without
     pay.  The union response, which is at issue here, was to
     continue the current contract language but restrict the time
     off to training in labor issues concerning administration of
     the contract.

5.   During negotiations for a successor collective bargaining
     agreement, the employer introduced a demand to delete Article
     7.3B, Guild Meetings, which grants employees leave to attend
     meetings concerning guild business.  The union response, which
     is at issue here, was to continue the current contract language
     but restrict the type of meetings to those concerning
     collective bargaining or enforcement of the agreement.

6.   Following mediation between the parties, unresolved, open
     issues were certified for interest arbitration.  The union has
     proposed that the two amended proposals be submitted to
     interest arbitration.

                          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.   There is no genuine issue of fact under WAC 10-08-135 and the
     motion for summary judgment is granted.  However, the employer
     is not entitled to judgment as a matter of law.

3.   The union's bargaining proposals concerning employee leave to
     conduct union business are mandatory subjects of bargaining and
     the union's moving those proposals forward to interest
     arbitration is not an unfair labor practice.  The complaint is 
     dismissed.
                                ORDER
                                   
The complaint charging unfair labor practices filed in case
21632-U-08-5519 against the Yakima County Law Enforcement Guild is
DISMISSED on the merits.

Issued at Olympia, Washington, on the  16th  day of October, 2008.


                    PUBLIC EMPLOYMENT RELATIONS COMMISSION



                    ROBIN A. ROMEO, 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.