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Tuesday, February 17, 2015

In Washington State, PERC Examiner Finds Bad Faith Bargaining

PERC finds Deputy Sheriff’s Association Bargained Regressively on Eve of Interest Arbitration

By Therese Norton
Both employer and union can violate their good faith bargaining obligations under the state collective bargaining laws when one party advances proposals prior to interest arbitration that are regressive from proposals made earlier in negotiations. In Spokane County (Spokane County Deputy Sheriff’s Association), PERC Examiner Stephen W. Irvin found, and the Commission affirmed, that the Spokane County Deputy Sheriff’s Association breached its good faith bargaining obligations by submitting a regressive wage proposal after impasse and shortly before the parties’ scheduled interest arbitration hearing.

The Association had initially tied its wage proposal to the Consumer Price Index (CPI); however, the Examiner had concluded that prior to arbitration the Association severed the tie to the CPI when conveying its wage proposal to the interest arbitration panel, resulting in an escalated wage demand.

The Association argued that it never intended to tie its wage proposal to CPI-U, because its proposal was meant to offset the potential of significantly higher out-of-pocket medical costs. The examiner evaluated the union’s overall bargaining behavior and concluded, “Despite the employer’s insistence on a wage freeze for 2012 and 2013, the possibility existed that the parties could have reached a settlement on the courthouse steps prior to interest arbitration.  The window of opportunity for a negotiated settlement closed abruptly, however, when the union switched courses on its wage proposal following months of bilateral negotiations and mediation in which it consistently maintained its initial proposal to link wage increases to CPI-U.”

Regressive bargaining occurs when one party at the bargaining table in some manner evidences an attempt to make a proposal less attractive. The Commission has determined, and the Washington Supreme Court has affirmed, that interest arbitration represents a continuation of the collective bargaining process and of the parties’ obligation to bargain in good faith. In this case, the union argued that its wage proposal did not infect the bargaining process, because the bargaining process was finished once impasse was declared.  The examiner disagreed, explaining that impasse can and should be broken if possible, even after the Executive Director has certified the matter for interest arbitration. “Offers can be changed after interest arbitration has been invoked, particularly when there is an apparent attempt to narrow the parties’ differences.”

The examiner explained the impact of the Association’s behavior. “Instead of narrowing the parties’ differences, the union frustrated the collective bargaining process by making its wage proposal less attractive to the employer and making it less likely that the parties would be able to reach agreement.”

Examiner Irvin also rejected the union’s argument that the employer’s complaint was not timely. The examiner determined that it was reasonable for the employer to conclude that the union’s subsequent email regarding its wage proposal was tied to CPI-U as it had been in its initial proposal. Therefore, the examiner determined that the employer knew of the change in the union’s position and filed its complaint within the six months statute oflimitation.

As a remedy, Examiner Irvin ordered the union to cease and desist from its illegal activity, to post appropriate notices, and to enter the interest arbitration hearing with the initial wage proposal it provided to the employer in which the wages were tied to CPI.

Editor’s Note (Chris Casillas): This case is a good reminder that the good faith bargaining obligation does not cease to operate once an impasse is reached and the parties have been certified for interest arbitration.  There is a statutory obligation that all collective bargaining be done in “good faith.”  The interest arbitration process was designed to be a final step in the process to reach a new collective bargaining agreement, but it is still a part of the collective bargaining process as a whole.  As such, both the employer and union must act in a manner that each side would reasonably believe could bring the parties closer to a deal rather than escalating any demands, and such an obligation continues through the arbitration process.  



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