Four-Month Delay In Starting Bargaining Amounts To An Unfair Labor Practice

The Washington State Patrol Troopers Association and the State of Washington were parties to a collective bargaining agreement that allowed either party to “request negotiations of a successor agreement by notifying the other party in writing no sooner than January 1, 2008.” Notwithstanding this provision, the Association started early on the process of attempting to schedule 2008 negotiation sessions.

In October 2007, Jeffrey Julius, the Association's chief negotiator, sent an e-mail message to Diana Lutz asking about the employer's availability to discuss scheduling the next round of negotiations. In November and December, Julius had three follow-up conversations with Lutz about scheduling bargaining dates. On January 1, 2008, the Association made a formal demand to bargain, and followed it with an e-mail message on January 10 requesting negotiations dates. The Acting Director of the State Labor Relations Office eventually responded by sending the Association president a letter designating Lutz as the chief negotiator for the State, but not providing any negotiations dates.

On February 7, Julius again attempted to contact Lutz because he had not heard from her. Lutz eventually responded by e-mail offering April 21, 2008, as the first day the employer would be available for bargaining. Lutz explained that the employer would not be able to present its economic proposal until after the economic forecast, and the State was worried that the Association would prematurely declare impasse. Lutz also asserted that the State was too busy to schedule dates because the Legislature was in session.

In response, Julius suggested that the parties commence bargaining over non-economic issues, but the State refused to do so. Eventually, the Association agreed to begin bargaining on April 21, 2008, but also took the position that it believed the State was committing an unfair labor practice by not timely beginning negotiations. The Association then filed an unfair labor practice complaint.

Washington's Public Employment Relations Commission (PERC) agreed with the Association, and found the delay in scheduling negotiation session to be a failure to bargain in good faith that amounted to an unfair labor practice.

The State contended that there was a longstanding premise in the law that “no” can be a legitimate response to a bargaining proposal, provided the response is made in good faith. As PERC saw it, however, “no” may “be a reasonable response to a bargaining proposal if accompanied by a reasonable explanation as to why the proposal is unacceptable, but such a response is not applicable to the affirmative obligation to meet and confer at reasonable times. The obligation to meet and confer at reasonable times and places is an affirmative obligation, and both employers and unions must make reasonable efforts to promptly secure bargaining dates and locations following a demand to bargain.”

The State also argued that it could not negotiate while the Legislature was in session. PERC found that, “unless the Legislature is actively discussing a piece of legislation that directly impacts a term or condition of employment that the parties are actively negotiating about, the fact that the Legislature is in session is not a valid impediment to bargaining. Once a valid request for bargaining has been made, it is incumbent upon the party desiring a delay in negotiations over a particular subject to explain why it cannot bargain an issue.”

Washington State Patrol Troopers Association, Decision 10314-A (Wash. PERC 2010).

This article appears in the March 2010 issue