Failure To Act In Timely Fashion Amounts To Waiver Of Union’s Bargaining Rights

The obligation to collectively bargain usually requires an employer to negotiate over changes it wants to make in policies and procedures during the term of a contract if those changes either concern or impact a topic that is mandatorily negotiable under the law. Three exceptions exist to this “continuing duty to bargain”: If the union has waived the right to bargain over the change by agreeing to contract terms allowing the change, or if the union has failed to assert its bargaining rights in a timely fashion, or if the union has failed to challenge the failure to bargain by filing a timely unfair labor practice charge. The last two forms of waiver, often known as “waiver by inaction,” were front and center in a recent Washington case involving a change in health insurance benefits.

The Bremerton Police Officers Guild and the City of Bremerton were parties to a collective bargaining agreement that was valid from January 1, 2009 through December 31, 2011. The contract provided three medical insurance options, including a plan known as Group Health Plan 1, offered by the Association of Washington Cities (AWC).

In the fall of 2009, the AWC contacted all its member cities and informed them that Group Health Plan 1 would be discontinued effective January 1, 2012. The City notified all union representatives of the change. The Guild’s president responded by asking for the names of bargaining unit members who used Plan 1, and the City provided the information.

Nearly two years later, on September 14, 2011, the City reminded the Guild president of the termination of Plan 1 effective December 31, 2011. The president again asked how many members were using Plan 1 and the City provided the requested information. Over a month later, the Guild sent a letter to the City opening negotiations for a new agreement, but did not mention the Plan 1 issue.

Twice more over the Fall of 2011, the City notified the Guild of the impending elimination of Plan 1. Finally, on November 27, 2011, the Guild demanded to bargain the change in health insurance benefits, and on the following day the Guild’s lawyer, Jim Cline sent a similar message to the City. However, the Guild failed to follow up on the demands to bargain, and the elimination of Plan 1 occurred on January 1, 2012. On June 29, 2012, the Guild filed an unfair labor practice complaint challenging the elimination of Plan 1.

The question for Washington’s Public Employment Relations Commission was whether the ULP was filed within the six-month statute of limitations provided by Washington law. The Commission found that the Guild had not acted in a timely fashion, and dismissed the complaint.

The Commission observed that “the employer first advised the Union president of the elimination of Plan 1 on October 14, 2009, but other than ask the employer about the number of members who would be impacted by the change, the Union took no action. The employer wanted to begin talking about how to address the change in 2009, but the Union did not express the same interest.

“Two years later, the employer again provided notice of the Plan 1 elimination to the Union president on September 14, 2011, and to the Union vice president on October 29, 2011. The employer answered questions from the Union regarding the exact number of bargaining unit members on Plan 1 who would be impacted by the change. Then, on November 21, 2011, the City responded to the Guild that an email sent to all City employees on November 18, 2011, notifying them of the change, applied to Union members. These communications provided enough information, including an explanation of differences between Plan 1 and 2, for the Union to understand that the decision had been made to terminate Plan 1 effective January 1, 2012.

“If it was not clear previously, the City’s response to the Guild on November 21, 2011, regarding a November 18, 2011 email, left no doubt at that time that an adverse employment decision had been made, that the decision would impact bargaining unit members, and that the decision had been communicated to the Union with enough detail for it to understand the decision. At the latest, this response on November 21, 2011 started the clock running on the six-month statute of limitations. Thus, the Union had until the end of May 2012 to file a timely ULP complaint and preserve its rights; however, it waited until June 29, 2012, more than six months later.”

City of Bremerton, Decision 12198 (PECB 2014).