Off-The-Record Proposal Can Still Be Binding

Fire District 1 in Snohomish County, Washington and Local 1828 of the International Association of Fire Fighters (IAFF) were parties to a collective bargaining agreement that expired in 2014. The District’s revenues dropped sharply during the most recent economic recession. As a result, the District implemented a series of cost-cutting measures, including as a hiring freeze that resulted in staffing shortages.

In order to alleviate the economic pressure on the District, the Union agreed to a 3.65% wage decrease for the 2012 calendar year. Additionally, the parties entered into a December 4, 2013, memorandum of understanding that would create “peak activity units” to help ease the burden on staffing. The memorandum of understanding expired with the contract.

A peak activity unit is an operation staffing plan that increases the levels of staffing during those hours (usually daylight) that routinely demonstrate the highest need for the District’s emergency services. Prior to 2013, all employee work shifts were 24 hours long. In order to accomplish the increased staffing envisioned for the peak activity units, the parties agreed that certain medical transport work would be staffed 12 hours a day, seven days a week, with the assigned employees working 10-hour shifts four days a week. By implementing a dedicated transport staff, initial responders would no longer be required to transport civilians to a hospital and instead would be free to return to their stations to await the next service call.

Prior to beginning bargaining, the District and the Local agreed to two key ground rules. The first provided that when a tentative agreement (TA) was reached on an issue, the TA would “become part of the package that is ultimately voted on by both parties,” but that “TAs can be changed or rescinded by mutual agreement, and will automatically be rescinded in the event that one or more of the parties votes down a package that includes a particular TA.” The second key ground rule provided that “the undersigned representatives certify that they have the authority to represent their respective parties in the collective bargaining process.”

The District selected attorney Larry Hannah as its chief spokesperson; Local 1828 selected attorney Sydney Vinnedge. When a tentative settlement of all issues was voted down by the Union membership, they met to discuss how to proceed. After a long back and forth, Hannah and Vinnedge agreed to what became known as the “Vinnedge Plan,” under which all of the tentative agreements would remain in place except the “peak activity” agreement, and under which Local 1828 would refer to binding arbitration a modified proposal for peak activity.

After much debate, the District’s Board voted 4-1 to approve the Vinnedge Plan. When Local 1828’s executive board voted to reject the Vinnedge Plan, the District filed an unfair labor practice complaint against Local 1828, seeking the enforcement of the Vinnedge Plan.

An administrative law judge for Washington’s Public Employment Relations Commission found that Local 1828 had committed an unfair labor practice. The ALJ stated that “the Union failed to bargain in good faith when it refused to support and sign its own proposal encompassed in the Vinnedge Plan. Public employers and the bargaining representatives of public employees may designate representatives of their own choosing to negotiate on their behalf. Furthermore, the statements and actions of individuals vested with such authority can be binding on the party they represent.

“Here, Vinnedge’s statements and actions demonstrate that he had apparent and actual authority to enter into a binding agreement with the District, even with the existence of the parties’ ground rules. Vinnedge and Hannah began discussing the settlement concept that would result in the Vinnedge Plan as early as January 25, 2016. While Hannah attempted to broaden the issues that would be sent to interest arbitration, Vinnedge rejected those attempts and insisted that a one-issue interest arbitration would be the only acceptable concept that would result in settlement. The record also supports a finding that Vinnedge stated the agreement would be binding if the District’s board of commissioners adopted the agreement.

“Furthermore, Hannah’s testimony and documentary notes demonstrate that Vinnedge was of the opinion that if the parties adopted the Vinnedge plan, there would be no need for the Union to ratify the agreement. At no time during their conversations either on January 25, 2016, or thereafter did Vinnedge expressly state to Hannah that the Vinnedge plan was subject to the ratification by the Union’s executive board or membership.

“The evidence in total leads to a conclusion that Vinnedge’s conduct and statements gave Hannah a credible and reasonable belief that if the District agreed to the Vinnedge Plan, the Union would sign that proposal. The evidence also supports a conclusion that if the Union needed its executive board or membership to ratify the Vinnedge Plan, which was the Union’s own proposal, the Union failed to properly communicate this prerequisite to the District. Thus, the Union committed an unfair labor practice when it refused to sign the agreement.”

Local 1828’s core argument was that its peak activity unit proposal should be characterized as an “off the record” or what-if proposal and therefore it could not be bound by the position stated in the proposal. The ALJ disagreed, finding that “when Vinnedge termed his proposal as ‘off the record’ in his February 1 e-mail to Hannah, he was attempting to protect the Union’s position on that issue for any future interest arbitration if the Vinnedge Plan was rejected. The context of the parties’ discussion on this issue supports a conclusion that the parties were attempting to use the Vinnedge Plan as a concrete resolution for the prolonged negotiations.”

By way of remedy, the ALJ ordered Local 1828 to sign the “Vinnedge Plan” and proceed to arbitration solely on the basis of the Union’s proposal to modify the “peak activity” practices.

Snohomish County Fire District 1 v. Local 1828, IAFF, 2017 WL 1423516 (Wash. PERC ALJ 2017.)