What Happens If You Can’t Agree Whether Bargaining Should Be In Public?

Public Safety Labor News

This is the lead article from our newsletter Public Safety Labor News. For more information, including how to subscribe, visit our web page.

Lincoln County, Washington and Teamsters Local 690 are parties to two collective bargaining agreements. One covers commissioned officers and the other covers non-commissioned employees of the sheriff’s office. On September 6, 2016, the County enacted Resolution 16-22, which resolved to “conduct all collective bargaining contract negotiations in a manner that is open to the public.”

On January 17, 2017, the County and Local 690 met and negotiated during the public session of a Lincoln County Commission meeting. Unable to reach an agreement on the terms of a successor collective bargaining agreement, the parties scheduled a second meeting.

The second meeting, which occurred on February 27, 2017, went quickly astray. Local 690 brought its attorney, who said that Local 690 was willing to bargain but would do so in accordance with the parties’ prior practice of bargaining in private. The County’s representative responded that the County was ready to bargain and would do so only in public in accordance with Resolution 16-22. Eventually, Local 690’s bargaining team left the building.

The County and Local 690 each filed two unfair labor practice complaints alleging that the other had refused to bargain by conditioning their willingness to bargain on a permissive subject of bargaining. Washington’s Public Employment Relations Commission was left to solve the dilemma.

The Commission began by citing the well-established principle that ground rules for bargaining are not themselves mandatory subjects of bargaining: “How negotiations are conducted relates neither to the employees’ interest in wages, hours, and working conditions nor to the employer’s entrepreneurial control. How negotiations are conducted is a matter of the relationship between the employer and the union. The ‘how’ is the framework for discussing wages, hours, and working conditions and is a permissive subject of bargaining.”

By conditioning bargaining on the issue of whether bargaining sessions would be held in public, the Commission found, both the County and Local 690 committed an unfair labor practice: “Negotiations over how to achieve transparency in collective bargaining could have allowed the parties to agree on a process that would have met both the Employer’s interest in transparency and the Union’s interest in privacy. The Employer could have communicated with the Union about its interest in opening the process and sought agreement from the Union on how to move forward.

“By engaging in back and forth discussion about their interests and goals, the parties may have found some middle ground that would have met both of their needs. The parties could have discussed providing public notice of their negotiation sessions, posting proposals on the Employer’s website, or providing bargaining updates, among other things. However, neither party proposed to the other a method for negotiations.

“Neither party would discuss mandatory subjects of bargaining unless and until the other party capitulated. Both sides conditioned negotiations over mandatory subjects of bargaining on a permissive subject of bargaining. In doing so, the Union and the Employer refused to bargain mandatory subjects.”

The Commission then turned to the most difficult issue in the case – how to solve the problem of whether bargaining should be held in public. The Commission observed that “we are aware that the parties hold strong beliefs that could quickly lead to a stalemate that may impede the parties from carrying out their statutory duty to meet and negotiate over mandatory subjects, including wages, hours, and working conditions. It is our duty as the Commission to fashion remedies that will effectuate the applicable statute. To provide a uniform and impartial system to resolve labor relations disputes, we must at times fashion remedies that impart consistency and direction to the parties. When parties become entrenched in their positions and lose sight of their statutory obligation, they need help to move forward to resolution.

“We order the parties to negotiate in good faith over the method by which the parties will conduct their negotiations. If after two good-faith negotiation sessions the parties are unable to reach an agreement on how to conduct their negotiations, the Commission will appoint a mediator to assist the parties. If after engaging in good-faith negotiations and mediation, the parties cannot reach agreement, to best effectuate the purposes of bargaining law, we find it would be in the parties’ best interest to remove the barrier that prevents them from carrying out their statutory duty. The historic practice of collective bargaining in Washington generally and the practice of this employer and union specifically has been through private negotiations. Thus, if the parties are unable to come to a resolution through good-faith negotiations and mediation, the parties will negotiate from the status quo – that is, in private meetings.”

Lincoln County, 2018 WL 4292910 (Wash. PERC 2018).