Whether Bargaining Should Be In Public Is Not Mandatory For Bargaining

This article appears in the February 2021 issue of our monthly newsletter, Public Safety Labor News.

Some public employers are adopting resolutions requiring collective bargaining to be conducted in public. Unions often push back on these resolutions, believing private collective bargaining to be more effective in the give-and-take process for resolving differences. Washington’s Public Employment Relations Commission (PERC) recently had to address what happens when the parties are unable to agree as to whether negotiations should be in public.

Teamsters Local 690 represents two bargaining units of workers employed in Lincoln County. In September 2016, the County passed Resolution 16-22. The resolution, which was passed without notice to Teamsters, required all collective bargaining to be done in public. The idea for the resolution originated several years earlier when the County received information from the Freedom Foundation about opening bargaining to the public. The County used a template created by the Freedom Foundation as the basis for its resolution. The County hoped that by making collective bargaining transparent, voters would more likely pass a tax increase on the November ballot.

Local 690 promptly met with the County and asked it to rescind its recent resolution. The County refused. In January 2017, Local 690 and the County began bargaining a new CBA in public. Local 690 stated it disagreed with holding the meetings in public and was not waiving its position. The parties reached agreement on several issues, but because a reporter was present, they did not discuss others. When they got to those issues, Lincoln County’s sheriff asked to engage in private discussions. Sometime later, the sheriff, the undersheriff, and Local 690 discussed those issues privately.

In February 2017, Local 690 passed its own resolution. The resolution, passed without notice to the County, required all collective bargaining to be done in private. Later that month, the parties reconvened for additional collective bargaining. Local 690 stated it preferred the longstanding practice of bargaining in private. The County stated it was ready, willing, and able to bargain in public, consistent with its resolution. Because of this disagreement, no negotiations occurred, and the County filed an unfair labor practice complaint against Local 690 alleging the Union refused to bargain on mandatory subjects of bargaining unless the County acquiesced on a permissive subject of bargaining. In turn, Local 690 filed an unfair labor practice complaint against the County alleging it was the County that refused to bargain. The complaints were consolidated into a single hearing.

Washington’s PERC found that both parties committed unfair labor practices. PERC ordered the parties to bargain in good faith over the procedure for collective bargaining. If the parties could not agree on the procedure after two sessions of good faith bargaining, PERC would appoint a mediator to assist the parties. If mediation failed, PERC concluded the parties must return to status quo, which it found was private collective bargaining.

The Washington Court of Appeals upheld PERC’s decision though it remanded the case to PERC to consider a different remedy. The Court noted that “the County argues that public collective bargaining has no relationship to wages, hours, or working conditions. We agree. The County then argues that the public has a right to know how its tax dollars are spent. We certainly agree with this principle and note that the County has the ability to keep the public informed of how its tax dollars are spent. But the public’s right to know how its tax dollars are spent is not the test. The test is whether public collective bargaining is at the core of entrepreneurial control. We see no evidence of this.

“If public bargaining was at the core of entrepreneurial control, the legislature – itself a public entity – would not have exempted collective bargaining from open meetings. Even in the midst of the present dispute, the County requested that some subjects be discussed in private. This shows that public bargaining, without some flexibility to engage in private discussions, would inhibit the free flow of information the County needs to make informed decisions.

“The County has failed to convince us that public collective bargaining is a managerial prerogative. Also, Local 690 does not contend that private collective bargaining is a union prerogative. We, therefore, conclude that the bargaining procedure in dispute here is not a managerial prerogative or a union prerogative. For this reason, neither the County nor Local 690 had authority to impose its preferred procedure on the other. Neither party may hold collective bargaining hostage to unilaterally imposed preconditions to bargaining. Here, the parties did just that. Each insisted on their own procedure for collective bargaining. This prevented them from bargaining on mandatory subjects. Their insistence caused an impasse over a permissive subject of bargaining, which is an unfair labor practice.

“The County contends PERC erred by applying the status quo doctrine to the case. It argues the doctrine does not apply to permissive subjects of bargaining, such as procedures for bargaining, only mandatory subjects. We agree. We conclude status quo is not an appropriate remedy when parties are unable to agree on a permissive subject of bargaining. We remand for PERC to reconsider the appropriate remedy.”

Lincoln County v. Public Employment Relations Commission, 475 P. 3d 252 (Wash. Ct. App. 2020).

Also in the February 2021 issue:

  • Fire Department Social Media Policy Could Be ‘Overbroad’
  • Four Months Of Propositions Enough For Sexual Harassment Claim
  • Whistleblowing, Sleeping Corrections Officers, And Retaliation
  • Court Upholds Arbitrator’s Opinion Reinstating Corrections Officers
  • EMT Forfeits Job By Failing To Appear For Retraining
  • Officer Required To Sit In Dark Building Loses Retaliation Case
  • Disabled Corrections Officer Unable To Perform Essential Job Functions
  • The High Standard For PTSD Claims In Some States
  • Officer Loses Cell Phone Claim To Qualified Immunity
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