Past Practices and Labor Bargaining

1. The existence of a relevant status quo or past practice.

A past practice exists when the parties acknowledge a mutually accepted, long-standing employment practice. Kitsap County, Decision 8292-B (PECB, 2007). To establish a past practice, a party must prove the following two elements: (1) an existing prior course of conduct; and (2) an understanding by the parties that the conduct was known and mutually accepted as the proper response to the circumstances. City of Pasco, Decision 9181-A (PECB, 2008); Wenatchee School District, Decision 11138 (PECB, 2011), aff’d, Decision 11138-A (PECB, 2012).

2. The relevant status quo or past practice was a mandatory subject of bargaining.

Mandatory subjects of bargaining generally include employee wages, hours and working conditions over which both parties must bargain in good faith. It is an unfair labor practice for an employer to refuse to bargain a mandatory subject. RCW 41.56.140(4). The Commission has the exclusive authority to determine whether a subject is a mandatory or nonmandatory subject of bargaining. WAC 391-45-550. The scope of bargaining is a question of law and fact for the Commission to determine on a case-by-case basis. City of Seattle, Decision 9957-A (PECB, 2009), citing International Association of Fire Fighters, Local 1052 v. PERC, 113 Wn.2d 197 (1989) (City of Richland).

The Commission applies a balancing test on a case-by-case basis to determine whether an issue is a mandatory subject of bargaining and looks at two principal considerations: (1) the extent to which the action impacts the wages, hours and working conditions of employees, and (2) the extent to which the action is deemed to be an essential management prerogative. The inquiry focuses on which characteristic predominates. The Supreme Court held in City of Richland that “the scope of mandatory bargaining is thus limited to matters of direct concern to employees” and that “managerial decisions that only remotely affect ‘personnel matters’, and decisions that are predominantly ‘managerial prerogatives’, are classified as nonmandatory subjects.”

3. Notice and an opportunity to bargain the proposed change was must be given.

An employer contemplating a change in a mandatory subject of bargaining must give adequate notice to the union prior to making a decision in order to allow for a reasonable opportunity to bargain. If the employer fails to do so and then implements the decision, the employer risks presenting the action as a fait accompli – a decision that has already been made or an action that has already occurred. City of Edmonds, Decision 8798-A (PECB, 2005). In determining whether a fait accompli has occurred, the Commission focuses on the circumstances as a whole, and whether the employer provided a meaningful opportunity to bargain. Clover Park Technical College, Decision 8534-A (PECB, 2004); Wenatchee School District, Decision 11138 (PECB, 2011), aff’d, Decision 11138-A (PECB, 2012).

When PERC finds a refusal to bargain violation under the statutes it administers, it automatically finds that the employer interferes with employee rights. Battle Ground School District, Decision 2449-A (PECB, 1986); Mason County, Decision 10798-A (PECB, 2011). When an employer commits a refusal to bargain violation by making a unilateral change, PERC finds that the action has “an intimidating and coercive effect” on employees. Battle Ground School District, Decision 2449-A. Therefore, an employer violates RCW 41.56.140(4) and (1) if it implements a unilateral change on a mandatory subject of bargaining without having fulfilled its bargaining obligation.

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