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Law Enforcement Labor Attorneys Blog

ASSIGNING WORK OUTSIDE THE BARGAINING UNIT-THE PERC’S “NEW” APPROACH

In Central Washington University, Decision 12305-A (PSRA, 2016) the Public Employment Relations Commission (PERC) announced a new test for determining when a public employer’s decision to contract out work is a mandatory subject of bargaining. According to the PERC, contracting out occurs when a public employer contracts with another entity to do the work The work at issue in the Central Washington University case was replacing a flat roof over a walkway at the residence of the President of the University. The employer claimed that this work was not bargaining unit work and contracted this work to a company that was licensed to install the roofing material chosen for the job. For many years, the PERC used a two-part test for determining when a decision to contract out work was a mandatory subject of bargaining. Under this test, the PERC first determined whether the work in question was bargaining unit work. The PERC found “[b]argaining unit work [to be] work that bargaining unit employees have historically performed.” Central Washington University, citing Washington State University, Decision 11498-A (PSRA, 2013). Under the previous test, if the PERC concluded the work in question was not bargaining unit work, the decision to contract the work out was not a mandatory subject of bargaining. However, if the PERC concluded the work in question was bargaining unit work, the PERC would move on to the second part of the test and balance “five factors to determine whether a duty to bargain existed.” Central Washington University. This historical, two-part test for determining when a decision to contract out work was a mandatory subject of bargaining was...

Fair Share Fees Upheld

The U.S. Supreme Court, in 4 to 4 decision, affirmed the decision of the U.S. Court of Appeals for the 9th Circuit upholding the right of public sector unions to collect agency/fair share fees from from individuals  who choose to not to be members. The per curiam decision can be found here:...

WAKE UP AND SMELL THE COFFEE

An Examiner for Washington’s Public Employment Relations Commission (PERC) has recently determined that free coffee provided by a public employer to corrections employees at the employer’s detention facilities is a mandatory subject of bargaining. However, the Examiner also determined that the employer’s actions, in this case, did not amount to an unfair labor practice (ULP). The evidence showed that the employer had a long standing practice of providing corrections employees, at the employer’s detention facilities, with free coffee. The employer decided to stop providing free coffee to its employees in 2013, citing financial considerations. This decision affected two groups of correction employees—one group was eligible for interest arbitration while the other was not. The Examiner found that the employer gave the labor organizations representing the two groups of correction employees notice of its intent to discontinue the practice. The Examiner further found that after receiving the notice, the employer and the two labor organizations representing the correction employees discussed the employer’s decision on a number of occasions. The employer and the two labor organizations were unable to reach an agreement on the employer’s decision to stop providing free coffee. After being unable to reach an agreement, the labor organizations filed ULP complaints alleging that the practice was discontinued before they were given an opportunity to bargain. The good news for the correction employees is that the Examiner found, based upon the unique circumstances facing the correction employees, that the employer’s decision to stop the practice impacted wages and working conditions and that free coffee was a mandatory subject of bargaining. Specifically, the Examiner stated: “[E]mployer-provided coffee is a mandatory...

SOMETIMES, REALITY IS STRANGER THAN FICTION

Two recent examples: Judge Finds Scrawling ‘F**k Your S**tty Town Bitches’ On Speeding Ticket Is Free Speech,  Even If It’s “crude and offensive.” [Posted by Christopher Mathias on the Huffington Post. Mr. Mathias’s full post can be found at: www.huffingtonpost.com/entry/willian-barboza-speeding-ticket-profanity_55f82a22e4b09ecde1d9a8e2] Sheriff Impersonators Arrested After Misspelling ‘Sheriff’ [Posted by Jake Goodwin on newsy. Mr. Goodwin’s full post can be found at:...

BE CAREFUL WHAT YOU ASK FOR

In a recent decision, an Examiner for the PERC held that the City of Walla Walla did not fail to bargain over its decision to change the numbering system for apparatus/equipment used by dispatchers in the City’s dispatch center and the protocols used by dispatchers to dispatch fire calls. The Examiner also found that the union had waived its right to bargain over the effects of the decision to make these changes by not specifically asking to bargain over the effects of the decision in its demand to bargain. The City of Wall Walla operates an emergency dispatch service for police and fire departments throughout Walla Walla County. In February 2014, the City changed its apparatus/equipment numbering system and the way it dispatched calls, in order to accommodate the new numbering system. According to the Examiner from PERC, the new numbering system used “slightly longer and more complex identifiers”. IAFF Local 404, the labor organization which represented the dispatchers, who were required to use the new numbering system and dispatch protocols, believed that, “the longer numbers and more detailed dispatches increase[d] the amount of radio time for dispatching” and “would lead to dangerous situations”. These safety concerns were raised with the City’s fire chief. The fire chief’s response to the safety concerns was to form a committee with representatives from fire, police, and dispatch operations to review the concerns and make recommendations. The committee recommended scrapping the new numbering system and dispatch protocols. Local 404 sent a letter to the fire chief urging that the committee’s recommendations be adopted. The fire chief ultimately rejected the committee’s recommendation and went forward...

CORRECTING LIE DURING SAME INTERVIEW SAVES OFFICER’S JOB

On December 2, 2013, a complainant alleged that an officer of the Hutchinson, Kansas Police Department had arrested her in late November for a DUI violation. The complainant said that the officer later telephoned her at home, sent her several text messages, and generally engaged in harassing conduct. The Department interviewed the officer, who admitted visiting the home of the complainant after the DUI arrest to follow up on the arrest. The officer stated that the complainant made sexual advances towards him, and that he shared the story of the encounter with other officers. The officer stated that he might have “amped” up the story and told an officer only identified as “Officer M” that he got a blow job from the complainant. The officer denied that he actually had received a blow job, and told the Department’s investigator that he did not have any sexual contact with the complainant other than a sexual advance that she made towards him by attempting to grab his crotch, which he rebuffed. A search of the officer’s cell phone revealed a record of a text message to Officer M claiming that the arrestee performed oral sex on him and that he tried to say no, but could not resist. During an interview, Officer M initially denied reading the text message. Later in the interview, Officer M admitted reading the text message. When asked why he lied when he was first asked the question about text messages, Officer M said, “’Cause I didn’t wanna get nobody else in trouble. I didn’t want to actually be a part of it.” When the City fired...

IS INFORMATION ON YOUR PERSONAL CELL PHONE SUBJECT TO PUBLIC DISCLOSURE?

Today (August 27), the Washington Supreme Court issued a long awaited decision. This decision addresses whether text messages sent and received by a public employee on a personal cell phone and whether call and text message logs maintained by a employee’s cellular carrier are public records of the employee’s employer, which must be disclosed under Washington’s Public Records Act (PRA), RCW 42.56. This case was filed by a detective employed in the Pierce County Sheriff’s Department. The detective had requested Pierce County to produce “any and all of Mark Lindquist’s cellular telephone records for number 253-861-[XXXX] or any other cellular telephone he uses to conduct his business including text messages from August 2, 2011.” A second request sought the same information for June 7, 2010. The telephone number in the requests was for Lindquist’s personal cellular telephone. In response to the requests, Mark Lindquist provided the County with call and text logs obtained from his cellular carrier. The County provided the detective with redacted call and text logs, but not with any text messages. The detective was not satisfied and brought suit in Superior Court against Pierce County seeking to have the court do an in camera inspection of the logs and the actual text messages to see if any were public records that had to be disclosed. Lindquist intervened and asked the court for an injunction blocking disclosure of any further information. The superior court dismissed the lawsuit finding, as a matter of law, that records of private cell phone use can never be public records under the PRA. The detective appealed and the Court of Appeals reversed....