(206) 957-0926 info@vjmlaw.com

BE CAREFUL WHAT YOU ASK FOR

PERCIn 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 with the new numbering system and dispatch protocols. Local 404, then, made a demand to bargain over the City’s decision to implement the new numbering system and dispatch protocols. The City refused to bargain, stating that the change was a management right. Local 404 filed an unfair labor practice complaint with the PERC.

The Examiner began her analysis of the case by noting that, “[a]s a general rule, it is an unfair labor practice for an employer to unilaterally change a mandatory subject of bargaining without giving the union notice and an opportunity to bargain before the decision is final.” The Examiner further noted that the PERC uses a balancing test to determine whether a change made by management is a change to a mandatory subject of bargaining, and, “[t]he two principal considerations are (1) ‘the relationship the subject bears to [the] wages, hours and working conditions’ of employees and (2) ‘the extent to which the subject lies at the core of entrepreneurial control or is a management prerogative.’”

The Examiner further explained:

While the balancing test calls upon the Commission and its examiners to balance these two principal considerations, the test is more nuanced and is not a strict black and white application.  City of Seattle, Decision 12060-A (PECB, 2014).  Subjects of bargaining fall along a continuum.  At one end of the spectrum are grievance procedures and “personnel matters, including wages, hours and working conditions.”  RCW 41.56.030(4).  These are known as mandatory subjects of bargaining.  City of Seattle, Decision 12060-A.  At the other end of the spectrum are matters “at the core of entrepreneurial control” or management prerogatives.  Id., citing International Association of Fire Fighters, Local 1052 v. PERC (City of Richland), 113 Wn.2d 197.  In between are other matters, which must be weighed on the specific facts of the case.  City of Seattle, Decision 12060-A.  One case may result in a finding that a subject is a mandatory subject of bargaining, while the same subject, under different facts, may be considered permissive.  Id.

Finally, the Examiner noted that, “the safety of employees has been part of the determination” of whether a subject is a mandatory subject of bargaining.

Applying the balancing test to the facts before her, the Examiner concluded that the City “did not have a duty to bargain its decision to change its apparatus numbering system and dispatch protocols.” In this regard, the Examiner found that the City’s interests in having more coordination with other counties and improving resource allocation made the changes more related to managerial rights than the union’s safety concerns, which would make the changes related to personnel matters.

The Examiner further found that the City did not have a duty to bargain over the effects of the changes to the apparatus numbering system and dispatch protocols. Based upon the evidence before her, the Examiner concluded that Local 404’s demand to bargain was specific to the City’s decision and did not explicitly include a demand to bargain over the effects of the decision. This finding led the Examiner to hold that by failing to explicitly demand to bargain over the effects of the decision, Local 404 had waived its right to bargain.

The Examiner was Emily Martin and the case is City of Walla Walla, Decision 12414 (PECB, 2015). The case can be found at: http://perc.wa.gov/databases/ULP/12414.htm

[posted September 15, 2015]