Washington Appeals Court Rules Staffing Is Bargainable Subject

The Washington Court of Appeals has upheld a ruling by the Public Employment Relations Commission that staffing is a mandatory subject for bargaining when it has “a demonstratedly direct relationship” to firefighter workload and safety.

The case involved an interest arbitration between Everett Firefighters IAFF Local 46 and the City of Everett. The firefighters sought to increase the minimum staffing from twenty-five firefighters to thirty-five firefighters per shift, citing increased workload and safety concerns. The city argued staffing was a management prerogative and a permissive subject for bargaining, one which it could not be forced to bargain over. When impasse was reached the matter was certified by the PERC for arbitration.

Seeking to block the arbitration, the city filed an unfair labor practice claim against the union, alleging that it was illegal for the union to bargain to impasse over staffing. The PERC dismissed the city’s claim concluding:

  • “The employees’ interests in workload and safety outweighs the employer’s right to determine the number of firefighters assigned to each 24-hour shift.”
  • PERC concluded the Union proposal to… increase the minimum crew on duty for each shift was a mandatory subject of bargaining.

The city appealed the PERC ruling to Snohomish Superior Court, who petitioned the Court for Appeals for direct review.

In explaining its ruling the court distinguished between mandatory subjects and permissive subjects under Washington law:

  • Washington law distinguishes between mandatory and permissive subjects of collective bargaining.
  • As defined in RCW 41.56.030(4), “personnel matters, including wages, hours and working conditions,” are mandatory subjects of collective bargaining.
  • “[I]ssues that address ‘wages, hours and other terms and conditions of employment’ are ‘mandatory’ subjects about which the parties must bargain.”
  • By contrast, “[m]anagerial decisions that only remotely affect ‘personnel matters’” and employer “decisions that are predominantly ‘managerial prerogatives’” are nonmandatory or permissive subjects of collective bargaining.
  • The parties must bargain in good faith “on mandatory subjects” of collective bargaining.
  • If the parties reach an impasse on a mandatory subject, the dispute is resolved through interest arbitration.
  • The parties may bargain on nonmandatory or permissive subjects of collective bargaining but are not required to do so.
  • It is an unfair labor practice to refuse to engage in bargaining on a mandatory subject to impasse or to insist on bargaining a nonmandatory subject to impasse.

The Court of Appeals went on to explain the balancing test that must be applied when matters such as staffing touch on both a mandatory subject and a permissive subject. Quoting from the decision:

  • The [Washington Supreme Court] held that where a subject of collective bargaining relates to working conditions and a managerial prerogative, the scope of bargaining is determined on a case-by-case basis by a “balancing approach.”
  • The [Washington Supreme Court] states workload and safety issues that concern “wages, hours and working conditions” is a mandatory subject of collective bargaining, while staffing level decisions are a strong and fundamental managerial prerogative.
  • “On one side of the balance is the relationship the subject bears to ‘wages, hours and working conditions’.
  • On the other side is the extent to which the subject lies ‘at the core of entrepreneurial control’ or is a management prerogative.”
  • “Where a subject both relates to conditions of employment and is a managerial prerogative, the focus of inquiry is to determine which of these characteristics predominates.”
  • The [Washington Supreme Court] states that “[c]ompared with shift staffing, . . . equipment staffing is not so importantly reserved to the prerogative of management.”
  • But the [Washington Supreme Court] held that while the managerial prerogative to decide staffing levels strongly weighs in favor of the employer, PERC must carefully analyze the circumstances in each case and whether there is also a demonstrably direct relationship to workload and safety working conditions: Every case presents unique circumstances, in which the relative strengths of the public employer’s need for managerial control on the one hand, and the employees’ concern with working conditions on the other, will vary.
  • General understandings—such as an understanding that staffing levels typically weigh on the managerial prerogative side of the balance of employer and union interests—may, of course, inform PERC’s analysis.
  • But care must be taken to recognize meaningful distinctions in the circumstances of different cases.
  • Unchallenged findings of fact and unrebutted testimony establish a dramatic increase in the volume of calls to the fire department with no increase in the number of firefighters and paramedics to respond to the calls.
  • The unrebutted testimony of the fire department chiefs and captains supports PERC finding a demonstrably direct relationship between workload and safety.
  • The testimony established the increased demand to respond to calls resulted in safety risks to the crews on duty for each shift.
  • We conclude substantial evidence supports finding that the increase in the number of calls responded to during each shift directly impacts the firefighters’ safety and the Union established shift staffing has a demonstrably direct relationship to workload and safety.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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