FILED COURT OF APPEALS DI'v' IS10: 1 I -
2 0 1 4 MAR 13 AM 10: 17 IN THE COURT OF APPEALS OF THE STATE OF W
DIVISION II
KITSAP COUNTY and KITSAP COUNTY No. 4411 SHERIFF,
Respondents,
VA
KITSAP COUNTY CORRECTIONAL PUBLISHED OPINION OFFICERS' GUILD, INC.,
1— PENOYAR, J. P. T. This action arises from Kitsap County' s decision to lay off two
corrections officers for budgetary reasons. The officers' union, the Kitsap County Correctional
Officers Guild ( Guild), demanded to bargain the decision to lay off the officers. The County
agreed to bargain the effects of the layoffs but not the decision. The County sought a declaratory
judgment in superior court stating that layoffs are a permissive bargaining subject and the Guild
committed an unfair labor practice when it demanded to bargain the decision. The Guild filed a
cross motion for summary judgment seeking ( 1) a declaration that layoffs are a mandatory
2) injunction further layoffs without bargaining. The trial bargaining subject and ( an against
court granted declaratory judgment in the County' s favor.
The Guild appeals, arguing that the County' s claim was not justiciable, layoffs are a
mandatory bargaining subject, and it is entitled to attorney fees on appeal. The County argues
that, even if the layoffs are a mandatory subject, the Guild waived its right to bargain. We hold
that the parties have an actual, present dispute regarding the right to bargain the layoffs; thus, the
County' s claim is justiciable. Additionally, the Guild did not waive its right to bargain over
1 Judge Joel Penoyar is serving as a judge pro tempore of the Court of Appeals, Division II, pursuant to CAR 21( c). 44183 -7 -II
layoffs because the contractual waivers had expired. However, the trial court was required to
conduct a balancing test to determine whether the layoffs in this case are a mandatory bargaining
subject. The record does not reflect that the court engaged in this analysis. Accordingly, we
remand for the trial court to conduct a balancing test based on the facts of this case. Attorney
fees are not appropriate at this stage of the proceedings, but they may be awarded on remand.
FACTS
I. LAYOFFS
The County' s 2012 jail budget projected a $ 935, 000 revenue loss. Consequently, on
October 24, 2011, the County informed two corrections officers that they would be laid off on
January 1, 2012. The County stated that the layoffs were the result of budget reductions. When
the officers informed the Guild of the impending layoffs, the Guild sent a letter to the County
demanding to bargain the decision to conduct layoffs. The Guild also requested information
related to the County' s budget.
The parties met on November 8, 2011, and discussed the effects of the layoffs. After the
meeting, the County sent the Guild a draft letter of understanding,. stating that there would be two layoffs. The layoffs and allowing for voluntary layoffs in place of the scheduled involuntary
Guild responded by clarifying that its original demand letter requested that the County bargain over both the decision to lay off employees and the effects of that decision. Because the parties
did not reach an agreement on the decision to lay off the officers, which the Guild argued was a
subject of bargaining, the Guild requested further meetings with the County. The mandatory
County agreed to meet again and discuss the effects of the layoffs, but it stated that it believed the Guild had waived the right to bargain the decision based on provisions in the collective
bargaining agreement and the Guild' s failure to raise bargaining over the decision at the 2 44183 -7 -II
November meeting. The parties did not meet again, and the County laid off the two officers on
January 1, 2012.
II. 2010 -12 COLLECTIVE BARGAINING AGREEMENT
The parties' collective bargaining agreement expired on December 31, 2009, and they
were unable to reach an agreement over a new contract. The 2007 -09 agreement contained the
following provisions:
SECTION I— RIGHTS OF MANAGEMENT
1. All management rights, powers, authority and functions ... shall remain
vested exclusively in Employer. It is expressly recognized that such rights, powers, authority and functions include . . . the right to establish, change, combine or eliminate jobs, positions, job classifications and descriptions ... [ and]
the determination of the number of employees.
Clerk' s Papers ( CP) at 155 -56. U
SECTION J— RELATIONSHIP TO CIVIL SERVICE RULES
1. Except as expressly limited by its terms, nothing in this Agreement shall supersede any matter delegated to the Kitsap County Civil Service Commission by State law or by ordinance, resolution or laws of or pertaining to the County of Kitsap and such Commission shall continue to have primary authority over the subjects within the scope of its jurisdiction and authority. If there then should be a conflict between any provisions of this Agreement and Civil Service, then the provisions of this Agreement shall govern.
CP at 156. The Civil Service Rules state, " The Appointing Authority may lay off any employee
in the Classified Service whenever such action is made necessary by reason of a shortage of
work or funds." CP at 162. The rules also include the process for layoffs and reinstatement.
2 The parties sought arbitration over the 2010 -12 collective bargaining agreement.
held in 2012, the issued in June 2012. The Hearings were February and arbitrator an award
2 The new agreement is not in the record. 3 44183 -7 -II
provisions relating to management rights and the Civil Service Rules were not at issue in the
arbitration.
III. SUPERIOR COURT ACTION
In June 2012, the County filed a motion for declaratory judgment in superior court,
seeking a declaration that ( 1) the County had no legal duty to bargain the decision to " reduce the
jail budget, operations, or staffing levels," ( 2) the Guild' s demand to bargain the decision was an
unfair labor practice, ( 3) the Guild' s demand to bargain the decision breached the collective
bargaining agreement, and ( 4) under the collective bargaining agreement, the Guild waived its
rights to bargain layoffs resulting from " reductions in the jail' s budget, operations, or staffing
levels." CP at 338 -39. The Guild filed a cross motion for summary judgment, seeking a
declaratory judgment that the layoffs are a mandatory subject of bargaining and that the County layoffs. The committed an unfair labor practice by refusing to bargain the decision to conduct
Guild also sought an injunction barring the County from conducting further layoffs until it
satisfied its obligation to bargain with the Guild.
The trial court .granted the County' s motion for declaratory judgment and denied the
Guild' s cross motion for summary judgment. The Guild appeals.
ANALYSIS
I. JUSTICIABILITY
The Guild first argues that the County' s claim was not justiciable because it did not
present an actual, present, and existing dispute between the parties. We disagree.
The County' s complaint alleged that the Guild demanded to " bargain to impasse the
decision to reduce the jail budget, operations, or staffing levels." CP at 338. The Guild argues
that it never demanded to bargain over the " jail budget, operations, or staffing levels "; rather, it
F. 44183 -7 -II
demanded that the County bargain " the decision to conduct any layoffs plus any associated
impacts." effects / Appellant' s Br. at 12; CP at 336. The Guild asserts, therefore, that there is no
present dispute between the parties concerning the County' s budget, operations, or staffing
levels.
We review the justiciability of a claim de novo. City of Longview v. Wallin, 174 Wn.
App. 763, 777, 301 P. 3d 45 ( quoting Am. Traffic Solutions, Inc. v. City of Bellingham, 163 Wn.
App. 427, 432, 260 P. 34 245 ( 2011)), review denied, 178 Wn.2d 1020 ( 2013). A party invoking
the jurisdiction of the court under the Uniform Declaratory Judgment Act must first present a
justiciable controversy. Wallin, 174 Wn. App. at 777 ( quoting To -Ro Trade Shows v. Collins,
144 Wn.2d 403, 411, 27 P. 3d 1149 ( 2001)). A justiciable controversy requires
1) . an actual, present[,] and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative or moot
disagreement, ( 2) between parties having genuine and opposing interests, ( 3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract[,] or academic, and ( 4) a judicial determination of which will
be final and conclusive."
Wallin, 174 Wn. 777 -78 ( quoting To -Ro Trade Shows, 144 Wn. 2d at 411). Courts must App. at
liberally construe complaints. CR 8( f).
Courts must liberally construe complaints. CR 8( f). Here, although the parties each
characterize the dispute differently, the core issue is the same for both parties: whether the
County had a mandatory duty to bargain the decision to implement layoffs. And the County' s
own argument before the trial court included discussion over the justiciable issue of whether the
County had a mandatory duty to bargain the decision to conduct layoffs. This is an actual and
present dispute between the parties that will continue until there is a judicial resolution. The
County presented a justiciable controversy.
5 44183 -7 -II
II. WAIVER
The County argues that the Guild contractually waived its rights to bargain over the
layoffs. We disagree because any waivers expired in 2010 with the former collective bargaining
agreement.
Waiver is an affirmative defense to a " unilateral change /refusal to bargain" unfair labor
practice. Pasco Police Officers' Ass' n v. City of Pasco, 132 Wn.2d 450, 463, 938 P. 2d 827
1997) ( quoting Seattle Police Mgmt. Ass' n v. City of Seattle, No. 8937 -U -90 -1967, 1992 WL
753329, at * 13 ( Wash. Pub. Emp' t Relations Comm' n Sept. 24, 1992)). The employer bears the
burden of proving that the union waived bargaining rights. Yakima County Law Enforcement
Officer' s Guild v. Yakima County, No. 23986 -U -11 - 6135, 2013 WL 6773512, at * 4 ( Wash. Pub.
Relations Comm' n Dec. 10, 2013). A be "` clear and unmistakable. "' Pasco. Emp' t waiver must
Police Officers' Ass' n, 132 Wn.2d at 462 ( quoting Metro. Edison Co. v. NLRB, 460 U.S. 693,
708, 103 S. Ct. 1467, 75 L. Ed. 2d 387 ( 1983)). It must also be knowingly made and must
specifically address the subject upon which the waiver is claimed. Pasco Police Officers' Ass' n,
132 Wn.2d at 462. A waiver can be found by action, such as agreeing to a contract provision, or
by inaction, such as failing to object to an act or proposal. Pasco Police Officers' Ass' n, 132
Wn.2d at 462 ( quoting WSCCCE v. Spokane County, No. 5187 -U -84 -913, 1985 WL 291967, at
12 ( Wash. Pub. Emp' t Relations Comm' n Mar. 15, 1985)). Courts will not find a waiver
unless it is clear that the parties were aware of their rights and made the conscious choice ...
to waive them. "' Pasco Police Officers' Ass' n, 132 Wn.2d at 462 ( quoting NLRB v. New York
Tel. Co., 930 F. 2d 1009, 1011 ( 2d Cir. 1991)).
We must first determine whether the waivers from the 2007 -09 collective bargaining
agreement were in effect at the time the layoffs occurred. During the pendency of proceedings 6 44183 -7 -II
before an arbitration panel, existing hours, wages, and working conditions shall not be changed
by either party' s unilateral action. RCW 41. 56. 470. But waivers are permissive subjects that
expire with the collective bargaining agreement unless they are renewed by mutual consent. City
of Spokane Managerial & Prof'l Ass' n v. City of Spokane, No. 23815 -U -11 -6077, 2012 WL
440798, at * 2 ( Wash. Pub. Emp' t Relations Comm' n Feb 8, 2012) Here, the agreement
containing the alleged waivers had expired in 2010 and the parties had not yet negotiated a new agreement. The decision to implement layoffs occurred in October 2011 and the employees
were laid off in January 2012. There is no evidence at the time of the layoffs that the parties had
agreed to renew the alleged waivers. Therefore, the alleged waivers expired in 2010.
The County additionally argues that the Guild waived its rights to bargain the layoff
decision because it allowed layoffs in the past without demanding the right to bargain the
decision. Although the waivers in the collective bargaining agreement had expired, we may look
to the parties' bargaining history for evidence that the Guild waived the right to bargain the
layoffs. See Intl Ass' n of Fire Fighters, Local 469 v. City of Yakima, No. 7900 -U -89 -1699,
1991 WL 733702, at * 13 ( Wash. Pub. Emp' t Relations Comm' n 1991). In 2010, the County laid
off four officers because of budget cuts. The parties met and bargained the effects of the layoffs.
The County implies that the Guild did not demand to bargain the decision, but the record only
contains evidence of the outcome of the bargaining, it does not contain evidence of what the
Guild demanded to bargain. The County has the burden of proving that the Guild clearly and
unmistakably waived its bargaining rights. The County has not met its burden here. III. MANDATORY SUBJECT
Next, the Guild argues that the trial court erred when it denied the Guild' s summary
judgment motion because layoffs are a mandatory bargaining subject and the County committed 7 44183 -7 -II
an unfair labor practice when it refused to bargain the decision to lay off two officers. Because
the trial court failed to first conduct the balancing test to determine whether the layoffs in this
case are mandatory or permissive subjects, we hold that the trial court erred and remand for the
court to conduct the balancing analysis.
We review a summary judgment order de novo, engaging in the same inquiry as the trial
court. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P. 2d 301 ( 1998). Summary judgment
is appropriate when there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. CR 56( c); Folsom, 135 Wn.2d at 663. We construe the facts and
reasonable inferences in favor of the nonmoving party. Korslund v. DynCorp Tri- Cities Servs.,
Inc., 156 Wn.2d 168, 177, 125 P. 3d 119 ( 2005). Summary judgment is appropriate if reasonable
persons could reach only one conclusion from the evidence presented. Korslund, 156 Wn.2d at
177.
There are three broad categories of collective bargaining subjects: mandatory, permissive,
and illegal. Yakima County v. Yakima County Law Enforcement Officers' Guild, 174 Wn. App.
171, 181, 297 P. 3d 745 ( quoting Patrol Lieutenants Ass' n v. Sandberg, 88 Wn. App. 652, 657,
946 P. 2d 404 ( 1997)), review denied, 178 Wn.2d 1012 ( 2013). Parties to a collective bargaining
agreement must bargain in good faith on mandatory subjects; they may bargain on permissive
subjects, but they are not obliged to bargain to impasse. Sandberg, 88 Wn. App. at 657 (quoting Pasco Police Officers' Ass' n, 132 Wn.2d at 460). Even if an employer makes a unilateral
decision regarding a permissive bargaining subject, the employer is still required to bargain over
the effects of the decision on mandatory bargaining subjects. Pub. Sch. Emps. of Wash. v. Wash.
State Univ., No. 24440 - - - 6258, 2013 WL 1561271, U 11 at * 2( Wash. Pub. Emp' t Relations
Comm' n Apr. 9, 2013).
N. 44183 -7 -II
Mandatory bargaining subjects include wages, hours, and working conditions. Klauder v.
San Juan County Deputy Sheriffs' Guild, 107 Wn.2d 338, 341; 728 P. 2d 1044 ( 1986).
Permissive bargaining subjects include "[ m] agerial decisions that only remotely affect
personnel matters,' and decisions that are predominantly ` managerial prerogatives. "' Int' l Ass' n
of Fire Fighters, Local Union 1052 v. Pub. Emp' t Relations Comm' n, 113 Wn.2d 197, 200, 778 P. 2d 32 ( 1989). It is an unfair labor practice to refuse to bargain a mandatory subject to impasse.
and to demand to argue a permissive subject to impasse. RCW 41. 56. 140( 4); Yakima County,
174 Wn. App. at 182.
Where an issue involves both mandatory and permissive subjects, courts use a balancing
test to determine whether it is mandatory or permissive. Yakima County, 174 Wn. App. at 1,82.
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." Intl Ass' n of Fire Fighters, 113
Wn. 2d at 203 ( quoting Spokane Educ. Ass' n v. Barnes, 83 Wn.2d 366, 376, 517 P. 2d 1362
1974)). Where the subject both relates to conditions of employment and is a management
prerogative, the court must determine which characteristic predominates. Int' l Ass' n of Fire
Fighters, 113 Wn.2d at 203. This involves a case -by -case analysis. Int' l Ass' n ofFire Fighters,
113 Wn.2d at 203.
In International Ass' n of Fire Fighters, our Supreme Court held that the Washington
Public Employees Relations Commission ( PERC) erred when it determined that a subject was
permissive without first conducting the balancing test. 113 Wn.2d at 207. There, PERC
concluded, and the superior court affirmed, that equipment staffing was a nonmandatory
bargaining subject. Intl Ass' n of Fire Fighters, 113 Wn.2d 202. In reaching this conclusion, 9 44183 -7 -II
PERC did not balance the specific facts relating to the management prerogatives at issue and the
decision' s impact on working conditions; instead, it declared, based on previous decisions, that
equipment staffing was a nonmandatory subject. Int' l Ass' n ofFire Fighters, 113 Wn.2d at 202.
The court held that PERC erred by failing to conduct a fact - specific balancing, noting, "[ e] very
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." Int' l Ass' n of Fire Fighters, 113 Wn:2d at 207. Therefore, the court
remanded for PERC to conduct the proper balancing test. Int' l Ass' n of Fire Fighters, 113
Wn.2d at 207.
The trial court in this case similarly failed to balance on the record the County' s
management prerogatives against the layoffs' impact on working conditions. Arguably, the
layoffs heavily impact employees' working conditions, but, on these facts, the County' s duty to
implement a budget weighs on the management prerogative side of the balance. With such
significant interests on each side of the balance, it is important that the trial court carefully
consider the specific facts of this case and balance the competing interests.
The trial court erred when it failed to conduct the balancing test to determine whether the
layoffs in this situation are mandatory or permissive bargaining subjects. We remand for the trial
court to engage in the balancing analysis.
IV. ATTORNEY FEES
The Guild requests attorney fees on appeal under RCW 49. 48. 030. RCW 49. 48. 030
states, " In any action in which any person is successful in recovering judgment for wages or
salary owed to him or her, reasonable attorney' s fees, in an amount to be determined by the court, shall be assessed against said employer." Because we are remanding to the trial court for 10 44183 -7 -II
further proceedings, the Guild has not yet successfully recovered employee wages or salaries.
Attorney fees may be appropriate on remand, but they are not recoverable here under RCW
49. 48. 030.
We remand for the trial court to conduct a balancing test based on the facts of this case. r
fienoya , TP .T.
We concur:
Maxa, J.