Tuesday, May 17, 2016

Latest CPI Report--Slightly Higher Than April but Still Increasing Slowly

The U.S. Department of Labor Reports that the CPI-U (All Cities) increased 1.1% in the 12 months ending April 2016. The CPI-W (All Cities) increased .8% during the same 12 months period. Both indices increased at a slightly higher rate than in March, but still hover around 1%.

Also of interest to Washington readers, the Seattle CPI-U increased 2.5% and the Seattle CPI-W increased 2.6% in the 12 months ending April 2016.

Wednesday, March 9, 2016

“Collective Bargaining Basics”

   1. Identify Your Union’s Interests—

What do we want? Fair pay and benefits that are competitive with our comparables? Compensation that is reasonable in light of the work our members do and the hazards they face on the job? Maintenance of long term practices? Improvement of unacceptable practices? Respect for our members? Respect for our union?
  1. Identify Your Goals—
What are our immediate goals in these negotiations? How do those goals fit in with our long-term goals for the next 5, 10 or 20 years?
  1. State your position—
Draft your opening proposals. Make sure they meets your identified goals and are as clear as you can make them.
  1. Identify your bottom line—
What is the minimum we will accept as a fair settlement? What must we win in these negotiations?

Three points about your bottom line:

First, once you set your bottom line, stick to it.

Second, modify your bottom line if you receive new information compelling a modification or are confronted with facts or arguments from your employer which have merit and you did not consider in setting your bottom line. (The fact the employer is dug in on its position is not a new fact. The fact that it is late and your bargaining team is tired is not a new fact.)

Third, knowing when to stick to your bottom line and when to modify it is the mark of a skilled negotiator.
  1. In bargaining, listen and ask questions—
Listen—what is the employer asserting? Make sure you understand clearly their rationale. Restate it for them, ask, “Did I get that right?”

What is being left unsaid? Ask yourself, why are they not recognizing that issue? Consider asking the employer the same question.

Ask questions: Why is the employer proposing a change at this time? What is the problem? Were alternative solutions considered? Ask yourself, are their alternative solutions that would better meet our members’ needs?

Identify common interests. Discuss them with the employer. Use them to support your position.
  1. In bargaining, consider alternatives—
Effective negotiators consider options; they think outside the box.

If your employer has initiated mid-term bargaining to make a change they want made, can you obtain a change favorable to your members in exchange? Don’t make a concession without getting a benefit commensurate with your concession. The employer's gratitude for helping it out in a tough situation is not a concession--it is pure illusion. However, if the employer’s proposed change would benefit the members, then that may be sufficient to warrant accepting the employer’s proposal. In my experience genuine "win-wins" are rare but not unheard of.

Consider whether the proposed mid-term change should be deferred to the next round of contract negotiations where you may be better situated to obtain a concession from the employer.
  1. In bargaining, maintain a professional demeanor—
Anger expressed from across the table never convinced me to recommend that a client make a concession, let alone sign an agreement.

If you don’t agree, for most public safety unions the alternative is interest arbitration. Pounding the table is not going to be effective there. What will be helpful are facts that support your position and arguments to rebut the employer's contentions. Both can and should be developed in bargaining. See #5 above.
  1. What is the alternative to settlement?
Interest Arbitration? Can we do better than the employer’s offer in arbitration? If not, settle. 
  1.   After negotiations are completed, evaluate the deal—
Did we achieve our bottom line? Did we advance our interests? Did we move toward our long term goals?
  1. Bargain firmly and honestly.
Demand information and honesty from the employer. Don’t take bargaining personally. It’s all business. Don’t get mad, get ahead.

Friday, February 19, 2016

CPI Goes Up as Gas Prices Go Down

The U.S. Department of Labor reported today that the all cities CPI-U increased 1.4% over the 12 months ending in January 2016 and that the CPI-W increased 1.2% over that year.While still relatively small price increases, these increases are much larger than the increase in consumer prices for the year ending December 2015 (.7% and .4% respectively).

Reuters commented: "Rising rents and medial costs lifted underlying U.S. inflation in January by the most in nearly 4-1/2 years, signs of an uptick in price pressures."

Tuesday, February 16, 2016

Oregon ERB Requires Collective Bargaining Over GPS Devices and Promotions

Late last year the Oregon Employment Relations Board (ERB) issued two important decisions describing an Oregon public employer’s duty to bargain in good faith. These decisions reaffirm that the duty to bargain is broadly defined under Oregon’s Public Employees Collective Bargaining Act. 

Both cases involved actions of the Rose City.

First, the ERB concluded that the City of Portland failed to bargain in good faith and committed an unfair labor practice in violation of ORS 243.672 (1)(e) when it installed Global Positioning System (GPS) devices on City vehicles, but refused to the unions’ demand to bargain the impact of the installation of these devices. The GPS devices enable the City to determine the location of its vehicles, speed and direction.

The ERB declared that there can be little dispute that the installation of the GPS devices impacted mandatory subjects of bargaining, at a minimum discipline. Disciplinary standards and procedures have long been considered mandatory subjects of bargaining. In addition, installation of GPS devices impacted the mandatory subject of safety-- when seeking bids for installation of these devices the City included employee safety where employees work alone at night and might need assistance from their peers as one rationale for the devices. Here, the impact was sufficiently direct and substantial to require bargaining over the impact of the installation of the GPS devices.

In an unusual move, the ERB decided to impose a civil penalty of $500 in light of the City of Portland’s repeated disregard for the obligation to bargain in good faith.

This decision is significant for Oregon law enforcement officers since the ERB’s analysis regarding GPS devices would strongly support the conclusion that Oregon law enforcement agencies must bargain the impact of the decision to install dash cams and/or body cams.

City of Portland, Case No. UP-023-14 (2015). Available on line at

Second, the ERB also recently held that promotions are a mandatory subject of bargaining.  In another case involving the City of Portland (and the Portland Fire Fighters’ Association, IAFF Local 43) the Board concluded that the City of Portland again failed to meet its statutory obligation to bargain in good faith when it failed to promote the highest ranked individual remaining on the eligibility list for the position of Senior Inspector as had been the practice since at least 2008.

In addition, the City committed a ULP when, contrary to long-standing past practice of using a ranked list for promotion to the position of Battalion Chief, the City decided in 2013 to use an unranked list for promotion. The Board rejected the City’s argument that amendments to its Human Resources Administrative Rules made in 2011 allowed it to use an unranked list. Those amendments did not authorize or require the Bureau to disregard the long-standing practice of using a ranked list for Battalion Chief promotions.

City of Portland, Case No. UP-059-13 (2015). Available online at http://www.oregon.gov/ERB/orders/07-01-15%20thru%2006-30-16/UP-059-13.pdf

Tuesday, February 9, 2016

Mid-Term Bargaining in Washington--Agreement or Interest Arbitration Award Required

In December PERC issued a significant decision with respect to midterm bargaining under RCW 41.56. City of Walla Walla, Decision 12348 – A (PECB, 2015). This decision describes mid-contract bargaining,  a scenario frequently confronted by Police Guilds and IAFF Locals in Washington. In short, PERC reaffirmed that if a public employer wants to make a change in a mandatory subject of bargaining during the term of a collective bargaining agreement, the employer must either obtain the union's agreement to the proposed change or go through bargaining, mediation and interest arbitration (unless the union has waived its right to bargain by contract or inaction).

In September 2013 the Walla Walla Police Department notified the Walla Walla Police Guild that it was updating its policy manual based upon recommendations from Lexipol. The new policies included an amended policy regarding carrying firearms off – duty.

There was no further communication between the Employer and the Guild until November 2013 when the Department again notified the Guild of the proposed amended policies, including a new policy on Authorized Off – Duty Firearms.

The Employer and Guild met and discussed the new firearms policy in December, 2013. The Guild objected to the policy. The Employer made a specific proposal.  The Guild responded with a written counter proposal.

11 days after the parties met and exchanged proposals, the Employer notified the Guild by email that it was implementing its proposed policy on Authorized Off – Duty Firearms. The Guild filed a unilateral change unfair labor practices charge with PERC.

PERC had no difficulty concluding that when the City violated Washington law when it stopped bargaining and unilaterally implemented the new policy. Policy regarding police officers carrying off duty weapons clearly impacts their safety and is a mandatory subject of bargaining. PERC described a Washington public employer's statutory bargaining obligations for interest arbitration eligible employees such as police officers and firefighters as follows:

“Where a bargaining unit of employees is eligible for interest arbitration, an employer may not unilaterally implement its desired change to a mandatory subject of bargaining without bargaining to impasse and obtaining an award through interest arbitration.  Snohomish County, Decision 9770‑A (PECB, 2008).  Interest arbitration is applicable when an employer desires to make a mid‑term contract change to a mandatory subject of bargaining.  City of Yakima, Decision 9062‑A (PECB, 2006).

“The employees are commissioned law enforcement officers eligible for interest arbitration.  RCW 41.56.030(13).  The Examiner found policy 312.2.3 to be a mandatory subject of bargaining.  The employer was not at liberty to implement policy 312.2.3 [Authorized Off – Duty Firearms] without fulfilling its collective bargaining obligations, including proceeding to mediation and, if necessary, interest arbitration.  For interest arbitration eligible employees, all changes to mandatory subjects of bargaining must be made through agreement or the statutory impasse procedures.  The requirements of RCW 41.56.440 include mid-contract changes.”

PERC's decision highlights the power public employee unions have to force the employer to maintain the status quo or bargain to an agreement before changes are made in mandatory subjects of bargaining.

You can read PERC's decision at http://perc.wa.gov/databases/ULP/12348-A.htm

Sunday, December 6, 2015

Spokane Police Guild President Charged Criminally--Allegedly Tipped Off Member of Ongoing Investigation

The Spokane Spokesman Review reported this weekend that "Sgt. John Gately, Spokane Police Guild president, has been accused of tipping off a police sergeant that he was under investigation for sexual assault. Charges have been filed. Gately’s attorney denies the allegations and promises a fight."

Here is a link to the Spokesman Review's story: http://www.seattletimes.com/seattle-news/spokane-police-guild-president-is-criminally-charged/.

This report is a valuable reminder that any action taken as a Guild or Association President must comply with both criminal and civil law, as well as Department policy.

David A. Snyder

Wednesday, December 2, 2015

Body Camera Collective Bargaining

Although neither the Oregon Employment Relations Board (ERB) nor the Washington Public Employment Relations Commission (PERC) have decided the issue of whether law enforcement employers must bargain regarding the adoption and use of police body cameras, decisions of both agencies make it clear that when confronted with this question, the near certain result will be that law enforcement agencies in both states will be required to bargain with their employees' Associations and Guilds.
Oregon Law 

In ATU, Division 757 v. TriMet, the ERB found that TriMet violated ORS 243.672(1)(e) when it refused to bargain its decision to enhance the use of electronic surveillance of ATU represented bus operators.  TriMet argued it had no duty to bargain the decision because the use of surveillance cameras is a permissive subject of bargaining.  ERB rejected Tri-Met's position and held that held the use of surveillance cameras is a mandatory subject of bargaining. Therefore, a public employer may not change the status quo until it has completed its bargaining obligations.

Although ERB recognized TriMet’s significant management interest in monitoring its equipment and employee performance, the Board found the impact on employee interests to be even greater.  Of specific note were the employee interests in discipline, job security and privacy.  The ERB considered past cases in which the Board found subjects such as drug and alcohol testing and background checks to be mandatory subjects based on their impact on discipline and job security.  Additionally, ERB noted that a continuously running surveillance camera creates a privacy concern by monitoring an employee at all times including an employee’s break time.  In applying the balancing test, the ERB concluded the impact on employee conditions of employment is greater than the impact on management prerogatives.   

Any Oregon law enforcement agency contending that it does not have to bargain over law enforcement body cameras is going to have a tough time distinguishing this ERB precedent.

Washington Law

In King County, Decision 9495-A (PECB 2008) PERC concluded that King County committed an unfair labor practice when it refused to bargain over the installation of additional surveillance cameras for purposes including employee discipline. PERC also found that a change in County policy under which existing surveillance cameras would henceforth be used for discipline must be bargained (decision and effects).

Teamsters Local 174 represented employees who worked in the County's solid waste division. Some of the employees’ 11 worksites had long had video cameras installed, but there was no evidence that prior to 2004 those cameras had been used in connection with discipline investigations or discipline. They were only used for security purposes. The County never gave Local 174 notice that the original cameras would be used to discipline its members.  

In 2004 when King County announced that it intended to install additional worksite cameras and use all cameras for discipline, Local 174 filed an unfair labor practices charge. PERC found that the new cameras would be focused on employees as opposed to customers and that the recordings would now be used for employee discipline. Because the cameras would now be used for discipline, the change impacted the terms and conditions of Local 174's members' employment. King County was obligated to provide notice of its intent to use the cameras for discipline and bargain over both the decision and the effects of that decision.

Again, if a Washington law-enforcement employer intends to use body camera recordings for discipline, and they all will, this 2008 PERC decision provides solid precedent supporting the argument that both the decision to use body cameras and the effects of that decision must be negotiated with the officers' Guild.
David A. Snyder