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City of Everett v. State of Washington Public Employment Relations Commission

Court of Appeals of Washington, Division 1

October 28, 2019

CITY OF EVERETT, Appellant,
v.
STATE OF WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION and INTERNATIONAL ASSOCATION OF FIRE FIGHTERS, LOCAL 46, Respondents.

          SCHINDLER, J.

         A public employer and a union representing public employees have a duty to bargain in good faith on mandatory subjects of collective bargaining. It is an unfair labor practice to insist on bargaining to impasse a nonmandatory subject of collective bargaining. During negotiations between the city of Everett (City) and the International Association of Fire Fighters Local 46 (Union) on a successor collective bargaining agreement, the Union proposed an amendment to "Article 27, Health and Safety," to increase the minimum crew level of firefighters and paramedics on duty for a 24-hour shift. As a general rule, the determination of shift staffing is a fundamental and strong management prerogative that is a nonmandatory subject of bargaining. The City filed an unfair labor practice complaint against the Union, alleging the Union insisted on bargaining to impasse the proposal to amend Article 27. The Washington State Public Employment Relations Commission (PERC) balanced the City's managerial prerogative over shift staffing with unrebutted evidence submitted by the Union that demonstrated a direct relationship between the proposed amendment and the workload and safety of the firefighters and paramedics. PERC concluded the proposed amendment to Article 27 was a mandatory subject of bargaining. The City appeals the PERC decision to dismiss the unfair labor practice complaint.[1] The City cites International Ass'n of Fire Fighters. Local Union 1052 v. Public Employment Relations Commission, 113 Wn.2d 197, 778 P.2d 32 (1989), to assert that without regard to workload and safety concerns, as a matter of law shift staffing is never a mandatory subject of collective bargaining. We disagree. In International Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 204, the Washington State Supreme Court expressly rejected the assertion that the determination of shift staffing "never can be 'working conditions' included within the scope of mandatory bargaining." While "staffing levels typically weigh on the managerial prerogative side of the balance," where there is "a demonstratedly direct relationship" to workload and safety, shift staffing may be a mandatory subject of collective bargaining. Int'l Ass'n of Fire Fighters, Local Union 1052, 113 Wn.2d at 207, 204. The court held, "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," and PERC must carefully consider "meaningful distinctions in the circumstances" of each case. Int'l Ass'n of Fire Fighters. Local Union 1052, 113 Wn.2d at 207. Even if shift staffing is not a per se mandatory subject of collective bargaining, the City contends PERC erred in balancing the interests, and substantial evidence does not support finding a direct relationship between shift staffing and workload and safety. We conclude PERC did not err in balancing the strong fundamental prerogative of the City on shift staffing and the unrebutted workload and safety testimony, and substantial evidence supports PERC finding the Union demonstrated a direct relationship between the Union proposal to increase the minimum number of crew on each shift and the workload and safety of the firefighters and paramedics. We affirm the PERC decision.

         City of Everett Fire Department

         The Everett Fire Department operates six stations and responds to residential and commercial building fires, fires at the Navy shipyard, medical emergencies, and emergencies on Interstate 5.

         The International Association of Fire Fighters Local 46 (Union) represents firefighters, paramedics, captains, and battalion and assistant chiefs.

         Article 27. Health and Safety

         In 1974, the city of Everett (City) and the Union agreed to include "Article XXVII, Health and Safety Measures," in the collective bargaining agreement. Article XXVII established a minimum number of firefighters on duty for each shift.

         In 1976, the City and Union reached an impasse on negotiating a successor collective bargaining agreement. The City filed a declaratory judgment action. The City challenged the Public Employees' Collective Bargaining Act (PECBA)[2] statutes, RCW 45.56.100 and .450, that impose mandatory mediation and interest arbitration on mandatory subjects of collective bargaining.[3] The City also sought a declaratory judgment on whether a minimum crew for each shift was a mandatory subject of bargaining. In City of Everett v. Fire Fighters, Local No. 350 of the International Ass'n of Fire Fighters, 87 Wn.2d 572, 555 P.2d 418 (1976), the Washington Supreme Court rejected the City's challenge to the statutes that require mediation and interest arbitration. Because the court affirmed the order to engage in interest arbitration, the court declined to address whether minimum crew requirements is a mandatory subject of bargaining. However, the court noted, "It would appear that the size of the crew might well affect the safety of the employees and would therefore constitute a working condition, within the meaning of RCW 41.56.030(4) defining collective bargaining." City of Everett, 87 Wn.2d at 576.

         On remand, the arbitration panel concluded minimum on-duty crew staffing for each shift related to the safety of the firefighters and was a mandatory subject of bargaining. With minor changes, the 1976 collective bargaining agreement and subsequent collective bargaining agreements have included "Article 27, Health and Safety."

         Article 27, Health and Safety, states:

The parties recognize that manning (crew size, on duty shift force) vitally affects the efficient and economic operation of the Department in providing the best possible service to the community and, further, that changes from the present minimum level agreed to in prior contracts do affect the safety and job security of the members of the Union, and therefore agree as follows:
The City agrees to maintain a firefighting force of at least twenty-five (25) firefighters on duty at all times. The City further agrees to maintain at least three (3) firefighters on each fire suppression company, one of whom shall be a captain; to maintain two (2) firefighters on each aid car and to maintain a battalion chief who shall be on duty with each fire suppression platoon.
The City further agrees to use the attrition method in reaching the twenty-five (25) firefighter minimum crew level. Attrition is defined as voluntary quit, dismissal for just and sufficient cause, permanent disability, retirement or death.
Provided, however, that notwithstanding the foregoing, the City may, during the course of the contract year, seek to effect a change in the minimum manning provided by paragraph one above. If the City desires to effect such change, it shall propose to the Union a written proposal as to the reduction sought including reason for the change, prior to the date of the change.

2012-2014 Successor Agreement Negotiation

         In 2008, the City imposed a zero-growth budget for the fire department. In 2010, the City reduced the minimum crew on duty for each shift from 33 to 28. However, the City "neither reduced the number of personnel assigned to an apparatus nor changed the number and type of apparatuses required to respond to calls." For a medical emergency, "a minimum of seven people on an engine, a paramedic unit, and, possibly, an aid unit" are required to respond. If no aid unit is available, "a second engine responds." For a residential fire, "a minimum of 17 personnel respond." For a commercial fire, "a minimum of 21 personnel respond."

         In 2014, the population and size of the City had grown to 104, 900 citizens with an area of 34.16 square miles, and the number of calls to the fire department had increased to 21, 389.

         In 2014, the City and the Union engaged in negotiations for a successor collective bargaining agreement. In response to the significant increase in workload and safety concerns, the Union proposed an amendment to Article 27 to increase the minimum crew on duty for each shift to 35. The proposed amendment to Article 27, Health and Safety, provides:

The parties recognize that manning (crew size, on duty shift force) vitally affects the efficient and economic operation of the Department in providing the best possible service to the community and, further, that changes from the present minimum level agreed to in prior contracts do affect the safety and job security of the members of the Union, and therefore agree as follows:
The City agrees to maintain a firefighting force of at least twenty five (25) thirty five (35) firefighters on duty at all times. The City further agrees to maintain at least three (3) firefighters on each fire suppression company, one of whom shall be a captain; to maintain two (2) firefighters on each aid car and to maintain a battalion chief who shall be on duty with each fire suppression platoon.
The City further agrees to use the attrition method in reaching the twenty five (25) thirty five (35) firefighter minimum crew level. Attrition is defined as voluntary quit, dismissal for just and sufficient cause, permanent disability, retirement or death.
Provided, however, that notwithstanding the foregoing, the City may, during the course of the contract year, seek to effect a change in the minimum manning provided by paragraph one above. If the City desires to effect such change, it shall propose to the Union a written proposal as to the reduction sought including reason for the change, prior to the date of the change.[4]

         The City objected to the Union proposal to increase the minimum crew on duty for each shift to 35. In a memorandum dated March 16, 2015, the City cited International Ass'n of Fire Fighters, Local Union 1052 v. Public Employment Relations Commission, 113 Wn.2d 197, 778 P.2d 32 (1989), to assert the Union proposal was a "permissive-not mandatory" subject of collective bargaining. The Union disagreed and insisted on bargaining the proposed amendment to impasse. The Washington State Public Employment Relations Commission (PERC) executive director certified the issue for resolution by mediation and, if necessary, interest arbitration.[5]

         Unfair Labor Practice Complaint

         The City filed an unfair labor practice complaint with PERC. The City alleged the Union violated the PECBA "by insisting to impasse on a permissive subject, namely, shift staffing." The City alleged the Union proposal for "shift staffing, or 'minimum crew level,' of 'thirty-five (35) firefighters on duty at all times, '" is a nonmandatory subject of bargaining under Washington case law. The City requested PERC issue a cease and desist order and award attorney fees.

         The Union filed an answer and affirmative defenses. The Union alleged the amendment to Article 27 is a "mandatory subject of bargaining because shift staffing, given the facts, directly relates to work load of unit personnel and the health and safety of the unit personnel." The Union cited International Ass'n of Fire Fighters, Local Union 1052 to assert Article 27, Health and Safety, is a mandatory subject of bargaining because "staff levels under the facts of this case have a demonstrably direct relationship to employee workload and safety." The Union alleged, "While the call volume for the City of Everett Fire Department has increased dramatically, the number of personnel available to respond to the call volume has decreased over time," resulting in health and safety concerns for the firefighters and paramedics. The Union requested PERC to order the City to engage in mediation and, if necessary, interest arbitration and award attorney fees.

         PERC Hearing Examiner Decision

         A hearing examiner conducted a four-day evidentiary hearing on the unfair labor practice complaint. Several witnesses testified, including Everett Fire Department Chief Murray Gordon, Everett Fire Department Administrative Coordinator Bonnie Netherby, division and battalion chiefs, Oregon Health and Science University Sports Medicine Chief and Human Performance Laboratory Director Dr. Kerry Kuehl, and occupational and environmental medicine expert Dr. Carl Brodkin. The hearing examiner admitted more than 100 exhibits into evidence.

         The hearing examiner rejected the City's argument that because shift staffing is a core managerial prerogative "solely within the province of managerial prerogative," there is "no need" to balance the City's managerial prerogative and the firefighters' concerns regarding workload and safety. The decision and order states, in pertinent part:

This case is not about the employer's right to determine its mission or set the scope of services it provides its citizens. Instead, it relates to how shift staffing levels that are set by the employer to provide those services impact firefighter safety. The union's proposal does not require the employer to reduce, increase, or eliminate the level of firefighting services it provides to its citizens.
This case presents employee interests regarding workload and safety issues related to shift staffing levels. The validity of those interests have been acknowledged by the courts and Commission for forty years, including twice by the Washington State Supreme Court, where the court stated that the issue of shift staffing of firefighters "might well affect the safety of [the] employees and would therefore constitute a working condition." City of Everett, 87 Wn.2d [at 576]; [Int'l Ass'n of Fire Fighters. Local Union 1052], 113 Wn.2d 197 (1989). When a subject touches on both employee interests in wages, hours, and working conditions and management prerogatives, those interests must be balanced.

         The hearing examiner balanced the managerial prerogative of the City to decide shift staffing levels and the workload and safety interests of the Union. The hearing examiner concluded the Union "did not show a 'demonstratedly direct' relationship between cited safety interests and shift staffing levels to shift the balance in the union's favor to make the shift staffing proposal at issue here a mandatory subject of bargaining." The hearing examiner entered findings of fact, conclusions of law, and an order requiring the Union to cease and desist from bargaining the shift staffing proposal to impasse and seeking arbitration on the amendment to Article 27.

         PERC Decision

         The Union appealed the decision of the hearing examiner to PERC. The Union argued the hearing examiner ignored the "unrebutted testimony" that established a direct relationship between increased call volume and "the health impacts" to the firefighters and paramedics. The Union cited testimony showing the "direct impact call volume . . . has on workload, working conditions, health and safety of these Union employees." In response, the City argued the Union did not establish "staffing at 28 creates unsafe conditions" and the Union did not present evidence "to tie their concerns to specific staffing levels."

         PERC reversed the decision of the hearing examiner. PERC adopted findings of fact 1 through 5 and findings of fact 7 through 17 from the hearing examiner decision and entered findings of fact 6, 18, and 19. PERC found the Union "met its burden to prove that staffing impacted workload and safety." PERC found, "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 amend Article 27 to increase the minimum crew on duty for each shift was a mandatory subject of bargaining.[6]

         Petition For Judicial Review

         The City filed a petition for judicial review. The superior court certified the petition for direct review. We accepted review under RCW 34.05.518(2).

         The Washington Administrative Procedure Act (WAPA), chapter 34.05 RCW, governs our review of the PERC decision. RCW 41.56.165; Pasco Police Officers' Ass'n v. City of Pasco, 132 Wn.2d 450, 458, 938 P.2d 827 (1997). Under WAPA, judicial review is limited to the record before the agency, and "the burden of demonstrating the invalidity of the agency action rests with the party asserting invalidity." Puget Soundkeeper All, v. Dep't of Ecology, 191 Wn.2d 631, 637, 424 P.3d 1173 (2018); RCW 34.05.558, .570(1)(a); Tapper v. Emp't Sec. Dep't, 122 Wn.2d 397, 402, 858 P.2d 494 (1993).

         The City alleges the PERC decision and order dismissing the unfair labor practice complaint exceeds the statutory authority of the agency under RCW 34.05.570(3)(b), PERC erroneously interpreted and applied the law under RCW 34.05.570(3)(d), substantial evidence does not support the decision under RCW 34.05.570(3)(e), and the decision is arbitrary or capricious under RCW 34.05.570(3)(i).[7]

         In reviewing the PERC decision and order, we sit "in the same position as the superior court, applying the standards of the WAPA directly to the record before the agency." Tapper, 122 Wn.2d at 402. Because PERC is entitled to substitute its findings for those of the hearing examiner, we review only the PERC decision on appeal. RCW 34.05.464(4); Yakima County v. Yakima County Law Enf't Officers' Guild, 174 Wn.App. 171, 180, 297 P.3d 745 (2013); Yakima Police Patrolmen's Ass'n v. City of Yakima, 153 Wn.App. 541, 552, 222 P.3d 1217 (2009).

         Under the error of law standard, we may substitute our interpretation of the law. Pasco Police, 132 Wn.2d at 458. However, we give "due deference" to an administrative agency on matters falling within its area of expertise. Port of Seattle v. Pollution Control Hr'gs Bd., 151 Wn.2d 568, 595, 90 P.3d 659 (2004). The substantial evidence standard is deferential; we do not substitute our view of the facts for that of the agency if substantial evidence is found. Yakima Police, 153 Wn.App. at 553. We may grant relief from an agency decision and order if substantial evidence does not support the findings" 'when viewed in light of the whole record.'" Pasco Police, 132 Wn.2d at 458 (quoting RCW 34.05.570(3)(e)). Substantial evidence is" 'evidence sufficient to persuade a fair-minded person of the[ ] truth.'" Yakima Police, 153 Wn.App. at 552-53 (quoting City of Federal Way v. Pub. Emp't Relations Comm'n, 93 Wn.App. 509, 512, 970 P.2d 752 (1998)). Unchallenged factual findings are verities on appeal. City of Vancouver v. Pub. Emp't Relations Comm'n, 180 Wn.App. 333, 347, 325 P.3d 213 (2014).

         Mandatory v. Permissive Subject of ...


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