The state senate this week released an innovative, no-new-taxes budget that riled labor unions by rejecting most of the collective bargaining agreements (CBAs) negotiated in secret last year by Gov. Jay Inslee and unions representing state employees.

Instead of giving state employees percentage-based, across-the-board wage increases in accordance with the CBAs, the Senate budget would give all state employees a $2,000 raise over the next two years.

Explaining the Senate’s approach to state employee compensation, Sen. Andy Hill (R-Redmond), chair of the Senate Ways and Means Committee, stated:

“We really wanted to go after the problem of wage inequality, and we really wanted to make sure that we’re paying our lower-paid workers more… If you’re making $40,000 a year, you get a 5 percent increase. If you’re making $100,000 a year, you get a 2 percent increase.”

According to Hill, giving state employees a $2,000 raise instead of the percentage-based increases negotiated in collective bargaining would also save taxpayers about $75 million. 

Government unions were quick to heap criticism on the Senate proposal, claiming the budget is “disrespectful” and even “illegal.”

Professional and Technical Employees Local 17 referred to the budget as “anti-labor.” Teamsters Local 117, which represents Department of Corrections Employees, told its members:

“Budget writers in the State Senate do not value the work you do to protect our communities… Senate leadership does not think you deserve a raise… Make no mistake – by not funding your contract or the contract of any other group of state employees, the Senate is aggressively attacking your right as public employees to collectively bargain.”

Unsurprisingly, the union representing the most state employees, the Washington Federation of State Employees (WFSE), had some of the loudest objections to the Senate budget, denouncing it as a “phony scheme” and claiming that, “the Senate Republican majority… disrespected Federation members by rejecting funding of our contracts.”

To ordinary taxpayers footing the bill, the idea that a $2,000 raise for state employees is “disrespectful” is hard to take seriously. Similarly, the Teamsters’ claim that, in order to “value” state employees, the Senate must rubber-stamp whatever contract the union negotiates presumes far too much about the sanctity of state employees’ collective bargaining privileges.

But the claim that the Senate’s budget is illegal deserves to be dealt with more seriously.

Echoing union arguments, the Olympian’s editorial board recently laid out the legal case against the Senate plan:

“Under the Personnel (System) Reform Act of 2002, state workers were given the right to bargain collectively with the governor, and lawmakers were given only the right to reject or accept ratified contracts through the budgeting process.

The Legislature has no right to impose terms or dictate what raises should be. Rather, if lawmakers failed to ratify or accept the contracts, Inslee and unions would go back to the table and negotiate all over again. In the meantime, terms of old contracts – which had no pay raises – would remain in effect.”

There are elements of truth in the Olympian’s analysis. The statute governing state employee collective bargaining, RCW 41.80.010, does specify that the contracts must be approved or rejected outright:

The legislature shall approve or reject the submission of the request for funds as a whole… If the legislature rejects or fails to act on the submission, either party may reopen all or part of the agreement or the exclusive bargaining representative may seek to implement the procedures provided for in RCW 41.80.090.

The Olympian is also correct in noting that, if new contracts are not approved, existing CBAs will remain in effect for one year. RCW 41.80.010 provides:

“After the expiration date of a collective bargaining agreement negotiated under this chapter, all of the terms and conditions specified in the collective bargaining agreement remain in effect until the effective date of a subsequently negotiated agreement, not to exceed one year from the expiration date stated in the agreement. Thereafter, the employer may unilaterally implement according to law.”

Current CBAs are set to expire on June 30, meaning that, if not replaced by new contracts before then, they would remain in effect until June 30, 2016.

However, nothing prevents the Legislature from rejecting the contracts and independently choosing to give state employees a raise. The Legislature’s authority to authorize appropriations is solidly grounded in the state constitution, and a challenge to this authority would trigger some valid constitutional concerns about the separation of powers between the executive and legislative branches.   

The most the unions can argue is that the Office of Financial Management could not disburse the $2,000 pay increase until either (1) re-negotiated contracts have been approved by the Legislature in 2016, or (2) the current collective bargaining agreements expire next year.

Without a doubt, government unions have the money and track record to mount a legal challenge to the Senate’s budget, should it be adopted. It is far from certain, however, that the courts would go along with the unions’ arguments.

For starters, litigation about the Legislature’s role in collective bargaining could bring attention to the fact that Inslee—and every Democratic governor preceding him—has failed to follow state law requiring the governor to consult with the Legislature during the collective bargaining process.

RCW 41.80.010 created the “Joint Committee on Employment Relations” and provided:

“The governor shall periodically consult with the committee regarding appropriations necessary to implement the compensation and fringe benefit provisions in the master collective bargaining agreements, and upon completion of negotiations, advise the committee on the elements of the agreements and on any legislation necessary to implement the agreements.”

Despite the clear language of the statute, the committee is routinely ignored by the governor, calling the legality of the negotiated CBAs themselves into question. 

Additionally, in past litigation initiated by government unions, state courts have repeatedly defended the governor’s discretion over elements of the collective bargaining process.

In Washington Federation of State Employees v. Gregoire, Wash. Super. Ct., Thurston County, No. 08-2-02883-3 (Feb. 11, 2009), the judge found that then-Gov. Christine Gregoire was acting legally by refusing to include negotiated CBAs in her budget request to the Legislature after the state’s fiscal outlook worsened.

In SEIU Healthcare 775NW v. Gregoire, 168 Wash.2d 593 (2010), the State Supreme Court refused to order Gregoire to revise the budget she submitted to the Legislature to include wage increases for state-paid home care aides awarded by an arbitrator.

A direct attack on the Legislature’s ability to set compensation levels for state employees that differ from negotiated CBAs would open the door for a re-examination of the legality of the collective bargaining process instituted by the Personnel System Reform Act.

For instance, in 2006, a University of Washington law review article laid out a compelling case that the PSRA violates the separation of powers provided for in the state constitution:

“Washington courts generally find that a statute violates the separation of powers doctrine where the statute: (1) modifies the constitutionally established system of checks and balances; (2) acts in an area of executive-legislative relations lacking any previous history of inter-branch cooperation in the area; or (3) usurps a core function of another branch in the process. Section 302(3) (of the PSRA) satisfies all three criteria. First, by requiring the legislature to approve or reject funding for collective bargaining agreements without amendment, the statute reverses the roles of the executive and legislative branches in the appropriations process. Second, section 302(3) attempts to give the Governor broad powers in an area of the law where the legislature has traditionally fought to defend its prerogatives. Finally, the PSRA sharply detracts from the legislature’s near-exclusive power to determine the use of state funds by sharply curtailing the legislature’s role in funding collective bargaining agreements.”

Regardless of the outcome of any potential litigation, it is high time to take the collective bargaining process off auto-pilot, out from behind closed doors and allow the elected Legislature to retake control over spending decisions. The Senate budget is a first step in that direction.