It has been said that it is better to ask forgiveness than to ask permission. It's advice the largest union of state employees in Washington has apparently taken to heart.
Since the Legislature granted state employees the ability to collectively bargain in 2002, unions representing state employees have negotiated collective bargaining agreements (CBAs) biannually with the Office of Financial Management (OFM), which negotiates on behalf of the governor.
Despite the billions of taxpayer dollars involved, the negotiations are conducted privately. Not even the Legislature receives updates on the negotiations. Once the terms of a CBA have been finalized, it is submitted to the state Legislature to be approved and funded or rejected in its entirety. The Legislature may not amend the terms of the CBA.
This procedure flips the typical budgeting process on its head. Instead of the people's elected representatives writing the state budget and submitting it to the governor for approval, the governor determines the allocation of funds with state employees' unions and submits the proposal to the Legislature for its approval or veto.
During the last round of negotiations, the Washington Federation of State Employees (WFSE) and the governor took things a step further by agreeing to several illegal contract provisions.
State law currently permits a leave-sharing program for state employees that allows them to donate vacation time for other employees to use if dealing with things like an "extraordinary or severe illness, injury, impairment, or physical or mental condition which prevents the individual from working and causes great economic and emotional distress to the employee and his or her family."
However, the tentative CBA negotiated by WFSE and OFM last year and submitted to the Legislature for its approval this session expands the list of contingencies the shared-leave program can be used for beyond what is currently allowed under statute. Under the terms of Article 14 of the tentative CBA, employees would be able to use shared leave to "bond with their newborn, adoptive, or foster child," or if they become "sick or temporarily disabled because of pregnancy and/or childbirth."
Similarly, the tentative CBA modifies state employees' vacation policy in a manner that contradicts state law. Current law requires that state employees work for six months before being able to use vacation time. Article 11 of the tentative CBA eliminates the six-month requirement and states that employees shall be able to use accrued vacation time as soon as they wish.
There's nothing necessarily wrong with the policy changes made in the tentative CBA, and the Freedom Foundation takes no formal position on them. However, because these contract provisions are clearly contradicted by existing law, OFM and WFSE are now lobbying the Legislature to pass several bills to bring state law into compliance with the CBA.
In effect, the state and the union knowingly agreed to illegal contract provisions and are now seeking to get the Legislature to retroactively validate their agreement.
The unions are trying to use the bargaining process to create leverage to advance their desired policy changes in the Legislature. If these contract provisions need to be authorized by the Legislature anyway, why not just approach the Legislature in the first place and get it to pass the desired changes into law? Why bother bargaining illegal contract provisions that will be inoperative without the Legislature's approval? By writing the illegal provisions into the contract, the unions can approach the Legislature with the bills flying under OFM's flag as uncontroversial "agency request" bills.
The unions were certainly reluctant to admit to legislators that they had already negotiated the changes in the CBAs, indicating they were aware of the subject's sensitivity.
In testimony on HB 1434 before the House State Government Committee on Feb. 1, the first time any of these bills was heard in committee, committee staff, Scott Merriman of OFM, and WFSE lobbyist Dennis Eagle all failed to mention the proposed changes had already been agreed to in bargaining, though the Freedom Foundation pointed this fact out later in the hearing.
In testimony on SB 5296 before the Senate State Government Committee on Feb. 3, Eagle noted that "this idea came up during collective bargaining and everyone in the room—management and labor—thought it would be just a great, common-sense fix. But we quickly discovered that it required a change in the statute to do so." Again, there was no mention of the fact that the contracts already included the changes until the Freedom Foundation pointed it out in subsequent testimony.
Finally, in testimony on SB 5296 before the Senate Ways and Means Committee on Feb. 20, Merriman noted the changes in the bill were "…part of the collective bargaining agreement. If the bill does not go into effect, that provision of the collective bargaining agreement does not go into effect, either."
When HB 1521 was brought to the House floor on Feb. 28, Rep. Drew Stokesbary (R-Auburn) proposed an amendment to delay the implementation of the bill until July 2019, after the expiration of the CBA in which they were negotiated.
"The underlying bill would make a policy change that the governor has negotiated away despite it currently being against the law," Rep. Stokesbary explained. "I find that to be a very troubling precedent."
The amendment failed 50-48, with all Democrats opposed and all Republicans voting in favor.
However, the bill itself was not voted on until the following day, March 1, when HB 1434 was brought to the floor as well. Rep. Stokesbary again proposed amendments to extend the implementation of both bills until after the expiration of the CBAs.
Again, Reps. Stokesbary and Graves made a constitutional, separation-of-powers case for amending the bills. Speaking in support of the amendment, Stokesbary explained:
"The amendment attempts to restore, by a very small amount, the proper order and balance between the legislative and executive branches… We've allowed the collective bargaining process to be sort of inverted. We've allowed a process where the governor does all of the work and then we're given a chance to vote up or down on that work. If we pass this underlying bill without the amendment, we're going to further that sort of convoluted, upside-down process of governing."
Rep. Graves agreed, arguing:
"We ought to be jealous of the legislative power that the constitution of our state has given us. It may be the case that this is a good idea, but those good ideas have to go through the proper process. That is how liberty is maintained. That is how good ideas get into law and how bad ideas don't get into law in the first place. And negotiating it behind closed doors in a collective bargaining agreement and then coming and asking for permission is simply not the proper way to do it."
Nevertheless, the amendments were again voted down. HB 1434 ultimately passed the chamber 68-30, while HB 1521 was approved 65-33.