When it comes to determining the Collective Bargaining Agreements (CBAs) with state employee unions, there is no such thing as a lame duck Governor in Washington. Even though Governor Gregoire is not running for re-election and come January 2013 we’ll have either Governor Inslee or McKenna at the helm, Gregoire will finalize the state’s 2013-15 CBAs by October 1 of this year – a month before the next Governor is chosen. Based on the 2002 law that granted state employee unions exclusive bargaining rights with the Governor, a CBA is to be submitted to the Office of Financial Management (OFM) by October 1.
According to the bill report for HB 1268 (2002):
“When negotiating collective bargaining agreements, the Governor must consult with the new Joint Select Committee on Employee Relations. Collective bargaining agreements may not exceed one fiscal biennium, must be submitted to the Office of Financial Management by October 1, and must be submitted to the Legislature as part of the Governor’s budget proposal. The Legislature must accept or reject the request for funds necessary to implement the agreements as a whole. If a significant revenue shortfall occurs, as declared by either the Governor or the Legislature, modifications to the agreements must be negotiated. The terms of an expired collective bargaining agreement remain in effect until a new agreement is negotiated, not to exceed one year. After one year, the employer may unilaterally implement according to law.”
Here is the requirement in Sec. 302 (5) of HB 1268 concerning the Joint Select Committee on Employee Relations:
“. . . 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 this directive, the Joint Select Committee on Employment Relations has never met and thus not been consulted by the Governor on the CBAs.
So what does this all mean for the next Governor? Short of the new contracts being declared financially unfeasible by OFM after the November revenue forecast, the only shot a Governor Inslee or McKenna will have at changing the terms of the 2013-15 CBA will be if the Legislature rejects them. One neat trick on that scenario, the CBAs have never been submitted to the Legislature as a separate document for an up or down vote. Instead they have been rolled into the budget for final approval (note sections 901-911 in HB 2127).
Some lawmakers frustrated by this limited option introduced SB 5870 in 2011 to reject the terms of the CBA separate from the budget vote but the bill did not receive a hearing. As noted by the bill digest for SB 5870:
“Rejects the governor’s request for funds necessary to implement the compensation and fringe benefit provisions of all collective bargaining agreements agreed to by the governor prior to March 1, 2011, for the 2011-2013 fiscal biennium. Encourages the parties to the collective bargaining agreements to reconvene to reach an agreement that takes into account the legislature’s concerns and better recognizes the state’s fiscal situation.”
Based on the current procedures for determining the state’s CBA with employee unions, Congressman Inslee and Attorney General McKenna may want to start whispering their priorities to Gregoire now or be prepared to live under the terms of whatever deal she agrees to.
As we noted in the 4th Edition of our Policy Guide for Washington State, this process should ultimately be changed so that lawmakers have more say in these appropriation decisions:
“State collective bargaining law prevents the legislature, and the public, from knowing the process that determines employment contract costs. The current system undermines transparency and public accountability for the tax dollars being spent through the state payroll.
Under the 2002 Civil Service Reform Act, the legislature can only vote ‘yes’ or ‘no,’ with no amendments or other changes, to a contract negotiated secretly by the governor and union officials. As a result, state unions no longer have their priorities weighed equally with other special interest groups during the normal legislative budget process. Instead, union executives now negotiate directly with the governor, while lawmakers only have the opportunity to say yes or no to the entire contract. Lawmakers cannot make any changes.
To put the legislature back in charge of the budget so spending can be prioritized to serve the public interest, the 2002 collective bargaining law should be repealed and replaced with something similar to the policy Indiana adopted in 2005. When Indiana Governor Mitch Daniels took office in 2005 he issued an executive order that, in effect, ended secret state negotiations with unions . . .
Unions exist to fight for their members, not to advocate for policy that is in the best interest of taxpayers. This why it is incumbent on the legislature to have the authority to weigh all spending requests equally in the context of the priorities of all taxpayers and citizens and not be cut out of budget decisions totaling hundreds of millions of dollars.
The legislature should reassert its authority over state employment policy to ensure greater public accountability and transparency. This would help advance improvements that reduce costs while rewarding the excellent work of state employees.”
SB 5349 was introduced in 2011 to implement this type of policy change but it was not acted on. From the bill’s intent section:
“The legislature finds that its authority over a significant portion of the state budget has eroded since state employees began collectively bargaining with the executive branch over wages and benefits. The legislature recognizes that it is the responsibility of a union to advocate for the best interest of its membership, while it is the responsibility of the legislature to determine the best interest of the state. State employees no longer have to make their case to the legislature for additional funding for compensation packages and compete for the limited funding with other priorities. The flexibility of the legislature has been limited, as the legislature has no authority to make changes to negotiated agreements between state employees and the executive branch. In tight budget times it is clear that the legislature needs more flexibility to truly prioritize spending, and must take back its authority over state employee compensation choices. Therefore, the legislature intends to repeal the ability of state employees and other nontraditional groups to collectively bargain with the executive branch over compensation.”
An alternative reform that would have subjected public employee collective bargaining sessions to the open public meetings act (HB 2526) also was not acted on by lawmakers.