Workers lose furlough battle

Court: Unpaid days off OK because contract had comma in right place

May 7, 2011 

A judge ruled against the Washington Federation of State Employees on Friday, finding it was legal for the Legislature to require 10 unpaid furlough days last year for more than 24,000 workers.

The 10 furlough dates, the last of which is June 10, are expected to save $73.3 million and were one piece of legislative action meant to plug last year’s multibillion-dollar budget gap.

Federation spokesman Tim Welch said he did not know if the union would appeal the ruling by Thurston County Superior Court Judge Christine Pomeroy. The same court rejected a federation request for an injunction on the furloughs in July. But an unfair-labor-practice complaint still is pending against the state over its handling of the furloughs and how it notified workers last year.

Marty Brown, budget director at the Office of Financial Management, welcomed Pomeroy’s finding as vindication of last year’s budget moves.

“It was uncharted territory. We thought we and the Legislature had done everything right, but you never know,” Brown said. “We have never done this before.”

The federation sued over the constitutionality of the furlough bill and over what it saw as an impairment of a contract for 2009-11 that already had no cost-of-living pay raises and called for other worker concessions. Pomeroy rejected both main union arguments.

On the constitutional question, Pomeroy said the furloughs in Senate Bill 6503, which Gov. Chris Gregoire signed into law, had a sufficient basis or rational connection to the budget cuts.

Pomeroy rejected other arguments that the state failed to meet contract requirements – such as a lack of work, lack of materials, loss of funds, or an unanticipated budget shortfall – before temporary layoffs could be imposed.

Pomeroy’s decision hinged on contract language that put a comma between “unanticipated loss of funds” and “shortfall” – which meant each of several conditions could free the state’s hand. Sheehan said it really did come down to the comma.

The question of adding furloughs not spelled out in contracts has cropped up in recent budget talks between the House and Senate. Lawmakers are trying to reach a budget agreement in a special session that began April 26 to cover another $5.3 billion shortfall.

Gregoire’s labor office negotiated new contracts last fall and early this year with the federation and other unions. These allow 3 percent cuts in pay and hours worked for most workers for 2011-13 and higher payments by workers for health insurance coverage. Most contracts start July 1 and end June 30, 2013.

The Senate passed a bipartisan budget bill last month that calls for those 3 percent cuts in pay and hours worked, but it adds another round of furloughs tied to the income bracket of employees earning more than $50,000 per year.

The federation says the extra furloughs in the Senate budget cuts are illegal, which could put the governor and union on the same side of the legal argument if the Senate pushes ahead and wins agreement from the House.

The unfair-labor-practice claim against Gregoire’s administration over the way the furloughs were put into place and employees were notified is scheduled for four days of hearings before the Public Employment Relations Commission in June.

Sheehan said Pomeroy’s ruling might have a bearing on the labor-practice complaint.

“Certainly it makes it more difficult for them in terms of remedying the issue,” Sheehan said. “If the court says this (furlough) is not unconstitutional, PERC is not in a very strong position to give back $73.3 million” to workers.

A ruling by PERC is expected within 90 days of the hearing and the filing of any subsequent legal briefs in the case, agency executive director Cathy Callahan said.

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