WA wildlife officers wanted injunction against vaccine mandate. Here’s how judge ruled
A Pierce County judge denied a request for an emergency order Monday to keep members of the Fish and Wildlife Officers Guild from being fired as a deadline for state workers to be fully vaccinated against COVID-19 approaches.
The union represents about 100 commissioned officers below the rank of sergeant who work across the state for the Washington Department of Fish and Wildlife. It filed a lawsuit and a motion for a temporary restraining order late last week, arguing that the change in working conditions amounted to an unfair labor practice.
Thursday, the motion said, the state sent discharge notices to about 20 officers without documented vaccinations.
“Those notices threatened to terminate the employees by means of a ‘nondisciplinary discharge’ on Oct. 18,” the motion said. “The Guild now seeks a restraining Order to prevent these discharges until the collective bargaining process can be properly completed.”
Superior Court Judge Philip Sorensen denied that motion.
“In my judgment, the emergency outweighs the rights of whatever agents we might be talking about here that have not received the vaccination,” Sorensen said at the hearing.
The judge said it seemed “20 people are asking me to look out for their well-being and ignore the well-being of the rest of the state, and I am frankly unwilling to do that.”
In declining to grant the temporary order, Sorensen told the guild that he didn’t “have a good-faith belief that you will prevail on your underlying claims.”
Gov. Jay Inslee’s proclamation at the beginning of August required state workers and health care workers, and later education workers, to be fully vaccinated by Oct. 18. That meant an Oct. 4 deadline for workers to get the one-dose Johnson & Johnson vaccine or a second dose of the Moderna or Pfizer vaccines.
WDFW spokesperson Carrie McCausland said Friday the guild has 101 members and that 71 had verified their vaccination status.
“Those that have not verified their vaccine status include staff who are either in the process of seeking an exemption, becoming fully vaccinated, or, in some cases, are planning to leave state employment as a result of the Governor’s vaccine mandate,” McCausland said via email. “While we will not speak to the complaint specifically, we do want to convey how much we value every WDFW police officer and recognize their contributions to WDFW’s mission.”
The agency has 2,017 staff in total, of whom 1,753 had verified their vaccination status.
‘Fully within their control’
Union attorney James Cline, when asked what the ruling means for his client, said in an email: “The Guild will have to decide if it wants to appeal this ruling but no appeal or injunction is going to be issued before the dates of the scheduled termination. The Guild would also have to evaluate if the terminations that occurred violated the labor contract.”
He argued at the hearing Monday and in the motion that the issue was a question of labor law.
“The ultimate issue at stake, in this case, involves nothing less than the rule of law in the State of Washington and whether there are any meaningful limits on the Governor’s authority to suspend legislatively enacted statutes during an emergency,” the motion said.
It went on to say: “In short, the state is seeking to suspend the collective bargaining law without complying with the requirements for any such suspension.”
Part of the motion argued: “The labor law does not judge the relative merits of whether employees should or should not be vaccinated or whether vaccinations are socially desirable. It only regulates the duty to negotiate, and in this situation, there is a clear duty to negotiate.”
The state argued in its response that it started bargaining with unions over the impact of the proclamation immediately after it was issued, that those negotiations are ongoing, and that the guild waited until just before the Oct. 4 deadline to file its complaint.
“The Governor did not commit an unfair labor practice by declining to negotiate with the Guild or other state employees’ unions before issuing the Proclamation, which is an emergency public health directive within the Governor’s exclusive prerogative — not a mandatory subject of bargaining,” the state wrote in its response.
The governor acted within his statutory authority, the state argued.
“The battle against COVID-19 is a matter of public concern and limiting the virus’s spread is a matter of public interest,” part of the response said. “Since the start of the pandemic, more than half a million Washingtonians have contracted COVID-19 and more than 7,300 have died.”
Statistical modeling, the state said, suggests that Washington would have as many as 113,000 more cases, 5,880 more hospitalizations and 765 more deaths without the proclamation.
“The Proclamation merely makes vaccination a condition of continued State employment while the COVID-19 emergency remains in effect, which presents State employees with a choice: get vaccinated (or, if they qualify, get an exemption) or seek employment elsewhere,” the state’s response said.
Special Assistant Attorney General Zachary Pekelis Jones told the court that a quick search of the state’s online vaccine search tool showed many providers that had Johnson & Johnson appointments available Monday in Pierce County.
“It remains fully within their control,” the attorney said.
The guild’s lawsuit is the fourth to challenge the proclamation, according to the state.
Asked for comment about the case, governor’s spokesman Mike Faulk said in an email Monday: “Not one single court challenge to the governor’s pandemic response has been successful, because these actions have been taken carefully and appropriately with the public’s well-being in mind.”
