Community College 7 (Shoreline)(Washington Federation of State Employees), Decision 9094-A (PSRA, 2006)
Community College 7 (Shoreline)(Washington Federation of State
Employees), Decision 9094-A (PSRA, 2006)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
COMMUNITY COLLEGE DISTRICT 7 )
(SHORELINE), )
) CASE DECISION
Employer. ) 18920-U-04-4814 9094-A - PSRA
------------------------------) 18947-U-04-4819 9095-A - PSRA
ARLENE STRONG, ANDREW CONRAD, ) 18951-U-04-4821 9096-A - PSRA
CATHY FLETCHER, BRAD COULTER, ) 18952-U-04-4822 9097-A - PSRA
DEBBY HUNTER, CECILY SHERRITT,) 18960-U-04-4824 9098-A - PSRA
PAULINE SIMONS, MARGIELIZE ) 18961-U-04-4825 9099-A - PSRA
VILLACERAN, AMY STAPLETON, ) 18962-U-04-4826 9100-A - PSRA
BARBARA KRISTEK, MARY CHEUNG, ) 18963-U-04-4827 9101-A - PSRA
MICHELLE ORTEGA, DIANE DING, ) 18965-U-04-4828 9102-A - PSRA
PETER PICKERING, KARI FRITZEN,) 18976-U-04-4830 9103-A - PSRA
STEVE GIBLER, ELIZABETH BAIN, ) 18977-U-04-4831 9104-A - PSRA
KIMBERLY ANNE CAMBERN, ) 18978-U-04-4832 9105-A - PSRA
) 18987-U-04-4833 9106-A - PSRA
Complainants, ) 18995-U-04-4836 9107-A - PSRA
) 18997-U-04-4838 9108-A - PSRA
vs. ) 18998-U-04-4839 9109-A - PSRA
) 19025-U-04-4844 9110-A - PSRA
WASHINGTON FEDERATION OF ) 19026-U-04-4845 9111-A - PSRA
STATE EMPLOYEES, )
)
Respondent. ) DECISION OF COMMISSION
______________________________)
Law Offices of Sidney J. Strong, by Sidney J. Strongg, Attorney
at Law, for the complainant employees.
Parr Younglove Lyman & Coker, by Edward E. Younglove, II, for
the union.
These consolidated cases come before the Commission on a timely
appeal filed by the Washington Federation of State Employees (WFSE),
seeking to overturn the Findings of Fact, Conclusions of Law, and
Order issued by Examiner Walter M. Stuteville.(1) The 18
individual complainants support the Examiner's decision and filed a
brief opposing the appeal.
____________________
1 Community College 7 (Shoreline)(Washington Federation of State
Employees, Decision 9094 (PSRA, 2005).
Certain legal issues in this case are similar to issues to be
decided concurrently in appeals from Western Washington University
(Washington Public Employees Association), Decision 8849-A (PSRA,
2005) and Community College District 19 (Washington Public Employees
Association), Decision 9210 (PSRA, 2006). All of these cases stem
from negotiations for first collective bargaining agreements under
the Personnel System Reform Act, Chapter 41.80 RCW (PSRA), and
specifically form agreements between the unions and the various
employers to have all bargaining unit employees vote on ratification
of tentative agreements reached in contract negotiations. In all of
these cases, bargaining employees who were not union members filed
complaints with the Commission, alleging that the unions failed to
properly notify bargaining unit employees of the ratification vote,
and failed to properly notify bargaining unit employees of the union
security provisions contained in the collective bargaining
agreements. The unions filed answers denying the allegations, and
questioning the jurisdiction of this Commission to adjudicate claims
regarding what they characterize as internal affairs of the unions.
In order to provide for a more uniform case precedent, we will
examine the legal arguments of the parties in all three cases as a
whole and apply a similar legal standard to the factual differences
of each decision on appeal.
The Examiner issued his decision in this case on January 23, 2006,
finding that the Commission has jurisdiction to adjudicate the
complaint that the union failed to give proper notice to the
employees. The Examiner ordered the WFSE to cease and desist from
failing to fairly and adequately inform all bargaining unit
employees of the opportunity to vote on the acceptance or rejection
of any tentative agreement that permits all bargaining unit
employees the opportunity to vote, and directed the WFSE to conduct
a second ratification election to be supervised by the Commission.
ISSUES PRESENTED
Two issues are presented in all three of the appeals currently
before the Commission:
1. Does the Commission have jurisdiction over these complaints
concerning notice and opportunity to vote on the ratification
of these particular collective bargaining agreements?
2. If the Commission has jurisdiction, did the WFSE commit unfair
labor practices by failing to provide adequate notice and
opportunity to vote in the ratification election?
A third issue presents itself in this case:
3. If the Commission has jurisdiction, and the Commission affirms
the Examiner's findings and conclusions that the WFSE violated
its duty of fair representation, is the Examiner's remedy of
granting bargaining unit employees a second ratification
election that is supervised by this Commission appropriate?
We rule in all three appeals that the Commission has jurisdiction to
adjudicate claims asserting breach of the duty of fair
representation owed by unions to all bargaining unit employees, with
respect to situations where a union agrees to allow all bargaining
unit employees to vote on ratification of a collective bargaining
agreement. Asserting jurisdiction, we find in this case that the
WFSE breached its duty of fair representation by: (1) its conduct
during the ratification of the 2005-2007 collective bargaining
agreement at Shoreline Community College, and (2) failing to allow
the complainants a meaningful opportunity to review the negotiated
contract. We modify the remedy.
ISSUE 1: THE COMMISSION'S JURISDICTION
Applicable Legal Standards
A general policy of non-involvement in internal union affairs can be
readily discerned from the precedents of both this Commission and
the National Labor Relations Board (NLRB). Unions are private
organizations. When asked to regulate the internal workings of
unions, this Commission has taken a "hands-off" approach except
where complainants have asserted that union conduct affected the
wages, hours, or working conditions of individual employees.
* In an early decision, the Commission dismissed an
employer-filed unfair labor practice complaint alleging that a
union unlawfully prevented non-member employees from voting on
the formulation of the union's proposals for collective
bargaining. Lewis County, Decision 464 (PECB, 1978), aff'd
Lewis County 464-A (PECB, 1978). Our Executive Director noted
there that participation in union affairs is a political right
incident to union membership, but one that involves no civil or
property right. Lewis County, Decision 464 (citing State ex
rel. Givens v. Superior Court of Marion County, 233 Ind. 235
(1954)). Because the subject matter of that complaint
concerned internal union policies, and did not directly affect
the employment relationship covered by Chapter 41.56 RCW, that
complaint failed to state a cause of action.
* In Lake Washington School District, Decision 6891 (PECB, 1999),
the Executive Director dismissed a complaint concerning a
union's actions during a contract ratification process. The
complained-of action was found to be entirely within the
internal workings of the union, and that complaint also failed
to state a cause of action over which the Commission could
exercise jurisdiction. The Executive Director also noted that
the courts, rather than the Commission, have jurisdiction over
violations of union constitutions and by-laws.(2)
____________________
2 Because the cited decision did not explain the basis of the
individual's complaint, any reliance upon its legal conclusions here
must be met with suspicion.
* The Commission reiterated its general reluctance to involve
itself in internal union affairs when several individuals filed
petitions under the Administrative Procedure Act, Chapter 34.05
RCW, asking the Commission to adopt a rule permitting
non-member employees required to make payments under a
contractual union security clause to have equal participation
with union members in voting on terms and conditions of their
employment. In denying those rulemaking petitions, the
Commission explored the history of its own limited involvement,
and the similar limited involvement of the NLRB, in the
internal workings of the unions. No authority was found that
supported adoption of the proposed rule. In re: WAC
391-95-010, Decision 9079 (2004).
Similarly, unions are generally free to limit ratification according
to their own internal policies free from NLRB scrutiny. See NLRB v.
Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349-50
(1958).(3) The NLRB recognizes that procedures relating to the
ratification of a collective bargaining agreement is generally a
matter exclusively within the internal domain of a union. Houchens
Market of Elizabethtown, Inc. v. NLRB, 375 F.2d 208, 212 (6th Cir.
1967).
____________________
3 The Supreme Court of the United States reiterated this in
NLRB v. Financial Institutions Employees, 475 U.S. 192 (1996), by
dicta noting that unions generally have the right to control who
votes on contract ratification.
No statute compels employee ratification votes on tentative
agreements reached by unions and employers in collective bargaining.
Naches School District, Decision 2516-A (EDUC, 1987); NLRB v.
Wooster Division of Borg-Warner Corp., 356 U.S. 342. That is
certainly true of the PSRA and the National Labor Relations Act
(NLRA). In re: WAC 391-95-010, Decision 9079; Teamsters, Local 310
v. NLRB, 587 F.2d 1176 (D.C. Cir. 1978). Thus, ratification of a
collective bargaining agreement is, at most, a permissive subject of
bargaining.(4) The employers in these cases were not entitled to
bargain to impasse on their proposals concerning contract
ratification. Seneca Environmental Products, 243 NLRB 624
(1979).(5)
____________________
4 Parties can lawfully make proposals on permissive subjects in
collective bargaining, subject to the limitation described in the
next footnote.
5 Parties can lawfully bargain to impasse only on mandatory
subjects of collective bargaining. A party that insists upon a
permissive subject of bargaining as a concession or condition of a
contract commits an unfair labor practice. Klauder v. San Juan
County, 107 Wn.2d 338 (1986)(proposal concerning interest
arbitration); Public Utility District No. 1 of Clark County,
Decision 2045-B (PECB, 1989)(proposal concerning withdrawal of
pending unfair labor practice charges).
These cases not are about the union violating a contractual
provision. See, e.g., City of Walla Walla, Decision 104 (PECB,
1976). The claimants before us are asserting that the unions
violated their statutory duties by preventing non-member employees
from having a meaningful opportunity to vote on the contracts. Put
another way, our focus is on how the union conducted itself in
relation to the bargaining unit employees, rather than on whether
the union violated its contractual agreement with the employer.
Unique facts can warrant assertion of jurisdiction in some situations:
* In North Mason Country Motors, 146 NLRB 671 (1964), the NLRB
noted that it could assert jurisdiction if "probative evidence"
suggested the union "agreed that the [employer] could condition
execution of the contract upon ratification of any sort, [such
as] by a majority of or even a representative employees group."
North Mason County Motors, 146 NLRB 671.(6)
____________________
6 Absent such facts, the NLRB found the employer refused to
bargain in good faith by refusing to execute an agreed upon
collective bargaining agreement. In defending its actions, that
employer argued that the union, by accepting ratification from the
one employee who was a union member, failed to submit the contract
to a proper vote. The NLRB agreed with the union that the union's
by-laws controlled how ratification was to occur, and therefore
ratification by one employee was acceptable.
* In Port of Seattle, Decision 2549-C (PECB, 1987), the Executive
Director noted that a complaint alleging that a union has
aligned itself in interest against one or more bargaining unit
employees during a contract ratification process could state a
cause of action for violation of the union's duty to fairly
represent all bargaining unit employees.(7)
____________________
7 Absent such allegations, the Executive Director dismissed that
complaint alleging a union discriminated against a bargaining unit
employee when it permitted only employees who have senior status the
opportunity to vote on the proposed collective bargaining agreement.
When a union agrees to allow all bargaining unit employees the
opportunity to vote on a question, it lowers the shield of
protection that the Financial Institutions and Lewis County
precedents provide. An agreement to allow all bargaining unit
members the opportunity to vote creates rights that the non-member
employees would ordinarily not have enjoyed, and gives them an
expectation that their votes will count in the collective bargaining
process. A union entering into such an agreement thus exposes
itself to scrutiny regarding any allegation that it restrained
employees from the right to vote granted to them by the agreement.
Cf. Beatrice/Hunt-Wesson, Inc., 302 NLRB 224 (1991) (Stephens,
concurring)(if the parties have made ratification a part of the
bargain, it is appropriate for the NLRB to give a measure of
protection to the expectancy interests of the parties).(8) If a
union accepts an employer proposal on the permissive subject of
contract ratification, our precedents on non-interference with
contract ratification do not apply.
____________________
8 Had the employer disputed the sufficiency of the union's
ratification process, it might have cited the Beatrice/ Hunt-Wesson
case as a basis to withhold submitting the contract to the
Legislature under RCW 41.80.010. The employer would have done so at
risk that it would be found guilty of a "refusal to bargain" unfair
labor practice if it failed to demonstrate that the union's
ratification process violated the parties' agreement.
Application of Standards
The WFSE and Shoreline Community College (employer) reached
agreement for a collective bargaining agreement covering the
2005-2007 biennium on September 17, 2004. That "Tentative
Agreement" contained the following language:
Attached are the final Tentative Agreements for the WFSE Higher
Education negotiations. The tentative agreements are on the
following articles:
Compensation
Dues Deduction
Miscellaneous Paid Leaves
Vacation Leave
All other outstanding articles and issues by either party are
withdrawn.
The [WFSE] agrees to allow all employees in bargaining units
for which they represent to vote, by Employer, on the
ratification of this Agreement, with the understanding that
this does not set any precedent for future ratification votes.
(emphasis added). By entering into that agreement, the WFSE created
voting rights that non-member employees ordinarily would not have
had, and it obligated itself to provide fair representation to them
in the ratification process. We assert jurisdiction in this case to
determine allegations that the WFSE restrained non-member employees
in the exercise of rights protected by RCW 41.80.050 and RCW
41.80.080(3), in violation of RCW 41.80.110(2)(a).
ISSUE 2: UNION'S DUTY OF FAIR REPRESENTATION
Applicable Legal Standards
In Allen v. Seattle Police Officers' Guild, 100 Wn.2d 361 (1983),
the Supreme Court of Washington specifically recognized that the
doctrine of a union's duty of fair representation to all bargaining
unit members exists within Chapter 41.56 RCW. The Allen court first
described the history of the doctrine under the NLRA, noted that
Chapter 41.56 RCW substantially parallels the NLRA, and concluded
the doctrine of the duty of fair representation applied to unions
certified under Chapter 41.56 RCW.
RCW 41.80.050 secures rights for employees covered by the PSRA,
including the right to:
[S]elf-organization, to form, join, or assist employee
organizations, and to bargain collectively through
representatives of their own choosing for the purpose of
collective bargaining free from interference, restraint, or
coercion.
Additionally, RCW 41.80.080(3) secures representation rights for all
employees in a bargaining unit covered by the PSRA:
The certified exclusive bargaining representative shall be
responsible for representing the interests of all the employees
in the bargaining unit. This section shall not be construed to
limit an exclusive representative's right to exercise its
discretion to refuse to process grievances of employees that
are unmeritorious.
That duty of fair representation applies equally to bargaining unit
employees who are union members and to bargaining unit employees who
are not union members. The duty of fair representation owed under
RCW 41.80.080 closely mirrors the duty of fair representation owed
under the similar provision in the Public Employees' Collective
Bargaining Act (PECB), RCW 41.56.080, which states in part:
The bargaining representative which has been determined to
represent a majority of the employees in a bargaining unit
shall be certified by the commission as the exclusive
bargaining representative of, and shall be required to
represent, all the public employees within the [bargaining]
unit without regard to membership in said bargaining
representative.
The employee rights conferred by the PSRA and PECB are enforced
through the unfair labor practice provisions in each chapter, RCW
41.80.110 and 41.56.150 respectively. This Commission is
author-ized to hear and determine claims, and to issue appropriate
remedial orders against employers and/or unions that violate the
PSRA. RCW 41.80.120; RCW 41.56.160.
In State - Natural Resources, Decision 8458-B (PSRA, 2005), this
Commission held that in order to achieve its statutory mission of
uniform administration of collective bargaining law, unless a
specific legislative intent directs otherwise, cases decided under
the PECB, Chapter 41.56 RCW, are applicable to cases decided under
the PSRA, Chapter 41.80 RCW. Because the union's duty under RCW
41.80.080 is substantially similar to the duty under RCW 41.56.080,
cases interpreting a union's duty of fair representation under the
latter statute apply to allegations that the duty was breached
arising under Chapter 41.80 RCW.
While ample federal case precedent interpreting the duty of fair
representation exists, the Allen Court outlined and explained the
standards to be applied to Washington cases involving alleged
breaches of the duty of fair representation:
* A union must treat all factions and segments of its membership
without hostility or discrimination. A finding of
discrimination requires a showing that an individual was
deprived of a right based on their assertion of a protected
activity, and that there is a causal connection between the
exercised right and the discriminatory action. Educational
Service District 114, Decision 4361-A (PECB, 1994)(citing
Wilmot v. Kaiser Aluminum, 118 Wn.2d 46 (1991); Allison v.
Seattle Housing Authority, 118 Wn.2d 79 (1991));
* A union's broad discretion in asserting the rights of
indi-vidual members must be exercised in good faith and honesty;
* The union must avoid arbitrary conduct. A union's actions are
arbitrary only if, in light of the factual and legal landscape
at the time of the union's actions, the union's behavior is so
far outside a 'wide range of reasonableness' as to be
irrational." Airline Pilots Association, International v.
O'Neill, 499 U.S. 65, 67 (1991)(quoting Ford Motor Co. v.
Huffman, 345 U.S. 330 (1953)).
Each requirement "represents a distinct and separate obligation, the
breach of which may constitute the basis for civil action." Allen
v. Seattle Police Officers' Guild, 100 Wn. 2d 361, 375 (quoting
Griffin v. United Automobile, Aerospace & Agricultural Implement
Workers, 469 F.2d 181. The duty of fair representation doctrine
seeks to assure "the individual employee [or minority] that his
union will represent his interest unless it conflicts with the
group's interest". Allen v. Seattle Police Officers' Guild, 100 Wn.
2d 361, 375 (quoting Clark, The Duty of Fair Representation: A
Theoretical Structure, 51 Tex.L.Rev. 1119, 1155 (1973)).
To prove that a union has breached its duty of fair representation,
a complainant employee bears the burden of showing that the union
behaved irrationally, invidiously, fraudulently, deceitfully,
dishonestly, or indifferently as to the rights of bargaining unit
employees, or that the union's conduct was so grossly deficient as
to be properly equated with arbitrary action. The complainant must
also demonstrate a causal nexus between the breach of the union's
duty of fair representation and the harm suffered by the employee.
By adopting the standard set forth in Griffin v. United Automobile,
the Allen court specifically rejected the notion that bad faith is a
required element to prove a breach of the duty. Allen v. Police
Officers' Guild, 100, Wn.2d 361, 374.
This is still a somewhat higher standard of proof than the
"reasonable employee's perception" test applied to most "employer
interference" claims under RCW 41.80.110(1)(a) and "union restraint"
claims under RCW 41.80.110(2)(a),(9) but the higher burden of proof
is accompanied by a broader range of remedies than the "cease and
desist" and "post notices" remedies usually available for
"interference" and "restraint" violations. See, e.g., Grant County
Public Hospital District 1, Decision 8378 (PECB, 2004), aff'd,
Decision 8378-A (PECB, 2004)(also requiring an employer to make good
faith submission of a proposed collective bargaining agreement to
board of commissioners for ratification).
____________________
9 This acknowledges that labor organizations may have valid
reasons for taking or not taking a particular course of action, even
if that could otherwise be viewed by a reasonable individual as
interfering with employee rights. See Marquez v. Screen Actors
Guild, 525 U.S. 33.
These standards provide unions with substantial discretion in their
decision making, even if the ultimate decision proves to be wrong.
Marquez v. Screen Actors Guild, 525 U.S. 33; Allen v. Seattle Police
Officers' Guild, 100 Wn.2d 361, 375 (recognizing that unions require
flexibility to settle disputes). These standards also recognize
that bargaining unit employees' individual goals may not always be
achieved through collective bargaining. C-Tran, Decision 7087-B
(citing Allen v. Seattle Police Officers' Guild, 100 Wn.2d 361
(1983)). While unions are not required to bargain collective
bargaining agreement provisions of equal benefit to all bargaining
unit employees, and while equality of treatment is not the standard
on which to judge the union's duty of fair representation, unions
are nevertheless prohibited from aligning themselves in interest
against one or more employees in the bargaining units they
represent. C-Tran, Decision 7087-B (citing Allen v. Seattle Police
Officers' Guild, 100 Wn.2d 361 (1983)).
Application of Standards
If the terms of a negotiated contract or a union's by-laws require
ratification of negotiated contracts by affected employees, a
failure to submit a contract to a meaningful vote of those employees
breaches the union's duty of fair representation. Deboles v. Trans
World Airlines, 552 F.2d 1005 (3rd Cir. 1977) cert. denied, 434 U.S.
837 (1977).(10) The rationale for this proposition is simple:
____________________
10 The Deboles case was decided under Railway Labor Act, 45
U.S.C. Section 151, et seq. (1996)(RLA). While we recognize that
differences exist between the RLA and the PSRA, we are also mindful
that the duty of fair representation originated in decisions arising
out of the RLA, and the Allen decision specifically references
Steele v. Louisville & Nashville Railroad, 323 U.S. 192 (1944) as
the origin of the doctrine. The Deboles analysis of the duty of
fair representation is therefore consistent with our analysis in
this case.
By denying a group of workers the chance to ratify, the union
risks subjecting them to the disadvantages of a contract whose
acceptance they could have prevented, and risks depriving them
of the benefits of a contract whose acceptance they could have
ensured.
International Brotherhood of Teamsters, Local No. 310 v. NLRB, 587
F.2d 1176, 1882 (footnote omitted). This record demonstrates the
WFSE actions and inactions concerning the ratification of the
2005-2007 contract at Shoreline Community College confused employees
in such a manner that it precluded the complainants from having a
meaningful opportunity to vote on ratification of the contract:
* In June of 2002, an edition of "Washington State Employee," a
monthly newspaper published by the WFSE, was distributed to
help educate employees about the PSRA.(11) Of particular
importance here, on page 5, in the far right-hand column, when
referring to the ability of non-member bargaining unit
employees to ride the WFSE's "coattails," it states: "Members -
and members only - will select the negotiating team and vote on
the contract. That goes for non-members who will be agency-fee
payers".
____________________
11 Exhibit 25. The information published in the June 2002
edition was largely repeated in a July 2002 special edition of the
same publication (Exhibit 26).
* On September 10, 2004, before the WFSE and employer reached a
tentative agreement, Sherri-Ann Burke, a WFSE senior field
representative, sent a letter to "WFSE/AFSCME High Education
Member[s]" informing them about the current state of
negotiations. In addition, the letter also informed the
addressees to prepare for both a ratification vote or a strike
vote, and that the addressees should be aware of the
information contained within the letter.(12) Of particular
importance here, the letter outlined WFSE "Voting Requirements
at Locations, including the following:
____________________
12 This letter failed to mention that nothing in Chapter 41.80
RCW grants employees the right to strike.
* Members may vote on-site.
* Members must present picture ID to vote.
* Only WFSE/AFSCME members employed in a Higher Education
WFSE/AFSCME bargaining unit may vote.
* Deadline to become a member is the day of voting."
(emphasis added).
* On September 17, 2004, the WFSE and the employer reached their
tentative agreement, which also permitted all bargaining unit
employees the opportunity on ratification of the contract.
* On September 24, 2004, seven days after the tentative agreement
was reached, Peggy Lytle, a WFSE member who had served as the
bargaining unit shop steward for 10 years, sent an e-mail
addressed to an e-mail subscription service, or "list serve",
available to classified staff employed at Shoreline Community
College. Employees had to affirmatively subscribe to the "list
serve" in order to receive updates sent through that method of
communication, and employees were under no requirement to
subscribe as part of their employment. Lytle's e-mail stated
that collective bargaining negotiations between the WFSE and
employer were complete, and that contract ratification was the
next step. Of particular importance, the e-mail stated that
"we, the bargaining unit members, must vote to ratify the
contract which will then become our contract beginning July 1,
2005." Also of particular importance, the record demonstrates
that not all bargaining unit employees received this email.
Thus, Lytle largely reinforced previous WFSE statements that
"only WFSE" members would be eligible to vote on ratification
of the contract, and she made no explicit reference to the
terms of the tentative agreement that unambiguously provided
all bargaining unit employees the unqualified right to vote on
ratification of the contract.
As a WFSE shop steward and an individual communicating with the
bargaining unit on behalf of the WFSE, Lytle was an agent of the
WFSE. See Community College District 13, Decision 8117-B (PSRA,
2005)(employees assisting a union are special agents of that union).
Even though the WFSE and employer reached the tentative agreement
on September 17, 2004, the WFSE delayed notifying to the bargaining
unit about the vote for a full seven days, September 24, when Lytle
actually sent her notification. Lytle testified that the delay
occurred because she was awaiting permission from the employer to
utilize the e-mail system for collective bargaining purposes, in
accordance with the employer's policies.(13)
____________________
13 Employers must be careful to not delay their decision making
process when fielding requests from exclusive bargaining
representatives to use the employer's facilities for communicating
with employees.
Lytle correctly secured permission from the employer before sending
out her e-mail, but she failed to utilize other methods of
communication that were available to her while waiting for
permission to use the employer's facilities.(14)
____________________
14 For example, the union maintained a bulletin board where
information was posted, but no evidence exists on the record
suggesting that resource was utilized.
Nothing in Chapter 41.80 RCW gives public employees an independent
right to use an employer's facility for union business. See Whatcom
County, Decision 8245-A (PECB, 2004)(citing City of Seattle,
Decision 1355 (PECB, 1982). Commission precedent considers any rule
creating an absolute prohibition of solicitation or communication on
an employer's premises to be overly broad on its face if they are
not restricted to working hours. City of Seattle, Decision 5391-C
(PECB, 1997). Here, the WFSE effectively wasted a period of a week
waiting for authorization from the employer. This period of time
could have been utilized to secure alternative methods of
communication that would not have required the employer's
permission. This reliance on a single method of communication, the
"list serve", especially one that was not guaranteed to reach all
bargaining unit employees, precluded those employees from having a
meaningful opportunity to vote and constitutes a breach of the
union's duty of fair representation.(15)
____________________
15 In situations such as this, where the employer and union
agree through collective bargaining to allow all bargaining unit
employees the opportunity to vote, if asked for assistance by a
union for assistance in providing a complete list of bargaining unit
employees who would be eligible to vote, an employer should provide
such list. An employer who declines to do so may be found to have
interfered with protected employee rights.
Additionally, and more importantly, the attempted notification
failed to unambiguously state that all bargaining unit employees
were eligible to vote on ratification of the contract. Throughout
the WFSE's "education process" regarding the changes brought by the
PSRA, the WFSE continually informed the employees it represented
that only "members" would be allowed to select the negotiating team
and vote on ratification of the contract.
The complainants testified that they believed that only "members"
would be allowed to vote. Lytle's Setember 24 e-mail reinforces
these beliefs by a continued use of the term "bargaining unit
members," a term consistent with the WFSE's educational materials.
Although the WFSE's statements regarding "members'" traditional
right to ratify collective bargaining agreements were correct at the
time they were made.
Once the WFSE agreed in collective bargaining to allow all
bargaining unit employees the opportunity to vote, it had an
obligation to unambiguously notify all employees of their rights.
The actions and inactions by the WFSE to clarify the rights of all
bargaining unit employees demonstrate a pattern of "arbitrary" and
"bad faith" behavior constituting a breach of its duty of fair
representation.
We disagree with any attempt by the WFSE to mitigate any
shortcomings in notification in light of the October 1 deadline
imposed by RCW 41.80.010 for submission of collective bargaining
agreements to the Office of Financial Management:
* The October 1 deadline existed when the PSRA was enacted in
2002, and was no surprise to the WFSE in 2004.
* By choosing to hold its ratification vote on September 25, the
WFSE limited its own opportunity to properly notify bargaining
unit employees of their voting rights, and left five full days
unused prior to the October 1 deadline it cites here.
* Even if the WFSE and this employer had failed to reach an
agreement by October 1, 2004, the PSRA would still have
protected the employees under RCW 41.80.001, by keeping any
contract negotiated by the WFSE and the employer under the
State Civil Service Law, Chapter 41.06 RCW, in effect until a
successor agreement was reached.(16)
____________________
16 For the future, RCW 41.80.090 keeps existing collective
bargaining agreements in effect for one year beyond their stated
expiration date.
This Commission will not allow PSRA parties to use the October 1
deadline as a method to circumvent their other responsibilities
under Chapter 41.80 RCW.
ISSUE 3 - THE EXAMINER'S REMEDY
The authority of this Commission to prevent and remedy unfair labor
practices is set forth in RCW 41.80.120, as follows:
UNFAIR LABOR PRACTICE PROCEDURES POWERS AND DUTIES OF
COMMISSION. (1) The commission is empowered and directed to
prevent any unfair labor practice and to issue appropriate
remedial orders:
. . .
(2) If the commission determines that any person has
engaged in or is engaging in an unfair labor practice, the
commission shall issue and cause to be served upon the person
an order requiring the person to cease and desist from such
unfair labor practice, and to take such affirmative action as
will effectuate the purposes and policy of this chapter, such
as the payment of damages and the reinstatement of employees.
Thus, the fashioning of remedies is a discretionary action of the
Commission. When interpreting the Commission's remedial authority
under Chapter 41.56 RCW, the Supreme Court of the State of
Washington approved a liberal construction of the statute to
accomplish its purpose. City of Seattle, Decision 8313-B (PSRA,
2004)(citing METRO v. PERC, 118 Wn.2d 621 (1992). With that purpose
in mind, the Supreme Court interpreted the statutory phrase
"appropriate remedial orders" to be those necessary to effectuate
the purposes of the collective bargaining statute to make the
Commission's lawful orders effective. METRO, 118 Wn.2d at 633. The
Commission's expertise in resolving labor-management disputes was
also recognized and accorded deference. METRO, 118 Wn.2d at 634
(citing Public Employment Relations Commission v. City of Kennewick,
99 Wn.2d 832 (1983)).
A breach of the duty of fair representation is specific to the
individual, and does not generally apply to the bargaining unit as a
whole. Despite the fact that we have found notice of the
ratification lacking, the evidence demonstrates that 30 employees
voted for the ratification, while only three voted against. Even if
all 18 complainants voted against the contract, those votes would
not have affected the outcome of the election.
Any remedy crafted under the statutes this Commission administers
should keep in mind the Commission's purpose of promoting labor
stability between public employers, employees, and the unions who
represent those employees. Even though the complainants have been
obligated to pay union security fees under the collective bargaining
agreement, they have also received the benefit of the agreement,
including a cost-of-living adjustment, a Department of Personnel
salary survey increase, and the union has been obligated to
represent employees in grievances with the employer. Given the fact
that the 18 complainants could not have affected the outcome of the
ratification election, we decline to order a second vote.
We direct the WFSE to cease and desist from failing to properly
notify bargaining unit employees of their contract ratification
rights. We also direct the WFSE to read into the record at its next
state-wide convention the attached notice and to permanently
appending that notice to the official minutes of that meeting.
Additionally, the WFSE shall publish a copy of the notice in its
next issue of the WFSE's "Washington State Employee" newspaper.
NOW, THEREFORE, it is
ORDERED
1. The Findings of Fact and Conclusions of Law issued by Examiner
Walter M. Stuteville in the above-captioned case are AFFIRMED
and adopted as the Findings of Fact and Conclusions of Law of
the Commission.
2. The Order issued by Examiner Walter M. Stuteville in the
above-captioned case is amended to read:
The Washington Federation of State Employees, it officers and
agents, shall immediately take the following actions to remedy its
unfair labor practices:
1. CEASE AND DESIST from:
a. Failing to adequately inform all bargaining unit employees
of their voting rights conferred by agreement of the union
with the employer in collective bargaining.
b. Failing to adequately inform all bargaining unit employees
of the contents of the tentative agreement that the union
agreed to submit for ratification by vote of all bargaining
employees, with specific reference to the union security
provision.
c. In any other manner, restraining or coercing employees in
the exercise of their rights under Chapter 41.80 RCW.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS to effectuate the
purposes and policies of Chapter 41.80 RCW.
a. Post, in conspicuous places on the employer's premises
where union notices to all employees are usually posted,
copies of the notice marked "Appendix A" attached to this
order. Such notices shall be duly signed by an authorized
representative of the Washington Federation of State
Employees. Such notices shall remain posted for 60 days.
Reasonable steps shall be taken by the respondent union to
ensure that such notices are not removed, altered, defaced,
or covered by other material.
b. Read the notice marked "Appendix A" attached to this order
at a meeting of all employees in the bargaining units
represented by the union at Shoreline Community College and
at the next state-wide convention held by the Washington
Federation of State Employees.
c. Publish in the next monthly issue of "The Washington State
Employee" a true-sized copy of the notice marked "Appendix
A".
d. Notify each of the above-named complainants, in writing,
within 20 days following the date of this order, as to what
steps have been taken to comply with this order, and at the
same time provide each named complainant with a signed
copy of "Appendix A" attached to this order.
e. Notify the Compliance Officer of the Public Employment
Relations Commission, in writing, within 20 days following
the date of this order, as to what steps have been taken to
comply with this order, and at the same time provide each
named complainant with a signed copy of "Appendix A"
attached to this order.
Issued at Olympia, Washington, the 20th day of June, 2006.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
DOUGLAS G. MOONEY, Commissioner
|