DECISION 10118 - PSRA PAGE
Central Washington University, Decision 10118 (PSRA, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
PUBLIC SCHOOL EMPLOYEES OF )
WASHINGTON, )
)
Complainant, ) CASE 21259-U-07-5423
)
vs. ) DECISION 10118 - PSRA
)
CENTRAL WASHINGTON UNIVERSITY, )
)
Respondent. ) ORDER OF DISMISSAL
___________________________________)
Eric Nordlof, General Counsel, for the union.
Attorney General Rob McKenna, by Rachelle L. Wills, Assistant
Attorney General, for the employer.
On September 21, 2007, the Public School Employees of Washington
(union) filed an unfair labor practice complaint charging Central
Washington University (employer) with interference with employee
rights and discrimination in violation of RCW 41.80.110(1)(a) and (c).
A preliminary ruling was issued on September 25, 2007, finding a
cause of action existed for employer interference in violation of
RCW 41.80.110(1)(a) and discrimination in violation of RCW
41.80.110(1)(c) by refusing to allow its employees the use of
employer provided electronic mail (e-mail) and electronic bulletin
boards for the purpose of organizing, while at the same time
allowing its employees the use of employer provided e-mail and
electronic bulletin boards for a wide variety of other non-employer
purposes.
An answer was received and filed October 16, 2007. Hearing Examiner
Claire Nickleberry conducted a hearing on January 24, 2008. Both
parties filed post-hearing briefs.
ISSUES
1. Did the employer commit interference in violation of RCW
41.80.110(1)(a) when it refused to allow employees the use of
employer provided e-mail and electronic bulletin boards for the
purpose of union organizing?
2. Did the employer discriminate in violation of RCW
41.80.110(1)(c) when it refused to allow employees the use of
employer provided e-mail and electronic bulletin boards for the
purpose of union organizing?
For the reasons set forth below, the Examiner finds that the
employer did not interfere with employee rights in violation of RCW
41.80.110(1)(a) or discriminate in violation of RCW 41.80.110(1)(c)
when it refused to allow employees the use of employer provided
e-mail and electronic bulletin boards.
Issue 1: Did the employer commit interference in violation of RCW
41.80.110(1)(a) when it refused to allow employees the use
of employer provided e-mail and electronic bulletin boards
for purposes of union organizing?
Applicable Legal Principles
Under RCW 41.80.110(1)(a), an employer may not interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed by Chapter 41.80 RCW.
The standard for establishing an interference violation is whether
the typical employee in similar circumstances reasonably could
perceive the conduct as a threat of reprisal or force or promise of
benefit related to the pursuit of rights protected by the chapter.
It is not necessary to show that the employee was actually
interfered with or restrained in order to prevail on an interference
allegation. No showing of intent or motivation is necessary to find
an interference violation. Community College District 13 (Columbia
Basin), Decision 9628-A (PSRA, 2007).
Under the Washington Constitution, an individual or association
cannot assume it has the right to use the property of the state or a
political subdivision of the state. Const. art. VIII,
SectionSection 5 and 7. This Commission has held that a union and
its supporters cannot assume they have the right to use the
employer's computers or computer systems. Snohomish County,
Decision 9799 (PECB, 2007); King County, Decision 6734-A (PECB,
2000). If an employer allows other non-work related materials to be
posted on bulletin boards, but denies the right to post materials
protected under RCW 41.56, the employer commits an unfair labor
practice. King County, Decision 9692 (PECB, 2007). Nonetheless,
employees do not have a statutory right to use an employer's
property.
Conversely, an employer allowing a union to use employer property
may also commit an interference violation. Pierce County, Decision
1786 (PECB, 1983). In Pierce County a union used, without the
employer's knowledge, employer office space, telephones, and time
for union purposes. Upon learning of the use, the employer took
steps to terminate the use. Despite lack of knowledge, the employer
still committed a technical interference violation because the
employer appeared to assist, support, or show preference for the
union using the employer's resources.
In contrast, the Executive Director dismissed a complaint alleging
interference when the employer gave an employee notice that the
employee was not to use the employer's letterhead, typewriter, or
copy machines to process labor relations matters. City of Seattle,
Decision 1355 (PECB, 1982). In that case, the Executive Director
held that neither Chapter 41.56 RCW nor WAC 391-45 entitles
individuals or associations to use public property for purposes of
initial processing of ULP allegations. Further, the Executive
Director cited Const. art. VIII, Section 7, as prohibiting a gift of
public funds.
Analysis
In 2007, the union began an organizing campaign at the employer's
facility. At the time the union filed the complaint, the union was
not a certified representative of any of the employer's employees.
The employer maintains an e-mail communication system and an
intranet site. The intranet, where the employer provides links for
employees and students to get information, is for internal use. The
intranet is a place for announcements and information to be posted
in lieu of sending messages by mass e-mail. E-mail and intranet
guidelines are posted on the intranet. The intranet has two
components: an announcement section and a classified section. All
postings to the intranet are reviewed by a moderator in the
Information Technology department before they are viewable. In
order to be posted in the announcement section, the announcement
must be related to a department or recognized organization, such as
a student group, of the employer. In order for a business or
charity to post on the intranet, the business or charity must be
affiliated with the employer. Classified ads of a personal nature,
such as looking for moving boxes, are allowed in the classified
section. All postings to the intranet must comply with the
Acceptable and Ethical Use of Information Technology Resources
Policy (Acceptable Use Policy).
The employer's Acceptable Use Policy states that "information
technology resources can be used for activities that support the
mission of the University." The list of acceptable uses include:
learning, teaching, research, and university business. According to
the employer's Electronic Communication Policy, the electronic
communication addresses, mailboxes, or accounts assigned by the
employer are the employer's property.
Included in the employer's policy is a prohibition on the use of
employer intranet and e-mail to support an outside organization. As
a state employer, the employer must comply with state ethics
regulations and laws governing the use of state resources.
Soliciting for an outside organization is a prohibited use of the
employer's resources, according to Margaret Smith, the employer's
internal auditor and ethics officer.
According to Carmen Rahm, Assistant Vice-President for Information
Technology, a classified posting looking for people to form a union
would likely be brought to his attention and would be analyzed under
the Acceptable Use Policy. The standard applied by Rahm and his
staff is whether there is a business, and whether the state ethics
law and the RCWs permit the use of state resources for the posting.
Rahm testified that appropriate use of technology is defined as
related to university business, but that a de minimis use is allowed
for personal e-mail. Smith testified that de minimis use is the
occasional and infrequent use of resources, such as an occasional
e-mail to one's child. De minimis use would include anything
personal that is not for an outside business. Smith also testified
that any use that is a prohibited use, i.e. not related to the
employer's business, cannot be de minimis.
The employer has collective bargaining agreements with two other
unions. The agreement between the employer and the United Faculty
of Central (UFC) contains a provision allowing union officers and
stewards de minimis use of state-owned resources for contract
administration. The agreement between the employer and the
Washington Federation of State Employees contains provisions
allowing employee use of e-mail to request union representation and
allowing shop stewards use for contract administration.
The employer has consistently applied its policy prohibiting the use
of e-mail to support outside organizations to other unions. Smith
testified that during UFC organizing, the UFC was using e-mail. The
employer took the matter to the Assistant Attorney General, and it
was determined that the UFC's use of e-mail was an inappropriate use
of employer resources. The Assistant Attorney General advised the
employer and the UFC that it was inappropriate for the UFC to use
the employer's resources for organizing.
In Snohomish County, Decision 9799, the employer had a signed
collective bargaining agreement with Teamsters Union Local 763
(Teamsters) when the Snohomish County Corrections Guild (Guild)
filed a representation petition. Prior to filing of the petition,
the employer sent an e-mail admonishing employees that employer
e-mail systems were not to be used for non-county business. The
employer's e-mail policy stated appropriate use of the employer's
e-mail system was conducting official county business and defined
county business. The employer allowed the Teamsters to use e-mail
for purposes related to labor-management relations. The employer
admonished employees for using e-mail to debate which union should
represent the employees. The employer did not commit interference
when it enforced its e-mail use policy, nor did it commit
interference when it allowed the Teamsters to use the e-mail system.
Further, there was no interference or discrimination because the
Guild was not yet a recognized representative.
This case, like Snohomish County, Decision 9799, and King County,
Decision 6734-A, involves an employer that maintains an e-mail
system for the purpose of conducting the employer's business. The
employer maintains multiple policies on what is acceptable use of
information technology resources, and the employer provides ethics
training for employees. In summary, the employer allows use of its
resources for the employer's business and does not allow its
resources to be used to support an outside organization.
The union argues the employer committed interference because an
employee learning that the employer does not permit communications
about forming a union on the employer's e-mail and intranet, but
does allow communications about other non-employer related topics,
would be discouraged from engaging in union organizing activities
protected by law. In light of the employer's policy prohibiting the
use of its electronic resources to support an organization not
affiliated with the employer, it seems reasonable that an employee
would recognize that the employer was enforcing its policy rather
than prohibiting or discouraging union organizing. Smith testified
that employees could still hand out information about the union and
discuss the union during their breaks. The employer did not commit
interference when it sought to enforce its policy.
The employer has demonstrated that it makes an effort to uniformly
apply its policies. Rahm credibly testified that inappropriate
postings do occasionally make it past the intranet monitors, but
will be removed if discovered or brought to his attention. The
union provided examples of classified postings from the intranet,
some of which were allegedly supporting outside businesses. Rahm
admitted that one of the postings was inappropriate and should not
have been posted. Other postings, for a bank and a charity, were
permissible postings because the bank was located on campus and had
an agreement with the employer, and the charity was affiliated with
a student group. The employer provided examples of postings that
were found to be inappropriate, and either were not posted or were
removed after posting.
Conclusion
The employer did not commit interference when it refused to allow
the union to use e-mail and the intranet for organizing purposes.
The employer enforces its technology use policies, and attempts to
prevent postings for non-employer related outside organizations.
Further, the employer has not permitted other unions to use e-mail
or the intranet for organizing purposes. Use of the employer's
resources by other unions has been bargained for and limited to
contract administration.
Issue 2: Did the employer discriminate in violation of RCW
41.80.110(1)(c) when it refused to allow employees the use
of employer provided e-mail and electronic bulletin boards
for purposes of union organizing?
Applicable Legal Principles
An employer commits an unfair labor practice when it encourages or
discourages membership in any employee organization by
discrimination in regard to hiring, tenure of employment, or any
term or condition of employment. RCW 41.80.110(c)
A discrimination violation occurs when: (1) the employee exercised a
right protected by the collective bargaining statute, or
communicated to the employer an intent to do so; (2) the employee
was discriminatorily deprived of some ascertainable right, benefit,
or status; and (3) a causal connection exists between the exercise
of the legal right and the discriminatory action. Brinnon School
District, Decision 7210-A (PECB, 2001).
The complainant has the burden of establishing a prima facie case of
discrimination. If the complainant establishes a prima facie case,
the burden shifts to the employer to articulate a legitimate,
non-retaliatory reason for its action. At all times, the
complainant has the burden to prove by a preponderance of the
evidence that the employer action was in retaliation for the
employee's exercise of statutorily protected rights. Brinnon School
District, Decision 7210-A.
Analysis
In summer 2007, the union's General Counsel, Eric Nordlof, and the
employer's Director of Operations, Angela Beaudry, exchanged letters
and e-mails regarding the union's request to use the employer's
e-mail and intranet for organizing. On August 3, 2007, Beaudry
responded by letter, informing Nordlof that she was unaware of any
circumstances in which faculty or staff were allowed to use the
intranet to support an outside organization whether public, private,
union, or non-union. In an e-mail, Beaudry stated that employees
are not allowed to communicate on the intranet to support an outside
entity. She confirmed that another union representing some of the
employer's employees had negotiated the right for employees to use
the employer's e-mail to request union representation.
In this case, the employees, with the help of the union, were
attempting to organize for the purpose of collective bargaining,
which is a right protected by the Chapter 41.80 RCW. Through its
letters, the union put the employer on notice that the employees
were organizing.
The employer denied the union permission to use the employer's
e-mail and intranet for purposes of organizing. In the past, as
discussed in Issue 1, the employer prevented the UFC from using
e-mail for organizing. As discussed in Issue 1, unions and
employees do not have a statutorily protected right to use the
employer's resources for purposes of organizing. See Snohomish
County, Decision 9799; King County, Decision 6734-A; Pierce County,
Decision 1786; City of Seattle, Decision 1355 (PECB, 1982).
The employer did not discriminate because the employer excludes, or
attempts to exclude, use of its electronic communications resources
by all outside organizations and consistently applies this policy.
CONCLUSION
The employer did not commit interference or discrimination by
refusing to allow the union to use its e-mail and intranet systems
for organizing purposes.
FINDINGS OF FACT
1. Central Washington University is an employer within the meaning
of RCW 41.80.005(8).
2. The Public School Employees of Washington is an employee
organization within the meaning of RCW 41.80.005(7).
3. The employer maintains an e-mail system and internal intranet
system.
4. The employer maintains policies for appropriate use of the
employer's information technology. Appropriate use includes
activities that support the employer's mission, but does not
include the use of information technology resources to support
an outside organization.
5. In order to post a message on the intranet, the message must be
approved by a moderator. While some inappropriate postings
have been posted, the employer attempts to uniformly enforce
the policy and removes inappropriate postings.
6. The union began an organizing campaign in 2007. In the summer
of 2007, the union sought permission to use the employer's
e-mail to communicate about the organizing campaign. The
employer denied the union use of its e-mail system for that
purpose.
7. When the United Faculty of Central used the employer's e-mail
system during an organizing campaign, the employer requested
that organization to cease using the employer's e-mail.
8. Through the collective bargaining process, the employer has
negotiated use of its e-mail system for contract administration
or employee representation matters with unions that currently
represent employees.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.80 RCW.
2. The employer did not interfere with employee rights in
violation of RCW 41.80.110(1)(a).
3. The employer did not discriminate in violation of RCW
41.80.110(1)(c).
ORDER
The complaint charging unfair labor practices filed in the
above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 1st day of July, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CLAIRE NICKLEBERRY, Examiner
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.