King County (Washington State Nurses Association), Decision 10172
(PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
KING COUNTY, )
)
Employer. )
-----------------------------------)
CLAIRE BROWN, )
)
Complainant, ) CASE 21395-U-07-5456
)
vs. ) DECISION 10172 - PECB
)
WASHINGTON STATE NURSES ) FINDINGS OF FACT,
ASSOCIATION, ) CONCLUSIONS OF LAW,
) AND ORDER
Respondent. )
___________________________________)
Claire Brown appeared pro se.
Timothy Sears, General Counsel, for the Washington State Nurses
Association.
On December 3, 2007, Claire Brown filed an unfair labor practice
complaint alleging that the Washington State Nurses Association
(WSNA), committed unfair labor practices in violation of RCW
41.56.150(1) and RCW 41.56.150(3). In the complaint, Brown claimed
that the WSNA brought a charge of dual unionism against her after
she attempted to change unions by assisting in the filing of a
Petition for Investigation of Question Concerning Representation
with the Public Employment Relations Commission.
Brown filed an amended complaint on January 1, 2008, withdrawing
charges alleging union discrimination in violation of RCW
41.56.150(3). She included an addendum to her previously filed
statement of facts and requested remedy. Brown alleged that since
she had filed her original complaint, a WSNA disciplinary panel had
found her guilty of the charge of dual unionism. As a result of the
finding, the panel imposed discipline on Brown; it censured her and
banned her from holding a union office for six months. WSNA then
mailed the panel's report to all the members of the bargaining unit.
Examiner Katrina Boedecker held a hearing on Brown's complaint on
April 25, 2008, in Kirkland, Washington. Both parties filed
post-hearing briefs.
ISSUES
1. Did WSNA unlawfully interfere with Brown's rights as a public
employee by bringing disciplinary charges against her, and
imposing discipline on her, for her participation in the filing
of a petition seeking to change unions?
2. Did WSNA unlawfully interfere with Brown's rights as a public
employee by sending out a letter detailing Brown's discipline
to each individual nurse in the bargaining unit?
3. If any of the above allegations are proven to be true, should
the remedy should include extraordinary remedies because of the
flagrancy of the violation(s)?
Based upon the record presented, the Examiner finds that the WSNA
acted unlawfully when it censured Brown for engaging in activities
protected by RCW 41.56.040, and in the manner in which it notified
the bargaining unit. The WSNA censure interfered with Brown's
rights in violation of RCW 41.56.150(1). The violation must be
cured by certain extraordinary remedies.
APPLICABLE LEGAL STANDARDS
The Public Employees Collective Bargaining Act, Chapter 41.56 RCW,
provides:
RCW 41.56.040 . . . No public employer or other person,
shall directly or indirectly, interfere with, restrain, coerce,
or discriminate against any public employee or group of
employees in the free exercise of their right to organize and
designate representatives of their own choosing for the purpose
of collective bargaining, or in the free exercise of any other
right under this chapter.
RCW 41.56.150 UNFAIR LABOR PRACTICES FOR A BARGAINING
REPRESENTATIVE ENUMERATED. It shall be an unfair labor
practice for a bargaining representative:
(1) To interfere with, restrain, or coerce public
employees in the exercise of their rights guaranteed by this
chapter;
An interference violation will be found when an employee could
reasonably perceive the union's actions are a threat of reprisal or
force associated with the protected activity of that employee or
other employees. City of Seattle, Decision 3066-A (PECB, 1989). An
interference violation also will be found where a bargaining
representative is guilty of an unfair labor practice by
disciplining an employee for engaging in protected activity.
Washington State Patrol, Decision 4757-A (PECB, 1995).
BACKGROUND
Claire Brown is a Registered Nurse and Public Health Nurse. She
works for Public Health - Seattle and King County (employer). She
is in a bargaining unit of approximately 310 nurses. The unit is
represented by WSNA for collective bargaining purposes with the
employer.
The parties' 2004 - 2006 collective bargaining agreement contains a
union security clause. Article 3, Section 4 Association Membership:
It shall be a condition of employment that all nurses working
under this Agreement on its effective date who are members of
the Association and all nurses who become members of the
Association during their employment by the Employer shall
remain members in good standing for the life of the Agreement.
All nurses who are not members and all new nurses hired on or
after the effective date of this Agreement may not be required
to join the Association as a condition of employment but within
thirty-one (31) days from the effective date of this Agreement
or the date of hire shall, as a condition of employment, pay to
the Association an amount of money equivalent to the regular
Association dues or pay an agency fee to the Association for
their representation to the extent permitted by law. The
requirement to join the Association and remain a member in good
standing shall be satisfied by the payment of regular dues or
agency fees uniformly applied to other members of the
Association for the class of membership appropriate to
employment in the bargaining unit. . . .
On March 16, 2007, Eric Shirey, Interim Chair of the Public Health
Union of Nurses (PHUN) filed a Petition for Investigation of
Question Concerning Representation (QCR) with the Commission. In
papers filed with the petition, Brown was identified as the Interim
Co-Chair of PHUN.
Following the filing of the QCR petition with the Commission, WSNA
and the employer both followed the requirements for processing the
petition outlined in WAC 391-25: the employer delivered the names of
all nurses in the bargaining unit to the Commission; it later posted
required notices at all work sites. WSNA and the employer both
participated with PHUN in the investigation conference call
conducted by the Commission. During this investigation, all parties
were asked if there were any concerns about the validity or timing
of the petition. No party raised any objections.
Prior to the vote to see whether bargaining unit members wanted PHUN
or WSNA to represent them, WSNA hosted, moderated, and attended
three debates with PHUN. WSNA mailed multiple notices to all
members of the bargaining unit, urging them to vote. WSNA held
lunchtime meetings at work sites about the upcoming election. It
openly sent WSNA supporters to worksite meetings held by PHUN. WSNA
sent staff members and legal counsel to Olympia to witness the tally
of the elections. At no time during the three months from the
filing of the petition to the conclusion of the final election in
June, 2007, did WSNA suggest that actions taken by PHUN founders or
supporters were inappropriate.
WSNA won the run-off election held on June 21, 2007, receiving 115
votes to PHUN's 111 votes. Immediately after the tally, the three
officers of PHUN, Eric Shirey, Jim Gleckler, and Brown, admitted
defeat. Brown spoke to the staff of WSNA, who were still at the
table where the tally had taken place. She stated that PHUN planned
to support WSNA. She also said that since it had been a very close
election, it was clear that PHUN represented the views of nearly
half the bargaining unit. She expressed hope that WSNA would
include some PHUN supporters when WSNA resumed negotiations with the
employer.
After the election, Shirey, Gleckler, and Brown sent an e-mail to
everyone on PHUN's e-mail list who had asked to be kept updated. In
the e-mail, the officers acknowledged PHUN's defeat and its
commitment to support WSNA. The content of the e-mail letter was
also posted on PHUN's website.
In July 2007, WSNA held public meetings to provide updates about
returning to contract negotiations with the employer. Brown
attended one of these meetings where she expressed support for WSNA.
Marie Peacock-Albers and William Johnston, two nurses in the
bargaining unit who are also local unit officers of WSNA, were in
attendance at the meeting where Brown spoke. Also present was Hanna
Welander, who is a WSNA staff member.
Later, Peacock-Albers spoke with Barbara Frye, Director of Labor
Relations for WSNA, and other members of the WSNA negotiations team,
about her intent to bring internal union charges against Brown.
They were supportive of her decision. Johnston also asked Frye
about bringing charges against Brown: "I had a number of
conversations with Barbara Frye . . . she agreed with me that this
was a time for building bridges, but that I could not, as local unit
chair, ignore the fact that the bylaws were broken or violated. . . .
She said that I needed to submit a letter to WSNA . . . ."
Frye testified: "I was kind of glad I didn't get to make the
decision. . . . Part of me said, Oh my God, let's just move on, part
of me said, people need to be held accountable. You know, I didn't
get to make the decision, I didn't - that is not my role, it was the
member's role."
Shortly after the July meetings, Peacock-Albers and Johnston sent a
letter to Kim Armstrong, President of WSNA. In the letter, the two
charged that Brown had violated the WSNA policy against dual
unionism. In their letter, they stated that Brown was a founding
member and co-chair of PHUN, "an organization in direct competition
with the Washington State Nurses Association, and which sought by a
Petition for change of representative to eliminate WSNA as the
collective bargaining representative of nurses employed by
Seattle-King County Public Health."
Judy Huntington, Executive Director of WSNA and the Chief
Administrative Officer for the association, sent the Peacock-Albers
and Johnston letter to Brown by certified mail. Huntington
accompanied this with her own letter dated August 13, 2007,
informing Brown that a WSNA panel had met on August 9, 2007:
and determined that sufficient evidence exists to proceed with
a hearing on the charge. Documents, including the Petition for
a Change of Representative filed with the State of Washington
Public Employment Relations Commission, and various e-mails and
newsletters, indicate that you participated in and gave
assistance to the so-called Public Health Union of Nurses
('PHUN'), an organization in direct competition with the
Washington State Nurses Association, which sought to eliminate
WSNA as the collective bargaining representative of nurses
employed by Seattle-King County Public Health.
WSNA held a hearing on the charges at its offices on October 4,
2007. A hearing panel of three nurses from other bargaining units
was appointed by WSNA to conduct the hearing. Brown was in
attendance at the hearing, as well as Timothy Sears the WSNA General
Counsel, a court reporter, and the three other nurses who were
similarly charged, Shirey, Gleckler, and Jacqueline Justus. Derek
Van Eyck, another nurse from the bargaining unit attended the
hearing as a witness.
Brown testified to the hearing panel that she believed that WSNA was
acting in retaliation against the PHUN founders. She stated that
she did not think that any charges should have been brought against
them and that she intended to file an unfair labor practice
complaint with the Commission.
On December 17, 2007, Huntington sent Brown a certified letter
notifying her that the hearing panel had reached a decision.
Huntington included a copy of the Report of the Disciplinary Hearing
Panel. The nine page report concluded that Brown was guilty of the
charge of dual unionism. In support of this verdict, the report
stated, "In particular, the 'PHUN' petition for a representation
election filed with PERC is critical, undisputed evidence relating
to the charges." The report found, "The evidence proves that Claire
Brown was the co-chair of the 'PHUN' group, and knowingly
participated in 'PHUN' activities seeking to eliminate WSNA as the
collective bargaining representative . . . These facts are shown
conclusively by the documents in the record, including the petition
for change of representation filed with the Public Employment
Relations Commission." Further, the report goes on, "Ms. Brown
asserted that she was not guilty of the charge of dual unionism in
the mistaken belief that because her activities were permitted by
PERC rules, she could not be disciplined under WSNA's Bylaws. . . ."
In deciding upon an appropriate penalty, the panel concluded, " the
Hearing Panel notes the harm that Ms. Brown's misconduct has
inflicted on her co-workers and every member of WSNA, blocking
contract negotiations for months and undermining WSNA's bargaining
position. . . . Accordingly, we hereby censure Ms. Brown and suspend
her right to hold office within WSNA for a period of six (6) months,
effective immediately." The WSNA sent copies of the report to every
member of the bargaining unit.
In the weeks following WSNA's mailing of the hearing panel report to
all members of the bargaining unit, a number of nurses contacted
Brown to say that they were stunned by what the report said, and by
the fact that WSNA had sent it out to all of the nurses. One of
these nurses, Heather Almon, testified that, "I was shocked by [the
letter]. I thought it was retaliatory. I thought it was to
discipline publicly the members that had been interested in bringing
forth the PHUN - - the PHUN committee." Almon described the effects
of the report on her, "I, personally for me, feel like even coming
here today if I have an issue that I might not be represented
fairly. . . . I feel like it divided people into separate camps
again, instead of unifying us all on one mission, one goal, for the
betterment of all of the nurses in the county." Later in her
testimony, she stated, "I feel like even standing up here I am
visually recognized as someone who is maybe choosing a side, and
that concerns me . . . If this is how they were treated, if you
would ever step forward that you could be treated in the same
manner. That is how it felt to me, personally."
Jane Craig, a nurse in the bargaining unit, also testified about the
impact on her of the WSNA's charges. "[I]f WSNA was going to be a
willing participant in prosecuting these people, it would end up
destroying any newly established unity with the nurses . . . I
thought . . . why did WSNA agree to debate, you know, if it -- why
did they wait until after the election to bring those charges?"
When asked if she had personal fears of charges being brought
against her, Craig stated, "Yeah, I was concerned because I didn't
know who else they were going after."
In describing her response to the report of the hearing panel, Craig
testified, "I was horrified, I was angry, I was embarrassed that
WSNA chose to be so petty and vindictive. Instead of choosing to
move forward and perhaps admit the PHUN group had some good ideas .
. . I was particularly upset because PHUN made it very clear
immediately after the vote count that they were behind WSNA." She
believed "WSNA was trying to appear to be above the fray and
objective, but it came across, clearly to me, that they were just
being vindictive, retaliatory and petty . . . WSNA was sending a
clear message that this is not a democracy, you don't have a choice
as to who represents you, and if you do this again you will be
punished . . . ."
After WSNA won the election, it returned to the bargaining table
with the employer in autumn of 2007. It was able to negotiate a
collective bargaining agreement with gains over the one which the
bargaining unit voted down in January, 2007.
ANALYSIS
WSNA Censure of Brown
Under the Public Employees Collective Bargaining Act, Chapter 41.56
RCW, public employees have the right to choose, change or reject
union representation. RCW 41.56.040. On the Commission's home page
of its website (www.PERC.wa.gov), a frequently asked question (FAQ)
is listed: I'm concerned that my union or employer will retaliate
against me. Can they? The Commission answers, "It is illegal for a
public employer or a union to retaliate against a public employee
for filing a petition or giving testimony at PERC. If you believe
that you have been the victim of retaliation for filing your case,
contact PERC about filing an unfair labor practice complaint about
that retaliation."
The nurses who filed a petition with the Commission to change unions
from WSNA to PHUN did so because of dissatisfaction with WSNA. The
objection certain nurses had with WSNA's representation, however, is
not what this complaint is about. The issue presented here is
whether WSNA had the right to discipline an employee who followed a
process created by the state legislature, and administered by a
state agency.
The WSNA is not disputing that Brown had the right to file the
petition with the Commission to change unions. It admits that it
participated in the processing of the petition through to the final
election. The internal union charges that were brought against
Brown and three others alleged that they were guilty of dual
unionism.(fn:1) Dual unionism is a violation of a WSNA bylaw which
prohibits "participation in and assistance to one or more labor
union organizations which are in direct competition with WSNA . . .
." WSNA is asserting that the charges that it brought, the
disciplinary hearing that it held, and the verdicts and discipline
handed out, are all internal union affairs. Therefore, they are
sheltered from any examination by the Commission.
____________________
fn:1 The Commission does not have any procedures for class actions.
Since Brown is the only named complainant in this proceeding, she
will be the only one who could receive any remedy from this Order.
In Seattle School District, Decision 9135-A (PECB, 2007), the
Commission discusses in depth what constitutes internal union
affairs. In reversing the Examiner's decision, the Commission holds
that the union was right in its discipline of a bargaining unit
employee because she was engaged in activities that were not
protected by statute. Furthermore, the Commission found that the
union had legitimate interests in asking her to stop the activities.
The employee, Liesl Zappler, worked for the Seattle School District
as a gardener. Zappler was unhappy with some policies of her union.
Instead of working out her complaints with the union, she went
directly to the employer to make suggestions about things she
thought needed changing. Some of her suggestions were in direct
opposition to the interests of her coworkers and policies of the
union. Specifically, she suggested cutting some bargaining unit
positions so that the employer would not have to layoff a supervisor
Zappler liked. The union told Zappler to stop what she was doing,
or she would be disciplined. Zappler did not stop; the union fined
her $1,200.00 and censured her. Zappler filed an unfair labor
practice complaint on the grounds that the union's actions were
unfair and too severe.
In Seattle School District, the Commission cites several cases from
the National Labor Relations Board (NLRB or Board) and the U.S.
Supreme Court. Generally, the cases hold that a union cannot use
internal union procedures to interfere with an employee's right to
keep his or her job; nor can a union exercise physical violence
against the employee. The holdings conclude that a union can take
disciplinary steps against a member as related to the employee's
rights of membership in the union, as long as the member is free to
leave the union and thus escape the discipline.
The Commission found that the facts of the Seattle School District
case lined up with the facts of Scofield v. NLRB, 394 U.S. at 430.
In Scofield, the Supreme Court found that Section 8(b)(1) of the
National Labor Relations Act (NLRA or Act) "leaves a union free to
enforce a properly adopted rule which reflects a legitimate union
interest, impairs no policy Congress has imbedded in the labor laws,
and is reasonably enforced against union members who are free to
leave the union and escape the rule." The Commission concluded in
Seattle School District that the union had enforced properly adopted
rules against Zappler, rules which did reflect a legitimate union
interest. The union in Seattle School District had a legitimate
interest in provided a united front to the employer. Zappler was
attempting an end run around the union to meet her own personal
goals.
Rules protecting a union's existence can be found to be legitimate.
The NLRB has recognized that a union may, by internal union
disciplinary action, lawfully expel, suspend, or otherwise impair
the membership rights of a member who attempts to decertify the
union or supports a rival organization, provided such disciplinary
action does not affect the member's employment status.
In the case of Tawas Tube Products, Inc., 151 NLRB 46 (1965), two
members of the union were tried by a committee of union members and
expelled from the union for "the filing of the [decertification]
petition and actively supporting the decertification cause." 151
NLRB at 47. In Tawas, the employer claimed that the expulsions were
unlawful since such union disciplinary action interfered with
employees' right to freely support decertification of the union. The
Board rejected that claim, and concluded that the internal union
disciplinary action was lawful for three reasons:
First, the Union's disciplinary action in this case was limited
to the union membership status of [the charged members], and no
attempt to affect their job interests was involved. [Footnote
omitted.] Second, the ground for the expulsions plainly
related to a matter of legitimate union concern and one which
may properly be a subject matter of internal discipline. In
this connection, even a narrow reading of the [NLRA] would
necessarily allow a union to expel members who attack the very
existence of the union as an institution [footnote omitted],
which is literally the case here . . . . As we said in the
Allis-Chalmers case [149 NLRB 67 (1964)], when a situation
"involves the loyalty of its members during a time of crisis
for the union . . . we cannot hold that a union must take no
steps to preserve its own integrity." That language is even
more applicable here, for we can conceive of no conduct by a
union member more hostile or threatening to his union than that
engaged in by [the charged members]. Finally, the unique
defensive aspect of the expulsions here should be noted. It
would be difficult for the Union to carry on an election
campaign were [the charged members], as members, entitled to
"equal rights and privileges . . . to attend membership
meetings, and to participate in the deliberations and voting
upon the business of such meetings . . . ." rights now
guaranteed to union members in Section 101(a)(l) of the
Labor-Management Reporting & Disclosure Act. We therefore
conclude that the expulsions here are reasonably to be viewed .
. . as appropriate union disciplinary action under the
circumstances.
. . . .
This case . . . presents a situation where union members have
resorted to the Board for the purpose of attacking the very
existence of their union. . . . We do not consider it beyond
the competence of the Union to protect itself in this situation
by the application of reasonable membership rules and
discipline. Furthermore, the employees' attempt to repudiate
the Union by a decertification proceeding demonstrates that
loss of membership was of no significance to them; consequently
their expulsion from the Union could hardly be an effective
deterrent against resorting to the Board.
151 NLRB at 47 - 48.
In United Steelworkers of America Local No. 4028 (Pittsburgh-Des
Moines Steel Company), 154 NLRB 692 (1965), the union suspended from
membership for a period of five years a member who had filed a
decertification petition with the NLRB. The Board noted that the
"union disciplinary action [was] aimed at defending itself from
conduct which seeks to undermine its very existence," and reaffirmed
that a union did not interfere with a free and fair decertification
election if it suspended or expelled a member "for filing a petition
seeking the decertification of the union and actively supporting the
decertification cause." 154 NLRB at 696.
The U.S. Court of Appeals for the Ninth Circuit upheld a Board
decision, noting that a union's disciplinary action "did not affect
[the member's] job, or, so far as it appears, any other economic
right" in Price v. National Labor Relations Board, 373 F.2d 443, 446
(9th Cir. 1967), certiorari denied 392 U.S. 904 (1969). The Ninth
Circuit ruled that "the union's action in suspending [the member]
from membership for five years because he attempted to have the
Union decertified" was not an unfair labor practice. "[The member]
sought to attack the union's position as bargaining agent, which is,
as the Board says, in a very real sense an attack on the very
existence of the union. We think that, at the least, the [NLRA] was
intended to permit the union to suspend or expel a member who takes
such a position. Otherwise, during the pre-election campaign, the
member could campaign against the union while remaining a member and
therefore privy to the union's strategy and tactics. We see no
policy reason for requiring the union to retain a member who takes
such a position."
The Board recently reaffirmed a union's right to take disciplinary
action affecting only the membership status of a member who files a
decertification petition. In International Brotherhood of Teamsters
Local 705 (K-Mart), 347 NLRB No. 42 (June 27, 2006), slip opinion at
4, the Board held "A union has a right to defend itself against a
decertification petition, which attacks its very existence as the
exclusive bargaining agent and, under the [NLRA], it may
legitimately expel a member for engaging in decertification efforts."
However, the NLRB has carved out one area of employee rights in
Section 7 and Section 8(b)(1)(A) of the Act. These sections of the
NLRA correspond closely to the sections of Washington State Public
Employees Collective Bargaining Act, Chapter 41.56 RCW, cited above.
The facts of Brown's case stand in contrast to Zappler's. They fit
into the carved out area of protected employee rights. While WSNA
has characterized its discipline of Brown as purely internal union
affairs, in point of fact, she was censured for activities that are
protected by state statute.
Office Employees Local 251 (Sandia National Laboratories) 331 NLRB
No. 193, differentiates between internal union affairs and
activities protected by Section 8(b)(1)(A) of the NLRA. Although
the discussion in the Sandia case appears to broaden the scope of
what unions can legitimately call internal union affairs, one narrow
area of employee rights was kept beyond this reach - those rights
that employees retain when they engage in activities that are
specifically defined by statute.
Sandia traced the protection of this narrow area. "Similarly in
Molders Local 125 (Blackhawk Tanning Co.) 178 NLRB 208 (1969)
[enforced sub nom National Labor Relations Board v. International
Molders & Allied Workers Local 125, 442 F.2d 92 (7th Cir. 1971)],
the Board held that a union fine imposed against an employee who had
filed a decertification petition violated Section 8(b)(1)(A) because
it interfered with the statutory right to invoke the Board's
election process." 331 NLRB No. 193 (2000), at 1420. The Board
distinguished between the fine imposed for filing the
decertification petition in Blackhawk Tanning [178 NLRB 208 (1969)],
and the expulsion from membership for filing a similar petition in
Tawas (cited above). In the latter case, the Board found that the
expulsion was lawful because retention of membership would have
allowed the employee to remain privy to union strategy and tactics
in opposition to the petition. In Blackhawk Tanning, the Board
defined the problem as one of "reconciling the public policy of
protecting access to the Board with a union's right to prescribe its
own rules respecting 'the acquisition or retention of membership.'"
Sandia plainly defines the division between protected employee
activities and internal union affairs. "[A] union may not enforce
rules that unduly hamper the ability of its members to bring a
matter to the Board for consideration. . . . the proscriptions of
Section 8(b)(l)(A) apply when intra-union discipline clashes
directly with statutory policy interests and prohibitions
incorporated in the Act." 331 NLRB No.193 (2000), at 1424.
The Supreme Court has also embraced the Board's view that union
discipline may run afoul of Section 8(b)(1)(A) when it interferes
with a policy promoted by the Act. In NLRB v. Shipbuilders, 391
U.S. 418 (1968), the Court found a violation of Section 8(b)(1)(A)
by a union which had expelled a member for filing an unfair labor
practice charge with the Board before first exhausting internal
union remedies.(fn:2) The member had initially filed intra-union
charges with his local alleging that the local president had
wrongfully caused his employer to discriminate against him because
he had engaged in certain protected activity. The local union ruled
against him on the charge. Instead of pursuing the internal union
appeals procedure that were available to him, the member filed a
charge with the Board alleging that the local union president's
actions had violated his rights under the Act. The union then tried
and expelled him for violating a union constitutional provision
requiring that members aggrieved by actions of their local unions
first exhaust all appeals within the union before resorting to the
courts or other tribunals. The Count upheld the Board's
determination that the expulsion violated Section 8(b)(1)(A). It
agreed with the Board that union rules requiring exhaustion of
internal remedies under such circumstances were contrary to the
policy of the Act to keep employees free from coercion when making
complaints to the Board about perceived encroachments of their
statutory rights as employees.
____________________
fn:2 Shipbuilders is cited in Sandia 331 NLRB No. 193 (2000), at
1421.
The Court found that, "the overriding public interest makes
unimpeded access to the Board the only healthy alternative, except
and unless plainly internal affairs of the union are involved."
Shipbuilders at 424. The Court concluded, "When the complaint or
grievance does not concern an internal matter, but touches a part of
the public domain covered by the Act, failure to resort to any
intra-union grievance procedure is not ground for expulsion from a
union." Shipbuilders at 438. Shipbuilders makes it clear that when
an activity comes under the umbrella of protection offered by a
relevant section of the Act, then a union's internal laws of
governance are overruled because of the overriding public interest
in unimpeded access to the Board, or in the instant case, the
Commission.
Some of WSNA's actions against Brown do impair policies imbedded in
the labor laws of the State of Washington. Filing a QCR petition is
protected activity by a public employee under RCW 41.56.040. The
statute also prohibits a union from interfering with an employee who
takes such action. The WSNA could have expelled Brown from
membership for filing the QCR. The logic of Tawas applies to the
public sector as well. An employee who files a QCR petition cannot
expect to retain membership in his or her union which would allow
access to union strategy in fighting the petition. The WSNA acted
lawfully when it suspended Brown's right to hold an office within
the WSNA for six months. The right to hold office stems from
Brown's union membership status.
However, WSNA acted illegally when it censured Brown for filing a
QCR petition with the Commission. A censure does not affect an
employee's union membership status. A censure is a condemnation, a
rebuke, a reprimand. According to the Random House Dictionary of
the English Language, 1969, a censure is "a strong or vehement
expression of disapproval." As a verb, it is "to criticize or
reproach in a harsh or vehement manner." The WSNA censure of Brown
sends her a strong message that the union did not want Brown to
exercise her statutory rights. Public policy prohibits a union from
penalizing a public employee because she has sought to invoke the
Commission's processes.
The report of the WSNA hearing panel links Brown's censure directly
to her filing the QCR petition with the Commission in March, 2007.
A petition to change unions, brought before a state regulatory
agency, by its very nature, is not an internal union issue. The
election process is overseen by a state agency, which protecting
legitimate interests imbedded in the statutes it regulates. WSNA
cannot be allowed to send Brown a message that the union can
override Brown's statutory guarantee of protection when trying to
change unions.
WSNA argues that it did not retaliate against any of its members, it
simply enforced its bylaws. WSNA contends that it could not have
brought the charges or enforced the discipline during the time the
election was going on, because doing so would have been illegal. No
matter what the timing is, a union cannot censure an employee for
following a state labor statute. It is illegal at any time. WSNA
may be assuming that by delaying the censure until after the
election is final, it can convince others that this is an internal
union matter. Unfortunately, the evidence that WSNA presented to
support its censure relates to documents such as the "petition that
was filed with PERC, and activities in which both PHUN and WSNA
participated." Those activities were an integral part of the
election process to determine who would be the exclusive bargaining
representative for this unit. Having won in that process, the union
is not then free to censure those who did not prevail.
In Seattle School District, the union both fined and censured
Zappler. In its decision, the Commission did not elaborate upon the
censuring; it concentrated its analysis on the fine. As analyzed
above, NLRB precedent confines legitimate union punishment for
decertifications, or attempts to change unions, to acts that affect
membership status. Censureship is beyond expulsion. It should not
be allowed. There is no way for Brown to escape the effect of the
censure. Resigning from the WSNA will not lift the mantle of
criticism that is on Brown's neck.
WSNA Letter To All Of The Nurses In The Bargaining Unit
Huntington signed and sent out the letters that accompanied the
original charges and the report of the hearing panel. Johnston and
Peacock-Albers, the two nurses who signed the letter bringing the
charges, both testified that Barbara Frye either directed them to
bring the charges, or supported them in taking that action.
Huntington and Frye are responsible for not having instructed the
member nurses who wanted to file charges that such actions were
retaliatory, and therefore illegal. WSNA is also responsible for
not informing the hearing panel that the nurses who were charged had
engaged in protected activities, so that censuring them constituted
retaliation, and was therefore illegal.
In defense of the discipline, WSNA asserts that none of the PHUN
supporters lost their jobs. While this may be true, there are other
manifestations of retaliation. The report of the hearing panel
references harm that was caused by the PHUN effort to change unions;
harm to the nurses of the bargaining unit and harm to all members of
WSNA. However, when WSNA returned to the bargaining table with the
employer in the fall of 2007, it was motivated to negotiate a
collective bargaining agreement that had gains over the one which
the bargaining unit voted down in January, 2007. From the letter,
the members of the bargaining unit had no information that the gains
made in the contract which they ratified in December 2007, over the
one previously voted down, resulted from WSNA having renewed
motivation caused by the attempts to change unions.
Mailing the panel report to every nurse in the bargaining unit, adds
to WSNA's unlawful retaliation against Brown. Nurses in the
bargaining unit did not know that Brown had done nothing wrong by
participating in a state sanctioned process to change unions. The
WSNA adamantly told them otherwise. In Seattle School District, the
union mentioned in two newsletters that it sent to its members that
a female union member who worked on the grounds crew was urging the
school board to eliminate summer grounds work and cut grounds lead
positions. The articles added that discipline was possible. The
Commission did not find this conduct objectionable. It did not
conclude that the references negatively impacted Zappler's
employment, nor interfered with her protected rights. Zappler's
behavior was undermining the union's interests in bargaining.
Brown, on the other hand, did have a protected right to file a QCR
petition with the Commission. Sending her notice of censure for
doing so, to each individual in the bargaining unit, caused other
nurses concern about Brown's conduct. Brown should not have had to
suffer such concerns.
The letter negatively impacted Brown. Other nurses testified they
saw it as public discipline. The Commission has a strong interest
in quashing this perception. Brown was unlawfully censured publicly
for following state sanctioned procedures. Public employees must be
given the message that they are safe to follow the statute.
REMEDY
Brown contends that the remedy should include ordinary remedies and
extraordinary remedies because of the flagrancy of the violation.
Ordinary remedies will be ordered. Such remedies include the public
posting of the Commission Notice that the WSNA violated the state
bargaining act for public employees, when it censured Brown as a
PHUN member who participated in protected activities. WSNA must
publish the Commission Notice in its newsletter and on its web site.
The WSNA will be directed to post the notices for sixty consecutive
days. The WSNA will also be directed to read the Notice at a
regular meeting of its governing body. Also, WSNA will be directed
to mail a letter of apology to Claire Brown for censuring her when
she pursued her statutory rights.
Certain extraordinary remedies are also ordered. WSNA must remove
any censure imposed upon Brown for being found guilty of dual
unionism. Since WSNA sent a letter to each individual in the
bargaining unit announcing the discipline hearing panel's findings,
it must now send a letter to the same individuals acknowledging that
Brown's activities to change unions were part of a process
established and protected by state law. It must also apologize to
Brown in the letter and state that the WSNA acted illegally when it
censured Brown. This mailing should also include a copy of the
Commission's Notice. A letter sent by WSNA to every nurse who
received the other letter is necessary in addition to the postings
on WSNA's web site. WSNA's retaliatory letter was mailed to every
nurse in the bargaining unit. Asking that WSNA acknowledge and
retract its censureship in the same manner in which it announced its
illegal retaliation is balanced and fair.
Brown also seeks reimbursement for her costs and time in presenting
her unfair labor practice complaint. Such a remedy is not
appropriate here. Brown choose to bring this action. The WSNA has
not been previously found in violation of the statute for similar
behavior. It is not engaged in a pattern of acting recklessly or in
flagrant opposition to Commission Orders.
FINDINGS OF FACT
1. King County, d/b/a Public Health Seattle and King County, is
a public employer within the meaning of RCW 41.56.030(1).
2. Washington State Nurses Association (WSNA), a bargaining
representative within the meaning of RCW 41.56.030(3), is the
exclusive bargaining representative of an appropriate
bargaining unit of registered nurses and public health nurses
of the employer.
3. Claire Brown is employed by Public Health Seattle and King
County as a registered nurse and public health nurse in the
bargaining unit represented by the union.
4. On March 16, 2007, Brown assisted in the filing of a petition
for a question concerning representation with the Public
Employment Relations Commission seeking to change the exclusive
bargaining representative to the Public Health Union of Nurses
(PHUN). Brown was identified as the interim co-chair of the
petitioning union.
5. On June 21, 2007, the Washington State Nurses Association won
the representation election.
6. On August 13, 2007, Judy Huntington, Executive Director and the
Chief Administrative Officer for the association, sent notice
to Brown that a WSNA panel had met on charges brought against
her and determined that sufficient evidence exists to proceed
with a disciplinary hearing on the charges. The evidence the
panel considered included the petition for a question
concerning representation Brown helped file with the Public
Employment Relations Commission.
7. On December 17, 2007, Huntington sent Brown a certified letter
that included a copy of the Report of the Disciplinary Hearing
Panel. The panel concluded that Brown was guilty of the charge
of dual unionism based particularly on Brown's filing of the
representation petition.
8. The panel disciplined Brown by censuring her.
9. The panel disciplined Brown by suspending her right to hold
office within WSNA for six months.
10. The WSNA sent copies of the report to every member of the
bargaining unit.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.56 RCW.
2. By its actions in Findings of Facts 6 through 8 and 10, the
WSNA retaliated against Brown in violation of RCW 41.56.150(3)
when Brown, trying to change unions, was in fact pursuing her
statutory guarantee of protection found in RCW 41.56.040.
3. By its actions in Findings of Facts 6 through 8 and 10, the
WSNA sought to impair policies imbedded in the labor laws of
the State of Washington, in violation of RCW 41.56.150(3).
4. By its actions in Findings of Facts 6 through 8 and 10, the
WSNA interfered with Brown's rights as a public employee, in
violation of RCW 41.56.150(3).
5. By its actions in Finding of Fact 9, the WSNA did not violate
RCW 41.54.150(3).
ORDER
The Washington State Nurses Association, its officers and agents,
shall immediately take the following actions to remedy its unfair
labor practices:
1. CEASE AND DESIST from:
a. Censuring Claire Brown for attempting to use the processes
of the Public Employment Relations Commission to have the
PHUN certified as her bargaining representative.
b. In any other manner interfering with, restraining or
coercing public employees in the exercise of their
collective bargaining rights under by the laws of the
state of Washington.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the
purposes and policies of Chapter 41.56 RCW:
a. Rescind the censure imposed on Brown because she filed a
petition with the Public Employment Relations Commission
to change the bargaining representative of nurses employed
by Public Health Seattle and King County.
b. Mail a letter to each individual currently in the
bargaining unit, and any individuals who are no longer in
the bargaining unit but received the letter announcing the
discipline hearing panel's findings against Brown,
acknowledging that Brown's activities to change unions
were part of a process established and protected by state
law. The letter must state that the WSNA acted illegally
when it censured Brown. This mailing should also include
a copy of the Commission's Notice.
c. Post copies of the notice attached to this order in
conspicuous places on the employer's premises where
notices to all bargaining unit members are usually posted.
These notices shall be signed by an authorized
representative of the WSNA, and shall remain posted for 60
consecutive days from the date of initial posting. The
WSNA shall take reasonable steps to ensure that such
notices are not removed, altered, defaced, or covered by
other material.
d. Read the notice attached to this order into the record at
a regular public meeting of the governing body of the
Washington State Nurses Association, and permanently
append a copy of the notice to the official minutes of the
meeting where the notice is read as required by this
paragraph.
e. Notify the complainant, 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 the complainant with a signed copy of the notice
attached to this order.
f. 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
the Compliance Officer with a signed copy of the notice
attached to this order.
ISSUED at Olympia, Washington, this 29th day of August, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
KATRINA I. BOEDECKER, 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.
Case 21395-U-07-5456
PUBLIC EMPLOYMENT RELATIONS COMMISSION
NOTICE
TO EMPLOYEES
THE WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION CONDUCTED A LEGAL
PROCEEDING IN WHICH ALL PARTIES HAD THE OPPORTUNITY TO PRESENT EVIDENCE AND
ARGUMENT. THE COMMISSION RULED THAT WE COMMITTED UNFAIR LABOR PRACTICES IN
VIOLATION OF STATE COLLECTIVE BARGAINING LAWS, AND ORDERED US TO POST THIS
NOTICE TO EMPLOYEES:
WE UNLAWFULLY retaliated against Claire Brown because she helped in the
filing of a petition for investigation of a question concerning
representation with the Public Employment Relations Commission, a state agency.
WE UNLAWFULLY censured Claire Brown because she helped in the filing of a
petition for investigation of a question concerning representation with the
Public Employment Relations Commission, a state agency.
WE UNLAWFULLY allowed a disciplinary hearing panel to issue an untruthful
report censuring Claire Brown.
WE UNLAWFULLY mailed the hearing panel's report to all the members of the
bargaining unit.
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL rescind any censureship imposed on Claire Brown because she helped
in the filing of a petition for investigation of a question concerning
representation.
WE WILL mail a letter of apology to Claire Brown for retaliating against her
when she followed her statutory rights.
WE WILL mail a copy of the letter of apology we send to Claire Brown to each
member of the bargaining unit.
WE WILL read this notice into the record at a regular public meeting of the
governing body of the Washington State Nurses Association, and permanently
append a copy of the notice to the official minutes of the meeting where the
notice is read as required by this paragraph.
WE WILL notify the Claire Brown, in writing, within 20 days following the
date of the order, as to what steps we have taken to comply with the order,
and at the same time provide Claire Brown with a signed copy of this notice.
WE WILL notify the Compliance Officer of the Public Employment Relations
Commission, in writing, within 20 days following the date of the order, as
to what steps we have taken to comply with the order, and at the same time
provide the Compliance Officer with a signed copy of this notice.
WE WILL NOT issue any censureship against any member of our union for
attempting to circulate, or file with the Public Employment Relations
Commission, a petition to decertify us as your bargaining representative.
WE WILL NOT, in any other manner, interfere with, restrain, or coerce our
members in the exercise of their collective bargaining rights under the laws
of the State of Washington.
DO NOT POST OR PUBLICLY READ THIS NOTICE. AN OFFICIAL NOTICE FOR POSTING
AND READING WILL BE PROVIDED BY THE COMPLIANCE OFFICER.