King County (Teamsters Local 763), Decision 10183-A (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
TEAMSTERS LOCAL 763, )
)
Complainant, ) CASE 21633-U-08-5520
)
vs. ) DECISION 10183-A - PECB
)
KING COUNTY, )
)
Respondent. )
)
___________________________________)
)
TEAMSTERS LOCAL 763, )
)
Complainant, ) CASE 21634-U-08-5521
)
vs. ) DECISION 10184-A - PECB
)
PUBLIC SAFETY EMPLOYEES UNION, ) CORRECTED
) FINDINGS OF FACT,
Respondent. ) CONCLUSIONS OF LAW,
___________________________________) AND ORDER
Reid, Pedersen, McCarthy & Ballew, by Kenneth J. Pedersen,
Attorney at Law, for Teamsters Local 763.
King County Prosecuting Attorney's Office, by Susan Slonecker,
Senior Deputy Prosecuting Attorney, and Gretchen Herbison,
Labor Relations Specialist, for the employer.
Schwerin Campbell Barnard & Iglitzin, by Kathleen Phair
Barnard, Attorney at Law, for the Public Safety Employees Union.
On April 3, 2008, Teamsters Union Local 763 (Teamsters) filed a
complaint charging unfair labor practices against King County
(employer). The Teamsters alleged employer interference and
domination under RCW 41.56.140(1) and (2) in connection with
employer actions soon after the Public Safety Employees Union (PSEU)
filed a representation petition with the Public Employment Relations
Commission (PERC).(fn:1) In a second case filed the same day, the
Teamsters alleged that PSEU violated RCW 41.56.150(1) and (2) by
inducing the employer to commit unfair labor practices, and by
otherwise interfering with employee rights. The cases were
consolidated, and a hearing was conducted May 29, 2008, in Kirkland,
Washington. Briefs were filed to complete the record in this case,
and an expedited record was ordered under the "blocking charge" rule.
____________________
fn:1 That case, filed February 22, 2008, has been docketed as case 21544-E-08-3353.
ISSUES
1. Allegations against Employer:
Did the employer interfere with employee rights and unlawfully
assist a labor organization after the filing of a
decertification petition by agreeing to and promising economic
benefits in the event the incumbent union was voted out?
Did the employer interfere with employee rights by making
agreements with an organization other than the exclusive
bargaining representative?
Did the employer interfere with employee rights by directing
individual computer searches as a result of a request for
information from the Teamsters?
Did the employer interfere with employee rights and assist a
labor organization by making misrepresentations regarding the
ability of a newly certified bargaining representative to
negotiate for retroactive pay?
2. Allegations against PSEU:
Did PSEU interfere with employee rights by promising benefits
to bargaining unit employees if they decertified the Teamsters?
Did PSEU interfere with employee rights by promising economic
benefits to bargaining unit employees based on agreements it
made with the employer?
Did PSEU induce the employer to commit unfair labor practices
by making agreements promising economic benefit with a union
other than the exclusive bargaining representative?
Did PSEU interfere with employee rights by making
misrepresentations of fact or law to bargaining unit employees
with regard to negotiating retroactive pay?
Based upon the record presented, the Examiner concludes that the
employer did not enter into any agreements with PSEU making any
promises of benefits, and did not unlawfully direct individual
computer searches as a result of an information request by the
Teamsters. The employer did not interfere with employee rights or
engage in unlawful assistance of a labor organization. The Examiner
concludes that PSEU did interfere with employee rights and did
induce an employer to commit an unfair labor practice, by promising
benefits and making misrepresentations of fact and law to bargaining
unit employees.
APPLICABLE LEGAL PRINCIPLES
Interference Violations under RCW 41.56.140(1)
The standards for interference under RCW 41.56.140 are well known.
An employer may not interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed by the statute.
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 statute.
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); Snohomish County, Decision
9834-B (PECB, 2008). A similar analysis exists under RCW 41.56.150,
which bars labor organizations (either incumbents or rivals) from
the same type of conduct.
Interference and Domination Violations under RCW 41.56.140(2)
Following Section 8(a)(2) of the NLRA, the collective bargaining
statute at RCW 41.56.140(2) makes it an unfair labor practice for an
employer to dominate or assist any labor organization by intending
to control or interfere with their formation, or dominating the
internal affairs of a union, or by intending to contribute
financially to a union. Also barred is a showing of preference for
one union versus another. Pierce County, Decision 1786 (PECB,
1983); Washington State Patrol, Decision 2900 (PECB, 1988);
Washington State Department of Corrections, Decision 7870-A (PSRA,
2003). Violations under the statute, however, must show employer
"intent" to assist one or more labor organizations. Community
College District 13 - Lower Columbia, Decision 8117-B (PSRA, 2005).
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, Section 5 and
7. The 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). Conversely, an employer
allowing a union to use employer property may commit a violation.
Pierce County, Decision 1786 (PECB, 1983). In Pierce County, a
union used employer office space, telephones, and time for union
purposes, without the employer's knowledge. Upon learning of the
use, the employer took steps to terminate it. Despite lack of
knowledge, the employer still committed a technical 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).
Union Interference under RCW 41.56.150(1)
No showing of intent is required to prove an interference violation
under RCW 41.56.150(1). Subsection (2), where a union might induce
an employer to commit an unfair labor practice, requires some
anti-union intent, and thus a higher burden of proof. State -
Corrections, Decision 7870-A. To induce an employer to commit an
unfair labor practice, a union must be requesting that the employer
do something unlawful. Municipality of Metropolitan Seattle,
Decision 2746-A (PECB, 1989). A union will commit a violation of
RCW 41.56.150(2) by merely asking the employer to do something
unlawful, "even if the employer has the good sense to refuse the
request." Shoreline School District, Decision 5560 (PECB, 1996).
See also City of Issaquah, Decision 9255 (PECB, 2006).
The Blocking Charge Rule
The blocking charge rule at WAC 391-25-370 allows the Executive
Director of PERC to suspend representation proceedings in cases
where the facts of an unfair labor practice complaint may constitute
a violation, and where the unfair labor practice could improperly
affect the outcome of a representation election. The discretion to
implement the blocking charge, and thereby to suspend the election
proceedings, is subject to review by the Commission.(fn:2) The rule
has been implemented here, and as of April 3, 2008, election
proceedings have been suspended.
____________________
fn:2 Which sometimes reverses the Executive Director; see Southwest
Snohomish County Public Safety Communications Agency (SNOCOM),
Decision 3309 (PECB, 1989).
ANALYSIS
Background
This case arises out of negotiations for a successor contract in a
King County bargaining unit represented by the Teamsters. The
bargaining unit includes assessors/appraisers for commercial and
residential property in King County.
The employees in this unit work at Seattle and Tukwila offices.
Chief Deputy Richard Medved is head of the department of assessments
section and sits at the bargaining table on the employer's behalf.
The latest collective bargaining agreement between the employer and
the Teamsters expired December 31, 2006. Bargaining for a successor
agreement began near the end of 2006 and continued through 2007.
There were over twelve negotiation meetings, and four mediation
sessions, but the Teamsters and the employer reached no general
agreement on the contract in that time. The record focused on the
parties' negotiation of retroactive pay, the payment of wages at
increased rates for fiscal year 2007 (12 months) and the early
months of 2008. The Teamsters made proposals to make wage increases
for 2007 retroactive to January 1, 2007. King County also proposed
pay increases retroactive to January 1, 2007, and in fact offered a
one-range increase in both 2007 and 2009, skipping over 2008.
On February 22, 2008, PSEU filed a petition with PERC, seeking to
decertify the Teamsters, and creating a question concerning
representation under RCW 41.56.030. In compliance with WAC
391-25-140, King County and the Teamsters ceased bargaining
activities soon thereafter. PERC's representation coordinator
convened a pre-hearing investigation conference on March 27, 2008,
and an election vote was scheduled. But with the filing of this set
of unfair labor practice charges, PERC invoked the blocking charge
rule at WAC 391-25-370.
Issue 1 Interference by the Employer
The Examiner does not find grounds for violations of RCW
41.56.140(1) and (2), because the employer pursued a neutral course
after the decertification case was filed. Those reasons follow.
The E-Mail Exchanges The Commission has ruled that
employer-installed and sponsored e-mail and computer systems belong
to the public employer, and not to the employees and their labor
representatives. As a result, certain limits may be imposed on the
use of such communication systems. Snohomish County, Decision 9799
(PECB, 2007); Central Washington University, Decision 10118 (PSRA,
2008).
King County's protocol concerning use of e-mail was mentioned first
on February 27, 2008, soon after the representation petition was
filed. In an e-mail to all employees in the department of
assessments, Chief Deputy Medved cautioned those employees that:
Until this [petition with PERC] is resolved by the bargaining
unit the department management team shall remain neutral and
silent on the issue. Beginning immediately and remaining in
force throughout the duration of this action please be advised
that the use of department email, equipment and time shall be
prohibited as it pertains to any discussion, evaluation or
correspondence relating to the PERC petition and either of the
respective union entities involved. This means exchanges of
email, use of copiers or other equipment, and holding of
discussions pertaining to this action during work hours is
strictly forbidden. Failure to adhere to this directive may
lead to disciplinary action. We ask that representatives of
the two unions respect this policy as well.
Rob McCauley, Teamster business agent, sent a letter to Medved on
March 14, 2008, asking him to execute a computer e-mail word-search
for any communication "regarding decertifying Teamsters 763,
certifying PSEU 519 as the bargaining agent, soliciting for meetings
or activities by or for PSEU 519." The letter indicated that
McCauley had received reports that the employer's e-mail system was
being used to solicit authorization cards for PSEU, which McCauley
characterized as an unfair labor practice. Additional e-mail
correspondence from McCauley indicated that he was "requesting this
info under RCW 41.56." Medved soon called IT technician Wayne
Nguyen, who informed him that a sweep-search of e-mails on the
county-wide network would not be possible. However, Nguyen told
Medved that a computer-by-computer search could accomplish the
request. Each employee would have to be asked to make a search on
their own stand-alone work station. Apparently, King County had
handled similar requests before, on the same basis and with the same
methodology. Medved ordered these searches; this generated only one
question from a bargaining unit member wondering who asked for the
searches. Medved informed that employee that the request had come
from the Teamsters.
On March 27, 2008, McCauley requested that the employer stop the
e-mail search. The record is devoid of any showing as to what the
searches revealed or whether the employer shared any search
results.(fn:3) King County did not act as an "agent" of the Teamsters
in telling one employee that the Teamsters requested the
information. The Examiner concludes that bargaining unit employees
could not reasonably predict any threat of reprisal or promise of
benefit after complying with the information request. That
conclusion is not changed because McCauley insisted that the search
be stopped. King County handled the request in a neutral fashion,
and followed its prior practice and a set of rules in doing so. No
interference violation is made out here.
____________________
fn:3 Whether the request from the Teamsters regarding e-mail
searches was reasonably necessary for it to perform its obligations
as the exclusive bargaining representative, and whether the employer
appropriately complied with that request, are not issues before the
Examiner.
Alleged Comments of King County Officials The Teamsters contend
that (1) PSEU and King County made misrepresentations of fact and
law which interfered with bargaining unit employees and the
negotiation process, and (2) the election process set off by the
petition to PERC was interfered with and compromised by false claims
stated in a letter from PSEU's attorney. The Examiner does not
find, however, that such interference came from the employer. That
reasoning follows.
* Rich Medved. Medved was the main supervisor involved here.
Quoted above is the substance of Medved's letter sent out soon
after the decertification petition was filed. The intent and
content of the County's correspondence fairly set out the legal
requirements for an employer during a question concerning
representation; it must remain neutral and cease bargaining for
employees involved in the representation proceeding. Medved's
e-mail does not violate that principle.
* Karen Place. Place represented the employer at the bargaining
table as principal spokesperson for the employer. She received
an e-mail from McCauley on March 25, 2008. That e-mail
included an attachment of a legal opinion and correspondence
allegedly distributed to bargaining unit employees by PSEU, in
which PSEU represented that the employer's labor relations
office agreed with PSEU's analysis concerning retroactive pay.
On March 26, 2008, Place e-mailed McCauley, telling him that
"no one in Labor Relations has discussed the Department of
Assessments contract with Dustin Frederick [PSEU business
agent] or any representative of PSEU," especially not the
retroactive pay issue. She expressed the opinion that only a
court of law or PERC could resolve the issue of retroactivity.
Interestingly, there is no indication on this record that
Place's views and opinions were communicated to bargaining unit
employees. As with Medved's actions, the Examiner finds no
interference or unlawful assistance on these facts.
* Kathi Oglesby. Oglesby serves as liaison between labor groups
and the County Executive, Ron Sims. There was no evidence that
she sat at the bargaining table with the Teamsters. She
responded to McCauley both on the retroactive pay issue and the
e-mail search problem. Although Oglesby did not testify,
McCauley quoted her as telling him that the e-mail search he
asked for was not possible, and that even the County Executive
needed to order individual searches to comply with public
information requests involving his office. McCauley's
testimony indicated that he believed Oglesby. Oglesby also
apparently told McCauley that she had talked to PSEU's
Frederick about retroactive pay in general, and had told him
that "people had lost their retroactive pay" after
decertifications in King County, but in other negotiations the
employer "had found a way to make things up to them [employees
involved in other decertifications]." There was no indication
that the pending representation question involving the
Teamsters and PSEU was specifically discussed.
The record does not indicate that Place or Oglesby ever communicated
to bargaining unit employees on any of these issues. The record
does not indicate that Medved communicated with employees concerning
issues of retroactive pay. While Frederick clearly communicated
with employees on the issue of retroactive pay, there is no
indication that he communicated with employees on the e-mail issue.
Neither Oglesby nor Frederick testified. PSEU had every opportunity
to rebut McCauley's testimony concerning Oglesby's claim that "no
agreement" had been made. Without ruling that her comments
constituted hearsay, the Examiner concludes that Oglesby's version
of events, as testified to by McCauley, probably comported with the
truth. They were consistent with what Place told McCauley, as well
as with Medved's testimony. The Examiner concludes that the
employer made no promises to PSEU, or any "agreement" with them with
regard to retroactive pay.(fn:4)
____________________
fn:4 See generally Kitsap County, Decision 8292-B (PECB, 2007) for
the impact of "smoking gun" comments as interference remarks. The
Examiner is also mindful of a recent opinion by the Commission in
King County, Decision 9495-A (PECB, 2008) wherein an examiner
accepted hearsay testimony and exhibits, but relied generally on the
credibility of other witnesses and evidence to make a "waiver" determination.
Issue 2 Interference BY PSEU
Much of the campaigning after the petition was filed centered around
whether the assessors' employees would forfeit the ability to
negotiate retroactive pay increases, largely for year 2007, if they
changed unions.(fn:5)
____________________
fn:5 One estimate was $2,500 for some employees. Retroactive pay
also impacted the Public Employees Retirement System pension amounts
a retiring employee would receive as a result of his/her last two
years of employment.
The "Christie Letter" Argument "Christie Letters" are interim
agreements between labor organizations and employers used to enable
pay increases on a retroactive basis. Typically, they are sought
where a new labor organization has been certified or recognized as
the exclusive bargaining representative within the meaning of RCW
41.56.030(3).(fn:6)
____________________
fn:6 See Christie v Port of Olympia, 27 Wn2d 534, 179 P.2d 294 (1947).
The "Christie Letter" idea was well known in 1971 when original
language of RCW 41.56.950 was enacted. That section reads as follows:
RCW 41.56.950-Retroactive date in collective bargaining
agreements allowable, when.
Whenever a collective bargaining agreement between a public
employer and a bargaining representative is concluded after the
termination date of the previous collective bargaining
agreement between the same parties, the effective date of such
collective bargaining agreement may be the day after the
termination date of the previous collective bargaining
agreement and all benefits included in the new collective
bargaining agreement including wage increases may accrue
beginning with such effective date as established by this
section.
[1971 ex.s. c 187 Section 1.]
As a consequence, an incumbent union always has the option to
negotiate newer pay ranges beginning and effective the day after the
expiring contract terminates, even though there may be seven or
eight months with no new contract. In 1947, the Christie court did
not rule that such a bargaining pattern offended Article II or VII
of the state constitution. But in 1971 the Legislature thought that
the "950" restriction was a prudent addition, for times when a new
bargaining representative might be elected and recognized.
Within days of its filing of the decertification petition, the PSEU
requested that its counsel, Kathleen Phair Barnard, prepare an
opinion letter addressing the question "as to whether a new
representative for collective bargaining between contracts would
lose its ability to obtain pay increases for the period of time
between contracts." Barnard's opinion letter, dated February 28,
2008, indicated that "The short answer is no." This letter was
apparently circulated to bargaining unit employees, and Rob McCauley
attached a copy of the opinion letter and accompanying memo from
Dustin Frederick to his e-mail of March 25 to Karen Place.
The Barnard opinion letter interprets Christie to mean that if an
employer "and its employees" have a "prior understanding" that the
salaries and compensation have not been fully determined, then:
As I understand the situation at hand, the County and the
bargaining unit employees have had such an understanding since
the expiration of the last contract. The negotiations between
the County and the bargaining unit have included wage increases
that would go back to the expiration of the most recent
contract between the parties . . . .
(emphasis added).
Under this argument, if the employees selected PSEU as their new
exclusive bargaining representative, they would be able to bargain
for retroactive pay for bargaining unit employees, for a period as
far back as the expiration date of the prior collective bargaining
agreement between the employer and the Teamsters. But this
conclusion misreads Christie as well as RCW 41.56.950, curiously
missing from the PSEU analysis. The Examiner sees this case in the
same light as King County, Decision 4236 (PECB, 1992), where PERC
discussed the impacts of Christie in some detail. That decision
accurately reconciled the possibility of retroactive pay for new
bargaining representatives with the clear command of RCW 41.56.950,
that the parties may look back only to the termination date of the
previous collective bargaining agreement between the same parties.
The "parties" to the collective bargaining agreement are the
employer and the exclusive bargaining representative, not the
employer and bargaining unit employees, as the Barnard letter
indicates.
We must repeat here: Christie agreements are intentional and
specific as to new bargaining relationships and do not "piggy-back"
or attach from prior exclusive bargaining representatives or prior
bargaining units. See City of Seattle, Decision 9938-39 (PECB,
2007).(fn:7)
____________________
fn:7 PSEU's reference to AGO 1974 No. 19, written by the Attorney
General in September of 1974, does not help their claim. That
opinion said an initial collective bargaining agreement required
"some form of agreement" by the new union and the employer,
additional to certification or recognition of a bargaining agent.
RCW 41.56.950 did not prevent such retroactive pay in that event.
PSEU's campaign tactics Taken together, the legal opinion letter
from Barnard and Dustin Frederick's endorsement of it was
misleading to employees of the bargaining unit, and misleading on a
critical issue. The incumbent Teamsters union had no Christie
agreement with King County, and were not required to have one by
virtue of RCW 41.56.950. PSEU was not the "same party" under the
meaning of the statute, and hence a Christie agreement with King
County would have been necessary for PSEU to secure any retroactive
pay at all for bargaining unit employees. Under the terms of the
Christie decision and the statute, PSEU could have secured
retroactive pay only as far back as the date of its certification as
exclusive bargaining representative. Thus, it could not have
secured retroactive pay for 2007 or early 2008. The facts of this
case very much emulate the situation in City of Issaquah, Decision
9255. It is clear that the attempt by PSEU to induce King County to
commit this violation is a violation itself, even where the employer
had the good sense not to enter into an agreement with a union that
was not the exclusive bargaining representative of the employees in
question.
PSEU's communications to the bargaining unit with respect to the
retroactive pay issue and its claims of an agreement with the
employer constitute an interference violation under RCW
41.56.150(1). The typical employee in the bargaining unit could
conclude that his or her retroactive pay would not be in jeopardy,
and that King County had agreed to pay retroactively no matter who
represented the assessor's employees. Such is not the case.
REMEDY
The Examiner must determine in this case what an effective remedy
would be. The normal remedies, including a "cease and desist" order
and posting of notices, will be ordered. Because the record
includes evidence that Frederick sent all bargaining unit employees
the legal opinion letter from Barnard and his own memo assuring them
that retroactive pay was not in jeopardy if they changed
representatives, and because these communications included
misrepresentations of law and fact, a more extraordinary remedy is
appropriate in this case. In certain prior cases, we have required
the employer to mail copies of the Order to bargaining unit
employees, and we have required incumbent labor organizations to
inform their members that an unfair labor practice has been
committed. Here, however, the petitioning union with no
established bargaining rights and access to the employees in the
bargaining unit is held to answer for interference and inducement
violations under RCW 41.56.150(1) and (2). Under such
circumstances, it is appropriate that this agency notify bargaining
unit employees of the violation individually, by mail. The Public
Employment Relations Commission shall provide and mail, at its own
cost, a copy of the notice and an accompanying cover letter, to all
bargaining unit members' place of residence.
FINDINGS OF FACT
1. King County (employer) is a public employer within the meaning
of RCW 41.56.030(1).
2. Teamsters Union Local 763 (Teamsters) is a bargaining
representative within the meaning of RCW 41.56.030(3), and
represents a bargaining unit of assessors, technical employees
and administrative personnel in the King County Auditor's and
Assessors office.
3. Public Service Employees Union (PSEU) is a bargaining
representative within the meaning of RCW 41.56.030(3).
4. The employer and the Teamsters were parties to a collective
bargaining agreement with a term ending December 31, 2006.
Negotiations for a new agreement between the parties had been
underway for about fourteen months, into February of 2008. The
employer was represented at the bargaining table by Karen Place
of the Labor Relations Office and Richard Medved, chief deputy
of the department of assessments section.
5. On February 22, 2008, a petition was filed by PSEU, raising a
question concerning representation in the bargaining unit
described in finding of fact 2. As a result of the petition,
the employer and the Teamsters ceased bargaining for the
petitioned-for employees.
6. On February 27, 2008, Medved instructed employees in the
bargaining unit that the County would "remain neutral and
silent" regarding the PERC election case and PSEU's petition.
He barred employees from using office e-mail and office
equipment concerning the petition and election during work
hours and on work premises, subject to discipline.
7. On March 14, 2008, as a result of reports that the employer's
e-mail system was being used to solicit authorization cards for
PSEU, Teamster representative Rob McCauley asked Medved to
execute a word-search for e-mail communications regarding the
decertification petition. The employer's system could not
perform such a search on a county-wide or department-wide
basis, so Medved ordered each employee to perform this search
via their own desk computer stations. Such a search was
consistent with the employer's prior practice.
8. By letter of March 27, 2008, McCauley objected to individual
searches by employees on their own computers, and asked that
the searches stop.
9. Prior to March 16, 2008, Dustin Frederick of PSEU circulated a
memo to bargaining unit employees containing an opinion from
PSEU's legal counsel. The legal opinion letter claimed that
since King County "had an agreement" with "bargaining unit
employees" to allow for retroactive wage payments for 2007, any
union that succeeded the incumbent Teamsters would be entitled
to negotiate such retroactive pay. That memo stated that "your
retroactive pay is not in jeopardy by changing representation."
10. The Frederick memo of March 16 also stated that he had
"discussed the retro issue with King County Labor Relations and
they agree with the legal analysis/opinion I provided to you."
11. On March 25, 2008, McCauley sent an e-mail to Place, and
attached the Frederick memo and legal opinion, and asking Place
who from the employer's labor relations office had spoken to
Frederick and why.
12. By an e-mail of March 26, 2008, to McCauley, Place denied that
anyone from the labor relations office had discussed the
retroactive pay issue with Frederick, Barnard or any other PSEU
representative, or otherwise agreed with the PSEU legal opinion
letter. The record does not indicate that bargaining unit
employees were aware of Place's response.
13. Neither Place nor other representatives of the employer made
agreements with the PSEU, nor did they make a promise of
economic benefit in the event the incumbent union was voted out.
14. A reasonable employee could perceive that PSEU's memo and
attached legal opinion letter described in findings of fact 9
and 10 constituted a promise of benefit and an arrangement to
bargain retroactive wage increases. Such a perception, if
acted upon, could have interfered with the employees' selection
of their exclusive bargaining representative. The Memo and
legal opinion described in findings of fact 9 and 10 contained
misrepresentations of law and fact.
15. PSEU's communications with King County officials constituted an
attempt to induce the employer to engage in actions that would
have been unfair labor practices under the collective
bargaining laws of the state of Washington.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction of
these matters under Chapter 41.56 RCW.
2. By its actions described in findings of fact 6, 7, 12, and 13,
King County did not violate RCW 41.56.140(1) or (2) and did not
interfere with bargaining unit employees or dominate or assist
a labor organization.
3. By its actions after the filing of a question concerning
representation, Public Safety Employees Union interfered with
employees' rights and attempted to induce King County to commit
an unfair labor practice in violation of RCW 41.56.150(1) and
(2).
ORDER
PUBLIC SERVICE EMPLOYEES UNION, its officers and agents, shall
immediately take the following actions to remedy its unfair labor
practices:
1. CEASE AND DESIST from:
a. Interfering with employees' rights in violation of RCW
41.56.150(1) by misleading statements of law with regard
to retroactive pay, by claiming to bargaining unit
employees that it had an agreement with King County
concerning retroactive pay, and by otherwise promising an
economic benefit in the event the Teamsters Union was
decertified;
b. Inducing the employer to commit unfair labor practices in
violation of RCW 41.56.150(2) by inferring to bargaining
unit members that the employer had agreed to retroactive
pay for bargaining unit employees if PSEU became their
exclusive bargaining representative, and by inferring that
the employer offered economic benefits if the Teamsters
were voted out; and
c. In any other manner interfering with, restraining or
coercing its employees in the exercise of their collective
bargaining rights under 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. Post copies of the notice provided by the Compliance
Officer of the Public Employment Relations Commission in
conspicuous places on the PSEU'S premises where notices to
all UNION members are usually posted. These notices shall
be duly signed by an authorized representative of the
respondent, and shall remain posted for 60 consecutive
days from the date of initial posting. PSEU shall take
reasonable steps to ensure that such notices are not
removed, altered, defaced, or covered by other material.
b. Read the notice provided by the Compliance officer into
the record at a regular public meeting of the governing
body of the Public Safety Employees Union, 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.
c. Notify the complainant and the employer, 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 provided by the Compliance Officer.
d. 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 22nd day of September, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
J. MARTIN SMITH, 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 21633-U-08-5520
Decision 10183-A - PECB
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 PUBLIC SAFETY EMPLOYEES
UNION COMMITTED UNFAIR LABOR PRACTICES IN VIOLATION OF STATE COLLECTIVE
BARGAINING LAWS, AND ORDERED US TO POST THIS NOTICE TO EMPLOYEES:
WE UNLAWFULLY interfered with employee rights, made promises of benefit, and
made misrepresentations of law and fact when we claimed that Public Safety
Employees Union was legally entitled to negotiate retroactive pay for
bargaining unit employees for years 2007 and 2008 if it were to be selected
as the new exclusive bargaining representative, replacing Teamsters Union
Local 763, in violation of RCW 41.56.150(1).
WE UNLAWFULLY attempted to induce King County to commit an unfair labor
practice by inferring to bargaining unit employees that Public Safety
Employees Union had an agreement to negotiate retroactive pay for years 2007
and 2008, when King County could not legally agree to any such agreement
with any bargaining representative other than Teamsters Union Local 763, in
violation of RCW 41.56.150(2).
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL not interfere with employee rights in violation of RCW 41.56.150(1)
by making and circulating misleading and inaccurate statements with regard
to the employer's ability to pay retroactively for 2007 and 2008, when the
petitioner is not yet the exclusive bargaining representative, or by
inferring that the employer has agreed to make such payments.
WE WILL not induce King County to commit unfair labor practices in violation
of RCW 41.56.150(2), by inference and claims to members of the bargaining
unit that King County had agreed to an arrangement whereby retroactive pay
could be legal, and in circumstances where King County made no such promise.
WE WILL NOT, in any other manner, interfere with, restrain, or coerce our
employees 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.