City of Seattle, Decision 10249-A (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
SEATTLE POLICE OFFICERS' GUILD, )
)
Complainant, ) CASE 21510-U-08-5479
)
vs. ) DECISION 10249-A - PECB
)
CITY OF SEATTLE, )
)
Respondent. ) DECISION OF COMMISSION
___________________________________)
Aitchison & Vick, by Hillary H. McClure, Attorney at Law, for
the union.
Thomas A. Carr, City Attorney, by Jennifer K. Schubert,
Assistant City Attorney, for the employer.
This case comes before the Commission on a timely appeal filed by
the City of Seattle (employer) seeking review and reversal of part
of the remedial order issued by Examiner Jamie L. Siegel.(fn:1) The
Seattle Police Officers' Guild (union) supports the remedial order
issued by the Examiner.
____________________
fn:1 City of Seattle, Decision 10249 (PECB, 2008).
The union's unfair practice complaint alleged that the employer
failed to provide the union with relevant collective bargaining
information that was necessary for the processing of a contractual
grievance. After hearing, the Examiner found that the employer did
in fact violate RCW 41.56.140(1) and (4) by its failure to timely
provide the requested information, including e-mail messages. The
employer did not appeal that conclusion.
The Examiner's remedial order required the employer to cease and
desist from failing to provide necessary and relevant collective
bargaining information to the union, to promptly provide any
collective bargaining information that the union requests, post
notices provided by the agency's compliance officer in the
workplace, and read that same notice at a regular meeting of the
employer's governing body. The employer's appeal does not challenge
these portions of the remedial order.
The Examiner also found that certain e-mails requested by the union
could not be provided because they were deleted from the employer's
e-mail system. In order to ensure that e-mail messages relevant to
the collective bargaining process would be preserved by the
employer, the Examiner also issued a directive requiring the
employer to "develop a written protocol for the Police Department
that sets forth the steps that the employer will take to promptly
preserve e-mails and other documents that are the subject of union
requests for information under Chapter 41.56 RCW." City of Seattle,
Decision 10249 (PECB, 2008). The employer's appeal is limited to
this part of her remedial order.
ANALYSIS
Applicable Legal Standard
Preservation of collective bargaining information is important for
the stability of the parties' collective bargaining relationship.
Chapter 41.56 RCW stresses the importance of disclosing necessary
and relevant collective bargaining information upon request. See
City of Bellevue v. IAFF, Local 1604, 119 Wn.2d 373 (1992)
(collective bargaining is a process of communication, not a game of
hide and seek). Allowing a party to excuse production of a relevant
collective bargaining document because it was deleted and
automatically purged from a system is contrary to the purpose of
this state's collective bargaining laws.
The Legislature empowered this Commission to prevent and remedy
unfair labor practices. RCW 41.56.160. The fashioning of remedies
is a discretionary action of the Commission. City of Seattle,
Decision 8313-B (PECB, 2004). When interpreting the Commission's
remedial authority under Chapter 41.56 RCW, the Supreme Court of the
State of Washington approved a liberal construction of the statute
to accomplish its purpose. The Court acknowledges this Commission's
expertise in resolving labor-management disputes and also accorded
that expertise deference. METRO, 118 Wn.2d at 634 (citing Public
Employment Relations Commission v. City of Kennewick, 99 Wn.2d 832
(1983)).
With that purpose in mind, the Supreme Court interpreted the
statutory phrase "appropriate remedial orders" as including those
remedies necessary to effectuate the purposes of the collective
bargaining statute and to make the Commission's lawful orders
effective. METRO, 118 Wn.2d at 633. If this Commission chooses to
amend or modify an examiner's remedy, it will explain its reasoning
in doing so. See, e.g., Western Washington University, Decision
9309-A (PSRA, 2008)(modifying an examiner's remedy where employer's
history of recalcitrant behavior warranted extraordinary remedy).
Application of Standards
The employer argues that the Examiner exceeded her authority by not
only directing compliance with the typical remedial order, but also
issuing an extraordinary remedy that directs the employer to develop
a records retention policy. The employer points to numerous
decisions of this Commission where an employer was found to have
failed to provide necessary and relevant collective bargaining
information, and notes that not one of the decisions directed the
respondent to develop a records retention policy. Additionally, the
employer notes that there is no evidence demonstrating that it has a
pattern of failing to provide information, and absent such a
pattern, we should decline to award an extraordinary remedy.
Finally, the employer argues that the union did not seek such a
remedy, and therefore the employer's due process rights have been
violated. We disagree.
Here, we find the Examiner's order directing the employer to develop
a policy to retain e-mails concerning collective bargaining
specifically tailored to address the employer's prohibited practice.
The employer failed to properly respond to the union's information
request for over a year, and only on the eve of the administrative
hearing before the Examiner did it provide the union with some, but
not all, of the requested information. With respect to the
information not supplied, the employer, by its own admission,
admitted that any e-mail that has been "deleted" by the recipient is
automatically purged from the computer system after 45 days and is
no longer recoverable. As this case demonstrates, unless this
employer has a procedure of some sort in place to preserve relevant
e-mails, it will not be able to comply with information requests
should one of its employees inadvertently (or advertently) delete
that document.
Given the fact that employers and exclusive bargaining
representatives routinely communicate about labor relations matters
on a daily basis through e-mail, the Examiner did not commit
reversible error in directing this employer to develop a protocol
to ensure that collective bargaining e-mails are preserved and not
destroyed, accidentally or otherwise.
With respect to the "protocol" that the employer shall develop to
preserve labor relations e-mails, it is not the intent of this
Commission to force this employer to create or procure an elaborate
or expensive program to identify and store labor relations e-mails.
Rather, the protocol could be as simple as directing employees to
create a folder within their e-mail program for labor relations
matters, and instruct employees that any e-mails relating to labor
relations matters must be preserved and not deleted.(fn:2)
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fn:2 Although we are granting the employer latitude in how it
preserves labor relations e-mails, the policy must be in writing,
and must be enforced.
Finally, we disagree with the employer that the Examiner's order
violates the employer's due process rights. The union's complaint
requests "just and equitable" relief. This Commission has
consistently stated that with respect to remedies, this agency's
examiners may grant remedies not requested by the parties, provided
any granted remedy complies with the above-stated standards. Here,
given the fact that the union will never receive the requested
information, the Examiner's remedial order provides relief that
helps to ensure that this situation never arises again.
NOW, THEREFORE, it is
ORDERED
The Remedial Order issued by Examiner Jamie L. Siegel in the above-
captioned case is AFFIRMED and adopted as the Remedial Order of the
Commission.
Issued at Olympia, Washington, the 19th day of May, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
THOMAS W. McLANE, Commissioner