City of Seattle, Decision 10335 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
SEATTLE POLICE OFFICERS' GUILD, )
)
Complainant, ) CASE 22287-U-09-5684
)
vs. ) DECISION 10335 - PECB
)
CITY OF SEATLE, ) PRELIMINARY RULING
) AND ORDER OF PARTIAL
Respondent. ) DISMISSAL
___________________________________)
On February 20, 2009, the Seattle Police Officers' Guild (union)
filed a complaint charging unfair labor practices with the Public
Employment Relations Commission under Chapter 391-45 WAC, naming the
City of Seattle (employer) as respondent. The allegations of the
complaint concern employer interference with employee rights in
violation of RCW 41.56.140(1) and domination or assistance of a
union in violation of RCW 41.56.140(2), by threats of reprisal or
force or promises of benefit made by employer official Joel Guay to
Ty Elster as a result of Elster's union activities.
The complaint was reviewed under WAC 391-45-110,(fn:1) and a deficiency
notice issued on February 25, 2009, indicated that it was not
possible to conclude that a cause of action existed at that time for
the allegation concerning employer domination or assistance of a
union. The union was given a period of 21 days in which to file and
serve an amended complaint or face dismissal of the domination or
assistance claim.
____________________
fn:1 At this stage of the proceedings, all of the facts alleged in
the complaint are assumed to be true and provable. The question at
hand is whether, as a matter of law, the complaint states a claim
for relief available through unfair labor practice proceedings
before the Public Employment Relations Commission.
On March 13, 2009, the union filed a response to the deficiency
notice. For the purposes of this ruling the response is considered
an amendment to the complaint. As more fully set forth below, the
response did not cure the defect. The union's claim of employer
domination or assistance of a union in violation of RCW 41.56.140(2)
is dismissed. The allegations of the complaint concerning
independent interference state a cause of action under WAC
391-45-110(2) for further unfair labor practice proceedings before
the Commission.
DISCUSSION
The deficiency notice pointed out the defect to the allegations
concerning domination or assistance of a union. None of the facts
alleged in the complaint suggest that the employer has involved
itself in the internal affairs or finances of the union, or that the
employer has attempted to create, fund, or control a "company
union." A cause of action for this violation is provided for in all
statutes administered by the Commission. The origins of the
violation are based upon the concerns set forth in the test's second
clause, that is, whether an employer has attempted to create, fund,
or control a company union. See Washington State Patrol, Decision
2900 (PECB, 1988). Although the Commission has issued few decisions
on this issue, those decisions have generally revolved around
whether employers have unlawfully rendered assistance to unions.
Examples of such assistance are: allowing the free use of employer
buildings and resources for union business, aid to employees serving
as union officers, or favoring one union over another during a
representation proceeding. The meaning of the term "domination" is
thus directly tied to the term "assistance" and does not imply a
cause of action for alleged negative acts directed toward the union
or union members.
An employer's actual or attempted control of a union through
assistance, ranging from favoritism to a full-fledged company union,
is deleterious to the collective bargaining rights of employees;
however, those actions are distinct from interference,
discrimination, and refusal to bargain violations. A union alleging
that an employer is interfering with, discriminating against, or
refusing to bargain with the union should file complaints based upon
those allegations. A union should not file a complaint alleging
employer domination or assistance of a union unless the facts
suggest that the employer is violating the statute through such acts
as rendering assistance to a union or union officers, supporting a
company union, or showing favoritism to one union over another
during an organizing campaign.(fn:2)
____________________
fn:2 This is not intended to be an exhaustive list. Parties should
consult Commission precedent or the Commission staff manual for a
more comprehensive view of this subject. (See the Commission's web
site, at www.perc.wa.gov.)
The Union's Response
RCW 41.56.140(2) provides that it is an unfair labor practice for an
employer to "control, dominate or interfere with a bargaining
representative." In its response of March 13, 2009, the union
states that by its claim of employer domination or assistance of a
union, it is not alleging that the employer's actions dominated or
assisted the union, but that the employer interfered with a
bargaining representative.
Under RCW 41.56.030(3), "'Bargaining representative' means any
lawful organization which has as one of its primary purposes the
representation of employees in their employment relations with
employers." In unfair labor practice proceedings, the Commission
uses the term "union" as a synonym for "bargaining representative."
The Commission interprets RCW 41.56.140(2) as prohibiting
interference with a union, not individuals representing a union.
In the present case, the union has stated a cause of action under
RCW 41.56.140(1) for allegations concerning employer interference
with the union's agent, Ty Elster, as a result of his union
activities. There is no cause of action under the same facts for
employer interference with the union in violation of RCW
41.56.140(2).
NOW, THEREFORE, it is
ORDERED
1. Assuming all of the facts alleged to be true and provable, the
interference allegations of the amended complaint state a cause
of action, summarized as follows:
Employer interference with employee rights in violation of
RCW 41.56.140(1), by threats of reprisal or force or
promises of benefit made by employer official Joel Guay to
Ty Elster as a result of Elster's union activities.
The interference allegations of the amended complaint will be
the subject of further proceedings under Chapter 391-45 WAC.
2. The City of Seattle shall:
File and serve its answer to the allegations listed in
paragraph 1 of this Order within 21 days following the
date of this Order.
An answer shall:
a. Specifically admit, deny or explain each fact alleged in
the amended complaint, as set forth in paragraph 1 of this
Order, except if a respondent states it is without
knowledge of the fact, that statement will operate as a
denial; and
b. Assert any affirmative defenses that are claimed to exist
in the matter.
The answer shall be filed with the Commission at its Olympia
office. A copy of the answer shall be served on the attorney
or principal representative of the person or organization that
filed the amended complaint. Service shall be completed no
later than the day of filing. Except for good cause shown, a
failure to file an answer within the time specified, or the
failure to file an answer to specifically deny or explain a
fact alleged in the amended complaint, will be deemed to be an
admission that the fact is true as alleged in the amended
complaint, and as a waiver of a hearing as to the facts so
admitted. WAC 391-45-210.
3. The allegations of the amended complaint concerning employer
domination or assistance of a union in violation of RCW
41.56.140(2) are DISMISSED for failure to state a cause of action.
ISSUED at Olympia, Washington, this 23rd day of March, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
DAVID I. GEDROSE, Unfair Labor Practice Manager
Paragraph 3 of this order will be
the final order of the agency on
any defective allegations, unless
a notice of appeal is filed with
the Commission under WAC 391-45-350.