King County, Decision 10389 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
KING COUNTY, )
)
Employer. )
-----------------------------------)
ERIC SHIREY, ) CASE 21779-U-08-5558
)
Complainant, ) DECISION 10389 - PECB
)
vs. )
)
WASHINGTON STATE NURSES ) FINDINGS OF FACT,
ASSOCIATION, ) CONCLUSION OF LAW,
) AND ORDER
Respondent. )
___________________________________)
Eric Shirey appeared pro se.
Timothy Sears, General Counsel, for the Washington State Nurses
Association
On June 16, 2008, Eric Shirey filed an unfair labor practice
complaint with the Public Employment Relations Commission alleging
that the Washington State Nurses Association (union) committed an
unfair labor practice of interference in violation of RCW
41.56.150(1) when it disciplined him for exercising his collective
bargaining rights. Examiner Terry Wilson held a hearing on the
matter on October 17, 2009. Both parties filed post-hearing briefs.
ISSUES
1. Did the union unlawfully interfere with Shirey's rights when it
censured him for his participation in the filing of a petition
seeking to change unions?
2. Did the union unlawfully interfere with Shirey's rights when it
excluded him from participating on the scheduling committee?
3. Did the union unlawfully interfere with Shirey's rights when it
suspended him from the union for two years for his
participation in the filing of a petition seeking to change
unions?
4. Did the union unlawfully interfere with Shirey's rights when it
mailed a letter that detailed his union-imposed discipline to
bargaining unit members?
Based on the record as a whole, I find that the union violated RCW
41.56.150(1). It and unlawfully interfered with Eric Shirey's
rights when it retaliated against him by suspending him, censuring
him, and mailing a letter detailing his discipline to bargaining
unit members.
APPLICABLE LEGAL STANDARDS
The Public Employees Collective Bargaining Act, Chapter 41.56 RCW,
specifically references the right of persons to organize and
designate representatives of their own choosing. The statute reads:
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.
The statute also prohibits any interference with the rights it
guarantees. It reads:
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 where a bargaining
representative disciplines an employee for engaging in a protected
activity. Washington State Patrol, Decision 4757-A (PECB, 1995).
ANALYSIS
Shirey, a public health nurse, is employed by King County (employer)
and is a member of a bargaining unit where he sat on various
committees and served as an officer. The bargaining unit, which is
composed of 310 members, is represented by the union for collective
bargaining purposes.
Shirey co-founded the Public Health Union of Nurses (PHUN) along
with Claire Brown and Jim Gleckler, two other public health nurses
in his bargaining unit. On March 16, 2007, as interim chair of PHUN
and with the assistance of Brown, Shirey filed a petition for
investigation of a question concerning representation (QCR) with the
Commission. Following the filing of the petition, the union, the
employer, and PHUN (represented by Shirey and Brown) participated in
an investigation conference call conducted by the Commission. It
was determined an election would occur between PHUN and the union.
In the ensuing months, the union held joint debates and meetings
with PHUN, mailed multiple notices urging bargaining unit members to
vote, and sent union officers to worksite meetings held by PHUN.
The union did not raise any objections to the actions taken by PHUN
supporters or founders during this period.
The election was held on June 27, 2007, and the union won by four
votes. Immediately after the election results were known, Brown
told the staff of union that it had PHUN's support. She also
expressed hope that union would include some PHUN supporters when it
resumed contract negotiations with the employer. Shirey sent an
e-mail to everyone on PHUN's e-mail list to further acknowledge
PHUN's defeat and to express its commitment to support the union.
The content of the e-mail was displayed on the PHUN website, and the
officers of PHUN deleted content on the website that indicated it
was challenging union's representation. Soon, Shirey began having
discussions with Brown, Gleckler, and supporters of PHUN about
re-forming PHUN into a public advocacy group that would promote
public health.
The election results were made official on June 29, 2007. Contract
negotiations between the employer and the union, which had been
suspended during the QCR process, were scheduled to resume on
September 18, 2007. In July 2007, the union held public meetings to
discuss strategy and to provide updates about returning to contract
negotiations. Brown and Shirey attended two different sessions on
July 19, 2007. Marie Peacock-Albers and William Johnston, nurses in
the bargaining unit and officers of the union, were in attendance at
both meetings.
Shortly after the July meetings, Peacock-Albers and Johnston sent a
letter to Kim Armstrong, president of union, stating that Shirey had
violated the union policy against dual unionism. In their letter,
Peacock-Albers and Johnston stated:
In accordance with Article II, Section 4 of the By-Laws of the
Washington State Nurses Association, we, hereby, file with the
WSNA Board of Directors this charge of disciplinary action
against Eric Shirey, for violation of the WSNA policy on a
charge of dual unionism.
According to the letter authored by Peacock-Albers and Johnston,
Shirey was a founding member and co-chair of PHUN, "an organization
in direct competition with the Washington State Nurses Association,
which sought by a petition for change of representative to eliminate
the union as the collective bargaining representative of nurses
employed by Seattle-King County Public Health."
Judy Huntington, Executive Director of the union and the Chief
Administrative Officer for the association, then sent a letter to
Shirey by certified mail. In the letter, she stated that a
disciplinary hearing panel had met on August 9, 2007, and determined
that sufficient evidence exists to proceed with a hearing on the
charge initiated by two bargaining unit members.
On October 4, 2007, Shirey, Brown, Gleckler, and Jacqueline Justus,
a PHUN supporter, were brought before a union hearing panel composed
of three nurses from other bargaining units. On December 17, 2007,
Huntington sent Shirey a certified letter which included a nine-page
disciplinary report from the disciplinary hearing panel. The panel
concluded that Shirey was guilty of dual unionism which it defined
as "a fundamental breach of the union member's responsibility not to
destroy the union or weaken its effectiveness."
The panel stated in its report:
The evidence clearly proves that Eric Shirey was chair of the
PHUN group and knowingly participated in PHUN activities
seeking to eliminate union 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.
In accordance with Article II , Section 4(B)(4) of the union
by-laws, the disciplinary hearing panel censured Shirey and banned
him from union membership for two years. Shirey asserts that he was
also excluded from representing the union on the scheduling
committee. In a similar action, Brown was censured and prohibited
from holding office within the union for six months while Gleckler
was censured and suspended from holding office or serving on a
committee for one year. Justus was exonerated. In deciding upon
the appropriate penalty for Shirey, the panel noted:
In deciding upon the appropriate penalty, the panel recognizes
that in attempting to eliminate the Washington State Nurses
Association as the bargaining representative, Mr. Shirey was
pursuing his own personal vendetta against the union at the
expense of his co-workers. . . Mr. Shirey's misconduct was
deeply divisive and destructive, especially at a critical
juncture in difficult contract negotiations.
The report issued by the panel also stated that the union's ability
to win the best contract for nurses was severely compromised by
Shirey's actions and weakened the union's ability to present a
unified front. The panel asserted that every nurse in the
bargaining unit was adversely impacted by Shirey's actions. They
claim he stalled contract negotiations and the union had to divert
resources from contract negotiations to defeat PHUN's attempt to
eliminate them. On December 18, 2007, Huntington mailed the
disciplinary hearing panel's report to all bargaining unit members.
It included the disciplinary actions taken by the panel against
Shirey, Brown, and Gleckler.
Authority to Discipline
As the union argued in its brief, the Commission has limited
authority regarding the internal affairs of unions. The Commission
has generally held that it has no jurisdiction over complaints where
the union has disciplined one of its members in order to enforce a
properly-adopted rule that reflects a legitimate union interest and
impairs no policy that the State Legislature has imbedded in the
labor laws, provided it is reasonably enforced against union members
who are free to leave the union and escape the rule. Seattle School
District, Decision 9135-A (PECB, 2007). Ruling that the union had
legitimate interests in protecting its existence and presenting a
unified front to management, the Commission, in Seattle School
District, found that the union lawfully imposed discipline. The
Commission noted that the employee was trying to bypass the union to
achieve her own agenda and interfere with the union's collective
bargaining, activities not protected by statute.
Censure
According to Webster's Dictionary, a censure is a harsh expression
of disapproval. Its effects on the individual's reputation could be
widespread. See Brown v. Washington State Nurses Association,
Decision 10172-A (PECB, 2008), which found that censure goes beyond
the acts like expulsion as there is no way to escape the effect of a
censure. The Examiner in that decision found that censure sends the
strong message that a person should not exercise statutory rights,
and resigning from the union will not lift the criticism that
censure invokes.
In the present case, the union has characterized its discipline of
Shirey as a purely internal union matter. The report of the union
disciplinary hearing panel, however, directly links Shirey's censure
to his filing of the QCR petition with the Commission. The union
censured Shirey for activities that are protected by state statute.
At its core, a QCR petition brought before a state regulatory agency
is not an internal union issue. Filing a QCR petition is a
protected activity by a public employee under RCW 41.56.040, which
also prohibits a union from interfering with an employee who takes
such action.
The union clearly brought disciplinary charges against and censured
Eric Shirey in retaliation for his exercise of a protected statutory
right. As reflected in the statute, public policy prohibits a union
or employer from penalizing a public employee because he has sought
to invoke the Commission's election process. Censuring Shirey and
bringing disciplinary charges against bargaining unit members for
the filing of a decertification petition is interference with their
protected rights and is an unfair labor practice.
Mass Mailing
The union mailed its panel report that included the disciplinary
actions to all bargaining unit members. The union informed the
bargaining unit that Shirey, by participating in a state sanctioned
process to change union representation, had committed, in its words,
"dual unionism" against the union.
I find that mailing the report to every nurse in the bargaining unit
adds to union's unlawful retaliation against Shirey. It sends a
strong message that a union member should not exercise his or her
statutory rights. This clearly impairs effectiveness of the statute
that affords employees the right to organize.
It is noted that in Seattle School District, the Commission did not
find a union's conduct objectionable when it included in two
newsletters sent to its membership that a union member was urging
the school board to cut positions and that union discipline was
possible. In that case however, the union's discipline did not
interfere with protected rights as is true in the present case.
Scheduling Committee
According to Shirey, the scheduling committee is a group that works
to solicit input from bargaining unit members about scheduling
issues and has no role in negotiations. In June 2007, the union
informed the employer that Shirey did not represent their interests
and that he would not negotiate on the bargaining unit's behalf.
The union then removed Shirey from scheduling committee duties.
Gleckler testified that the scheduling committee has not met since
that time. I find that these actions were lawful. Elected union
officials have the right to appoint whomever they choose to
represent and assist them in day to day affairs. Finnegan v. Leu
456 US 43 (1982).
The Suspension from the Union
As a result of filing a QCR petition and seeking to change union
representation, Eric Shirey was suspended from union membership for
two years. Shirey contends that this discipline was also unlawful
and that he has been negatively impacted. He was not able to
participate on labor management committees, including the Scheduling
Committee. He could not vote on important matters, such as the
prospect of having a significant amount of money deducted from his
paycheck, and he suffered a bout of depression.
The National Labor Relations Board (NLRB) reasons that an employee
who files a QCR petition has access to union strategy in fighting
the petition, and, as a result, cannot expect to retain membership
in his union. See Tawas Tube Products, Inc., 151 NLRB 46 (1965),
where the Board recognized that a union may discipline and impair
the membership rights of a union member who attempts to decertify
the union or supports a rival organization, provided such
disciplinary action does not affect the member's employment status.
Despite the fact that the NLRB sanctions punishment for the filing
of a QCR petition, in Office Employees Local 251 (Sandia National
Laboratories), 331 NLRB No. 193 (2000), the NLRB ruled that the
proscriptions of Section 8(b)(l)(A) of the National Labor Relations
Act apply when intra-union discipline clash directly with statutory
policy interests and prohibitions incorporated in the Act.
Similarly, the Supreme Court ruled that the discipline imposed by a
union is not appropriate when a complaint or grievance does not
truly concern an internal matter, but touches a part of the public
domain covered by the Section 7 or 8(b)(1)(A) of the National Labor
Relations Act. NLRB v. Shipbuilders, 391 U.S. 418 (1968). Sections
7 and Section 8(b)(1)(A) of the NLRB correspond closely to the
sections of Washington State Public Employees Collective Bargaining
Act, Chapter 41.56 RCW.
The Commission has not ruled specifically on whether a union could
lawfully discipline an employee who attempts to decertify the union
or supports a rival organization. And although the Commission uses
decisions rendered by the NLRB as a guide in areas where there is no
specific Commission precedent, the Commission is not bound to
strictly follow Board rulings.
Washington State law and precedent dictate that a union can
discipline one of its members in order to enforce a properly adopted
rule that reflects a legitimate union interest, impairs no policy
that the State Legislature has imbedded in the labor laws, and is
reasonably enforced. Key to the Public Employment Collective
Bargaining Act is promoting harmonious labor relations by providing
a uniform basis by which employees can join a labor organization of
their own choosing. The right to unionize and to choose union
representation is core to labor rights. So much so, this right was
codified, as were the procedures by which public employees choose
their representation.
In the present case, I find that the suspension of Shirey from the
union clashes directly with the State's labor policy and policy
interest. Suspending an employee because they exercised a State
protected right impedes others from exercising that right. Such
actions interfere with the proscriptions of the statute. Thus, I
find that the union committed an unfair labor practice when it
suspended Shirey from continuing union membership.
FINDINGS OF FACT
1. King County (employer) is a public employer within the meaning
of RCW 41.56.030(1).
2. Washington State Nurses Association (union), 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
employed by the employer.
3. Eric Shirey is employed by King County as a public health nurse
in the bargaining unit represented by the union.
4. On March 16, 2007, Shirey filed 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).
Shirey was identified as the iterim chair, and Claire Brown was
identified as the interim co-chair of the PHUN.
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 union, sent notice to
Shirey that a union panel had met on charges brought against
him. The panel determined that sufficient evidence existed to
proceed with a disciplinary hearing on the charges. The panel
considered as evidence the petition for a question concerning
representation Shirey filed with the Public Employment
Relations Commission.
7. On December 17, 2007, Huntington sent Shirey a certified letter
that included a copy of the report of the disciplinary hearing
panel. The panel concluded that Shirey was guilty of the
charge of dual unionism based on Shirey's filing of the
representation petition.
8. The panel disciplined Shirey by censuring him and by suspending
him from union membership for two years.
9. The union sent copies of the report and the notice of censure
to every member of the bargaining unit.
10. The union relieved Shirey of his duties on the scheduling
committee.
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 8 through 9, the union
retaliated against Shirey in violation of RCW 41.56.150(3),
interfered with his rights, and acted in a manner that impaired
the policies imbedded in the labor laws of the State of
Washington.
3. 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 Eric Shirey for attempting to use the processes
administered by the Public Employment Relations Commission
to have the PHUN certified as his bargaining representative.
b. Suspending Eric Shirey from membership in the bargaining
unit for attempting to use the processes administered by
the Public Employment Relations Commission to have the
PHUN certified as his bargaining representative.
c. 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 and suspension of membership imposed
on Shirey when he 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 Shirey. In
that letter) acknowledge that Shirey's activities to
change unions were part of a process established and
protected by state law. The letter must state that the
union acted illegally when it censured Shirey. 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 union, and shall remain posted for
60 consecutive days from the date of initial posting. The
union 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 8th day of May, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
TERRY N. WILSON, 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 21779-U-08-5558
DECISION 10389 - 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 THE WASHINGTON STATE NURSES ASSOCIATION
COMMITTED UNFAIR LABOR PRACTICES IN VIOLATION OF STATE COLLECTIVE BARGAINING
LAWS:
WE UNLAWFULLY retaliated against Eric Shirey because he filed a petition for
investigation of a question concerning representation with the Public
Employment Relations Commission, a state agency.
WE UNLAWFULLY censured Eric Shirey because he filed 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 Eric Shirey.
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 Eric Shirey because he filed a
petition for investigation of a question concerning representation.
WE WILL mail a letter of apology to Eric Shirey for retaliating against him
when he pursued his statutory rights.
WE WILL mail a copy of the letter of apology we send to Eric Shirey to each
member of the bargaining unit.
DO NOT POST OR PUBLICLY READ THIS NOTICE.
AN OFFICIAL NOTICE FOR POSTING AND READING
WILL BE PROVIDED BY THE COMPLIANCE OFFICER.
The full decision is published on PERC's website, www.perc.wa.gov.