State - Revenue, Decision 10415 (PSRA, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
FAIR WASHINGTON LABOR ASSOCIATION, )
) CONSOLIDATED
Complainant, ) CASE 22364-U-09-5705 and
) CASE 22367-U-09-5706
vs. )
) DECISION 10415 - PSRA
STATE - REVENUE, ) DECISION 10416 - PSRA
)
Respondent. ) PRELIMINARY RULING
) AND ORDER OF PARTIAL
___________________________________) DISMISSAL
On March 31, 2009, the Fair Washington Labor Association (FWLA)
filed complaints charging unfair labor practices with the Public
Employment Relations Commission under Chapter 391-45 WAC, naming the
Washington State Department of Revenue (employer) as respondent.
The complaints were consolidated and reviewed under WAC
391-45-110.(fn:1) A deficiency notice issued on April 14, 2009,
indicated that it was not possible to conclude that a cause of
action existed at that time. The mailing was delayed by two days,
and FWLA was ultimately given a period of 23 days in which to file
and serve an amended complaint or face dismissal of the complaint.
____________________
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 May 7, 2009, FWLA filed an amended complaint. The Unfair Labor
Practice Manager dismisses the allegations of the complaint
concerning interference and discrimination involving employer health
insurance proposals. A cause of action is found for employer
interference and discrimination regarding disseminating
decertification information by the FWLA and holding an employee
rally, and interference and domination or assistance of a union
regarding the employee rally. The employer must file and serve its
answer to the amended complaint within 21 days following the date of
this decision.
DISCUSSION
The allegations of the complaint concern employer interference with
employee rights in violation of RCW 41.80.110(1)(a), domination or
assistance of a union in violation of RCW 41.80.110(1)(b), and
discrimination in violation of RCW 41.80.110(1)(c), by its health
insurance proposals, and actions regarding the Fair Washington Labor
Association (FWLA) disseminating information on decertification and
holding an employee rally concerning decertification.
The deficiency notice pointed out the defects to the complaint.
Regarding interference and discrimination over health insurance
proposals, the FLWA alleges employer interference with employee
rights in violation of RCW 41.80.110(1)(a) and discrimination in
violation of RCW 41.80.110(1)(c), concerning health insurance
proposals related to collective bargaining between the employer and
other unions, as well as proposed legislation on health insurance.
It is not an unfair labor practice for an employer to consider
legislation or engage in collective bargaining over terms and
conditions of employment, including health insurance.
The Amended Complaint
The amended complaint apparently applies to multiple cases involving
multiple employers, including the Department of Revenue. Regarding
allegations of discrimination over the employer offering different
healthcare benefits to represented and non-represented employees, it
is not an unfair labor practice for an employer to offer different
terms and conditions of employment to represented and
non-represented employees. The amended complaint does not state a
cause of action by arguing that the Commission should reverse this
long-standing legal conclusion.
Regarding allegations of domination or assistance of a union, the
amended complaint alleges that evidence of the employer assisting
the union is found in the employer releasing employee names to the
union, but denying release of the names to FWLA. This would
constitute an unfair labor practice if, in violation of WAC
391-25-130, the employer refused or failed to submit to the agency a
list of employee names after the filing of a representation petition
by FWLA and following the determination of a sufficient showing of
interest. However, the amended complaint does not allege those
facts. The allegation that the union, upon obtaining employee names
from the employer, releases those names to credit card companies
does not indicate an unfair labor practice by the employer.
The FWLA alleges that evidence of domination is found in the
employer allowing the union to distribute of union materials, while
restricting access by FWLA and interfering with FWLA's organizing
efforts. This does not present sufficient evidence indicating that
the employer favors the union over FWLA. It is not an unfair labor
practice for an employer, under a collective bargaining agreement,
to provide a bulletin board for the exclusive use of an incumbent
bargaining representative. The allegations pertain instead to the
interference and discrimination claim regarding dissemination of
decertification information.
The cause of action for employer domination or assistance of a union
is restricted to allegations pertaining to the employer's comments
and actions regarding an employee rally sponsored by FWLA.
NOW, THEREFORE, it is
ORDERED
1. Assuming all of the facts alleged to be true and provable, the
allegations of the amended complaint in Consolidated Cases
22364-U-09-5705 and 22367-U-09-5706 state a cause of action,
summarized as follows:
[1] Employer interference with employee rights in
violation of RCW 41.80.110(1)(a) and discrimination in
violation of RCW 41.80.110(1)(c), by its actions regarding
the Fair Washington Labor Association disseminating
information on decertification and holding an employee
rally concerning decertification; and [2] employer
interference with employee rights in violation of RCW
41.80.110(1)(a) and domination or assistance of a union in
violation of RCW 41.80.110(1)(b), by showing a preference
between unions in an organization campaign regarding an
employee rally sponsored by the Fair Washington Labor
Association.
These allegations of the amended complaint will be the subject
of further proceedings under Chapter 391-45 WAC.
2. The Washington State Department of Revenue 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 in Consolidated Cases
22364-U-09-5705 and 22367-U-09-5706 concerning employer
interference in violation of RCW 41.80.110(1)(a) and
discrimination in violation of RCW 41.80.110(1)(c), by its
health insurance proposals, are DISMISSED for failure to state
a cause of action.
ISSUED at Olympia, Washington, this 22nd day of May, 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.