State - Social and Health Services, Decision 10417 (PSRA, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
FAIR WASHINGTON LABOR ASSOCIATION, )
)
Complainant, ) CASE 22368-U-09-5707
)
vs. ) DECISION 10417 - PSRA
)
STATE - SOCIAL AND HEALTH SERVICES,) PRELIMINARY RULING
) AND ORDER OF PARTIAL
Respondent. ) DISMISSAL
___________________________________)
On March 31, 2009, the Fair Washington Labor Association (FWLA)
filed a complaint charging unfair labor practices with the Public
Employment Relations Commission under Chapter 391-45 WAC, naming the
Washington State Department of Social and Health Services (employer)
as respondent. The complaint was reviewed under WAC 391-45-110,(1)
and 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 domination or assistance of a union, and
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. 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.
The allegations of the complaint concerning interference regarding
disseminating decertification information state causes of action
under WAC 391-45-110(2) for further unfair labor practice
proceedings before the Commission.
The deficiency notice pointed out the defects concerning
interference and discrimination regarding to health insurance
proposals, discrimination regarding disseminating information on
decertification, and domination or assistance of a union.
Regarding discrimination for disseminating decertification
information, it is an unfair labor practice under RCW
41.80.110(1)(c) for an employer to discriminate against a labor
organization in the use of employer facilities or resources. The
FWLA has not provided facts indicating that the employer allows
other organizations to disseminate information on the employer's
property, but has singled out FWLA for disparate treatment by not
allowing FWLA to distribute its information.
Regarding interference and discrimination over health insurance
proposals, 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.
Regarding domination or assistance of a union, it is an unfair labor
practice under RCW 41.80.110(1)(b) for an employer to dominate or
assist a union. The test for a cause of action for a domination or
assistance violation is whether the complainant provides facts
showing 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. A few 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 term "domination" concerns an employer's
involvement in the internal affairs or finances of a union or its
attempt to create, fund, or control a company union 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) The FWLA has not provided facts
indicating that the employer has dominated or assisted a union.
____________________
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 Amended Complaint
The amended complaint apparently applies to multiple cases involving
multiple employers, including the Department of Social and Health
Services, and alleges that the employer maintains bulletin boards
which it opens to use for charitable and general information, but
denies to FWLA. Assuming for the purposes of this preliminary
ruling that the facts so asserted are true and provable, it appears
that an unfair labor practice could be found for discrimination by
the employer's actions regarding dissemination of decertification
information by FWLA.
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 the 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 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.
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.
NOW, THEREFORE, it is
ORDERED
1. Assuming all of the facts alleged to be true and provable, the
allegations of the amended complaint in Case 22368-U-09-5707
state a cause of action, summarized as follows:
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.
These allegations of the amended complaint will be the subject
of further proceedings under Chapter 391-45 WAC.
2. The Washington State Department of Social and Health Services
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 Case
22368-U-09-5707 concerning 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); and
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 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.