2. Did the employer circumvent the union, engage in direct dealing, and/or interfere with employee rights by sending a memo to bargaining unit employees on May 4, 2009?

The employer’s April 8, 2009, e-mail and May 4, 2009, memo to employees were not coercive and constitute protected speech under RCW 41.59.140(3). The employer did not circumvent the union, engage in direct dealing or interfere with employee rights in violation of RCW 41.59.140(1)(a) or (e).

APPLICABLE LEGAL STANDARDS

Chapter 41.59 RCW governs collective bargaining relationships of certificated school district employees and their employers. Under RCW 41.59.060(1): “Employees shall have the right to self-organization, to form, join, or assist employee organizations, to bargain collectively through representatives of their own choosing, and shall also have the right to refrain from any or all of such activities.”

Circumvention and Direct Dealing

Under RCW 41.59.140(1)(e), it is an unfair labor practice for a public employer “[t]o refuse to bargain collectively with the representatives of its employees.” Unions are called “exclusive bargaining representatives” because they have the exclusive right to represent employees in an appropriate bargaining unit. The Commission has consistently found that it is an unfair labor practice for an employer to circumvent its employees’ exclusive bargaining representative and negotiate directly with bargaining unit employees concerning mandatory subjects of bargaining (wages, hours and working conditions). Bellevue School District, Decision 10198 (EDUC, 2008); Royal School District, Decision 1419-A (PECB, 1982); City of Raymond, Decision 2475 (PECB, 1986).

Although employers are prohibited from negotiating directly with represented employees concerning mandatory subjects of bargaining, employers may communicate factually accurate information about collective bargaining to employees and the public. RCW 41.59.140(3) recognizes parties’ free speech rights and states:

The expressing of any views, argument, or opinion, or the dissemination thereof to the public, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this chapter, if such expression contains no threat of reprisal or force or promise of benefit.

In Lake Washington School District, Decision 2483 (EDUC, 1986), an Examiner for the Commission explained:

The phrase ‘. . . no threat of reprisal or force or promise of benefit’ found in RCW 41.59.140(3) must be interpreted in the same context as the identical language of Section 8(c) of the National Labor Relations Act. The right of free speech provided to employers in these statutes, like the constitutional guarantee of free speech and freedom of expression, has its reasonable limits.

Some of these reasonable limits include prohibitions against threatening employees and disparaging the union. Lake Washington School District, Decision 2483 citing Endo Industries, 239 NLRB 1074 (1978); Public Utility District 1 of Clark County, Decision 2045-B (PECB, 1989).

Additional factors for determining whether an employer communication relating to collective bargaining negotiations constitutes unlawful circumvention are addressed in Bellevue School District, Decision 10198.

[One] type of circumvention allegation . . . involves an employer's written communication to bargaining unit employees about the status of ongoing collective bargaining negotiations. An employer's communication of information to bargaining unit employees about negotiations may be a neutral act and is not by itself an unfair labor practice. In these cases, the Commission specifies that the communication must be truthful, not purposefully misleading, and the same as that offered to the union. Spokane County, Decision 2793 (PECB, 1987).

The standards adopted by the Commission require employer communications to bargaining unit employees about ongoing bargaining negotiations to be: 1) truthful; 2) not purposefully misleading; and 3) the same as that offered to the union. These standards preserve an employer’s ability to communicate with its employees and the public, while preventing direct dealing, coercion and interference in the collective bargaining process. A complainant in an unfair labor practice proceeding has the burden of proof to show that these standards have not been adhered to.

Interference

Under RCW 41.59.140(1)(a), it is an unfair labor practice for an employer to interfere with, restrain, or coerce public employees in the exercise of their collective bargaining rights guaranteed in Chapter 41.59 RCW. An interference violation exists when an employee could reasonably perceive the employer's statements or actions as a threat of reprisal or force or promise of benefit associated with the union activity of that employee or of other employees. Kennewick School District, Decision 5632-A (PECB, 1996). An employee is not required to show that an employer intended or was motivated to interfere with collective bargaining rights. City of Tacoma, Decision 6793-A (PECB, 2000).

ANALYSIS

Issue 1: April 8, 2009 E-mail

The union is the exclusive bargaining representative of all non-supervisory certificated employees of the employer. The union and employer were parties to a collective bargaining agreement that was effective from August 16, 2007, through August 15, 2009. The parties began bargaining a successor collective bargaining agreement in February 2009.

The union alleges that the employer acted unlawfully by sending an April 8 e-mail to bargaining unit employees concerning wages. Specifically, the union alleges that the employer circumvented the union and dealt directly with employees by:

1) Sharing an offer with employees that was different than the offer it previously made to the union; and

2) Threatening employees with layoffs in order to pressure them to accept a pay cut.

The following facts are relevant to understanding these allegations:

· March 23, 2009. During a collective bargaining session the employer gave the union a proposal that stated in part:

The following proposal has been developed in an effort to balance our long-term TRI [Time- Responsibility- Incentive] commitment with near-term employee retention objectives. While the near term may require a sacrifice, the long-term will produce a gain. We therefore propose that the Association and the District negotiate a three (3) year TRI strategy based on the following parameters:

· Contingent upon a favorable or less favorable state budget outcome, the District proposes either a 1 year temporary reduction in TRI for 2009-10 (e.g., 10% of TRI which is 1% of total compensation) to be determined based on more definitive budget information from the legislature or, alternatively, an equivalent expense savings that would mitigate employee position reductions (e.g., a reduction in the professional development allocation). Either method would be a shared sacrifice comparable in terms of total compensation to a temporary reduction for all employee groups.

· Restoration of the temporary reduction plus an increase in TRI, to be negotiated, for school year 2010-11 funded by an offsetting increase in class size (e.g., a class size increase of 1.0 student FTE).

Leland Goeke is the employer’s lead spokesperson in bargaining. Goeke is the former associate superintendent of human resources for the employer and is currently working for the employer as an independent contractor. During the March 23 bargaining session, Goeke told the union that the employer:

[C]ouldn’t take a reduction in teachers’ salary because of the Salary Compliance Act in Washington State. And so looking at TRI or some other teacher item such as professional development was our vehicle. And what we were suggesting is that we explore a 10 percent reduction in TRI as being the total compensation equivalent of a one percent reduction in salary.

The employer acknowledged that the reduction in compensation would be higher than one percent for some teachers and lower than one percent for others, depending on where they were on the TRI salary schedule.

· April 4, 2009. During a bargaining session the employer proposed a 10 percent reduction in TRI pay. The employer pointed out that this was approximately one percent of an employee’s total compensation and would be comparable to the one percent wage reductions it was asking other bargaining units to accept. The union pointed out that the actual reduction for each teacher would vary depending on where a teacher was on the salary schedule and would not equal one percent of total compensation for every employee.

· April 8, 2009. Steven Webb, superintendent, sent the following e-mail to bargaining unit employees and other employees in the district:

Subject: Budget Update 4/8

Good morning colleagues,

As I shared in a previous e-mail, the Senate and House released their budgets for 2009-11 during spring break. For Vancouver Public Schools, the Senate budget would double the governor’s budget shortfall from $4 million to $8 million, and the impact of the House budget on our district would be $5.6 million. Last night, the school board reviewed the two budget proposals and their impacts in detail.

Significant potential reductions in I-728, levy equalization, and K-4 enhancement funding could result in deep cuts in employee positions. For example, in Vancouver schools:

· One hundred ten teachers are paid from I-728 funds;

· Thirty-eight teachers are paid from K-4 enhancement money, and;

· The equivalents of 18 administrators, 33 teachers, or 50 classified staff members are paid with the proposed reduction in levy equalization dollars.

I am heartbroken by these possibilities. The short and long-term consequences could be devastating in many ways.

That is why, by mutual agreement with the board, I am reducing my total compensation voluntarily by 4.5% this year. This reduction is in addition to the decision we already made to freeze administrative salaries for next year.

If every employee were to accept a temporary wage reduction of one percent, we would generate $1.3 million in savings. In people terms, those resources could offset the loss of 17 teaching positions or 26 classified positions.

Clearly this is about shared sacrifice. . . .

In my view, taking a shared sacrifice approach to this unprecedented budget challenge is the right thing to do—for our students, our employees and their families, and our community.

The employer did not share the text of the e-mail with the union prior to sending it to employees.

· April 8, 2009. Union president Ann Giles sent bargaining unit members an e-mail in response to Superintendent Webb’s e-mail.

Truthful

The truthfulness of the statements contained in Superintendent Webb’s e-mail were not disputed.

Not Purposefully Misleading

The union argues that the employer’s statements are misleading because the employer’s proposal does not reduce the compensation from each employee by exactly one percent. As an example, the union points out that a teacher with ten years experience and a Masters Degree with over 90 additional credits receives a base salary of $54,150 and TRI pay of $4,100. A one percent reduction in base salary would equal $541. The 10 percent reduction in TRI proposed by the employer would equal $410, or a 0.76% reduction in salary.

The employer explains that its goal was to obtain a one percent reduction in compensation. One of its proposals on how to achieve this goal was to reduce TRI pay by 10 percent. The employer acknowledges that depending on where an individual employee falls on the salary schedule, the amount could be slightly more or less than one percent for that employee. The employer argues that the overall savings generated would equal approximately one percent of its salary costs for this bargaining unit.

I find that the content of the e-mail is not purposefully misleading. During bargaining, the employer expressed its desire to reach a one percent reduction in salary costs and referred to its proposal to reduce TRI pay by 10 percent as a “one percent shared sacrifice.”

Same as That Offered to Union

The union argues that the April 8 e-mail concerning a one percent reduction in salary is not the same as the proposal the employer made in bargaining. The union also points out that the employer did not send the e-mail to the union prior to sending it to bargaining unit employees. The employer argues that achieving a one percent reduction in compensation was on the table in several bargaining sessions, and it has consistently described the proposal to reduce TRI by 10 percent or find equivalent cost savings as the “one percent shared sacrifice” proposal.

I find that the employer’s April 8 e-mail asking employees to consider accepting a one percent wage reduction as a shared sacrifice is consistent with proposals the employer made earlier in bargaining. Starting on March 23, the employer proposed a reduction of “10% of TRI which is 1% of total compensation . . . or, alternatively, an equivalent expense savings.” The employer repeatedly referred to this proposal as the one percent shared sacrifice. The employer made it clear that its goal was to achieve a monetary savings equal to one percent of employee compensation.

Interference

The union alleges that the portion of Webb’s e-mail which states: “If every employee were to accept a temporary wage reduction of one percent, we would generate $1.3 million in savings. In people terms, those resources could offset the loss of 17 teaching positions or 26 classified positions.” is coercive and interferes with employee rights because it offers bargaining unit employees the choice of accepting a one percent wage reduction or cutting 17 teaching positions.

The verbiage and context is critical to evaluating the union’s argument. Under RCW 41.59.140(3) an employer has the right to express “any views, argument, or opinion, or the dissemination thereof to the public” provided the “expression contains no threat of reprisal or force or promise of benefit.”

In the e-mail, the employer used language that suggested a wage reduction to offset layoffs was a possibility. The statement in question began by stating, “If every employee were to accept a temporary wage reduction.” It was pointed out that a temporary wage reduction of one percent would generate savings that “could” offset the loss of positions. The use of the word could also implies a discussion of a possibility. This statement, particularly in the context of the e-mail, appears to be an attempt by the employer to persuade employees to accept a one percent wage reduction. It did not contain an unlawful threat.

Conclusion

Webb’s April 8, 2009 e-mail does not constitute circumvention, direct dealing or unlawful interference in violation of RCW 41.59.140(1)(a) or (e). The employer’s reference to a one percent wage reduction is consistent with the employer’s position and proposals in bargaining. Although the employer’s characterization of the one percent shared sacrifice does not divulge the finer details of the proposal, specifically that the proposed method of taking a one percent reduction would be to decrease TRI pay by 10 percent, the employer’s e-mail does not rise to the level of being untruthful or purposefully misleading. I further find that the employer’s statement, “If every employee were to accept a temporary wage reduction of one percent . . . those resources could offset the loss of 17 teaching positions or 26 classified positions” to be persuasive speech which is protected by RCW 41.59.140(3). The statement does not constitute interference under RCW 41.59.140(1)(a). Employees could not reasonably perceive the April 8 e-mail as a threat of reprisal or force or promise of benefit associated with union activity of employees.

Issue 2: May 4, 2009 Memo

The union alleges that the employer purposefully misled employees and provided them with inaccurate information in a May 4 memo concerning the status of the employer’s economic proposals. Specifically, the union argues that the statements that the employer 1) “withdrew its proposal for a 1% reduction in total compensation as a ‘shared sacrifice’ by all employee groups” and 2) “offer[ed] eight (8) hours of professional learning community time which would make up for the loss of eight (8) hours of Learning Improvement Day time (LID)” are intentionally misleading because they fail to reference the fact that this proposal is contingent on the union withdrawing many of its financial proposals.

The following facts are relevant to understanding these allegations:

· May 1, 2009. During a bargaining session Patsy Hansen, lead negotiator for the union, said she had “talked to our members on taking a 1% cut in compensation.” Goeke, interrupted Hansen and said, “Oh, we withdraw that proposal. We’ve done that for all bargaining groups.”

· May 2, 2009. During a bargaining session, the employer gave the union a document titled “Comprehensive Financial Proposal” which stated:

On March 23, 2009, the District exchanged the District’s Proposal No. 2 as part of a 3-year contract.

This proposal called for a 1% reduction in total compensation for 2009-10 as part of a “shared sacrifice” in which all employee and management groups would be asked to accept a 1% reduction to help address budget shortfalls and lessen the number of positions that might be otherwise be lost. The proposal included restoration of the 1% in 2010-11 and an increase in TRI in 2010-11 if it was funded by a tradeoff in another category such as professional development. The final component was a contingent increase in 2011-12 that would be subject to availability of funding. This proposal was made when the legislative budget was still extremely uncertain.

The District now submits a modified proposal as part of a comprehensive financial proposal. This proposal recognizes the final legislative budget and the uncertainty that still exists in federal funding guidelines. It is based on a two (2) year contract which would exclude mid-term bargaining of financial issues.

· The District withdraws the 1% “shared sacrifice” proposal.

· The District will keep teachers whole by replacing the lost LID day for 2009-10 with an equivalent amount of Professional Learning Community hours (8 hours per employee at the 2009-10 SAM per diem rate).

· The District will similarly fund an equivalent amount of PLC hours to replace the LID day currently removed from the 2010-11 budget unless the legislature reinstates the lost LID day.

· The Association agrees with District proposal No. 3, Carve Out.

· The Association agrees to withdraw its major financial proposals including: Sabbatical, Personal Leave increase, Special and Basic Education caseloads, Limits on Prep Periods, IEP/504 Student accounting, Overload changes, Self-Contained Stipends, and TRI increase.

· The employer discussed its proposal with the union during the May 2 bargaining session. The employer said that the replacement of the lost LID day was conditioned on the union agreeing to withdraw many of its financial proposals. The employer explained that in light of updated budget proposals, it was no longer asking any bargaining unit to agree to the shared sacrifice one percent wage reduction.

· May 4, 2009. Melissa Hallead, executive director for human resources for the employer, issued a memo to district staff titled “VEA-VSD Collective Bargaining—Meeting Release No. 6.” In the memo, Hallead summarized a variety of issues that were discussed during contract negotiations on May 1 and 2. With regards to wages, the memo stated in part:

The District, considering the legislative consensus budget, withdrew its proposal for a 1% reduction in total compensation as a “shared sacrifice” by all employee groups. The District also replaced its compensation proposal, of which the shared sacrifice was a part, to offer eight (8) hours of professional learning community time which would make up for the loss of eight (8) hours of Learning Improvement Day time (LID).

Truthful

The union argues that the employer’s announcement that it “withdrew its proposal for a 1% reduction in total compensation as a ‘shared sacrifice’ by all employee groups” is not truthful. Specifically, the union argues that the employer did not unequivocally withdraw its proposal for a one percent reduction in total compensation. In support of its position, the union points to the employer’s May 2 comprehensive financial proposal which asks the union to give up a variety of its economic and financial proposals. Roy Maier, executive director of the union, testified that during negotiations “the district continually told us that we had to accept their complete financial package, which included dropping the other financial issues, if they dropped the one percent and restored that day.”

The employer argues that it unequivocally withdrew its proposal for a one percent reduction in total compensation as a ‘shared sacrifice’ during bargaining on May 1. Both Hallead and Goeke testified that the employer told the union on May 1 and again on May 2 that it was withdrawing the one percent shared sacrifice wage reduction proposal because the new budget projections were looking better than originally expected. According to Hallead and Goeke, the withdrawal of the proposal was not conditioned on any other changes or concessions in bargaining proposals. The employer argues that it included the withdrawal of the one percent shared sacrifice proposal in the May 2 package in order to highlight movement it had made the day earlier. Goeke testified that when he introduced the May 2 written proposal he again made it clear to the union that the one percent reduction was withdrawn.

I find Hallead and Goeke’s testimony concerning the unconditional withdrawal of the one percent shared sacrifice proposal credible. They had more confident and detailed recollections of the discussions in bargaining concerning this issue than Maier. The partial transcript of the bargaining session that was admitted into evidence is also consistent with Hallead and Goeke’s testimony.

Not Purposefully Misleading

The union argues that the employer’s statements are misleading because the employer’s offer to withdraw its proposal for a one percent reduction in total compensation and replace the lost LID day with 8 hours of professional learning community time were contingent on the union withdrawing a variety of its financial proposals. The union argues that the employer knowingly misled employees when it informed them in a May 4 memo about the benefit increases in a package offer without mentioning the concessions that were being demanded as part of the package.

The employer argues that the short bargaining update memos it produces, like the May 4 memo, are intended to briefly summarize bargaining progress and are not intended to be comprehensive. The employer explained that the union produces its own information about bargaining proposals and progress, which it distributes to employees. The employer points out that it intentionally did not mention the union’s economic proposals in any of its bargaining memos because it thought that drawing attention to the union’s economic proposals, with a total cost of approximately five million dollars, would be embarrassing to the union.

Contract bargaining is a complicated process that does not occur in a vacuum. Proposals are often made in packages that result in a number of conditions. The complexity of bargaining proposals does not lend itself to an easy explanation for employees who haven’t been part of the entire bargaining process. The fact that one party may not provide a complete description of all of the proposals made in bargaining is offset by the other party’s ability to distribute information from its perspective. This is why the standard for evaluating employer communications to bargaining unit employees concerning ongoing collective bargaining negotiations only requires that they be: 1) truthful; 2) not purposefully misleading; and 3) the same as that offered to the union. The standard does not require that employer communications about bargaining be comprehensive or reflective of both parties’ perspectives.

I do not find the employer’s May 4 memo to be purposefully misleading. The employer’s May 1 and 2 discussions and offers to the union contained the same proposals that the employer describes in its memo.

Same as that Offered to the Union

There is no dispute that the union received the May 4 memo at the same time as the employees. The union argues that the proposal the employer described in the May 4 memo is incomplete and therefore not the same as the employer’s offer to the union in bargaining. This argument is the same argument addressed in the not purposefully misleading subsection above.

Conclusion

The employer’s May 4 memo to district staff does not constitute circumvention, direct dealing or unlawful interference in violation of RCW 41.59.140(1)(a) or (e). The employer acted lawfully when it shared a memo updating the school district staff on progress and proposals in bargaining. The memo, while certainly an incomplete account of proposals and bargaining progress, is protected by RCW 41.59.140(3). The May 4 memo did not contain any threat of reprisal or force or promise of benefit. Furthermore, I find that the memo relating to the employer’s economic proposal was truthful, not purposefully misleading, and the same as that offered to the union.

FINDINGS OF FACT

1. Vancouver School District (employer) is a public employer within the meaning of RCW 41.59.020(5).

2. Vancouver Education Association (union) is an exclusive bargaining representative within the meaning of RCW 41.59.020(6).

3. The union is the exclusive bargaining representative of all non-supervisory certificated employees of the employer.

4. The union and employer were parties to a collective bargaining agreement that was effective from August 16, 2007, through August 15, 2009.

5. In February 2009, the union and employer began bargaining a successor collective bargaining agreement to the agreement described in Finding of Fact 4.

6. Leland Goeke is the employer’s lead spokesperson in collective bargaining.

7. On March 23, 2009, during a collective bargaining session, the employer gave the union a proposal that stated in part:

Contingent upon a favorable or less favorable state budget outcome, the District proposes either a 1 year temporary reduction in TRI for 2009-10 (e.g., 10% of TRI which is 1% of total compensation) to be determined based on more definitive budget information from the legislature or, alternatively, an equivalent expense savings that would mitigate employee position reductions (e.g., a reduction in the professional development allocation). Either method would be a shared sacrifice comparable in terms of total compensation to a temporary reduction for all employee groups.

8. During the March 23, 2009, contract bargaining session, Goeke explained that the employer:

9. On April 4, 2009, during a bargaining session the employer proposed a 10 percent reduction in TRI pay. The employer pointed out that this was approximately one percent of an employee’s total compensation and would be comparable to the one percent wage reductions it was asking other bargaining units to accept.

10. Steven Webb is the Superintendent of the Vancouver School District.

11. On April 8, 2009, Webb sent an e-mail to bargaining unit employees and other employees in the district with a subject line of “Budget Update 4/8.” The e-mail discussed anticipated budget shortfalls for 2009-2011 and stated: “If every employee were to accept a temporary wage reduction of one percent, we would generate $1.3 million in savings. In people terms, those resources could offset the loss of 17 teaching positions or 26 classified positions. Clearly this is about shared sacrifice.” The April 8 e-mail was truthful, not purposefully misleading, and the same as that offered to the union.

12. Patsy Hansen is the lead negotiator for the union in contract negotiations with the employer.

13. On May 1, 2009, during a bargaining session Hansen said she had “talked to our members on taking a 1% cut in compensation.” Goeke interrupted Hansen and said “Oh, we withdraw that proposal. We’ve done that for all bargaining groups.”

14. On May 2, 2009, during a bargaining session the employer gave the union a document titled “Comprehensive Financial Proposal” which stated in part:

· The District withdraws the 1% “shared sacrifice” proposal.

· The District will similarly fund an equivalent amount of PLC hours to replace the LID day currently removed from the 2010-11 budget unless the legislature reinstates the lost LID day.

· The Association agrees with District proposal No. 3, Carve Out.

15. During the May 2, 2009 bargaining session, the employer explained that the replacement of the lost LID day was conditioned on the union agreeing to withdraw many of its economic and financial proposals. The employer explained that in light of updated budget proposals, it was no longer asking any bargaining unit to agree to the shared sacrifice one percent wage reduction.

16. Melissa Hallead is employed as the executive director for human resources for the employer.

17. On May 4, 2009, Hallead issued a memo to district staff titled “VEA-VSD Collective Bargaining—Meeting Release No. 6.” In the memo, Hallead summarized a variety of issues that were discussed during contract negotiations on May 1 and 2. With regards to wages, the memo stated in part:

The May 4 memo was truthful, not purposefully misleading and the same as that offered to the union.

CONCLUSIONS OF LAW

1. The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.59 RCW and Chapter 391-45 WAC.

2. As described in Findings of Fact 6 through 11, the Vancouver School District did not circumvent its duty to bargain with the union or interfere with employee rights by sending an April 8, 2009, e-mail to its employees, and did not violate RCW 41.59.140(1)(a) or (e).

3. The e-mail described in Finding of Fact 11 is protected by RCW 41.59.140(3).

4. As described in Findings of Fact 12 through 17, the Vancouver School District did not circumvent its duty to bargain with the union or interfere with employee rights by sending an May 4, 2009, memo to its employees and did not violate RCW 41.59.140(1)(a) or (e).

5. The memo described in Finding of Fact 17 is protected by RCW 41.59.140(3).

ORDER

The complaint charging unfair labor practices filed in the above-captioned matter is dismissed.

ISSUED at Olympia, Washington, this 6th day of October, 2009.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

JESSICA J. BRADLEY, 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.