Washington State - Revenue (Washington Public Employees
Association), Decision 8972-A (PSRA, 2006)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
WASHINGTON STATE - REVENUE, )
)
Employer. )
-----------------------------------)
DAVID LAZAR, )
)
Complainant, ) CASE 19264-U-05-4893
)
vs. ) DECISION 8972-A - PSRA
)
WASHINGTON PUBLIC EMPLOYEES )
ASSOCIATION, affiliated with )
UNITED FOOD AND COMMERCIAL )
WORKERS, LOCAL 365, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
David Lazar represented himself.
Schwerin Campbell Barnard, by Lawrence Schwerin, Attorney at
Law, appeared for the union.
David Lazar filed an unfair labor practice complaint against the
Washington Public Employees Association (union), on March 10, 2005.
After the Commission notified Lazar of certain defects in the
complaint, he filed an amended complaint May 16, 2005. The amended
complainant stated a cause of action for union interference with
employee rights in violation of RCW 41.80.110(2)(a). The complaint
stated that the union failed to provide adequate notice of a
contract ratification vote, and failed to allow all bargaining unit
employees to participate in that contract ratification vote.(fn:1)
____________________
fn:1 Certain other allegations were dismissed. See Washington
State - Revenue (Washington Public Employees Association), Decision
8972 (PSRA, 2006).
Examiner Katrina I. Boedecker held a hearing on November 10, 2005,
in Olympia, Washington. The parties filed post-hearing briefs by
February 1, 2006. Later that month, the Examiner notified the
parties that three appeals involving the sufficiency of union action
in ratification elections were pending before the Commission. Since
the decision in this case would be influenced, if not controlled, by
the Commission's decisions, the Examiner advised the parties that
she would issue this decision after the Commission had ruled on the
appeals. The Commission issued Western Washington University,
Decision 8849-B (PSRA, 2006); Community College District 7
(Shoreline), Decision 9094-A (PSRA, 2006); and Community College
District 19 (Columbia Basin), Decision 9210-A (PSRA, 2006) on June
20, 2006.
ISSUES PRESENTED
1. Does the Commission have jurisdiction over a complaint
concerning notice and opportunity to vote on the ratification
of a collective bargaining agreement?
2. If the Commission has jurisdiction, did the union commit an
unfair labor practice by failing to provide adequate notice and
opportunity to vote in the ratification election?
3. If the Commission has jurisdiction, and the union is found to
have committed an unfair labor practice, what should be the
remedy?
The Examiner rules that the Commission has jurisdiction to
adjudicate the complaint regarding the union's behavior during a
ratification process. The Examiner finds that the employer and
union agreed to allow all bargaining unit employees to vote on the
tentative agreement. The Examiner rules that the union failed to
fairly and adequately inform all bargaining unit employees, who were
not members of the union, of their opportunity to vote on the
acceptance or rejection of the tentative agreement. The union is
ordered to cease and desist from interfering with employee rights.
The union is also ordered to post, read, and publish, notice that it
violated the law.
ISSUE 1: THE COMMISSION'S JURISDICTION
Legal Standards
The Commission recently ruled that it has jurisdiction over the
question of whether a union wrongfully denied non-union members a
meaningful and informed vote in the ratification process of a
collective bargaining agreement. Western Washington; Shoreline; and
Columbia Basin.(fn:2) In all three cases, the Commission specifically
dealt with the issue of jurisdiction over the contract ratification
process. In each case, the union and the employer negotiated an
agreement pursuant to the Personnel System Reform Act, Chapter 41.80
RCW (PSRA). That agreement contained the provision that all
bargaining unit members, even non-members of the union, were able to
vote on the proposed contract. Several non-union members filed
claims, individually, that the union interfered with their ability
to vote on the agreement. Some claimed that the union did not
inform them that they could vote. Others asserted that the union
specifically told them that they could not vote. Still others
claimed that the union did not give enough forewarning to allow them
time to vote.
____________________
fn:2 The second and third cited cases are currently on appeal to
state court while the first is not.
The Commission cited with approval Beatrice/Hunt-Wesson, Inc. 302
NLRB 224 (1991), where the NLRB found it appropriate to give a
measure of protection to the expectancy interests of the parties
where the parties had made the ratification process part of their
bargaining.
Application of Standards
In Western Washington, Shoreline, and Columbia Basin, the Commission
held that it had jurisdiction, over the union's objection, since the
union conferred rights upon non-members when it agreed with the
employer's proposal that all bargaining unit members would be
allowed to vote.
That is the same fact pattern present in the instant case. The same
reasoning applies: It is no longer an internal union affair once the
union agrees with the employer to alter its usual ratification
process. At this juncture, the interests of all of the members of
the bargaining unit are entitled to the protections of the PSRA.
The Commission administers the PSRA. Thus, the Commission has
jurisdiction to rule on the allegations.
ISSUE 2: UNION INTERFERENCE
Legal Standards
Having determined that the Commission has jurisdiction over the
issue, the next inquiry is whether the union interfered with
employees' rights in violation of its duty to fairly represent all
bargaining unit members. See Western Washington; Shoreline; and
Columbia Basin.
In Allen v. Seattle Police Officers Guild, 100 Wn 2d 361 (1983), the
Supreme Court specifically recognized that the doctrine of a union's
duty of fair representation to all bargaining unit members exists
within Chapter 41.56 RCW.(fn:3) The court outlined and explained the
standards to be applied in cases alleging a violation of the union's
duty of fair representation:
____________________
fn:3 The duty of fair representation owed under PSRA mirrors
provisions in Chapter 41.56 RCW. State Natural Resources, Decision
8458-B (PSRA, 2005).
* A union must treat all factions and segments of its membership
without hostility or discrimination. A finding of
discrimination requires a showing that an individual was
deprived of a right based on his/her assertion of a protected
activity, and that there is a casual connection between the
exercised right and the discriminatory action;
* A union's broad discretion in addressing the rights of
individual members must be exercised in good faith and honesty;
* A union must avoid arbitrary conduct. A union's actions are
arbitrary only if, in the light of the factual and legal
landscape at the time of the union's actions, the union's
behavior is so far outside a "wide range of reasonableness" as
to be irrational.
The Court further explained that to prove that a union has breached
its duty, the complainant must show that the union behaved
irrationally, invidiously, or indifferently as to the rights of
bargaining unit employees or that the union's conduct was so grossly
deficient as to be declared arbitrary. Unions do not have to
bargain contract provisions of equal benefit to all bargaining unit
employees. Unions are prohibited, nonetheless, from aligning
themselves against one or more employees in the bargaining units
they represent. C-Tran, Decision 7087-B (citing Allen v. Seattle
Police.
If the terms of a negotiated contract, or a union's by-laws, require
ratification of negotiated agreements by affected employees, a
failure to submit a contract to a meaningful vote of those employees
breaches the union's duty of fair representation. Deboles v. Trans
World Airlines, 552 F.2d 1005 (3rd Cir. 1977) cert. denied 434 U.S.
837 (1977). By denying a group of workers the chance to ratify, the
union risks subjecting the employees to the disadvantages of a
contract they could have prevented. It also risks depriving the
employees of the benefits of a contract whose acceptance they could
have ensured. International Brotherhood of Teamsters, Local 310 v.
NLRB, 587 F.2d 1176, 1882.
In Western Washington, the union sent employees an e-mail before the
tentative agreement was reached, stating that only union members
would be able to vote on the contract. However, at the very end of
the negotiations, the employer agreed to a union security clause,
but only if all bargaining unit members would be allowed to vote in
the ratification process. Following the settlement of the tentative
agreement, the union sent an e-mail to employees stating that all
employees could vote on the agreement, including non-union members.
The Commission found that the union interfered in the vote by
confusing employees as to who could vote. However, the Commission
did not order any remedy because the union had been decertified.
In Shoreline, the union and the employer reached a tentative
agreement on September 4, 2004. The tentative agreement contained a
union proposed union security clause, again in exchange for the
employer's proposal that all bargaining unit members would be
allowed to vote in the ratification process. An e-mail was sent to
members of the bargaining unit seven days later. The e-mail
incorrectly stated that only members could vote. The Commission
found that the union had interfered with employees' ability to vote.
First, the union did not give the employees enough time for an
informed vote. Second, the union had misstated who was eligible to
vote. The Commission ordered the union to cease and desist.
In Columbia Basin, the union and the employer reached a tentative
agreement on September 17, 2004. On September 20th, the Chapter
President sent an e-mail to all employees to check the union
website. He sent a second e-mail, just to union members, to remind
them to vote on the proposed agreement. On those facts, the
Commission also found that the union had interfered with the
employees' ability to vote. The Commission ordered the union to
cease and desist.
Application of Standard
The inquiry here, focuses not on whether the union followed its own
internal by-laws or constitution, nor whether the union violated the
contract, but whether the union interfered with employees' right to
be free from restraint or coercion in the exercise of rights
guaranteed by Chapter 41.80 RCW.(fn:4)
____________________
fn:4 The statute at RCW 41.80.050 guarantees employees the right to
self-organization, to form, join, or assist employee organizations,
and to bargain collectively through representatives of their own
choosing for the purpose of collective bargaining free from
interference, restraint, or coercion.
On Thursday, September 16, 2004, the union and the employer reached
a tentative agreement on a new collective bargaining agreement that
covered Lazar's bargaining unit. During the months of bargaining
preceding the tentative agreement, the union had constantly proposed
that a union security clause be included in the agreement. The
employer had consistently resisted the clause. Finally, on
September 16th, the employer agreed to include a union security
clause in the contract, if all employees in the bargaining unit
would be allowed to vote on the contract as part of the union's
ratification process.
On Monday, September 20th, Leslie Liddle, Executive Director of the
union, posted a copy of the tentative agreement on the union's
website. She also posted a notice of polling times and places for
the ratification vote. Liddle sent notice, on the union's
electronic bulletin board, that the tentative agreement would be
discussed at the upcoming, regularly scheduled district meetings.
She included the location of each meeting; she noted that voting on
the agreement would occur that coming Saturday and Sunday, September
25th and 26th. This notice also included a list of the polling sites.
On Tuesday, September 21st, the union held district meetings
throughout the state to review and discuss the proposed agreement.
Also on that date, Chapter President William Johnson sent an e-mail
to numerous employees that they needed to get the word out about the
new agreement since the ratification vote was scheduled for that
weekend. His e-mail stated that non-dues paying unit members would
have the opportunity to vote on the contract only if they paid
membership dues before they voted. Chapter Vice President Steve
Allman forwarded that e-mail to all unit employees.
On September 25th and September 26th, bargaining unit members voted
on the proposed agreement. Some union members and some non-union
members voted. The union challenged the ballots of non-union
members and placed the ballots in separate envelopes.
On Monday, September 27th, Lazar read the e-mail sent by Allman to
all employees. This was the first he learned that voting had
occurred. Following a series of e-mails by Lazar to the union and
the employer seeking to have the ratification re-done, he filed the
present unfair labor practice complaint. Lazar contends that the
union interfered in his ability to vote on the contract. He bases
this on the fact that the chapter president misinformed the unit
members that only union members could vote on the contract. He also
claims interference due to the fact that the union did not give
employees enough time to review the contents of the proposed
agreement before having to vote. Lazar charges that the union
violated the PSRA because it did not give him, as a bargaining unit
member, the opportunity for an informed and meaningful vote on the
proposed collective bargaining agreement.
Lazar presents a similar fact pattern to the ones in Western
Washington, Shoreline, and Columbia Basin. At the very last minute
of bargaining, the employer agreed to accept the union's proposal
for union security only if the union agreed that all non-members, as
well as members, would be allowed to vote on the agreement. The
union did agree. By doing so, the union created rights for those
who may have not previously enjoyed such rights. Employees were
given the expectation that their votes would count towards the
ratification process. The union thus exposed itself to scrutiny
regarding any allegation that it interfered with, restrained or
coerced employees during the voting.
The record in this case establishes that the union committed
interference. The union gave notice of the ratification process in
a confusing manner concerning who could vote. The union delivered
the notice in a hasty manner not giving employees enough time to
make an informed vote. The union treated non-members votes
differently when their ballots were placed in a separate envelope
and "challenged." All of these factors amount to union conduct that
is so grossly deficient that it is arbitrary. See Allen v. Seattle
Police Officers Guild, 100 Wn 2d 361. The union interfered with
Lazar's statutory rights.
ISSUE 3: THE APPROPRIATE REMEDY
Legal Standard
The authority of the Commission to prevent and remedy unfair labor
practices is set forth in PSRA at RCW 41.80.120(2): "If the
Commission determines that any person has engaged in or is engaging
in an unfair labor practice, the Commission shall issue and cause to
be served upon the person an order requiring the person to cease and
desist from such unfair labor practice, and to take such affirmative
action as will effectuate the purposes and policy of this chapter,
such as the payment of damages and the reinstatement of employees."
The fashioning of remedies is a discretionary act of the Commission.
In interpreting the Commission's remedial authority, the Supreme
Court of the State of Washington has approved a liberal construction
of the statute to achieve its purpose. [See City of Seattle,
Decision 8313-B (PSRA, 2004).] The Court has also recognized and
given deference to the Commission's expertise in resolving
labor-management disputes. Public Employment Relations Commission v.
City of Kennewick, 99 Wn.2d 832 (1983).
In Shoreline, the Commission ordered the union to cease and desist
from improperly notifying bargaining unit members of their contract
ratification rights. It also directed the union to read into the
record of its next state-wide convention an attached notice and to
permanently attach such notice to the official minutes of that
meeting. The Commission ordered the union to publish the notice in
its newsletter. The Commission overturned the Examiner's remedy of
ordering a new election and directing the union to cease enforcing
union security. It reasoned that the complainant did not show that
the votes of the non-union members would have affected the outcome
of the vote on the proposed agreement.
In Columbia Basin, the Commission ordered the identical remedy as
the one ordered in Shoreline. The Commission found the Examiner's
remedy of ordering the union to cease and desist from enforcing any
union security obligation inappropriate since the employees had
received benefits under the contract.
Application of the Standard
The above cited cases are precedential in that they concern similar
facts and law. Lazar requests as a remedy that "everything be put
back the way it was before the vote." However, he does not argue
that the benefits he received under the contract, such as pay raises
and insurance increases, be rescinded. Lazar wants the union to
rescind all new memberships and return all paid dues. He requests
that the union be ordered to apologize. He wants the union to be
disqualified from representing the bargaining unit. Finally, he
requests reimbursement for expenses.
Here, there is no showing that the outcome of the vote would have
been affected by Lazar's vote. Therefore, returning to the state of
affairs before the election is not appropriate. Ordering the union
to post a notice, read the notice and append the notice per the
above cases is tantamount to an apology. Rescinding the
memberships, and refunding the dues, of any individual who enrolled
in the union on the day of the vote, pursuant to the incorrect
information sent out by the Chapter President, is not appropriate.
The record reflects that the union allowed non-members to vote and
they did not have to join the union to do so. The Commission did
not order reimbursement of expenses in the Western Washington,
Shoreline, or Columbia Basin decisions. Lazar has not established
unique circumstances requiring deviation from those decisions.
FINDINGS OF FACT
1. The State of Washington is a covered employer under RCW
41.80.005(8).
2. Washington Public Employees Association (union) is an employee
organization within the meaning of RCW 41.80.005(7). It is the
exclusive bargaining representative of a bargaining unit of
certain employees of the Department of Revenue, a state agency
under RCW 41.80.005(1). David Lazar is in the bargaining unit.
3. The employer and the union came to a tentative agreement for
the terms of a new collective bargaining agreement on September
16, 2004.
4. On September 16, 2004, the employer agreed to a union proposal
for a union security clause to be included in the contract, in
exchange for the union accepting an employer proposal that all
bargaining unit employees would be able to vote during the
ratification process. The union agreed to the employer's
proposal.
5. On Monday, September 20, 2004, Leslie Liddle, Executive
Director of the union, posted a copy of the tentative agreement
on the union's website along with a notice of polling times and
places for the ratification vote.
6. Liddle used the union's electronic bulletin board to send
notice to Lazar's bargaining unit that the tentative agreement
would be discussed at the upcoming, regularly scheduled
district meetings. She included the location of each meeting;
she noted that voting on the agreement would occur that
up-coming Saturday and Sunday. This notice also included a
list of the polling sites.
7. On Tuesday, September 21, 2004, Chapter President William
Johnson sent an e-mail to numerous employees concerning the
coming weekend's ratification. He stated that non-dues paying
unit members could vote on the contract only if they paid
membership dues before they voted. Chapter Vice President
Steve Allman forwarded that e-mail to all unit employees.
8. On September 25 and 26, 2004, some union members and some
non-union members voted on the proposed agreement. The union
challenged the ballots of non-union members.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.80 RCW. The Commission has
jurisdiction, under RCW 41.80.110, to determine and remedy,
complaints of interference when the employer and the union
agree to give non-members voting rights as described in
paragraph 4 of the above findings of fact.
2. By its actions, described in paragraphs 5 through 8 of the
above findings of fact, the union interfered with the rights of
employees under RCW 41.80.050. The union committed an unfair
labor practice in violation of RCW 41.80.110(2)(a).
NOW, THEREFORE, it is
ORDERED
The Washington Public Employees Association, it officers and agents,
shall immediately take the following actions to remedy its unfair
labor practices:
1. CEASE AND DESIST from:
a. Failing to adequately notify all bargaining unit employees
of their voting rights conferred by agreement of the union
with the employer in collective bargaining.
b. Sending out confusing and incorrect information to
bargaining unit members about who can vote on the
ratification of a tentative agreement.
c. Establishing conditions, not agreed to by the employer,
for non-members to participate in the ratification process.
d. In any other manner, restraining or coercing employees in
the exercise of their rights under Chapter 41.80 RCW.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS to effectuate the
purposes and policies of Chapter 41.80 RCW.
a. Post, in conspicuous places on the employer's premises
where union notices to all employees are usually posted,
copies of the notice attached to this order. Such notice
shall be duly signed by an authorized representative of
the Washington Public Employees Association.
b. Read the notice attached to this order into the record of
its next state-wide convention and permanently attach the
notice to the official minutes of that meeting.
c. Publish a true-sized copy of the notice in its newsletter
that is sent or delivered to union members.
d. Notify David Lazar, 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 him
with a signed copy of the notice attached to this order.
e. 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
Commission with a signed copy of the notice attached to
this order.
Issued at Olympia, Washington, the 5th day of January, 2007.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
KATRINA I. BOEDECKER, 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.
DECISION PAGE
PUBLIC EMPLOYMENT RELATIONS COMMISSION
NOTICE
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 WE COMMITTED UNFAIR LABOR PRACTICES IN
VIOLATION OF STATE COLLECTIVE BARGAINING LAWS, AND ORDERED US TO POST THIS
NOTICE TO EMPLOYEES:
WE UNLAWFULLY failed to fairly and adequately notify all bargaining unit
employees who are not union members, but who are in the bargaining unit
that we represent, of the opportunity to vote on the tentative collective
bargaining agreement reached between the State of Washington and ourselves,
the Washington Public Employees Association.
WE UNLAWFULLY breached our duty of fair representation by interfering with
or restraining all bargaining unit employees, who are not union members, in
the exercise of their statutory rights.
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL inform all bargaining unit employees, who are not union members, of
the opportunity to vote on the tentative collective bargaining agreement
reached between the union and employer, WHEN THE PARTIES AGREE IN
NEGOTIATIONS TO ALLOW NON-UNION MEMBERS THE RIGHT TO VOTE.
WE WILL NOT give notice to voters in a confusing manner, as we did for the
September 25 and 26, 2004, ratification process.
WE WILL NOT give notice to voters in such a hasty manner that does not allow
employees enough time to make an informed vote, as we did for the September
25 and 26, 2004, ratification process.
WE WILL NOT treat non-members ballots differently than members ballots, as
we did for the September 25 and 26, 2004, ratification process.
WE WILL NOT engage in conduct that is so grossly deficient that it is
arbitrary and illegal, as we did for the September 25 and 26, 2004,
ratification process.
WE WILL NOT, in any other manner, interfere with or restrain bargaining unit
employees in the exercise of their collective bargaining rights under the
laws of the state of Washington.
DATED: ___________ WASHINGTON PUBLIC EMPLOYEES ASSOCIATION
BY: ____________________________
Authorized Representative
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
This notice must remain posted for 60 consecutive days, and must not be
altered or covered by any other material. Questions about this notice or
compliance with the Commission's order may be directed to the Public
Employment Relations Commission (PERC), 112 Henry Street NE, Suite 300, PO
Box 40919, Olympia, Washington 98504-0919. Telephone: (360) 570-7300.
The full decision will be published on PERC's web site, www.perc.wa.gov
Decision 8972-A, Case 19264-U-05-4893.