Grays Harbor College, Decision 9946-A (PSRA, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
WASHINGTON PUBLIC EMPLOYEES )
ASSOCIATION, )
)
Complainant, ) CASE 21123-U-07-5388
)
vs. ) DECISION 9946-A - PSRA
)
GRAYS HARBOR COLLEGE )
(COMMUNITY COLLEGE DISTRICT 2), )
)
Respondent. ) DECISION OF COMMISSION
)
___________________________________)
Schwerin Campbell Barnard, by Kathleen Phair Barnard, Attorney
at Law, for the union.
Rob McKenna, Attorney General, by Kari Hanson, Assistant
Attorney General, for the employer.
This case comes before the Commission on a timely appeal filed by
the Washington Public Employees Association, UFCW Local 365 (union)
seeking review and reversal of the Findings of Fact, Conclusions of
Law, and Order issued by Examiner Starr Knutson.(fn:1) Grays Harbor
College supports the Examiner's decision.
____________________
fn:1 Community College District 2 (Grays Harbor), Decision 9946
(PSRA, 2007).
The union's complaint alleged that the employer interfered with
protected employee rights in violation of Chapter 41.80 RCW when, in
May 2007, it informed certain employees who held both classified and
faculty positions that the employer had been removing more money
from their paychecks than was needed to satisfy their WPEA dues
obligations. The employer informed the union of this action after
it had already taken steps to correct what the employer deemed an
error, and notified the union that it was making the change because
"salaries paid for part time faculty work bears no relationship to
any condition relating to acquiring or retaining membership in the
GHC/WPEA bargaining unit." The employer also informed the union
that it was informing the affected employees that it believed it had
deducted a greater amount of dues than the collective bargaining
agreement allowed for, and that it was reimbursing the employees
from monies being held under RCW 41.80.100(3) and the agreement.
The parties filed cross-motions for summary judgment, with each
arguing that there were no material facts in dispute. The Examiner
granted the employer's motion, denied the union's motion, and ruled
that the employer did not commit an unfair labor practice. In
explaining her ruling, the Examiner held that under RCW 41.80.100
and the parties' collective bargaining agreement, the employer was
only obliged to deduct from employees' paychecks an amount based
upon the employees' wages earned while performing bargaining unit
work. Thus, if an employee was performing work for the employer
that was not bargaining unit work, such as faculty work, the
employer was not obligated to include those wages in the computation
of the employees' union security obligation.
ISSUE PRESENTED
The only issue presented by this appeal is whether the employer
interfered with protected employee rights or attempted to dominate
the union in violation of Chapter 41.80 RCW.
For the reasons set forth below, we affirm the Examiner's
conclusions. The stipulated facts demonstrate that the employer did
not interfere with protected employee rights or attempt to dominate
the union when it computed bargaining unit employees' union security
obligations based upon monies earned for performing bargaining unit
work.
STANDARD OF REVIEW
The standard of review on summary judgment is de novo; we engage in
the same inquiry as the Examiner. Snohomish County, Decision 8733-C
(PECB, 2006), citing Washington Federation of State Employees v.
State, 127 Wn.2d 544, 551 (1995). Summary judgment is properly
granted where "there is no genuine issue as to any material fact and
. . . the moving party is entitled to a judgment as a matter of
law." Statutory construction is a question of law and is reviewed
de novo. City of Pasco v. PERC, 119 Wn.2d 504 (1992); State -
Transportation, Decision 8317-B (PSRA, 2005).
DISCUSSION
The union's complaint alleges that the employer sent a letter to
some bargaining unit employees informing them that it had withdrawn
excessive union dues from employees' paychecks. To remedy this
overpayment, the employer stated that it would withhold future dues
owed to the union from employees' paychecks to the union until the
union had received what it was properly owed. The union also
alleges the employer changed its previous practice without first
informing the union. As a remedy, the union asked that an order be
entered finding that the employer interfered with protected rights
by undermining the union's authority and that the employer be
required to reimburse the union for all monies that the union
claimed were unlawfully withheld.
Interference With Protected Rights
This is a case of first impression for the Commission. This is this
first time that we have been asked to rule on the operation of RCW
41.80.100 and the obligations of the employer, exclusive bargaining
representative, and the individual employee in an unfair labor
practice setting.
Applicable Legal Standards
The union alleges that the employer unlawfully interfered with and
attempted to dominate the union by involving itself in internal
union business that could compromise the independence of the union
in violation of Chapter 41.80 RCW.(fn:2) Chapter 41.80 RCW prohibits
employer interference with the exercise of collective bargaining
rights. RCW 41.80.050 provides in part:
____________________
fn:2 In its brief, the union cites the unfair labor practice
provisions of Chapter 41.56 RCW as controlling. These references
are in error. The classified employees of the state's community
colleges enjoy collective bargaining rights under Chapter 41.80 RCW.
Except as may be specifically limited by this chapter,
employees shall have 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. Employees shall also have the right to
refrain from any or all such activities except to the extent
that they may be required to pay a fee to an exclusive
bargaining representative under a union security provision
authorized by this chapter.
RCW 41.80.110(1)(a) enforces those statutory rights, by establishing
that an employer who interferes with, restrains, or coerces public
employees in the exercise of their collective bargaining rights
commits an unfair labor practice.
The burden of proving unlawful interference with the exercise of
rights protected by Chapter 41.80 RCW rests with the complaining
party. 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).
With respect to employer communications to employees, those
statements could form the basis of an interference unfair labor
practice under certain criteria, including:
1. Is the tone of the communication coercive as a whole?
2. Are the employer's comments substantially factual or
materially misleading?
3. Has the employer offered new "benefits" to employees
outside of the bargaining process?
4. Are there direct dealings or attempts to bargain with the
employees?
5. Does the communication disparage, discredit, ridicule, or
undermine the union? Are the statements argumentative?
6. Did the union previously object to such communications
during prior negotiations?
7. Does the communication appear to have placed the employer
in a position from which it cannot retreat?
City of Seattle, Decision 2483 (PECB, 1986). The union is not
required to show how an employer intended or was motivated to
interfere with collective bargaining rights. See City of Tacoma,
Decision 6793-A (PECB, 2000). Nor is it necessary to show that the
employee involved was actually coerced or that the employer had a
union animus for an interference charge to prevail. City of Tacoma,
Decision 6793-A.
Application of Standards
Here, no reasonable employee could, in the facts presented on
summary judgment, view the employer's actions as interfering with
protected rights. Furthermore, nothing in this record establishes
that any employee even perceived the employer's May 30, 2007 letter
regarding overpayment of union dues as an attempt to intrude on
internal union activities. That letter states, in part:
[I]t had applied the 1.25% to the entire gross salary earned .
. . including both your classified and part-time faculty
salaries. However, we have recently determined that dues
should be deducted based only on your classified salary, since
your part time faculty salary is unrelated to the WPEA/GHC
collective bargaining agreement or to the law governing that
agreement.
The union argues that the employer's letter speaks for itself, and
that the very words used demonstrate interference. We disagree.
The pertinent part of the employer's letter simply states that there
has been an administrative error, and that the employer
miscalculated the amount of union dues that should have been taken
out of the employees' paychecks. None of the statements contained
within the employer's letters to employees demonstrate an intent to
disparage, discredit, ridicule, or undermine the union, directly
negotiate with employees, or constitute a threat or promise of a
benefit to employees.
Based upon the statutory language at issue, it cannot be said that
the employer's letter mis-stated any fact or made a promise to
employees that it could not fulfill.
Union May Only Collect Union Security for Bargaining Unit Work
Article 35.1 of the parties' collective bargaining agreement
essentially memorializes the statutory process, and also provides
that the employer will provide the union with payments for all
deductions. With regard to the amount that an employee actually
pays for union dues, Article 9, section 2 of the union's by-laws
provides that:
[M]embers shall pay monthly dues to WPEA at a rate of one and
two and one-half tenths percent (1.25%) of gross salary. The
maximum dues shall be $48 per month. . . .
Recognizing that the union has brought an interference charge before
us, the only factor that is relevant to our review is whether or
not the employer's statement was factually incorrect. We find that
it is not.
As the Examiner properly noted in her decision, RCW 41.80.100
permits collective bargaining agreements between community colleges
and the exclusive bargaining representatives of their employees to
contain union security provisions. Under RCW 41.80.100(3), upon
authorization by a bargaining unit employee, "the exclusive
representative shall have the exclusive right to have deducted from
the salary of the employee an amount equal to the fees and dues
uniformly required as a condition of acquiring or retaining
membership in the employee organization."
As the Examiner correctly pointed out, RCW 41.80.100 allows an
employer to deduct from employees' paychecks monies for union
security and union dues only for purposes germane to the collective
bargaining process. In this case, because the employees perform
work for the employer that is outside the scope of the union's
bargaining unit, the employer is only allowed to compute union dues
for bargaining unit work actually performed. Therefore, the
employer's statement to bargaining unit employees that it had been
deducting excess amounts of monies from their paychecks for union
dues was not misleading and did not make a promise that it could not
fulfill, and therefore did not interfere with protected employee
rights.(fn:3)
____________________
fn:3 Arguably, the union could have sought an interpretation of
Article 35.1 of the parties' collective bargaining agreement through
the grievance process. The union elected not to utilize that
process, nor did it file unilateral change allegations against the
employer.
Other Arguments on Appeal
The union argues that the Examiner erred by analyzing the union's
complaint in the context of RCW 41.80.110, as opposed to examining
the complaint in the context of whether the employer unlawfully
intruded in union affairs in violation of RCW 41.80.050. The union
cites International Association of Fire Fighters, Local 2916 v.
Public Employment Relations Commission, 128 Wn.2d 375 (1996), as
standing for the proposition that this Commission's jurisdiction is
limited to those rights specifically protected by statute, and that
the method and manner of setting the amount of a union member's
union dues is a topic that is reserved to the superior courts.
To the extent that the Examiner may have ruled on the actual
application of RCW 41.80.100 as it applies to the amount that the
employer may deduct from union dues as being the actual issue in
this case, the union is correct that International Association of
Fire Fighters, Local 2916 v. Public Employment Relations Commission
limits our purview of the case to whether the employer committed an
unfair labor practice. However, as we pointed out, we examine
whether the employer's statements unlawfully interfered with
protected rights. An examination of how the union's by-laws, the
parties' collective bargaining agreement, and RCW 41.80.100
interact with each other was necessary to determine whether the
employer's statements were factually based. The record demonstrates
that they were. The Examiner correctly dismissed the union's
complaint.
NOW, THEREFORE, it is
ORDERED
The Findings of Fact, Conclusions of Law, and Order issued by
Examiner Starr Knutson are AFFIRMED and adopted as the Findings of
Fact, Conclusions of Law, and Order of the Commission.
Issued at Olympia, Washington, the 13th day of May, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
THOMAS W. McLANE, Commissioner