Community College District 2 (Grays Harbor), Decision 9946 (PSRA, 2007)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
WASHINGTON PUBLIC EMPLOYEES )
ASSOCIATION, )
)
Complainant, ) CASE 21123-U-07-5388
)
vs. ) DECISION 9946 - PSRA
)
COMMUNITY COLLEGE DISTRICT 2 )
(GRAYS HARBOR), ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Schwerin Campbell Barnard, by Kathleen Phair Barnard for the
union.
Attorney General Rob McKenna, by Kari Hanson, Assistant
Attorney General, for the employer.
On June 21, 2007, the Washington Public Employees Association, UFCW
Local 365, (union) filed an unfair labor practice complaint with the
Public Employment Relations Commission under Chapter 391-45 WAC.
The complaint alleged that Grays Harbor Community College (employer)
committed an unfair labor practice within the meaning of Chapter
41.80 RCW. On June 28, 2007, the Commission issued a preliminary
ruling. On July 18, 2007, the employer filed its answer,
accompanied by affirmative defenses.
MOTIONS FOR SUMMARY JUDGEMENT
On August 17, 2007, the Union filed a motion for summary judgement
and its brief in support of that motion. On August 31, 2007, the
employer filed its own motion for summary judgement and its response
to the union's motion. On September 10, 2007, the Union replied to
the employer's response to the motion. On September 11, the
Commission assigned Examiner Starr Knutson to the case. On
September 20, the employer submitted a document in support of its
motion for summary judgement. On September 21, I conducted a
conference call with the parties' representatives to discuss these
matters. I granted the parties' request for summary judgement and
asked the parties to submit a list of stipulated facts. On
September 27, the employer submitted a supplemental declaration(fn:1)
from its human resources officer. On September 28, the parties'
submitted their statement of stipulated facts to complete the record.
____________________
fn:1 Although the union stated it was not aware the employer
intended to submit additional information, it did not object to it
being included in the record.
In both motions for summary judgement, the parties each claim that
there are no disputed facts at issue and therefore a summary
judgement ruling is appropriate in this case. Motions for summary
judgment are processed under WAC 391-08-230, which states in
pertinent part:
A summary judgment may be issued if the pleadings and
admissions on file, together with affidavits, if any, show that
there is no genuine issue as to any material fact and that one
of the parties is entitled to a judgment as a matter of law.
Where the parties agree to the appropriateness of summary judgement,
it is normally granted unless the record reveals factual disputes.
Snohomish County, Decision 8733 (PECB, 2004). The Commission held in
State - General Administration, Decision 8087-B (PSRA, 2004) that a
"material fact" is one upon which the outcome of litigation depends.
A motion for summary judgment calls upon the examiner to make final
determinations on a number of critical issues, without the benefit
of a full evidentiary hearing and record. For this reason, the
Commission has consistently noted that granting a motion for summary
judgement cannot be taken lightly.
Based upon the stipulations, arguments, and answers submitted by the
parties, they do not dispute any of the material facts of this case.
Therefore, summary judgement is appropriate.
ISSUE - DEDUCTION OF UNION DUES
1. Did the employer violate the statute when it contacted
bargaining unit employees concerning their payroll deduction
for union dues and stated the amount deducted was incorrect and
promised to reimburse those employees for the excess union dues?
Applicable Law
The Public Service Reform Act, Chapter 41.80 RCW, governs the
relationship between the union and the employer. RCW 41.80.100
(Emphasis added) provides in relevant parts:
(1) A collective bargaining agreement may contain a union
security provision requiring as a condition of employment the
payment . . . of an agency shop fee to the employee
organization that is the exclusive representative for the
bargaining unit in which the employee is employed. The amount
of the fee shall be equal to the amount required to become a
member in good standing of the employee organization. Each
employee organization shall establish a procedure by which any
employee so requesting may pay a representation fee no greater
than the part of the membership fee that represents a pro rata
share of expenditures for purposes germane to the collective
bargaining process, to contract administration, or to pursuing
matters affecting wages, hours, and other conditions of
employment.
. . . .
(3) Upon filing with the employer the written authorization of
a bargaining unit employee under this chapter, the employee
organization that is 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. The fees and dues shall be deducted
each pay period from the pay of all employees who have given
authorization for the deduction and shall be transmitted by the
employer as provided for by agreement between the employer and
the employee organization.
ANALYSIS
This is a case of first impression for the Commission. The union
makes a unique charge concerning this employer's actions. The union
does not claim the employer failed to deduct dues as provided for in
the collective bargaining agreement and authorized by the employee.
Here, the union charges the employer with interfering in its
internal affairs and relationship with its members or fee payers by
not deducting union dues based on the total gross salary certain
employees earn which includes the work of a separate bargaining
represented by a different union.
The facts of this matter are simple, however unique. The parties
bargained a new contract which became effective July 1, 2005.
Included in that agreement was a new union security provision. In
the spring of 2007, the employer discovered it had incorrectly
computed the amount of dues that it had been remitting to the union
for certain employees in its bargaining unit. The employer's payroll
office had computed the dues on those employee's entire gross salary
which included both their work as a faculty member and their work as
a classified employee.
Employees of the state's community colleges may work in both a
classified position and a faculty position during a particular
academic quarter or semester. Here, this union represents a
bargaining unit of all classified employees and the Grays Harbor
Federation of Teachers, Local 4984, represents a unit of all
faculty/instructor employees. The faculty collective bargaining
agreement does not include a provision for union security.
More specifically, two employees performed work covered by two
different bargaining units during a specific time period and the
employer discovered what it believed to be an error when computing
the appropriate amount of dues to be deducted. It is the employer's
communication with these two employees, concerning the employer's
calculation of the dues deduction from their pay, that raised the
issue in this case.
The collective bargaining agreement in effect July 1, 2005, states
in part:
Article 35.1 Union Dues
When an employee provides written authorization to the
Employer, the Union has the right to have deducted from the
employee's salary, an amount equal to the fees or dues required
to be a member of the Union. The Employer will provide
payments for all said deductions to the Union at the Union's
official headquarters each pay period.
. . . .
35.4 The Employer agrees to deduct the membership dues, agency
shop fee, non-association fee, or representation fee from the
salary of employees who request such deduction in writing.
Such request will be made on a Union payroll deduction
authorization card.
The union by-laws specify in Article 9:
SECTION 2. Regular members shall pay monthly dies 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. . . .
The effected employees at issue in this case provided cards to the
employer authorizing it to deduct 1.25% of their gross salary as
union dues. There is no mention of the term gross salary in the
collective bargaining agreement.
Gross Salary as the Basis for Union Dues Deduction
The union asserts that the term gross salary controls the amount of
monies to be remitted to the union. It believes the term means the
whole amount of the salary earned by an employee no matter what type
of work the employee performed in earning those wages. I disagree.
The union is entitled to collect dues based only on the wages earned
while performing the bargaining unit work that is represented by
that particular exclusive representative.
The union receives dues, under a union security provision for the
activities it performs on behalf of the employees in a bargaining
unit for which it has been certified as the "exclusive bargaining
representative."(fn:2) The term "exclusive" means that no other
employee organization has jurisdiction over that body of work.
Logically then, the union should receive dues based on the wages for
the work performed in a unit for which it has been certified as the
exclusive representative.
____________________
fn:2 The law provides that employees who do not wish to become
members of the union may pay a fee based solely on the activities
related to collective bargaining and contract administration.
Furthermore, the statute specifies the purpose for which dues may be
remitted when it identifies the specific "purposes germane to the
collective bargaining process" for which the union may collect dues.
In a representation fee, the union may only charge:
that part of the fee no greater than the part of the membership
fee that represents a pro rata share of expenditures for
purposes germane to the collective bargaining process, to
contract administration, or to pursuing matters affecting
wages, hours, and other conditions of employment.
The union therefore cannot collect dues for any other of its
activities and, more germane to this case, it cannot collect dues
for the identified purposes in the statute that are in fact done by
another bargaining agent for another bargaining unit. It can only
charge for contract administration of its own contract and not for
the administration of the collective bargaining agreement of another
union representative.
Employer Interference in Internal Union Affairs
The union further argues that the employer has interfered in its
internal affairs by attempting to rewrite its by-laws to conform to
what the employer believes the amount ought to be to acquire or
retain membership in the organization. I disagree. The language in
the collective bargaining agreement only pertains to the wages,
hours and working conditions of employees performing the work that
is certified to the exclusive representative; it does not pertain to
work outside of the jurisdiction of the union. The provisions of
the contract between this employer and this union cannot be
construed to apply the wages, hours and working conditions of work
which has been certified to another exclusive representative.
Therefore, common sense leads me to the conclusion that dues should
only be based on wages for bargaining unit work.
In one of its briefs, the union alleges that the employer
intentionally intruded into internal union affairs by contacting
union members about the amount of dues that had been deducted and
stating they would receive reimbursement for the amount over paid.
However, the record includes a letter the employer wrote dated May
30, 2007, which states in part that:
[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.
I do not believe that the meaning of that letter is inapposite to
the union's arguments. The language of that letter could not be,
nor would be, interpreted by a reasonable employee to be an
intrusion into or comment on union affairs. The record does not
contain any evidence of such an interpretation or perception. The
letter lays the whole burden on the employer and its calculations;
it does not make any assertions about the union, its by-laws or
negative inference concerning the amount of dues set by the union.
CONCLUSION
The union bargained a contract with the employer that governs the
terms and conditions of employment of the employees included in the
classified bargaining unit. Those classified bargaining unit
employees have obligated themselves to pay monies to the union
bargaining on their behalf as classified employees and not as
faculty employees. The amount of that payment should thus be based
on their wages earned while performing the work of the classified
bargaining unit. The union does not bargain concerning faculty work
and it does not represent these employees when they are preforming
faculty bargaining unit work; therefore it is not entitled to any
dues monies based on faculty work. The union certified to represent
a particular bargaining unit bargains concerning the working
conditions of those employees.
While it may have been more prudent for the employer to approach the
union prior to contacting the employees, the union clearly states in
its statement of the facts included with the complaint, that it
would refuse to discuss the matter with the employer. The employer
appropriately corrected its error as soon as it discovered that
incorrect deductions had been made.
FINDINGS OF FACT
1. Community College District 2 (Grays Harbor) is an institution
of higher education under the provisions of RCW 41.80.005(10).
2. The Washington Public Employees Association, UFCW Local 369, is
an employee organization under the provisions of RCW
41.80.005(7). It represents a bargaining unit of classified
employees of the college.
3. Th faculty at the college are represented by another bargaining
agent and that collective bargaining agreement does not contain
a union security provision.
4. The college and the Union bargained a contract effective July
1, 2005, through June 30, 2007, that contained a new union
security provision. The previous contracts between the parties
had not contained such a provision.
5. The union's by-laws state that union dues required for
membership are 1.25% of gross salary.
6. Some employees perform work that is covered in the two
different bargaining units, each with separate and distinct
collective bargaining agreements.
7. In June 2007 the employer discovered it had applied the 1.25%
union dues deduction formula to the gross salary, which
included pay for non-bargaining unit work, of certain
employees. Those employees had performed both classified work
represented by the Union and faculty work represented by the
faculty union.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.56 RCW and Chapter 391-45 WAC.
2. Community College District 2 (Grays Harbor) did not commit an
unfair labor practice and did not violate RCW 41.80.110(1)(a)
and (e) when it corrected the calculation of union dues to
apply only to wages earned while performing bargaining unit work.
ORDER
The complaint charging unfair labor practices filed in the
above-captioned matter is DISMISSED.
ISSUED at Olympia, Washington, this 28th day of December, 2007.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
STARR KNUTSON, 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.