State - Office of Financial Management, Decision 9955 (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
WASHINGTON FEDERATION OF STATE )
EMPLOYEES, )
)
Complainant, ) CASE 21261-U-07-5424
)
vs. ) DECISION 9955 - PECB
)
WASHINGTON STATE - OFFICE OF ) FINDINGS OF FACT,
FINANCIAL MANAGEMENT, ) CONCLUSIONS OF LAW,
) AND ORDER
Respondent. )
___________________________________)
Younglove Lyman & Coker, by Edward E. Younglove, Attorney at
Law, for the union.
Attorney General Rob McKenna, by Donna J. Stambaugh, Assistant
Attorney General, for the employer.
The Washington State Legislature granted adult family home providers
the right to organize and engage in collective bargaining effective
July 22, 2007. RCW 41.56.029 indicates that solely for the purposes
of collective bargaining, the Governor is the public employer of
adult family home providers. On July 23, 2007, the Washington
Federation of State Employees (Federation) filed a petition for
investigation of a question concerning representation with the
Public Employment Relations Commission which was docketed as case
21176-E-07-3286. The Federation seeks to represent a bargaining
unit of all adult family home providers. The Washington State
Residential Care Council (Care Council) filed a motion to intervene
which was granted. Commission staff conducted an election with
employees choosing between the Federation, the Care Council, or no
representation. When the vote was counted on September 7, 2007,
none of the three choices received a majority of the vote, leading
to a run-off election between the Federation and the Care Council,
the two ballot choices which received the most votes.
The Federation filed an unfair labor practice complaint on September
21, 2007, and an amended complaint on September 24, 2007. The
complaint alleges that the Washington State Office of Financial
Management (employer) as the representative of the Governor and
through the Washington State Department of Social and Health
Services (DSHS), interfered with employee rights and dominated or
assisted the Care Council by providing a list of insurance companies
to bargaining unit employees during the pendency of the
representation proceedings. The complaint alleges that some of the
insurance companies showed a preference for the Care Council,
required membership in the Care Council, or discouraged membership
in the Federation. Pursuant to WAC 391-25-370, the representation
proceedings were suspended, including the run-off election, pending
the outcome of this unfair labor practice case.
I conducted a hearing on October 29, 2007. The parties filed
post-hearing briefs to complete the record.
ISSUE PRESENTED
Did the employer interfere with employee rights or dominate or
assist the Care Council by providing bargaining unit employees a
list of insurance companies during a representation campaign when
some of the insurance companies showed a preference for the Care
Council, required membership in the Care Council, or discouraged
membership in the Federation?
Based on the evidence presented, I find that the employer did not
unlawfully interfere with employee rights or dominate or assist the
Care Council. I dismiss the complaint.
APPLICABLE LEGAL PRINCIPLES
Employer Domination or Assistance
An employer commits an unfair labor practice when it controls,
dominates or interferes with a bargaining representative. RCW
41.56.140(2). The Commission finds domination or assistance when
an employer involves itself in the internal affairs or finances of
the union, shows a preference between two unions or groups that are
competing for the same bargaining unit, or attempts to create, fund
or control a "company union." State - Labor and Industries,
Decision 9348 (PSRA, 2006). The complainant maintains the burden of
proving the allegations of its complaint by a preponderance of the
evidence. WAC 391-45-270(1)(a). In unfair labor practice
complaints alleging domination or assistance violations, the
complainant must prove the employer intended to assist one union to
the detriment of another. Community College District 13 - Lower
Columbia, Decision 8117-B (PSRA, 2005).
Employer neutrality is required during representation proceedings.
In Whatcom County, Decision 8245-A (PECB, 2004), the Commission held
that: "[O]nce a valid [representation] petition has been filed with
the Commission, an employer must remain strictly neutral in rival
union organizing situations."
Employer Interference
RCW 41.56.040 states that employers commit unfair labor practices
when they:
directly or indirectly interfere with, restrain, coerce, or
discriminate against any public employee or group of public
employees in the free exercise of their right to organize and
designate representatives of their own choosing for the purpose
of collective bargaining, or in the free exercise of any other
right under this chapter.
An interference violation is found under 41.56.140(1) where an
employer interferes with, restrains, or coerces public employees in
the exercise of their rights guaranteed by Chapter 41.56 RCW. As
with allegations of employer domination or assistance, the
complainant bears the burden of proving interference. WAC
391-45-270(1)(a).
To prove an interference charge, the complainant must establish that
the employer engaged in conduct which a typical employee could
reasonably perceive as a threat of reprisal or force, or promise of
benefit, associated with the employee's protected union activities.
City of Tacoma, Decision 6793-A (PECB, 2000). Unlike allegations of
domination, the complainant is not required to establish that the
employer intended to interfere with employee rights. Additionally,
the complainant is not required to prove that employees were
actually coerced. The complainant does, however, bear the burden of
proving that the employer's conduct resulted in harm to protected
employee rights. City of Wenatchee, Decision 8802-A (PECB, 2006).
FACTUAL BACKGROUND
The allegations in this case focus on communication concerning
required liability insurance. The communication at issue took place
between adult family home providers (employees) and George
Zimmerman, program manager of Aging and Disability Services
Administration (ADSA), a division within DSHS; and employees and
insurance companies.(fn:1) The following background information
provides context for, and a summary of, that communication.
____________________
fn:1 For purposes of this decision, I will use "insurance
companies" to refer to insurance brokers, insurance agents, and risk
retention groups.
Liability Insurance Requirement
Effective August 1, 2004, DSHS required all contractors, not just
employees who serve Medicaid clients, to carry liability insurance.
Due to insurance market factors and the lack of affordable
insurance, DSHS suspended the requirement for several years.
As market factors changed, DSHS reinstated a requirement that
contractors, including employees who serve Medicaid clients, carry
liability insurance, effective July 1, 2007. In preparing for this
requirement, the employer worked with insurance companies, the Adult
Family Home Advisory Committee,(fn:2) and two adult family home
associations to communicate information about the requirements. One
association was the Adult Family Home Association of Washington
(AFH Association). The AFH Association is primarily focused on the
promotion of adult family home providers, their education, and their
community connections. Another association was the Care Council.
At some point, the Federation became affiliated with the AFH
Association, and the Care Council became a collective bargaining
representative under Chapter 41.56 RCW.
____________________
fn:2 The Committee was established by statute in an effort to
ensure a cooperative process among DSHS, employee representatives,
and resident and family representatives on matters pertaining to the
adult family home program. The Committee is comprised of eight
members representing various adult family home interest groups.
Zimmerman testified that he communicated to the insurance companies
that the best way for them to market their liability insurance plans
to employees was through the two state associations, the AFH
Association and the Care Council. He was aware that some of the
insurance companies took that approach, including the Personal Care
and Assisted Living Insurance Center (PCALIC Insurance), a long-
term care risk retention group.
Communication Between Employer and Employees
By letter dated July 18, 2006, the employer provided notice of the
insurance requirement to employees who serve Medicaid clients. The
employer also created and updated a list of insurance companies who
contacted the employer, indicating they would sell policies that met
the employer's requirements. By letters dated March 30 and
September 28, 2007, the employer provided the list to employees.
The employer also provided the list to employees who inquired about
insurance companies. In the March 30, 2007 letter to employees who
serve Medicaid clients, the employer stated: "Enclosed for your
convenience is a listing of the insurance brokers who have informed
DSHS they are actively selling liability insurance to adult family
homes. There may be other brokers in the state who are also selling
AFH liability insurance."
Zimmerman testified that the employer's goal was to provide as many
adult family homes as possible for Medicaid clients and to get as
many adult family homes as possible to meet the insurance
requirement. Because different insurance companies offered
different rates and covered different types of clientele, when
employees called Zimmerman with questions about liability insurance,
he provided names and contact information for the three cheapest
options which he believed offered the coverage the employee was
seeking. Zimmerman testified that employees wanted to purchase the
lowest cost insurance.
Communication Between Employees and Insurance Companies
Two employees testified about their communications with insurance
companies, the names of whom they acquired from the employer's list.
In June or July of 2007, employee Mariebel Yancey contacted Rice
Insurance, whose agent advised her that if she joined the Care
Council she would receive a discount of about $600 to $800. Yancey,
who was already a member of the AFH Association, felt that the
insurance agent encouraged her to be a member of both the Care
Council and the AFH Association, if she could afford it. She joined
Care Council but did not receive a discount.
In April of 2007, employee Debra Zacher contacted PCALIC Insurance
about liability insurance. PCALIC Insurance sent her its
"frequently asked questions" which stated "[W]e have worked closely
with DSHS to assure that limits of liability provided under the AFH
Liability Program meets those required by DSHS. In addition, DSHS
has approved PCH Mutual and PCALIC to write this insurance."
Another version of PCALIC Insurance's "frequently asked questions"
which was admitted into evidence stated: "Membership with a State
Association is a requirement. For Adult Family Homes in Washington,
the PCH Mutual program has received the full support of the
Washington State Residential Care Council . . . as well as the Adult
Family Home Association of Washington . . . ."
Zacher completed the PCALIC Insurance application which indicated
she needed to submit a copy of a state association membership
certificate. The application included the Care Council's website
address but made no reference to the AFH Association. Zacher
received a memo from PCALIC Insurance dated April 24, 2007, which
instructed her to submit evidence of membership in a state
association. The document included: "To obtain membership visit
www.WSRCC.org [Care Council] or call Craig Frederickson
253-630-2026." At that time, Craig Frederickson was affiliated with
the AFH Association.
Zacher testified that the PCALIC Insurance representative only
talked about one association, the Care Council. Zacher asked the
representative who was requiring association membership; the
representative responded that it was the insurance company's
requirement.
PCALIC Insurance sent Zacher a follow-up letter dated October 16,
2007, indicating that she had not yet submitted proof of membership
in a state association. The letter stated, in part: "There are a
number of State Associations you may join. If you are a member of
the Union, this will also qualify, please send proof of your Union
membership." PCALIC Insurance sent a similar letter to another
employee dated September 18, 2007. PCALIC Insurance accepted
Zacher's membership in the AFH Association as meeting its requirements.
The two employees who testified stated that the PCALIC Insurance and
Rice Insurance representatives did not indicate that they were
speaking for DSHS.
Two union organizing directors testified about communication they
had with employees and insurance companies. Carolyn Klinglesmith,
AFSCME [the Federation's parent organization] Organizing Director,
and Megan Parke, Federation Organizing Director, testified that they
went on home visits in September of 2007, after the election
conducted by the Commission. They heard employees express concerns
about the cost of liability insurance as well as questions about why
they had to join the Care Council to get reduced insurance rates.
As a result of those conversations, Klinglesmith and Parke took the
list of insurance companies provided by the employer and made
telephone inquiries.
Parke testified that she contacted Rice Insurance. The agent quoted
her one price but told her that if she joined the Care Council, Rice
Insurance would give her a reduced price. Parke asked if she could
be a member of the union. Rice's representative stated membership
in the union would satisfy the company's requirements but that he
did not recommend it. Parke testified that the Rice Insurance
representative "had a whole speech about union dues and was clearly
anti-union and was discouraging me from having union membership be
the choice for getting the discount."
Klinglesmith testified that she contacted two insurance companies,
including Valley Insurance. She said that they referred her to
PCALIC Insurance. During the conversation with Valley Insurance,
the representative also referred her to Zimmerman at DSHS for
further questions. Klinglesmith called Zimmerman asking why
association membership is required for reduced rates. She testified
that Zimmerman explained to her that insurance companies create a
risk management pool and they feel that if you belong to the
association, you're a higher quality provider because of the
training and monitoring the association provides. During their
conversation, Zimmerman recommended to Klinglesmith three insurance
companies, PCALIC, Rice, and Nicholson.
ANALYSIS
Domination or Assistance
The Federation alleges that the employer engaged in unlawful
domination or assistance by showing a preference for the Care
Council. The Federation presented no evidence that the employer
intended to assist one union to the detriment of the other.
Instead, the evidence established that the employer's unequivocal
intent was to help employees find an affordable way to meet DSHS's
liability insurance requirement. The employer demonstrated that the
neutrality the law requires of public employers during
representation proceedings.
Additionally, the employer is not responsible for the actions of the
insurance companies. Applying basic agency principles to this
situation, the employer gave the insurance companies neither actual
nor apparent authority to act on its behalf. City of Brier,
Decision 5089-A (PECB, 1995). The Federation did not present
evidence that any employee believed that the insurance companies
were speaking for the employer.
Interference
The Federation did not prove that the employer interfered with
employee rights in violation of RCW 41.56.140(1). The Federation
did not establish that the employer engaged in conduct which a
typical employee could reasonably perceive as a threat of reprisal
or force, or promise of benefit, nor did it establish that the
employer's conduct resulted in harm to protected employee rights.
The employer's actions included: (1) developing, updating, and
distributing a list of insurance companies to employees; and (2)
giving the names of three lower cost insurance companies to
employees who requested it. The employer's communication was not
coercive or misleading. The employer made no disparaging remarks
about the Federation; the employer did not act to undermine the
Federation.
The evidence established that Rice Insurance encouraged one employee
to join the Care Council after talking about a reduced rate and
tried to discourage a Federation organizer (who did not disclose
that she was a union organizer) from joining the Federation. The
evidence established that PCALIC Insurance, at most, was not clear
with one employee about the option of joining the AFH Association.
In addition, in April of 2007, PCALIC Insurance's application
referenced the Care Council and the Care Council website and did not
reference the AFH Association. The Federation did not introduce
evidence of what was on the Care Council website in April of 2007.
In August of 2007, the Care Council website featured campaign
information concerning the representation election, including what
purported to be negative information on the Federation.
The Federation did not introduce evidence that the insurance
companies stated or implied that they were speaking on behalf of the
employer, or that the employer encouraged the insurance companies to
direct employees to the Care Council. The Federation did not
introduce evidence that any employee believed the insurance
companies were speaking on behalf of the employer, or that a typical
employee could reasonably perceive that the employer was interfering
with protected employee rights.
The insurance companies acted independently; their statements and
conduct are not attributable to the employer. Applying basic agency
principles to this situation, the employer gave the insurance
companies neither actual nor apparent authority to act on its
behalf.
CONCLUSION
I find that the Federation failed to prove that the employer
interfered with employee rights or dominated or assisted the Care
Council and I dismiss the Federation's complaint.
FINDINGS OF FACT
1. Under RCW 41.56.029, the Governor of the State of Washington is
the public employer of adult family home providers, solely for
the purposes of collective bargaining. The Washington State
Office of Financial Management is the representative of the
Governor under RCW 41.56.029. The Aging and Disability
Services Administration, a division within the Washington State
Department of Social and Health Services (DSHS), has
responsibilities associated with adult family home providers.
2. Adult family home providers are public employees solely for the
purposes of collective bargaining under RCW 41.56.029.
3. The Washington Federation of State Employees (Federation) is a
bargaining representative within the meaning of RCW 41.56.030(3).
4. The Washington State Residential Care Council (Care Council)
began as an adult family home association. At some point in
time, the Care Council became a bargaining representative
within the meaning of RCW 41.56.030(3).
5. The Adult Family Home Association of Washington (AFH
Association) is an association of adult family home providers
primarily focused on the promotion of providers, their
education, and their community connections. At some point in
time, the Federation became affiliated with the AFH Association.
6. In 2006, DSHS reinstated a requirement that adult family home
providers serving Medicaid clients obtain liability insurance
by July 1, 2007.
7. DSHS created, maintained, and distributed a list of insurance
companies who had informed the employer that they would offer
policies meeting the liability insurance requirements. The
list included PCALIC Insurance and Rice Insurance.
8. When an employee requested information from the employer about
insurance companies who sold the required insurance, George
Zimmerman, program manager of DSHS's Aging and Disability
Services Administration division, provided the names and
contact information of the three cheapest options offering the
coverage the employee was seeking.
9. In April of 2007, employee Debra Zacher contacted PCALIC
Insurance about liability insurance after finding the name and
contact information on the employer's list. The PCALIC
Insurance application she completed indicated she needed to
submit a copy of a state association membership certificate.
The application included the Care Council's website but did not
reference the AFH Association.
10. PCALIC Insurance sent Zacher a memo dated April 24, 2007, which
instructed her to submit evidence of membership in a state
association. The memo included: "To obtain membership visit
www.WSRCC.org or call Craig Frederickson 253-630-2026." At
that time, Craig Frederickson was affiliated with the AFH
Association. PCALIC Insurance accepted Zacher's membership in
the AFH Association as meeting its requirements.
11. In June or July of 2007, employee Mariebel Yancey contacted
Rice Insurance about liability insurance. The Rice Insurance
representative advised her that if she joined the Care Council,
she would receive a discount. Yancey joined the Care Council
although she was already a member of the AFH Association. She
did not receive a discount.
12. In September of 2007, Federation organizer Megan Parke
contacted a representative of Rice Insurance; the
representative acknowledged that membership in the Federation
would satisfy the company's requirements but the representative
discouraged such membership.
13. The employer did not advocate for employees to join the Care
Council or the Federation; the employer did not advocate for
any of the insurance companies to encourage employees to join
the Care Council or the Federation.
14. The PCALIC Insurance and Rice Insurance representatives did not
indicate that they were speaking for the employer.
15. There was no evidence that any employee believed that the
PCALIC Insurance or Rice Insurance representatives were
speaking for the employer.
16. The employer did not delegate any authority to PCALIC Insurance
or Rice Insurance to speak or act on the employer's behalf.
17. The employer did not intend to support or show a preference for
the Care Council by creating, maintaining, and distributing a
list of insurance companies to employees, or by providing
employees the names of the three cheapest insurance options.
18. A typical employee could not reasonably perceive the employer's
actions, as described in Findings of Fact 7 and 8, as a threat
of reprisal or force, or promise of benefit, associated with
the employee's protected union activities.
19. The employer's action in creating, maintaining, and
distributing a list of insurance companies to employees, and
providing the names of the three cheapest insurance options to
employees, did not result in harm to protected employee rights.
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. By the actions described in Findings of Fact 7 and 8, the State
of Washington did not demonstrate a preference for or provide
unlawful assistance to the Washington State Residential Care
Council and did not violate RCW 41.56.140(2).
3. By the actions described in Findings of Fact 7 and 8, the State
of Washington did not interfere with employee rights and did
not violate RCW 41.56.140(1).
ORDER
The complaint charging unfair labor practices filed in the above-
captioned matter is dismissed.
ISSUED at Olympia, Washington, this 16th day of January, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
JOEL GREENE, 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.