Vancouver School District, Decision 9959 (EDUC, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of a dispute )
concerning the obligations of: )
)
SUSAN WIGGS ) CASE 20711-N-06-0053
)
Under union security provisions ) DECISION 9959 - EDUC
of a collective bargaining )
agreement between: )
)
VANCOUVER SCHOOL DISTRICT ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
and ) AND ORDER
)
VANCOUVER EDUCATION ASSOCIATION )
___________________________________)
Michael J. Gawley, Attorney at Law, for the union.
Thomas F. Klein, Attorney at Law, for the employee religious
objector.
On October 18, 2006, the Vancouver Education Association (union), an
affiliate of the Washington Education Association, filed a petition
for ruling on nonassociation claim with the Public Employment
Relations Commission. On November 28, 2006, Commission staff issued
a preliminary ruling finding a cause of action existed regarding
Susan Wiggs's designation of a charitable organization to receive
her alternative union security payments. I held a hearing on
February 26, 2007, and March 21, 2007. The Vancouver School
District (employer) is not a party and did not participate in the
hearing or other proceedings.
ISSUES PRESENTED
This case raises a question of first impression and requires me to
address the following two interconnected issues:
1A. Which charity should be designated to receive Susan Wiggs's
alternative union security payments made in lieu of her regular
dues and fees to the union?
1B. If Wiggs proves her designated organization is both
nonreligious and a charity, does Washington law require the
union to agree to her designation?
I find Washington law requires the union to agree to Wiggs's
designation of Shared Hope International (SHI) to receive her
alternative union security payments, once Wiggs proves SHI is both
nonreligious and a charity.
FACTS
The Educational Employment Relations Act, Chapter 41.59 RCW, permits
employers and unions to include "union security" provisions in their
collective bargaining agreements. Union security provisions
obligate some or all of the bargaining unit employees to pay dues
and fees to the union which represents them as a condition of
continued employment. The Act also provides employees the right to
make alternative payments of union dues and fees to a nonreligious
charity if the employees' religious beliefs prevent them from
associating with the union. The Act designates the Commission to
resolve nonassociation disputes between unions and employee
religious objectors.
Susan Wiggs is a certificated teacher in the Vancouver School
District. Wiggs, who has an undergraduate degree in French and
Spanish and a graduate degree in linguistics, teaches English to
children from other cultures. In August 2005, Wiggs wrote the union
and requested nonassociation status. In January 2006, the union
agreed to her request and recognized Wiggs as a religious objector.
At the hearing, the union confirmed that Wiggs was entitled to the
right of nonassociation, and no evidence was presented regarding the
issue of whether Wiggs had bona fide religious beliefs that
prevented her from joining the union.
The union and Wiggs disagreed regarding the charity that should be
designated to receive Wiggs's alternative payments made in lieu of
her regular dues and fees to the union. The union denied Wiggs's
request that her alternative payments be redirected to SHI. The
union informed Wiggs her alternative payments would be placed in an
interest-bearing escrow account pending resolution of the
disagreement.
The union initially did not provide Wiggs with a clear explanation
regarding why it denied her request to redirect her alternative
payments to SHI. At the hearing, for the first time, the union
explained that it would approve Wiggs's designation of an
organization if the organization met three unpublished criteria:
(1) the organization is a nonreligious Internal Revenue Code section
501(c)(3) charity; (2) the charity benefits children; and (3) the
charity provides services primarily to local beneficiaries --
beneficiaries in the geographic area of Vancouver, Washington. At
the hearing, the union stated SHI met the first two criteria. The
union would not agree to SHI because the union believed SHI's
primary mission was worldwide, not local to the Vancouver area.
SHI's main mission is to intervene and rescue women and children in
crisis because they have been, or are about to be, sold into
prostitution or sex slavery. SHI is a nonreligious Internal Revenue
Code section 501(c)(3) charity whose home office is located in
Vancouver, Washington. SHI has an office in Washington D.C. and
performs most of its work in numerous foreign countries.
SHI runs two local programs in the Vancouver area. SHI's first
local program is the Women's Investment Network (WIN), which started
in 2000. The WIN program provides education and job skills training
to at-risk women with children, so the mothers can support their
families. In 2006, SHI spent approximately $90,000 on the WIN
program. The second local program is Defenders USA, which was
started in June 2006. The main goal of Defenders USA is to prevent
men from exploiting women and children.
The union and Wiggs disagree regarding whether the union must agree
to the charity Wiggs designates. The union argues it has the
authority to approve or disapprove any nonreligious charity Wiggs
proposes, here SHI. Wiggs argues the union must approve her
designation of SHI, so long as SHI is both nonreligious and a
charity. The disagreement centers around the interpretation and
application of RCW 41.59.100.
LAW AND ANALYSIS
RCW 41.59.100 (underlining added) provides that a religious objector
can make alternative payments "to a nonreligious charity or to
another charitable organization mutually agreed upon," and reads in
pertinent part as follows:
RCW 41.59.100 UNION SECURITY PROVISIONS SCOPE AGENCY
SHOP PROVISION, COLLECTION OF DUES OR FEES. . . . Such
employee shall pay an amount of money equivalent to regular
dues and fees to a nonreligious charity or to another
charitable organization mutually agreed upon by the employee
affected and the bargaining representative to which such
employee would otherwise pay the dues and fees. . . . If the
employee and the bargaining representative do not reach
agreement on such matter, the commission shall designate the
charitable organization.
The union and the employer agreed to a collective bargaining
agreement that was effective from August 16, 2005, to August 15,
2007. Article 3.6 in the collective bargaining agreement contains
language identical to the disputed language in RCW 41.59.100, which
is underlined in the preceding paragraph.(fn:1)
____________________
fn:1 Similar provisions are also found in RCW 41.56.122(1)(Public
Employees' Collective Bargaining Act); RCW 41.80.100(2)(State
Collective Bargaining Act); RCW 41.76.045(3)(faculty at public
four-year institutions of higher education); RCW
28B.52.045(3)(faculty at community and technical colleges).
Each party relies upon a different interpretation of the statute
based upon the meaning it attributes to the phrase before, and the
phrase after, the word "or." Wiggs cites Grant v. Spellman, 99
Wn.2d 815 (1983)(Grant II) and other cases for the proposition that
courts presume the word "or" in a statute is disjunctive unless
clear legislative intent indicates the contrary. Wiggs argues the
disputed language offers two choices that are separated by the word
"or": (1) a religious objector can designate "a nonreligious
charity" without union approval; or (2) a religious objector can
designate "another charitable organization," like a religious
charity, but only if the charity is "mutually agreed upon" by both
the objector and the union.
The union challenges Wiggs's position that the disputed language
offers an "either or" choice between the phrase before, and the
phrase after, the word "or" in the statute. The union argues the
phrase "mutually agreed upon" modifies both "a nonreligious charity"
(the phrase before the "or") and "another charitable organization"
(the phrase after the "or"). If I accept the union's
interpretation, a religious objector can designate a nonreligious
charity only if the union agrees to the designation.
When interpreting a labor relations statute it administers, the
Commission accords the statute its plain and ordinary meaning -
unless the statute is ambiguous. State - Transportation, Decision
8317-B (PSRA, 2005). When a statute is ambiguous, courts rely upon
legislative history and rules of statutory construction to determine
meaning. In re Sehome Park Care Center, 127 Wn.2d 774 (1995). A
statute is ambiguous if the statute is subject to more than one
reasonable interpretation. Central Washington University, Decision
8127-A (FCBA, 2004)(case citations omitted).
I find the disputed language in RCW 41.59.100 is ambiguous because
the union and Wiggs each rely upon different reasonable
interpretations of the statute. Legislative history provides no
information regarding the legislature's intent when it adopted RCW
41.59.100. Absent any legislative history, I must rely upon rules
of statutory construction to interpret the statute.
The "last antecedent rule," described in detail in Sehome Park Care
Center, is the rule of statutory construction that best explains how
to interpret RCW 41.59.100: "The last antecedent rule provides
that, unless a contrary intention appears in the statute, qualifying
words and phrases refer to the last antecedent." Applying the last
antecedent rule to RCW 41.59.100, the qualifying words "mutually
agreed upon" modify the last antecedent, "another charitable
organization," and do not modify the first antecedent, "a
nonreligious charity."
The absence of a comma before the qualifying phrase "mutually agreed
upon" further supports the conclusion that the qualifying phrase
modifies only "another charitable organization" and does not modify
"a nonreligious charity." A corollary to the last antecedent rule
is the rule that "the presence of a comma before the qualifying
phrase is evidence the qualifier is intended to apply to all
antecedents instead of only the immediately preceding one." In re
Smith, 139 Wn.2d 199 (1999)(citing Sehome Park Care Center). The
union's argument that the qualifying phrase "mutually agreed upon"
modifies both antecedent phrases would be persuasive only if a comma
preceded the qualifying phrase. It does not. The absence of a
comma before the qualifying phrase "mutually agreed upon" confirms
that the qualifying phrase modifies only the last antecedent,
"another charitable organization," and does not modify the first
antecedent, "a nonreligious charity."
Even if I did not apply the last antecedent rule, the result would
be the same. The legislature had strong reasons to draft RCW
41.59.100 so the phrase "mutually agreed upon" modifies the phrase
"another charitable organization." The legislature required mutual
agreement to designate "another charitable organization" a
religious organization - to avoid constitutional problems that would
result if the Commission, a state agency, designated a religious
charity to receive a religious objector's alternative payments. The
legislature structured RCW 41.59.100 to allow the designation of a
religious organization but only if the parties mutually agree and
the Commission is not involved in the designation. The legislature
drafted RCW 41.59.100 to allow the Commission only to designate "a
nonreligious charity" to avoid constitutional problems if a state
agency designated a religious charity. Requiring the Commission not
to participate in designating a religious charity avoids
establishment of religion concerns and avoids separation of church
and state problems in both the United States and Washington State
Constitutions. City of Seattle, Decision 5378-A (PECB, 1996).
The union argues that a decision holding the "mutually agreed upon"
qualifying phrase does not modify "a nonreligious charity" would
nullify the last sentence in RCW 41.59.100, which reads as follows:
"If the employee and the bargaining representative do not reach
agreement on such matter, the Commission shall designate the
charitable organization." The union argues the last sentence in RCW
41.59.100 requires the union to agree when a religious objector
designates "a nonreligious charity." I disagree.
The last sentence in RCW 41.59.100 authorizes the Commission to
resolve disagreements that may arise when a religious objector
designates "a nonreligious charity." For example, the union could
disagree that the designated organization is a charity. That is
precisely what happened in King County, Decision 5595 (PECB, 1996),
when the religious objector designated a school district in Texas.
The examiner ruled the school district was not a charity and, in the
absence of viable alternative suggestions from the religious
objector, the examiner designated a nonreligious charity proposed by
the union.
Further, the last sentence in RCW 41.59.100 also authorizes the
Commission to resolve disagreements that may arise when a religious
objector designates an organization that the union believes does not
meet the "nonreligious" requirement. For example, a previous
Commission decision addressed a situation where the religious
objector designated a university sponsored by the Roman Catholic
Church. The examiner ruled the university did not meet the
"nonreligious" requirement. In the absence of viable alternative
suggestions from the objector for another nonreligious charity, the
Commission designated a nonreligious charity proposed by the union.
City of Seattle, Decision 5378-B (PECB, 1996); City of Seattle,
Decision 5378-A (PECB, 1996); City of Seattle, Decision 5378 (PECB,
1995).
CONCLUSION
I find RCW 41.59.100 requires the union to agree to Wiggs's
designation of an organization to receive her alternative dues
payments once she proves the designated organization is both
nonreligious and a charity.(fn:2) Wiggs met her burden of proof.
Wiggs's alternative payments shall be made to Shared Hope
International.
____________________
fn:2 The conclusion the statute should be interpreted to allow
Wiggs to designate a nonreligious charity without union agreement is
consistent with brief statements made in two Commission decisions.
See Olympia School District 111, Decision 1963 (EDUC, 1984), and the
dissenting opinion in King County, Decision 591-A (PECB, 1979),
cited with approval in Grant II.
FINDINGS OF FACT
1. The Vancouver School District (employer) is a public employer
within the meaning of RCW 41.59.020(5).
2. The Vancouver Education Association (union), an employee
organization within the meaning of RCW 41.59.020(1), is the
exclusive bargaining representative under RCW 41.59.020(6) of
all nonsupervisory certificated employees who work for the
Vancouver School District.
3. The union and the employer were parties to a collective
bargaining agreement effective from August 16, 2005, to August
15, 2007. The collective bargaining agreement contains a union
security clause which includes the same language as RCW RCW
41.59.100 and authorizes a religious objector to make
alternative payments "to a nonreligious charity or to another
charitable organization mutually agreed upon."
4. Susan Wiggs is a certificated employee of the Vancouver School
District, within the bargaining unit represented by the
Vancouver Education Association. Wiggs teaches English to
children from other cultures.
5. Wiggs asserted a right of nonassociation, which the union
granted. The union agreed Wiggs is a religious objector and
that she is entitled to nonassociation rights.
6. Wiggs designated Shared Hope International (SHI) to receive her
alternative union security payments made in lieu of her regular
dues and fees to the union. SHI's main mission is to intervene
and rescue women and children in crisis because they have been,
or are about to be, sold into prostitution or sex slavery.
SHI, whose home office is located in Vancouver, Washington,
performs most of its work in numerous foreign countries. SHI
runs two local programs in the Vancouver area, Women's
Investment Network (WIN) and Defenders USA. SHI is a
nonreligious Internal Revenue Code section 501(c)(3) charity.
7. The union disagreed with Wiggs's designation of SHI. The union
approves a religions objector's designation of a nonreligious
charity if the charity meets three unpublished criteria: (1)
the organization is a nonreligious Internal Revenue Code
section 501(c)(3) charity; (2) the charity benefits children;
and (3) the charity provides services primarily to local
beneficiaries -- beneficiaries in the geographic area of
Vancouver, Washington. The union denied Wiggs's designation of
SHI because the union believed SHI's primary mission was
worldwide, not local to the Vancouver area.
8. The union and Wiggs were not able to agree on the charitable
organization to receive Wiggs's alternative payments made in
lieu of regular dues and fees to the union. On October 18,
2006, the Vancouver Education Association, an affiliate of the
Washington Education Association, filed a petition with the
Commission seeking resolution of the disagreement between the
union and Wiggs, regarding Wiggs's designation of SHI to
receive her alternative payments.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter pursuant to Chapter 41.59 RCW and Chapter 391-95 WAC.
2. The organization designated by Wiggs, Shared Hope
International, described above in Finding of Fact 6, is a
nonreligious charity qualified to receive alternative payments
within the meaning of RCW 41.59.100.
3. RCW 41.59.100 requires the union to agree to a religious
objector's designation of an organization to receive
alternative dues payments once the objector proves the
designated organization is both nonreligious and a charity.
ORDER
1. Wiggs's alternative payments shall be made to Shared Hope
International.
2. If the union does not file a notice of appeal with the Public
Employment Relations Commission within 20 days following the
date of this order: (a) the union shall comply with WAC
391-95-130 and release all funds currently held in an
interest-bearing escrow account to Shared Hope International;
and (b) the employer and employee shall comply with WAC
391-95-310 and make all future alternative payments to Shared
Hope International.
3. If the union files a timely notice of appeal with the
Public Employment Relations Commission, the union's filing
shall automatically stay the effect of this order pending
a ruling by the Commission.
Issued at Olympia, Washington, on this 22nd 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 391-95-270.