State - Fish and Wildlife, Decision 9975 (PSRA, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
WASHINGTON ASSOCIATION OF )
FISH AND WILDLIFE PROFESSIONALS ) CASE 21001-E-07-3246
)
Involving certain employees of: ) DECISION 9975 - PSRA
)
WASHINGTON STATE - FISH AND WILDLIFE ) DECISION OF COMMISSION
)
_____________________________________)
Schwerin, Campbell, Barnard & Iglitzin, by Lawrence R.
Schwerin, Attorney at Law, for the Washington Public Employees
Association.
Tina Peterson, Labor Negotiator, for the employer.
Garrettson, Goldberg, Fenrich & Makler, by Rhonda J. Fenrich,
Attorney at Law, for the Washington Association of Fish and
Wildlife Professionals.
On June 8, 2007, the Washington Public Employees Association (WPEA)
filed a formal election objection with the Public Employment
Relations Commission (Commission), alleging that the Washington
Association of Fish and Wildlife Professionals (WAFWP) and the
Washington State Department of Fish and Wildlife (employer)
unlawfully interfered with an election. Hearing Officer Terry
Wilson scheduled and conducted a hearing on August 31, 2007, to
address the allegation. The parties filed post-hearing briefs on
November 5, 2007.
ISSUE PRESENTED
The sole issue before this Commission is whether the WAFWP illegally
implied to voters that it and the employer had agreed to DECISION
jointly seek reclassification and a resulting pay increase, thus
creating the appearance that the WAFWP and the employer had already
bargained on behalf of bargaining unit members in violation of WAC
391-25-140(3) and WAC 391-25-470(1).
We find that the WAFWP interfered with the election process in
violation of WAC 391-25-470(1), but the employer's conduct did not
violate WAC 391-25-140(3) or WAC 391-25-470(1). Accordingly, we
vacate the representation election and remand this case to the
Executive Director for further processing.
BACKGROUND
The pertinent employees of the employer currently are divided into
three different bargaining units, and three different unions
represent the three bargaining units. The WPEA represents employees
generally described as fish program biologists in a bargaining unit
described as biology unit #1. The WAFWP and the Washington
Department of Fish and Wildlife Employees Association (WDFWEA)
represent employees in the other two bargaining units. On March 30,
2007, the WAFWP filed a petition for investigation of a question
concerning representation with this Commission regarding the
employees in biology unit #1. Following an investigation
conference, Commission staff conducted a mail ballot election where
ballots were due by the close of business June 7, 2007, and the
tally of ballots would occur the next day.
On June 8, 2008, Commission staff counted the ballots. The tally of
ballots indicated the following results:
Approximate number of eligible voters . . . . . . . . . .175
Void ballots. . . . . . . . . . . . . . . . . . . . . . . .1
Votes cast for WAFWP. . . . . . . . . . . . . . . . . . . 89
Votes cast for WPEA . . . . . . . . . . . . . . . . . . . 40
Votes cast for WDFWEA . . . . . . . . . . . . . . . . . . .6
Votes cast for No Representation. . . . . . . . . . . . . .2
Challenged ballots. . . . . . . . . . . . . . . . . . . . .0
Valid ballots counted plus challenged ballots . . . . . .137
Number of valid ballots needed to determine election. . . 69
Thus, the election results conclusively demonstrated that employees
selected WAFWP as their exclusive bargaining representative.
Immediately following the issuance of the tally, the WPEA filed
timely election objections under WAC 391-25-590, alleging that the
WAFWP and the employer had improperly tried to persuade eligible
voters to vote for the WAFWP with the promise of a benefit. Much of
the WPEA's evidence supporting its allegation is based upon a letter
sent by Steve Bell, president of the WAFWP, to biology unit #1
employees on April 10, 2007. The pertinent portion of the April 7,
2007, letter states:
WAFWP and [the employer] will jointly be asking the Department
of Personnel to either reclassify the Biologist series into the
Natural Resource Science classifications (which pays more) or
providing justification for a pay adjustment. However, this
effort cannot proceed without your help . . . .
APPLICABLE LEGAL STANDARDS
Two rules set the legal framework for determining whether the
employer and the WAFWP unlawfully interfered with the election
process. WAC 391-25-140(3) states that the employer shall not
express or otherwise indicate any preference between competing
organizations, where two or more employee organizations are seeking
to represent its employees. WAC 391-25-470(1) specifically
addresses objectionable conduct during the election process,
including a specific provision forbidding the reproduction of any
document purporting to suggest, either directly or indirectly, that
an employer endorses a particular choice in an election. This rule
also forbids the coercion or intimidation of eligible voters or the
promise of benefit to eligible voters during the election.
Violations of these rules are grounds for setting aside an election
upon objections properly filed. WAC 391-25-470(3).
To determine whether a party's actions during the pendency of an
election violate the rules cited above, the Commission adopted the
National Labor Relations Board's test in General Shoe Corporation,
77 NLRB 124 (1948). That test recognizes that the "preelection
environment should be like a laboratory in which an experiment may
be conducted, under conditions as nearly ideal as possible, to
determine the uninhibited desires of the employees". See Wellpinit
School District, Decision 1243 (PECB 1982). In City of Tukwila,
Decision 2434 (PECB, 1986), the Commission ruled that any promise of
benefits is a subversion of the laboratory conditions under which
representation elections are to be conducted.
When deciding the merits of election objections, this Commission
utilizes a case-by-case approach. In Lake Stevens Granite Falls
Transportation Cooperative, Decision 2462 (PECB, 1986), the
Commission listed some factors which may be relevant to deciding if
an employer's conduct unfairly compromised the election process,
including the timing of the alleged conduct, the value of any gifts,
connections between the gifts and the election, the location of a
social gathering, and whether a gathering occurs during work time.
For example, in Lake Stevens Granite Falls Transportation
Cooperative, the union held a social gathering on the eve of the
election with free beer and it gave a potential voter money.
Finding the union's conduct egregious, the Commission directed a new
election.
Application of Standards
In the present case, the WAFWP and the employer are alleged to have
sullied the election process by a letter issued by WAFWP on April 7,
2007. The letter, mailed independently by the WAFWP without input
from the employer, informed employees that the WAFWP was working
with the employer on reclassification efforts and requested
information from employees. The letter clearly states that the
WAFWP and the employer will jointly ask the Department of Personnel
to re-classify biologists or seek pay adjustments, giving the
impression that the WAFWP was already working to provide its
members, as well as employees in the affected bargaining unit, with
a benefit.
We find that by sending this letter, the WAFWP violating WAC
391-25-470(1) by creating the appearance that it had already
bargained on behalf of the biologist unit #1 employees, thus
interfering with the laboratory conditions that must exist during
the pre-election period.
Classification Study
The employer argues that the WAFWP's letter did not constitute
prohibited conduct under WAC 391-25-470 because the class study at
issue in the letter would not constitute a promise of benefit. To
support its argument, the employer asserts the employees could not
have reasonably perceived the class study as a promise of benefit
because class studies conducted by state agencies do not guarantee
that additional compensation will be the ultimate result of such a
study. We disagree.
As demonstrated by the testimony regarding the classification
process and the changing role of the Office of Financial Management
in labor negotiations, the rules concerning the re-classification
process can be confusing. An employee could reasonably believe that
the letter represents a promise to attain additional monies on
behalf of the employees.
Moreover, biologist unit #1 employees could, at the very least,
believe that the WAFWP was working hand in hand with the employer to
achieve higher salaries on their behalf, and this perceived employer
bias is exactly the type of conduct that is prohibited by this
Commission's rules. This reasonable belief is exemplified by Lynn
Anderson, who testified that she believed that, based on the letter
dated April 7, if a reclassification occurred, only WAFWP members
would receive a raise. The letter in no way seeks to dispel this
belief or any other beliefs the letter could support.
According to the WAFWP and the employer, all employees would receive
the benefit of the reclassification, regardless of union
affiliation, and the letter reflects the actions that already had
been set in motion months earlier. Therefore, the letter could not
be reasonably perceived as bargaining on behalf of biologist unit #1
employees. The employer points out that it had been participating
in a classification process in preparation for bargaining long
before the filing of the representation petition and the
representation election. During this process, the Governor's
designee, the WAFWP, and the employer became parties to an agreement
that required the employer to conduct a biology class study and
submit a pay proposal to the Department of Personnel. We find these
arguments to be without merit.
The Commission's concern is not with the actual reallocation
process. Because the objection focuses on the letter's impact on
the election, our review is limited to whether the letter and the
manner in which the letter was given to biologist unit #1 employees
interfered with the election process. To that extent, we find that
the letter interfered with the election process.
Tone of Letter
The WAFWP also argues that the letter should not be found
objectionable under WAC 391-25-470 because the tone of the letter is
not similar to campaign materials that are traditionally distributed
in representation elections. The WAFWP points out that the letter
neither promotes the WAFWP nor criticizes the WPEA. Additionally,
WAFWP asserts that the letter was not intended to coerce or persuade
employees casting their vote. We reject these arguments.
The purpose of the rules regulating the election process is to
provide a neutral environment within which a bargaining member can
make an uncoerced decision. Whether the employer or the WAFWP
intended to interfere with that election environment is not
determinative, and as stated earlier, the Commission finds that the
letter is the type of document an employee could find persuasive
when casting his or her vote.
Timing of Letter
The employer further maintains that the letter did not destroy
laboratory conditions because it was mailed before the Commission
issued an order establishing the time of the election. According to
the employer, the date on which the letter was mailed must be
compared against the actual election period, and the timing of these
two events are too distant to have any meaningful effect on the
election process. The WAFWP and the employer also argue that the
letter should not be found objectionable because it is only a
factual representation of the reclassification process and the
reclassification process is not bargaining.
The WAFWP filed a petition on behalf of biologist unit #1 employees
on March 31, 2007. At that point, the WAFWP should have known that
an election was likely to take place in the near future, and should
have restricted its conduct in accordance with WAC 391-25-470(1).
The WAFWP mailed the letter within one week after filing its
petition. Viewed in a more complete context, WAFWP sent the letter
to the home addresses of all employees in biologist unit #1 despite
the fact that it did not represent them.(fn:1) The Commission notes
that much of the WAFWP's and employer's arguments categorize the
WPEA's objection as claiming that the actual reallocation of
employees to other positions interfered with the election process.
This characterization is incorrect.
____________________
fn:1 Had WAFWP sent the letter to only the employees it
represented, and biologist unit #1 employees discovered the letter
or the contents of the letter through discussions with co-workers or
through a bulletin board maintained by the WAFWP, perhaps the
Commission would not find the actions of the WAFWP to be
objectionable.
We are also troubled by the manner in which the WAFWP obtained some
of the home addresses. Steve Bell, president of the WAFWP,
testified that some of the addresses were gathered by Karen
Kloempken, a WPEA member who was active in trying to switch the
representation of her bargaining unit. Bell testified that the
WAFWP was trying to gather information about all biologist jobs in
its attempt to seek reclassification, which would benefit all such
employees. We find, however, that WAFWP's utilization of Kloempken
in this manner blurs the line between trying to attain wage
information and WAFWP unfairly trying to influence votes.
Although the employer did not sanction the mailing of the letter, it
would have been advisable for the employer to disavow the letter and
take steps to ensure that employees in biology unit #1 understood
that the employer showed no favoritism between the competing unions.
See Whatcom County, Decision 8245-A (PECB, 2004)(employers must
remain neutral during a representation election, and may not render
"aid" to any incumbent or competing labor organization). Employers
who discover that a union has factually misrepresented the
employer's neutrality during the course of a representation election
could be found in violation of the state's labor laws unless that
employer take steps to clarify and demonstrate its neutrality to all
affected employees during the course of proceedings. This includes
situations where a bargaining representative suggests that the
employer favors one bargaining representative over another.
Aside from the absence of a clear statement on the part of the
employer disavowing the letter at issue, the record does not
demonstrate that the employer conducted itself in any other manner
that unfairly influenced the election or coerced employees during
the election process. Therefore, the Commission finds that the
employer did not violate WAC 391-25-140(3) or WAC 391-25-470(1).
NOW, THEREFORE, the Commission makes the following:
FINDINGS OF FACT
1. The Washington State Department of Fish and Wildlife (employer)
is a public employer within the meaning of RCW 41.80.005.
2. Washington Association of Fish and Wildlife Professionals
(WAFWP) is an employee organization within the meaning of RCW
41.80.005(7), representing certain biologists of the employer.
3. Washington Public Employees Association (WPEA) is an employee
organization within the meaning of RCW 41.80.005(7)
representing certain employees of the employer described as
biologist unit #1.
4. On March 30, 2007, the WAFWP filed a petition with the
Commission to replace the WPEA as representative of employees
described as biology unit #1.
5. On April 7, 2007, Steve Bell, the president of the WAFWP sent
letters to biology unit #1 employees stating that it and the
employer would either ask the Department of Personnel to
reclassify the Biologist series into the Natural Resource
Science classifications or provide justification for a pay
adjustment. The letter also sought information from the
employees about their jobs.
6. The April 7, 2007 letters were sent to the home addresses of
biologist unit #1 employees. Some addresses were attained
through the efforts of a member of the WPEA involved in the
change of representation process.
7. The employer had no knowledge of the letters prior to the April
7, 2007 letter being mailed to employees.
8. On May 15, 2007, the Commission ordered the notification of
potential voters that a mail-in election would be held from May
17, 2007, though June 7, 2007.
9. Following the election, which indicated that the WAFWP won, the
WPEA filed formal election objections with the Commission,
alleging that the WAFWP and the employer had improperly tried
to persuade eligible voters with the promise of a benefit.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.80 RCW and Chapter 391-35 WAC.
2. The Washington Association of Fish and Wildlife Professionals
illegally interfered with the election process in violation of
WAC 391-25-470(1).
3. The conduct of the employer did not violate WAC 391-25-140(3)
or WAC 391-25-470(1).
ORDERED
1. The election objection filed by the Washington Public Employees
Association is SUSTAINED.
2. The results of the above-referenced representation election are
VACATED.
3. The case is REMANDED to the Executive Director for further
processing consistent with this order.
Issued at Olympia, Washington, the 13th day of February, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
DOUGLAS G. MOONEY, Commissioner