DECISION 9210-A - PSRA PAGE Community College 19 (Columbia Basin) (Washington Public Employees Association), Decision 9210-A (PSRA, 2006) Community College 19 (Columbia Basin) (Washington Public Employees Association). Decision 9210-A (PSRA, 2006)


                         STATE OF WASHINGTON
                                   
          BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
                                   
                                   
COMMUNITY COLLEGE DISTRICT 19 )
(COLUMBIA BASIN),             )
                              )
               Employer.      )
------------------------------)
KATHLEEN PAXTON,              )    CASE 18916-U-04-4812
                              )
               Complainant,   )    DECISION 9210-A - PSRA
                              )
     vs.                      )
                              )
WASHNIGTON PUBLIC EMPLOYEES   )
ASSOCIATION, UFCW LOCAL 365,  )    
                              )    
               Respondent.    )         
______________________________)
COMMUNITY COLLEGE DISTRICT 19 )
(COLUMBIA BASIN),             )
                              )
               Employer.      )
------------------------------)
GENE WAGNER,                  )    CASE 18917-U-04-4813
                              )
               Complainant,   )    DECISION 9211-A - PSRA
                              )
     vs.                      )
                              )
WASHNIGTON PUBLIC EMPLOYEES   )
ASSOCIATION, UFCW LOCAL 365,  )    DECISION OF COMMISSION
                              )    
               Respondent.    )
______________________________)

     Kathleen Paxton and Gene Wagner appeared pro se. 
     
     Schwerin Campbell Barnard, by Lawrence Schwerin, Attorney at
     Law, appeared for the union. 

These  cases come before the Commission on a timely appeal filed by
Kathleen Paxton and Gene Wagner (complainants) seeking to overturn
the Order issued by Examiner Dianne E. Ramerman, and on a timely
cross-appeal filed by the Washington Public Employees Association,
UFCW Local 365 (WPEA), seeking to overturn the findings of fact,
conclusions of law, and order issued by the Examiner. 

Certain legal issues in this case are similar to issues being
decided concurrently in appeals from Western Washington University,
Decision 8849-A (PSRA, 2005) and Community College District 7 -
Shoreline (Washington Federation of State Employees), Decision 9094
(PSRA, 2005).  All of these cases stem from negotiations for first
contracts under the Personnel System Reform Act, Chapter 41.80 RCW
(PSRA), and specifically from agreements between employers and
unions to have all bargaining unit employees vote on ratification of
tentative agreements reached in negotiations.  In each case,
bargaining unit employees who were not union members filed
complaints with the Commission, alleging the unions failed to
properly notify bargaining unit employees of the ratification vote,
and failed to properly notify bargaining unit employees of union
security provisions contained in the new contracts.  The unions
filed answers denying the allegations, and questioning the
jurisdiction of this Commission to adjudicate claims regarding what
they characterize as internal union matters.  In order to provide 
uniform case precedent, we examine the legal arguments of the
parties in all three cases as a whole, and apply a similar legal
standard to the factual differences of each decision on appeal.   

The Examiner issued her decision in this case on January 23, 2006,
finding that the Commission has jurisdiction to adjudicate the
complaint that the union failed to give proper notice to the
employees. In addition to ordering the WPEA to cease and desist from
failing to fairly and adequately inform all bargaining unit
employees who were not union members of the opportunity to vote on
the acceptance or rejection of any tentative agreement that permits
all bargaining unit employees the opportunity to vote, the Examiner
also ordered the WPEA to cease and desist from enforcing the union
security provision contained within the 2005-2007 collective
bargaining agreement against the complainants.   

ISSUES PRESENTED

Two issues are presented in all three of the appeals currently
before the Commission:

1.   Does the Commission have jurisdiction over these complaints
     concerning notice and opportunity to vote on the ratification
     of these particular collective bargaining agreements? 

2.   If the Commission has jurisdiction, did the WPEA commit  an
     unfair labor practice by failing to provide adequate notice and
     opportunity to vote in the ratification election?

The complainants' cross appeal presents a third issue:

3.   If the Commission has jurisdiction, and the Commission affirms
     the Examiner's findings and conclusions that the WPEA violated
     its duty of fair representation, did the Examiner err by not
     granting a remedy that allowed the bargaining unit a second
     opportunity to ratify the collective bargaining agreement?

We rule in all three appeals that the Commission has jurisdiction to
adjudicate claims asserting breach of the duty of fair
representation owed by unions to all bargaining unit employees, with
respect to situations where a union agrees to allow all bargaining
unit employees to vote on ratification of a collective bargaining
agreement.  Asserting jurisdiction, we find in this case that the
WPEA breached its duty of fair representation by: (1) its conduct
during the ratification of the 2005-2007 collective bargaining
agreement at Columbia Basin Community College, and (2) failing to
allow the complainants a meaningful opportunity to review the
negotiated contract.  We modify the Examiner's remedy.  

ISSUE 1: THE COMMISSION'S JURISDICTION

Applicable Legal Standards

A general policy of non-involvement in internal union affairs can be
readily discerned from the precedents of both this Commission and
the National Labor Relations Board (NLRB).  Unions are private
organizations.  When asked to regulate the internal workings of
unions, this Commission has taken a "hands-off" approach except
where complainants have asserted that union conduct affected the
wages, hours, or working conditions of individual employees. 

*    In an early decision, the Commission dismissed an
     employer-filed unfair labor practice complaint alleging that a
     union unlawfully prevented non-member employees from voting on
     the formulation of the union's proposals for collective
     bargaining.  Lewis County, Decision 464 (PECB, 1978), aff'd
     Lewis County 464-A (PECB, 1978).  Our Executive Director noted
     there that participation in union affairs is a political right
     incident to union membership, but one that involves no civil or
     property right.  Lewis County, Decision 464 (citing State ex
     rel. Givens v. Superior Court of Marion County, 233 Ind. 235
     (1954)).  Because the subject matter of that complaint
     concerned internal union policies, and did not directly affect
     the employment relationship covered by Chapter 41.56 RCW, that
     complaint failed to state a cause of action.

*    In Lake Washington School District, Decision 6891 (PECB, 1999),
     the Executive Director dismissed a complaint concerning a
     union's actions during a contract ratification process.  The
     complained-of action was found to be entirely within the
     internal workings of the union, and that complaint also failed
     to state a cause of action over which the Commission could
     exercise jurisdiction.  The Executive Director also noted that
     the courts, rather than the Commission, have jurisdiction over
     violations of union constitutions and by-laws.(1)   
____________________
     1  Because the cited decision did not explain the basis of the
        individual's complaint, any reliance upon its legal conclusions here
        must be met with suspicion. 

*    The Commission reiterated its general reluctance to involve
     itself in internal union affairs when several individuals filed
     petitions under the Administrative Procedure Act, Chapter 34.05
     RCW, asking the Commission to adopt a rule permitting
     non-member employees required to make payments under a
     contractual union security clause to have equal participation
     with union members in voting on terms and conditions of their
     employment.  In denying those rulemaking petitions, the
     Commission explored the history of its own limited involvement,
     and the similar limited involvement of the NLRB, in the
     internal workings of the unions.  No authority was found that
     supported adoption of the proposed rule.  In re: WAC
     391-95-010, Decision 9079 (2004).  
  
Similarly, unions are generally free to limit ratification according
to their own internal policies free from NLRB scrutiny.  See NLRB v.
Wooster Division of Borg-Warner Corp., 356 U.S. 342, 349-50
(1958).(2)  The NLRB recognizes that procedures relating to the
ratification of a collective bargaining agreement is generally a
matter exclusively within the internal domain of a union.  Houchens
Market of Elizabethtown, Inc. v. NLRB, 375 F.2d 208, 212 (6th Cir.
1967).  
____________________
     2  The Supreme Court of the United States reiterated this  in
        NLRB v. Financial Institutions Employees, 475 U.S. 192 (1996), by
        dicta noting that unions generally have the right to control who
        votes on contract ratification.

No statute compels employee ratification votes on tentative
agreements reached by unions and employers in collective bargaining.
Naches School District, Decision 2516-A (EDUC, 1987); NLRB v.
Wooster Division of Borg-Warner Corp., 356 U.S. 342.  That is
certainly true of the PSRA and the National Labor Relations Act
(NLRA).  In re: WAC 391-95-010, Decision 9079; Teamsters, Local 310
v. NLRB, 587 F.2d 1176 (D.C. Cir. 1978).  Thus, ratification of a
collective bargaining agreement is, at most, a permissive subject of
bargaining.(3)  The employers in these cases were not entitled to
bargain to impasse on their proposals concerning contract
ratification.  Seneca Environmental Products, 243 NLRB 624
(1979).(4)  
____________________
     3  Parties can lawfully make proposals on permissive subjects in
        collective bargaining, subject to the limitation described in the
        next footnote.
     
     4  Parties can lawfully bargain to impasse only on mandatory
        subjects of collective bargaining.  A party that insists upon a
        permissive subject of bargaining as a concession or condition of a
        contract commits an unfair labor practice.  Klauder v. San Juan
        County, 107 Wn.2d 338 (1986)(proposal concerning interest
        arbitration); Public Utility District No. 1 of Clark County,
        Decision 2045-B (PECB, 1989)(proposal concerning withdrawal of
        pending unfair labor practice charges).

These cases not are about the union violating a contractual
provision.  See, e.g., City of Walla Walla, Decision 104 (PECB,
1976).  The claimants before us are asserting that the unions
violated their statutory duties by preventing non-member employees
from having a meaningful opportunity to vote on the contracts.  Put
another way, our focus is on how the union conducted itself in
relation to the bargaining unit employees, rather than on whether
the union violated its contractual agreement with the employer.  
Unique facts can warrant assertion of jurisdiction in some situations:

*    In North Mason Country Motors, 146 NLRB 671 (1964), the NLRB
     noted that it could assert jurisdiction if "probative evidence"
     suggested the union "agreed that the [employer] could condition
     execution of the contract upon ratification of any sort, [such
     as] by a majority of or even a representative employees group."
     North Mason County Motors, 146 NLRB 671.(5)
____________________
     5  Absent such facts, the NLRB found the employer refused to
        bargain in good faith by refusing to execute an agreed upon
        collective bargaining agreement.  In defending its actions, that
        employer argued that the union, by accepting ratification from the
        one employee who was a union member, failed to submit the contract
        to a proper vote.  The NLRB agreed with the union that the union's
        by-laws controlled how ratification was to occur, and therefore
        ratification by one employee was acceptable.

*    In Port of Seattle, Decision 2549-C (PECB, 1987), the Executive
     Director noted that a complaint alleging that a union has
     aligned itself in interest against one or more bargaining unit
     employees during a contract ratification process could state a
     cause of action for violation of the union's duty to fairly
     represent all bargaining unit employees.(6)   
____________________
     6  Absent such allegations, the Executive Director dismissed that
        complaint alleging a union discriminated against a bargaining unit
        employee when it permitted only employees who have senior status the
        opportunity to vote on the proposed collective bargaining agreement.

When a union agrees to allow all bargaining unit employees the
opportunity to vote on a question, it lowers the shield of
protection that the Financial Institutions and Lewis County
precedents provide.  An agreement to allow all bargaining unit
members the opportunity to vote creates rights that the non-member
employees would ordinarily not have enjoyed, and gives them an
expectation that their votes will count in the collective bargaining
process.  A union entering into such an agreement thus exposes
itself to scrutiny regarding any allegation that it restrained
employees from the right to vote granted to them by the agreement. 
Cf. Beatrice/Hunt-Wesson, Inc., 302 NLRB 224 (1991) (Stephens,
concurring)(if the parties have made ratification a part of the
bargain, it is appropriate for the NLRB to give a measure of
protection to the expectancy interests of the parties).(7)   If a
union accepts an employer proposal on the permissive subject of
contract ratification, our precedents on non-interference with
contract ratification do not apply. 
____________________
     7  Had the employer disputed the sufficiency of the union's
        ratification process, it might have cited the Beatrice/ Hunt-Wesson
        case as a basis to withhold submitting the contract to the
        Legislature under RCW 41.80.010.  The employer would have done so at
        risk that it would be found guilty of a "refusal to bargain" unfair
        labor practice if it failed to demonstrate that the union's
        ratification process violated the parties' agreement. 

Application of Standards
The WPEA and Columbia Basin Community College (employer) reached
agreement for a collective bargaining agreement covering the
2005-2007 biennium on September 17, 2004.  That "memorandum of
agreement" contained the following language:

     In addition to all other articles tentatively agreed to, the
     parties accept the following as tentative agreements:
     
     . . .
     Additionally, the [WPEA] agrees that ratification votes will by
     taken by institution, and that all bargaining unit employees
     will be allowed the opportunity to vote. 

By entering into that agreement, the WPEA created voting rights that
non-member employees ordinarily would not have had, and it obligated
itself to provide fair representation to them in the ratification
process.  We assert jurisdiction in this case to determine
allegations that the WPEA restrained non-member employees in the
exercise of rights protected by RCW 41.80.050 and RCW 41.80.080(3),
in violation of RCW 41.80.110(2)(a).

ISSUE 2:  UNION'S DUTY OF FAIR REPRESENTATION

Applicable Legal Standards
In Allen v. Seattle Police Officers' Guild, 100 Wn.2d 361 (1983),
the Supreme Court of Washington specifically recognized that the
doctrine of a union's duty of fair representation to all bargaining
unit members exists within Chapter 41.56 RCW.  The Allen court first
described the history of the doctrine under the NLRA, noted that
Chapter 41.56 RCW substantially parallels the NLRA, and concluded
the doctrine of the duty of fair representation applied to unions
certified under Chapter 41.56 RCW.  

RCW 41.80.050 secures rights for employees covered by the PSRA,
including the right to: 

     [S]elf-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.

Additionally, RCW 41.80.080(3) secures representation rights for all
employees in a bargaining unit covered by the PSRA:

     The certified exclusive bargaining representative shall be
     responsible for representing the interests of all the employees
     in the bargaining unit.  This section shall not be construed to
     limit an exclusive representative's right to exercise its
     discretion to refuse to process grievances of employees that
     are unmeritorious.

That duty of fair representation applies equally to bargaining unit
employees who are union members and to bargaining unit employees who
are not union members.  The duty of fair representation owed under
RCW 41.80.080 closely mirrors the duty of fair representation owed
under the similar provision in the Public Employees' Collective
Bargaining Act (PECB), RCW 41.56.080, which states in part:

     The bargaining representative which has been determined to
     represent a majority of the employees in a bargaining unit
     shall be certified by the commission as the exclusive
     bargaining representative of, and shall be required to
     represent, all the public employees within the [bargaining]
     unit without regard to membership in said bargaining 
     representative.

The employee rights conferred by the PSRA and PECB are enforced
through the unfair labor practice provisions in each chapter, RCW
41.80.110 and 41.56.150 respectively.  This Commission is
author-ized to hear and determine claims, and to issue appropriate
remedial orders against employers and/or unions that violate the
PSRA.  RCW 41.80.120; RCW 41.56.160. 

In State - Natural Resources, Decision 8458-B (PSRA, 2005), this
Commission held that in order to achieve its statutory mission of
uniform administration of collective bargaining law, unless a
specific legislative intent directs otherwise, cases decided under
the PECB, Chapter 41.56 RCW, are applicable to cases decided under
the PSRA, Chapter 41.80 RCW.   Because the union's duty under RCW
41.80.080 is substantially similar to the duty under RCW 41.56.080,
cases interpreting a union's duty of fair representation under the
latter statute apply to allegations that the duty was breached
arising under Chapter 41.80 RCW.  

While ample federal case precedent interpreting the duty of fair
representation exists, the Allen Court outlined and explained the
standards to be applied to Washington cases involving alleged
breaches of the duty of fair representation:

*    A union must treat all factions and segments of its membership
     without hostility or discrimination.  A finding of
     discrimination requires a showing that an individual was
     deprived of a right based on their assertion of a protected
     activity, and that there is a causal connection between the
     exercised right and the discriminatory action.  Educational
     Service District 114, Decision 4361-A (PECB, 1994)(citing
     Wilmot v. Kaiser Aluminum, 118 Wn.2d 46 (1991); Allison v.
     Seattle Housing Authority, 118 Wn.2d 79 (1991));

*    A union's broad discretion in asserting the rights of
     indi-vidual members must be exercised in good faith and honesty;

*    The union must avoid arbitrary conduct.  A union's actions are
     arbitrary only if, in light of the factual and legal landscape
     at the time of the union's actions, the union's behavior is so
     far outside a 'wide range of reasonableness' as to be
     irrational."  Airline Pilots Association, International v.
     O'Neill, 499 U.S. 65, 67 (1991)(quoting Ford Motor Co. v.
     Huffman, 345 U.S. 330 (1953)).  

Each requirement "represents a distinct and separate obligation, the
breach of which may constitute the basis for civil action."  Allen
v. Seattle Police Officers' Guild, 100 Wn. 2d 361, 375 (quoting
Griffin v. United Automobile, Aerospace & Agricultural Implement
Workers, 469 F.2d 181).  The duty of fair representation doctrine
seeks to assure "the individual employee [or minority] that his
union will represent his interest unless it conflicts with the
group's interest".  Allen v. Seattle Police Officers' Guild, 100 Wn.
2d 361, 375 (quoting Clark, The Duty of Fair Representation: A
Theoretical Structure, 51 Tex.L.Rev. 1119, 1155 (1973)).  
To prove that a union has breached its duty of fair representation,
a complainant employee bears the burden of showing that the union
behaved irrationally, invidiously, fraudulently, deceitfully,
dishonestly, or indifferently as to the rights of bargaining unit
employees, or that the union's conduct was so grossly deficient as
to be properly equated with arbitrary action.  The complainant must
also demonstrate a causal nexus between the breach of the union's
duty of fair representation and the harm suffered by the employee. 
By adopting the standard set forth in Griffin v. United Automobile,
the Allen court specifically rejected the notion that bad faith is a
required element to prove a breach of the duty.  Allen v. Police
Officers' Guild, 100, Wn.2d 361, 374.   

This is still a somewhat higher standard of proof than the
"reasonable employee's perception" test applied to most "employer
interference" claims under RCW 41.80.110(1)(a) and "union restraint"
claims under RCW 41.80.110(2)(a),(8) but the higher burden of proof
is accompanied by a broader range of remedies than the "cease and
desist" and "post notices" remedies usually available for
"interference" and "restraint" violations.  See, e.g., Grant County
Public Hospital District 1, Decision 8378 (PECB, 2004), aff'd,
Decision 8378-A (PECB, 2004)(also requiring an employer to make good
faith submission of a proposed collective bargaining agreement to
board of commissioners for ratification). 
____________________
     8  This acknowledges that labor organizations may have valid
        reasons for taking or not taking a particular course of action, even
        if that could otherwise be viewed by a reasonable individual as
        interfering with employee rights.  See Marquez v. Screen Actors
        Guild, 525 U.S. 33.

These standards provide unions with substantial discretion in their
decision making, even if the ultimate decision proves to be wrong. 
Marquez v. Screen Actors Guild, 525 U.S. 33; Allen v. Seattle Police
Officers' Guild, 100 Wn.2d 361, 375 (recognizing that unions require
flexibility to settle disputes).  These standards also recognize
that bargaining unit employees' individual goals may not always be
achieved through collective bargaining.  C-Tran, Decision 7087-B. 
While unions are not required to bargain collective bargaining
agreement provisions of equal benefit to all bargaining unit
employees, and while equality of treatment is not the standard on
which to judge the union's duty of fair representation, unions are
nevertheless prohibited from aligning themselves in interest against
one or more employees in the bargaining units they represent. 
C-Tran, Decision 7087-B (citing Allen v. Seattle Police Officers'
Guild, 100 Wn.2d 361 (1983)).    

Application of Standards
If the terms of a negotiated contract or a union's constitution/
by-laws require ratification of negotiated contracts by affected
employees, a failure to submit a contract to a meaningful vote of
those employees breaches the union's duty of fair representation. 
Deboles v. Trans World Airlines, 552 F.2d 1005 (3rd Cir. 1977) cert.
denied, 434 U.S. 837 (1977).(9)  The rationale for this proposition
is simple:
____________________
     9  The Deboles case was decided under Railway Labor Act, 45
        U.S.C. Section 151, et seq. (1996)(RLA).  While we recognize that
        differences exist between the RLA and the PSRA, we are also mindful
        that the duty of fair representation originated in decisions arising
        out of the RLA, and the Allen decision specifically references
        Steele v. Louisville & Nashville Railroad, 323 U.S. 192 (1944) as
        the origin of the doctrine.  The Deboles analysis of the duty of
        fair representation is therefore consistent with our analysis in
        this case. 

     By denying a group of workers the chance to ratify, the union
     risks subjecting them to the disadvantages of a contract whose
     acceptance they could have prevented, and risks depriving them
     of the benefits of a contract whose acceptance they could have 
     ensured.

International Brotherhood of Teamsters, Local 310 v. NLRB, 587 F.2d
1176, 1882 (footnote omitted).  This record demonstrates the WPEA
actions and inactions concerning the ratification of the 2005-2007
contract at Columbia Basin Community College precluded the
complainants from having a meaningful opportunity to vote on
ratification of the contract:

*    On September 17, 2004, the employer and union reached a
     tentative agreement for the 2005-2007 collective bargaining
     agreement.  The above-referenced "Memorandum of Agreement"
     memorialized the agreed upon terms.  

*    On September 20, 2004, Geanene Lubinski, the WPEA local chapter
     president, was notified that all bargaining unit employees were
     eligible to vote on ratification of the 2005-2007 collective
     bargaining agreement.  

*    The record demonstrates that also on September 20, Lubinski
     sent an e-mail to all bargaining unit employees instructing
     them to "check Your WPEA Website".  The record demonstrates
     that in prior instances the WPEA had communicated with the
     bargaining unit in this manner about routine matters that did
     not affect the terms and conditions of work performed by
     bargaining unit employees. 

*    Also on September 20, Lubinski sent two e-mails only to 
     bargaining unit employees who were WPEA members:

          The first e-mail, sent at 2:49 p.m., gave explicit
          instructions about the ratification vote, and stated that
          "[The WPEA] needs EVERY CHAPTER MEMBER to VOTE in this
          ratification process" and "Please DO NOT FORGET to plan a
          time during that four hour period to VOTE! It is vitally
          important to all of us that WE ALL VOTE!".  (emphasis in
          original).  This e-mail also informed WPEA members of a
          WPEA district meeting to provide WPEA members the
          opportunity to "ask questions and learn the details of the
          final contract". 

          The second e-mail, sent at 3:12 p.m., corrected a mistake
          in the first e-mail about the date of the vote. 

     The record clearly demonstrates that neither complainant
     received either of these e-mails.  

*    In ratification elections prior to this one, the WPEA conducted
     those votes by mail ballot.  However, because of the  October
     1, 2004, deadline imposed by RCW 41.80.010, the WPEA elected to
     conduct an on-site ratification election between 10:00 a.m. and
     2:00 p.m., on September 26, 2004.

As the WPEA local chapter president, Lubinski was an agent of the
WPEA.  See Community College District 13, Decision 8117-B PSRA,
2005)(employees assisting a union are special agents of that union),
and her action or inactions can be imputed upon the WPEA. 
The fact that Lubinski sent an e-mail informing WPEA members about
the vote while making non-members seek such information on the WPEA
website is, by itself, enough to find that the union breached its
duty of fair representation.(10)  A union is not required to provide
the same notification about a ratification vote to all bargaining
unit employees.  A union is required, however, to provide reasonable
notification of a ratification vote.
____________________
     10  Although neither the complainants nor the WPEA provided
         evidence about what type of information was presented on the
         website, our analysis nevertheless remains the same.

Here, Lubinski testified that the intention behind her September 20
e-mail to WPEA members was to reinforce to them the importance that
they vote.  She claims that it was not necessary to provide the
entire bargaining unit supplementary notice (as she did with the
WPEA members) because that notice was intended for the night
employees who did not have the benefit of being able to attend the
WPEA information session.  In a further attempt to justify her
actions, the WPEA claims that Lubinski's first e-mail informing
bargaining unit employees was adequate and that if the employee
chose to ignore the e-mail, they did so at their own risk.  The WPEA
made no efforts other than the first e-mail to contact the
complainants about the ratification election.(11)  We disagree with
the WPEA that it provided adequate notice to bargaining unit employees:
____________________
     11  Although e-mail is a useful and relatively low cost tool for
         quickly disseminating information, it is not the only tool available
         to the union.  Part of the WPEA's obligation as an exclusive

bargaining representative is to incur certain costs associated with representation.

*    First, as the Examiner found, the inequities between the two
     processes used by Lubinski cannot be excused.  The evidence
     clearly demonstrates that Lubinski's second and third e-mails
     went to WPEA members, and not just the night staff. 

*    Second, and more importantly, the second e-mail announces a
     meeting where employees can ask questions about the contract. 
     However, the WPEA did not provide non-members the opportunity
     to attend any type of session where they could ask questions
     about the contract.  This clearly demonstrates an  inequity of
     treatment by the WPEA in favor of members over non-members in
     violation of the union's duty of fair representation.    

*    Third, Lubinsky testified that her intention was to ensure that
     "my people" voted.  The Examiner found, and we agree, that this
     statement demonstrates that Lubinski was only concerned about
     WPEA members voting, and she failed to make an effort to ensure
     that all bargaining unit employees voted.
  
The totality of the evidence here supports the Examiner's findings
that the WPEA breached its duty of fair representation by not
providing equal notice to all bargaining unit employees. 

We disagree with the WPEA's assertion that its shortcomings should
be mitigated or excused in light of the October 1 deadline imposed
by RCW 41.80.010 for submission of collective bargaining agreements
to the Office of Financial Management:

*    The October 1 deadline existed when the PSRA was enacted in
     2002, and was no surprise to the WPEA in 2004.

*    By choosing to hold its ratification vote on September 26, the
     WPEA limited its own opportunity to properly notify bargaining
     unit employees of their voting rights, and left five full days
     unused prior to the October 1 deadline it cites here.

*    Even if the WPEA and this employer had failed to reach an
     agreement by October 1, 2004, the PSRA would still have
     protected the employees under RCW 41.80.001, by keeping any
     contract negotiated by the WPEA and the employer under the
     State Civil Service Law, Chapter 41.06 RCW, in effect until a
     successor agreement was reached.(12)
____________________
     12  For the future, RCW 41.80.090 keeps existing collective
         bargaining agreements in effect for one year beyond their stated
         expiration date.

This Commission will not allow PSRA parties to use the October 1
deadline as a method to circumvent their other responsibilities
under Chapter 41.80 RCW.

ISSUE 3:  THE EXAMINER'S REMEDY

The authority of this Commission to prevent and remedy unfair labor
practices is set forth in the PSRA, as follows: 

          RCW 41.80.120 UNFAIR LABOR PRACTICE PROCEDURES-- POWERS
     AND DUTIES OF COMMISSION.  (1) The commission is empowered and
     directed to prevent any unfair labor practice and to issue
     appropriate remedial orders:
     . . . 
          (2) If the commission determines that any person has
     engaged in or is engaging in an unfair labor practice, the
     commission shall issue and cause to be served upon the person
     an order requiring the person to cease and desist from such
     unfair labor practice, and to take such affirmative action as
     will effectuate the purposes and policy of this chapter, such
     as the payment of damages and the reinstatement of employees.

Thus, the fashioning of remedies is a discretionary action of the
Commission.  When interpreting the Commission's remedial authority,
the Supreme Court of the State of Washington approved a liberal
construction of the statute to accomplish its purpose.  City of
Seattle, Decision 8313-B (PSRA, 2004)(citing METRO v. PERC, 118
Wn.2d 621 (1992).  With that purpose in mind, the Supreme Court
interpreted the statutory phrase "appropriate remedial orders" be
those necessary to effectuate the purposes of the collective
bargaining statute to make the Commission's lawful orders effective.
METRO, 118 Wn.2d at 633.  The Commission's expertise in resolving
labor-management disputes was also recognized and accorded
deference.  Public Employment Relations Commission v. City of
Kennewick, 99 Wn.2d 832 (1983)).

The Examiner ordered the WPEA to cease and desist from enforcing any
union security obligation against the complainants.  The
complainants argue on appeal that the Examiner failed to follow the
holding in Community College District 7 (Washington Federation of
State Employees), Decision 9094 (2005, PSRA), where another 
examiner ordered a new ratification election.  We disagree that a
new election is warranted, and we disagree that the complainants
should be relieved of their union security obligation. 

A breach of the duty of fair representation is specific to the
individual, and does not generally apply to the bargaining unit as a
whole.  In this case, permitting the entire bargaining unit a second
opportunity to vote would allow numerous other individuals who did
not file complaints to benefit from the efforts of these two
complainants.  More importantly, even though we find that the notice
given to them was lacking, the complainants failed to demonstrate
that their votes could have affected the outcome of the election if
they had received adequate notice and voted.
  
Any remedy crafted under the statutes this Commission administers 
should keep in mind the Commission's purpose of promoting labor
stability between public employers, employees, and the unions who
represent those employees.  Even though the complainants have been
obligated to pay union security under the collective bargaining
agreement, they have also received the benefit of the agreement,
including a cost-of-living adjustment, a Department of Personnel
salary survey increase, and the union has been obligated to fairly
represent the complainants and protect the rights afforded to them
by the contract.  Given the fact that the complainants could not
have affected the outcome of the ratification election and continue
to receive benefit from the negotiated contract, we not only decline
to order a second vote, but we also decline to relieve the
complainants of their union security obligation.  

We direct the WPEA to cease and desist from failing to properly
notify bargaining unit employees of their contract ratification
rights.  We also direct the WPEA to read into the record at its next
state-wide convention the attached notice and permanently appending
that notice to the official minutes of that meeting.  Additionally,
the WPEA shall publish a copy of the notice in its next issue of the
WPEA's "WPEA Today" newspaper.        

NOW, THEREFORE, it is

                               ORDERED 

1.  The Findings of Fact and Conclusions of Law issued by Examiner
    Dianne E. Ramerman in the above captioned case are AFFIRMED and
    adopted as the Findings of Fact, Conclusions of Law, and Order
    of the Commission. 

2.  The Order issued by Examiner Dianne E. Ramerman in the
    above-captioned case is amended to read:

The Washington Public Employees Association, it officers and agents,
shall immediately take the following actions to remedy its unfair
labor practices:

1.  CEASE AND DESIST from:

    a.   Failing to adequately inform all bargaining unit employees
         of their voting rights conferred by agreement of the union
         with the employer in collective bargaining.
    
    b.   Failing to adequately inform all bargaining unit employees
         of the contents of the tentative agreement that the union
         agreed to submit for ratification by vote of all bargaining
         employees, with specific reference to the union security 
         provision.
    
    c.   In any other manner, restraining or coercing employees in
         the exercise of their rights under Chapter 41.80 RCW.

2.  TAKE THE FOLLOWING AFFIRMATIVE ACTIONS to effectuate the
    purposes and policies of Chapter 41.80 RCW.
    
    a.   Post, in conspicuous places on the employer's premises
         where union notices to all employees are usually posted, 
         copies of the notice marked "Appendix A" attached to this 
         order.  Such notices shall be duly signed by an author-ized
         representative of the Washington Public Employees
         Association.  Such notices shall remain posted for 60 days.
         Reasonable steps shall be taken by the respondent union to
         ensure that such notices are not removed, altered, defaced,
         or covered by other material.

    b.   Read the notice marked "Appendix A" attached to this order
         at a meeting of all employees in the bargaining units
         represented by the union at Columbia Basin Community
         College and at the next state-wide convention held by the
         Washington Public Employees Association.

    c.   Publish in the next monthly issue of "The WPEA Sentinel" a
         true-sized copy of the notice marked "Appendix A".

    d.   Notify each of the above-named complainants, in writing, 
         within 20 days following the date of this order, as to what
         steps have been taken to comply with this order, and at the
         same time provide each named complainant with a   signed
         copy of "Appendix A" attached to this order.

    e.   Notify the Compliance Officer of the Public Employment 
         Relations Commission, in writing, within 20 days following
         the date of this order, as to what steps have been taken to
         comply with this order, and at the same time provide each
         named complainant with a signed copy of the "Appendix A"
         attached to this order.

Issued at Olympia, Washington, the  20th  day of June, 2006.


                       PUBLIC EMPLOYMENT RELATIONS COMMISSION



                       MARILYN GLENN SAYAN, Chairperson
 


                       PAMELA G. BRADBURN, Commissioner



                       DOUGLAS G. MOONEY, Commissioner