CHAPTER 10
UNFAIR LABOR PRACTICE CASE
PROCEDURES AND HEARINGS
(Rules: Chapter 391-45 WAC)
The PERC Staff Manual was issued by the former Executive Director in October 2006 appointed by the Public Employment Relations Commission under RCW 41.58.015(2) and (3), to provide guidance and direction to PERC staff members. The staff manual is subject to constant revision and is to be regarded as a guide. Cases may be processed in a different manner and in the event of any conflict between this PERC Staff Manual and any statute, any Commission rule, or any Commission precedent, the statute, rule or precedent shall prevail.
CHAPTER 10
UNFAIR LABOR PRACTICE CASE
PROCEDURES AND HEARINGS
Collective bargaining statutes generally prohibit certain conduct by employers and employee organizations (unions), and authorize agencies to adjudicate disputes. Those “unfair labor practices” protect the collective bargaining process, rather than dictating what can or will be agreed upon in bargaining. The Public Employment Relations Commission (PERC) determines and remedies unfair labor practices under several Washington laws.
10.1.1 The Traditional Unfair Labor Practices
The statutes authorizing PERC to hear, determine, and remedy alleged unfair labor practices include nine basic types:
1. Employer interference with employee exercise of collective bargaining rights.
2. Employer domination of or assistance to a union.
3. Employer discrimination to encourage or discourage union activity.
4. Employer discrimination for filing charges or giving testimony to PERC.
5. Employer refusal to bargain with a union selected by its employees.
6. Union interference with employee collective bargaining rights.
7. Union inducing an employer to commit an unfair labor practice.
8. Union discrimination for filing charges or giving testimony to PERC.
9. Union refusal to bargain with the employer of employees it represents.
10.1.2 Additional Unfair Labor Practices Regulating Union Activity
The federal Labor-Management Relations Act of 1947 (the Taft-Hartley Act) contains additional unfair labor practices limiting union security arrangements and/or concerted activities (strikes) by unions:
10. Union demanding/enforcing the “closed shop” form of union security.
11. Union forcing employer or self-employed person to join the union.
12. Union engaging in secondary boycott to force recognition.
13. Union striking to force recognition in contravention of an NLRB certification.
14. Union demanding/enforcing excessive dues or fees from employees.
15. Union forcing employer to pay for “featherbedding” services not performed.
16. Union picketing for recognition, unless the union has been certified.
17. Union picketing for recognition where a “certification bar” exists.
18. Union recognition picketing for more than 30 days without a representation petition.
19. Union demanding agreement to not handle “hot cargo” products of another firm.
10.1.3 Additional Unfair Labor Practices Enforcing Contracts and Arbitration
State laws in at least Oregon and Wisconsin contain additional unfair labor practice provisions enforcing collective bargaining agreements and the arbitration process:
20. Employer violation of a collective bargaining agreement.
21. Employer refusal to arbitrate a grievance under a contractual procedure.
22. Employer refusal to accept an arbitration award under a contractual procedure.
23. Union violation of a collective bargaining agreement.
24. Union refusal to arbitrate a grievance under a contractual procedure.
25. Union refusal to accept an arbitration award under a contractual procedure.
Although it was copying the Wisconsin Employment Peace Act of 1939 in 1947, Congress
rejected this aspect of the Wisconsin model. By giving federal District Courts jurisdiction
in violation of contract matters, Congress avoided bringing the NLRB’s investigation /
prosecution machinery to bear in the contract enforcement arena.
10.2 STATUTORY AUTHORITY OF PERC
The words “public” and “employment” in the name of our agency are sometimes mis-interpreted as implying a broad authority to resolve each and every dispute that might arise in public employment. In fact, PERC’s jurisdiction is limited to the resolution of collective bargaining disputes between employers, employees and unions, as follows:
♦ Chapter 41.58 RCW created the Commission and refers to “adjustment and settlement of complaints . . . arising out of employer-employee relations” in RCW 41.58.005(1). It also refers to delegation of authority by the Commission to the executive director “with respect to . . . unfair labor practice proceedings” in RCW 41.58.015(2).
♦ Chapter 28B.52 RCW (academic faculty of community colleges and technical
colleges) prohibits employer and union unfair labor practices in RCW 28B.52.073,
using PERC model language.
This statute also contains some oddities.
► RCW 28B.52.070 survives from the original "meet and confer law" format of the chapter, and separately prohibits discrimination against employees or applicants because of their union membership and activities (or lack thereof).
► RCW 28B.52.065 (added in 1987, when the chapter was upgraded from the "meet and confer" format) authorizes PERC to adjudicate unfair labor practices and adopt rules, but contains unique language that “the parties may agree to seek relief from unfair labor practices through binding arbitration.”
► The chapter does not contain a statute of limitations on unfair labor practices (which was neglected when unions accommodated employer resistance to traditional collective bargaining terminology in 1987, only to have the Code Reviser change the title of the chapter to "Collective Bargaining . . .” after the 1987 amendments were adopted).
♦ Chapter 41.06 RCW is the "State Civil Service Law", and RCW 41.06.340(2) authorizes PERC to conduct unfair labor practice proceedings for state civil service employees pursuant to "RCW 41.56.140 through RCW 41.56.160", but this source of authority is no longer cited. The history of this statute includes:
► There were no unfair labor practice provisions in Chapter 41.06 RCW when it was passed by voters in 1960, as Initiative 207.
► RCW 41.06.340 was added in 1969, when unfair labor practice provisions were added to Chapter 41.56 RCW. It then authorized the State Personnel Board (the predecessor to the Washington Personnel Resources Board) to administer the same unfair labor practice provisions for state employees.
► The Personnel System Reform Act of 2002 (PSRA) amended RCW 41.06.340 to transfer administration of unfair labor practices for state employees to PERC as of June 13, 2002.
► The PSRA enacted RCW 41.80.110 and .120 as a complete new set of unfair labor practice provisions effective July 1, 2004, which made RCW 41.06.340 obsolete without expressly repealing it.
♦ Chapter 41.56 RCW covers local government employees (cities, counties, etc.), school district classified employees, and some state employees (University of Washington printing employees, Washington State Patrol troopers, independent providers of home care under Chapter 74.39A RCW, family child care providers under RCW 41.56.030(12), and technical college classified employees). This statute also applies to port districts (who have separate coverage under Chapter 53.18 RCW), and to public utility districts (who have separate coverage under RCW 54.04.170 - .180). The statute prohibits employer and union unfair labor practices, using paraphrases of federal law in RCW 41.56.140 - .160. This statute also contains some oddities, as follows:
► RCW 41.56.040 (which is a loose paraphrase of the "rights" secured for employees in Section 7 of the Taft-Hartley Act) expressly prohibited discrimina-tion in 1967, when there were no unfair labor practice provisions in the law;
► There is no direct counterpart to the “Employer discrimination to encourage or
discourage union activity” unfair labor practice,
but PERC has consistently
ruled on “discrimination” claims by using RCW 41.56.140(1) to reach back to the
prohibition of discrimination in RCW 41.56.040; and
► References to “investigation” and “issuance of a complaint” formerly contained in RCW 41.56.160 through .190 were repealed in 1983 (when a statute of limitations on unfair labor practice complaints was added) and/or were rendered obsolete in 1994 (when RCW 41.56.160 was amended to utilize the adjudica-tion procedures specified in the state Administrative Procedure Act (APA), Chapter 34.05 RCW).
♦ Chapter 41.59 RCW covers school district certificated employees. The statute prohibits employer and union unfair labor practices in RCW 41.59.140 and .150, using language that closely parallels the federal law. This statute also contains some oddities as compared to other Washington statutes, as follows:
► There is no direct counterpart to the “Union discrimination for filing charges or
giving testimony to PERC” provision found in other state laws;
and
► The “bargaining order based on cross-check” remedy occasionally ordered by
the NLRB in unfair labor practice proceedings under the federal law is codified
within the representation case provisions of this statute, at RCW
41.59.070(2)(a).
♦ Chapter 41.76 RCW covers academic faculty employees of state institutions of higher education. The statute prohibits employer and union unfair labor practices in RCW 41.76.050 - .055, using PERC Model language. The oddity in this statute is that the Governor vetoed the “rights” section of the bill to eliminate an amendment that forced employees to choose between faculty governance and collective bargaining (to the exclusion of one another), so that the protection of union activity must be inferred from the chapter as a whole.
♦ Chapter 41.80 RCW covers civil service employees of state general government agencies, and classified (civil service) employees of state institutions of higher education. The statute prohibits employer and union unfair labor practices in RCW 41.80.110 - .120, using PERC Model language without any oddities.
♦ Chapter 49.08 RCW was enacted in 1903. It is in an RCW title that generally covers
private sector employers and employees, but PERC applies it to provide mediation
and arbitration services to the few public entities that are not covered by any of the
public sector laws.
It does not contain any unfair labor practices, and WAC 391-45-019 precludes any unfair labor practice cases under Chapter 49.08 RCW.
► The Federal Labor Relations Authority (FLRA) administers unfair labor practice
provisions covering the federal government and its employees.
► The National Mediation Board (NMB) administers representation, mediation, and
arbitration procedures covering railroad and airline employees, but has no unfair
labor practice jurisdiction.
► The National Labor Relations Board (NLRB) administers unfair labor practice
provisions covering private sector employers and employees in other industries
affecting interstate commerce.
♦ Chapter 53.18 RCW has covered port districts and their employees separately since 1967. The statute was silent regarding unfair labor practices until 1983, when RCW 53.18.015 was added, stating: “Port districts and their employees shall be covered by the provisions of chapter 41.56 RCW except as provided otherwise in this chapter.” PERC thus now applies the unfair labor practice provisions in Chapter 41.56 RCW to port districts and their employees.
♦ RCW 54.04.170 and 54.04.180 have covered public utility districts and their
employees since 1963. These sections confer the same collective bargaining rights
as private sector employers and employees. However, public utility districts are
municipal corporations, and RCW 41.56.020 makes Chapter 41.56 RCW applicable
to “any . . . municipal corporation . . . of the state of Washington . . . except as
otherwise provided by RCW 54.04.170, 54.04.180 . . . .” In PUD of Clark County,
Decision 2125 (PECB, 1985), aff’d, 110 Wn.2d 114 (1988),
the Supreme Court ruled
that PERC has unfair labor practice jurisdiction over public utility districts and their
employees under Chapter 41.56 RCW (in the absence of other provisions within
Chapter 54.04 RCW), but that PERC must apply federal substantive law where it
differs from state substantive law.
♦ Chapter 74.39A RCW covers individual providers of home care under the Home Care Quality Authority (HCQA). Initiative 775 gave them collective bargaining rights under Chapter 41.56 RCW in 2002. PERC thus applies the Chapter 41.56 RCW unfair labor practice provisions to the state and individual providers of home care.
10.3 NATURE OF UNFAIR LABOR PRACTICE PROCEEDINGS
Unfair labor practice proceedings are adversarial in nature. They are formal adjudicative proceedings under the APA, including pleadings (complaint/answer), a hearing, a burden of proof, findings of fact, conclusions of law, and a potential for remedial orders.
Absence of a pre-trial “discovery” process distinguishes unfair labor practice proceedings from other administrative and judicial proceedings, but the PERC rules limiting discovery are consistent with the policies and procedures of the NLRB.
10.4 THE ROLE OF PERC
In processing unfair labor practice cases, PERC implements its RCW 41.58.005 mission to provide “uniform and impartial . . . adjustment and settlement of complaints . . . arising out of employer-employee relations . . . .” Always-impartial PERC staff members:
♦ Review incoming complaints on a “matter of law” analysis under the preliminary ruling process;
♦ Oversee amendments to complaints, amendments to answers, motions, prehearing conferences, and settlement conferences;
♦ Schedule / conduct formal hearings under the APA, ensuring due process for all parties; and
♦ Prepare / sign initial decisions (including remedial orders, where appropriate) on cases, subject to appeal to the Commission.
The role of PERC staff members is sharply distinguished from the investigatory and prosecutorial functions performed by staff members at the regional offices of the NLRB, since PERC staff members never engage in advocacy for or against any party.
10.5 RESULTS OF UNFAIR LABOR PRACTICE PROCEEDINGS
PERC issues formal orders in all unfair labor practice cases.
♦ The Executive Director, Unfair Labor Practice Manager, or Operations Manager
(referred to collectively in this chapter as the “Unfair Labor Practice Manager”) or an
assigned Examiner can issue interlocutory orders (which are not subject to appeal
until a potentially-final order has been issued) on procedural matters;
or
♦ If a complaint is withdrawn, either the Unfair Labor Practice Manager or the assigned Examiner issues a final order closing the case; or
♦ If a complaint fails to state a cause of action at the preliminary ruling stage, the Unfair Labor Practice Manager issues a potentially-final order of dismissal (subject to appeal to the Commission); or
♦ If a complainant fails to carry the burden of proof, the Examiner issues a potentially-final order (subject to appeal to the Commission) dismissing the complaint on the merits; or
♦ If a violation of law is established by the evidence, the Examiner issues a potentially-final order (subject to appeal to the Commission) including a remedy.
Final orders issued by the Commission in unfair labor practice cases are subject to judicial review under the APA.
10.6 PROFESSIONAL RESPONSIBILITY
PERC staff members must be impartial at all times in unfair labor practice proceedings.
♦ The making of preliminary rulings under WAC 391-45-110 is management-level work, within the job functions of the Executive Director, Operations Manager, and Unfair Labor Practice Manager.
♦ The conduct of prehearing conferences and hearings, along with issuance of interlocutory decisions that could become final in the absence of an appeal (hereinafter “potentially-final orders”), are within the job functions of the Field Services Manager, and Labor Relations Adjudicator/Mediator (LRAM) classifications.
Members of PERC's support staff provide assistance with preparing documents and procedural details, only as directed by staff members with substantive authority.
All PERC staff members exercising substantive authority in unfair labor practice cases must maintain independent knowledge of current statutes, rules and precedents. While the guidelines in this chapter are generally to be followed, it is expected that there will be departures from these procedures when warranted by the exercise of professional judgment.
10.7 RULES AND FORMS
Chapter 391-45 WAC regulates the processing of unfair labor practice cases before PERC. Both Chapter 391-08 WAC (Rules of Practice and Procedure adopted by PERC) and Chapter 10-08 WAC (Model Rules of Procedure adopted by the Chief Administrative Law Judge of the State of Washington) regulate some related procedures.
The PERC website, www.perc.wa.gov, contains a wealth of information about unfair labor practice cases, including:
♦ The applicable statutes (select from the "Statutes" page).
♦ The applicable rules (select from the "Rules" page).
♦ The unfair labor practice complaint form (select “Form U-1" from the "Forms" page).
♦ A summary of the unfair labor practice process (select from the "Services" page).
PERC staff members should encourage information callers and other clientele to use the resources available on the PERC website.
The statutes and rules are also available in paper format, and staff members should honor clientele requests for copies of those documents by mail. PERC does not charge for single copies of statutes, rules, or forms.
10.8 ASSISTANCE TO CLIENTELE
Whenever an inquiry is received about unfair labor practice case procedures, explore the facts to determine whether the situation is under PERC's jurisdiction:
10.8.1 Parties Outside PERC Jurisdiction
PERC staff members can properly refer information callers who are outside of PERC’s jurisdiction to an appropriate agency, such as:
Private employers generally (National Labor Relations Act)
► Refer the person to: National Labor Relations Board (206) 220-6300
Railroad and airline industries (Railway Labor Act)
► Refer the person to: National Mediation Board (202) 692-5050
Federal government employees (Federal Service Labor-Management Relations)
► Refer the person to: Federal Labor Relations Authority (415) 356-5000
Washington State Ferries (Chapter 47.64 RCW)
► Refer the person to: Marine Employees’ Commission (360) 586-6354
Even if a person’s filing with PERC would be doomed to failure, PERC staff must respect the person’s right to obtain a formal ruling from PERC.
Clientele often directly or impliedly seek the blessing of PERC staff for exceptions to PERC rules or procedures. If faced with such conduct, say: “This conversation is not a basis to claim an exception to any statute or rule.” Submit an information call sheet to document the conversation and information given.
10.8.2 Situations Covered by PERC-administered Statutes
If the situation appears to be within PERC's jurisdiction, inform the person of his/her right to file a complaint with PERC, and:
♦ Provide a copy of the "Your Right to be Heard" pamphlet on unfair labor practice cases to potential "pro se" parties (individual employees);
♦ Refer the caller to the PERC website (www.perc.wa.gov) or provide copies of applicable statute(s), rules, and complaint forms;
♦ Provide information about PERC procedures and point out errors or omissions, but say, "We cannot give legal advice" if you are asked for substantive advice; and
♦ Encourage the caller to consult their own legal counsel, but say "We cannot recommend any specific attorney or law firm" if you are asked for a recommendation.
10.9 FILING OF COMPLAINT
All unfair labor practice cases must be initiated by a party with legal standing, and by filing a written complaint with PERC.
10.9.1 Contents of Complaint [WAC 391-45-050]
PERC Form U-1, "Complaint Charging Unfair Labor Practices" can be printed from the “forms” page of the PERC website, and is replicated on the next two pages.
♦ Use of PERC's form is strongly recommended!
♦ PERC will process cases filed on obsolete or homemade forms which are in substantial compliance as to their content.
♦ The back side of Form U-1 contains detailed instructions!
10.9.2 Who May File [WAC 391-45-010]
Employee organizations, employers, and individual employees all have legal standing (in varying degrees) to file unfair labor practice complaints:
♦ An employee organization (union) can pursue a complaint concerning employees it already represents or is seeking to organize.
♦ An employer can pursue a complaint against a union that already represents or is seeking to organize its employees.
♦ Individual employees can pursue complaints alleging “interference” or “domination” or “discrimination” violations.
CAUTION: Individual employees do not have legal standing to file or process “refusal to bargain” claims, because the duty to bargain only exists between (and thus can only be enforced by) an employer and the exclusive bargaining representative of its employees.
10.9.3 Location for Filing [WAC 391-08-120; WAC 391-45-030]
Complaints must be filed at the Commission's Olympia office during normal business hours.
♦ Parties cannot "file" unfair labor practice complaints directly
from the PERC website. The computer programming cost
for such a system would be excessive in comparison to
the benefit gained by PERC clientele.
♦ A complaint received after business hours (by fax,
by e-mail, or slipped under the door) will be date-
stamped as "Filed" on the next business day.
10.9.4 Methods for Filing [WAC 391-08-120; WAC 391-45-030]
PERC’s rules permit filing by multiple methods, including some technology-friendly methods that were far ahead of other Washington agencies:
♦ By personal delivery or delivery service to PERC’s Olympia office;
♦ By mailing to PERC’s Olympia office;
♦ By fax sent to PERC’s Olympia office PLUS same-day mailing of the original papers to PERC’s Olympia office;
♦ By e-mail attachment sent to PERC’s Olympia office PLUS same-day mailing of the original papers to PERC’s Olympia office.
If a party leaves a complaint at a PERC branch office, the PERC staff can only forward the materials for filing at the Olympia office:
♦ Notify the person of a potential defect, saying, "If you are up against a time limit, you will be better off to deliver your complaint directly to the Olympia office. The official 'filing' will not occur until the papers are received in Olympia."
♦ Note the date of receipt (preferably using the branch office date stamp), if the person insists on leaving the document at the branch office.
♦ Mail or deliver the papers to the Olympia office. Keep a copy of the documents in the branch office until delivery is complete (to protect against loss), and note the date when the materials are dispatched to Olympia.
Proposed amendments to complaints that are rejected at a prehearing conference or hearing are automatically accepted as separate cases under WAC 391-45-070(3). The PERC staff member who rejects a proposed amendment must:
♦ Note the date of receipt in the upper-right corner of the first page.
♦ Notify the party proposing the amendment that it is being forwarded for docketing as a separate case.
♦ Mail or deliver the proposed amendment document to the Executive Director for docketing as a separate case.
10.9.5 Service of the Complaint on Other Parties [WAC 391-08-120; 391-45-030]
The party filing a complaint with PERC must serve a copy of the complaint on the other parties. Service is a "due process" requirement, but is easy for parties to complete:
♦ By handing a copy to a representative of the other party;
♦ By sending a copy to the other party by first class mail or a delivery service;
♦ By fax to the other party, with a follow-up copy by