The terms commonly heard in Washington are:
CHAPTER 11
NONASSOCIATION CASE
PROCEDURES AND HEARINGS
(Rules: Chapter 391-95 WAC)
The PERC Staff Manual was issued by the former Executive Director in October of 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 11
NONASSOCIATION CASE
PROCEDURES AND HEARINGS
Collective bargaining agreements commonly contain provisions requiring some or all of the bargaining unit employees to be or become members of the union, as a condition of their continued employment. In some state laws, and in the National Labor Relations Act, employees who are subject to these “union security” obligations are given a right of nonassociation based on religious beliefs. The Public Employment Relations Commission (PERC) determines nonassociation disputes under several Washington laws.
11.2 UNION SECURITY ARRANGEMENTS
The “Roberts’ Dictionary of Industrial Relations” (BNA Books) contains at least 88 entries
which: (1) refer directly, indirectly, or inversely to the dues and fees paid by union-represented employees to the organization that represents them, or (2) refer to the
collection or use of such funds.
The terms commonly heard in Washington are:
♦ Closed shop - A contract provision requiring the employer to hire only applicants who were already union members in good standing. Such provisions were outlawed by the Labor-Management Relations Act of 1947 (the Taft-Hartley Act or LMRA).
♦ Union shop - A contract provision requiring bargaining unit employees to join the union within 30 days after commencing their employment in the bargaining unit or within 30 days after the effective date of the collective bargaining agreement, whichever is later. Employees must then remain union members while the contract remains in effect. This is the maximum form of union security allowed by the Taft-Hartley Act and by the state laws administered by PERC.
♦ Agency shop - A contract provision requiring bargaining unit employees who chose not to join the union to pay a service fee (sometimes called a representation fee or a fair share fee) to the union while the contract remains in effect.
♦ Modified shop - A contract provision under which bargaining unit employees in some identifiable class (e.g., present employees who are not union members or employees hired before some fixed date) are not required to join the union or pay any fees to the union, but employees hired into the bargaining unit in the future and those who voluntarily join the union are required to remain union members while the contract remains in effect.
♦ Maintenance of membership - A contract provision under which bargaining unit employees who voluntarily join are required to remain union members while the contract remains in effect. No employee is required to join the union.
Importantly, long-standing judicial precedents establish that the term “union member” is actually a misnomer. Employees who tender the dues and fees required for union membership thereby satisfy their union security obligations. NLRB v. General Motors Corp., 373 U.S. 734 (1963). Thus, union security is whittled down to its financial core, and no employee is obligated to promise allegiance to the union.
11.2.1 Federal Law - Union Security Authorized by Double-negative
Under the Taft-Hartley Act, negotiated union shops are authorized as an exception to a prohibition.
♦ The first negative is that Section 8(a)3 of the LMRA generally prohibits employers
from discriminating to either “encourage or discourage union membership” among
covered employees.
♦ The second negative is that Section 8(a)3 then goes on to exempt employer and
union agreements that impose union security obligations up to a union shop.
This backhanded approach to authorizing union security became a factor in interpreting Washington law, as described in 11.3.2 below.
11.2.2 Washington Law - Union Security Authorized Affirmatively
The statutes administered by PERC contain variances with regard to authorizing union
security, but they all do so directly in provisions separate and apart from the prohibition of
employer discrimination:
♦ Chapter 28B.52 RCW (academic faculty of community colleges and technical colleges) - RCW 28B.52.045(2) authorizes “union security but not a closed shop.”
♦ Chapter 41.56 RCW (local government; classified employees of K-12 schools and technical colleges; TA’s, RA’s and print shop employees of the University of Washington; Washington State Patrol troopers; home care providers; and family child care providers) - RCW 41.56.122 authorizes “union security but not a closed shop.”
♦ Chapter 41.59 RCW (school district certificated employees) - RCW 41.59.100 authorizes “agency shop but not a union or closed shop.”
♦ Chapter 41.76 RCW (faculty at state institutions of higher education awarding baccalaureate and higher degrees) - RCW 41.76.045 authorizes “union security but not a closed shop.”
♦ Chapter 41.80 RCW (state civil service employees) - RCW 41.80.100 authorizes union security including union shop.
♦ Chapter 53.18 RCW (port districts) - RCW 53.18.050(2) specifically mentions only the
“maintenance of membership” form of union security.
♦ Chapter 54.04 RCW (public utility districts) impliedly authorizes union security other than “closed shop” by embracing the same rights as employees and employers have in the private sector.
11.2.3 Enforcement of Union Security Obligations
Two different avenues are commonly used for enforcement for union security obligations.
♦ The traditional enforcement method is for the union to demand the discharge of
employees who fail or refuse to pay the dues and fees they are required to pay under
a union security obligation.
This method is used in the private sector and under
several Washington public sector collective bargaining statutes.
► Chapter 41.56 RCW generally uses this method, but see below concerning independent providers of home care and family child care providers.
► Chapter 41.80 RCW uses this method.
► Chapter 53.18 RCW uses this method.
► Chapter 54.04 RCW uses this method.
♦ The alternative enforcement method is to require the employer to enforce union security obligations through payroll deduction. This method is used in some Washington public sector collective bargaining laws.
► Chapter 28B.52 RCW uses this method.
► Chapter 41.56 RCW uses this method with regard to independent providers of home care and family child care providers.
► Chapter 41.59 RCW uses this method.
► Chapter 41.76 RCW uses this method.
This method avoids any possibility of a public employer having to discharge a public employee for failing or refusing to pay dues or fees to a union.
11.2.4 Dues Checkoff
Although it is certainly related to union security, the collection of union dues and fees is actually a separate proposition under both state and federal law.
♦ As recently as the 1970's, some union officials routinely approached bargaining unit employees individually, to collect monthly dues at the workplace. Some of them even espoused the view that making their monthly rounds provided a valued opportunity to keep in touch with the bargaining unit employees.
♦ Dues checkoff has been a subject of bargaining in the private sector for many years. Unions seek (and some employers agree to) arrangements by which bargaining unit employees can have their union dues deducted from their pay and forwarded to the union by the employer. Except where the alternative enforcement method described in 11.2.3 is in effect, dues checkoff must be authorized by the employee.
♦ Dues checkoff is a statutory right of the exclusive bargaining representative under the Washington laws administered by PERC. A public employer in Washington:
► Cannot discontinue dues checkoff for the incumbent because a “raid” or
“decertification” petition has been filed.
► Cannot discontinue dues checkoff for the incumbent union when the parties’
collective bargaining agreement expires.
11.3 APPORTIONMENT REQUIRED BY FEDERAL LAW
In Railway Employees’ Department v. Hanson, 351 U.S. 225 (1956), and subsequent cases, the Supreme Court of the United States has consistently limited constitutionally-permitted union security obligations to financial support of union activities within the realm of collective bargaining. In Machinists v. Street, 367 U.S. 740 (1961), the Supreme Court stated that supporting candidates for public office and supporting political causes is not within the “defray the expenses of the negotiation or administration of collective bargaining agreements” category for which union security is constitutionally defensible.
While rejecting broader constitutional attacks on union security in the public sector, two unanimous decisions of the Supreme Court of the United States require public sector unions to apportion their expenses between amounts that are “chargeable” and “nonchargeable” to dissenting employees.
♦ In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Court sought a balance between the competing interests of labor peace and free speech, and ruled that dissenting employees could only be charged for the costs of collective bargaining, contract administration, and grievance adjustment.
♦ In Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986), the Court held that procedural safeguards were necessary to protect dissenting employees from being compelled to subsidize the propagation of political or ideological views that they oppose, and that the dissenting employees must have a fair opportunity to ascertain the potential of a meritorious First Amendment claim. Thus, unions must provide:
► An adequate explanation of the basis for the fee demanded by the union;
► A reasonably prompt opportunity for dissenting employees to challenge the amount of the fee before an impartial decision maker; and
► An escrow for the amounts reasonably in dispute while such challenges are pending.
Thus, funds paid by dissenting employees cannot be used even temporarily for improper purposes.
The American Arbitration Association issued a set of “Rules for Impartial Determination of
Union Fees” that were effective January 1, 1988.
11.3.1 Early PERC Precedents on “Apportionment” Disputes
In several decisions issued shortly after Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986), Executive Director Marvin Schurke rejected the possibility of PERC taking on the “accountant” role directly, but nevertheless found unfair labor practice complaints filed by individual employees to state causes of action in some limited situations.
♦ Assertion of unfair labor practice jurisdiction paralleled the assertion of jurisdiction by the NLRB when private sector employees allege that union security arrangements contravene the “exception to the prohibition” in Section 8(a)(3) of the LMRA, and presumed that our Legislature did not intend otherwise.
♦ Existence of a cause of action was based on a presumption that our Legislature and courts would not want the union security provisions of Washington law brought to bear in a manner that was in violation of the federal constitution.
♦ The extent of PERC inquiry was limited to whether the union had constitutionally-required apportionment, notice, and impartial determination procedures in place. The remedies available from PERC were limited to precluding enforcement of union security obligations until constitutionally-required procedures were in place.
The Commission embraced that reasoning in Spokane County Fire District 9 (IAFF Local 2916), Decision 3773-A (PECB, 1992) and Spokane Airport Board (IAFF Local 1789), Decision 4153-A (PECB, 1992), which were filed by individual employees against unions that failed or refused to provide the protections required by Hudson. The Commission affirmed Examiner decisions finding violations in both cases, and it even awarded attorney fees against the unions for pursuing “frivolous” defenses on appeal.
11.3.2 Judicial Rejection of “Apportionment” Disputes
The unions appealed the Commission’s decisions on the two Spokane-area cases to court, based on a very simple “lack of jurisdiction” argument. The courts gave significance to the fact that union security is not dealt with in the unfair labor practice provisions of the state law. In IAFF Local 2916 v. PERC, 128 Wn. 2d 375 (1995), the Supreme Court of the State of Washington ruled that PERC has no jurisdiction to enforce the federal constitutional requirements enunciated in the Abood and Hudson cases.
11.3.3 Recent PERC Rejection of “Apportionment” Disputes
PERC policy since IAFF Local 2916 v. PERC has been to dismiss unfair labor practice complaints filed by individual employees to protest either an absence or unfairness of apportionment procedures. When asked to amend its rules to require that unions give notice of apportionment rights to the employees covered by union security obligations, the Commission cited IAFF Local 2916 v. PERC as the basis for refusing to adopt the proposed rule. See In re: WAC 391-95-030, Decision 9079 (EDUC, 2004).
CAUTION: Although the PSRA embraces the “apportionment” concept at RCW 41.80.110, it does not contain any language explicitly authorizing PERC to enforce the “apportionment” language.
11.4 THE RIGHT OF NONASSOCIATION
In its “First Biennial Report (Revised Second Edition)” issued in 1971,
a joint legislative
/ labor / management study committee created by statute recommended that union security
obligations in the Washington public sector should “safeguard the rights of non-association
of employees . . . based on bona fide religious tenets or teachings of a church or religious
body of which such employee is a member.” During legislative hearings on labor bills in
the 1970's and 1980's, a lobbyist for the Seventh-Day Adventist church would testify that
his client had no opposition to collective bargaining so long as church members were able
to comply with church teachings against union membership. Nonassociation clauses have
been included in most of the Washington statutes concerning union security.
♦ RCW 41.56.122 was adopted in 1973 to allow negotiated union shops. It protects a right of nonassociation by allowing alternative payments to a charity.
♦ RCW 41.06.150 was amended in 1973 to implement or cancel union shop only by vote of the employees. It protected a right of nonassociation by allowing employees to have their funds go to a union program satisfactory to the employee.
♦ RCW 41.59.100 was adopted in 1975 to allow negotiated agency shops. It protects a right of nonassociation by allowing alternative payments to a charity.
♦ RCW 28B.52.045(3) was adopted in 1987 to allow negotiated union security. It
protects a right of nonassociation by allowing alternative payments to a charity.
♦ RCW 41.76.045 was adopted in 2002 to allow negotiated union security. It protects
a right of nonassociation by allowing alternative payments to a charity.
♦ RCW 41.80.100(2) was adopted in 2002 to allow negotiated union security. It protects a right of nonassociation with language copied from Chapter 41.06 RCW.
♦ Chapter 53.18 RCW does not contain any language concerning a right of nonassociation, but:
► The “maintenance of membership” form of union security allowed in Chapter 53.18 RCW would not compel an employee with religious opposition to unions to join any union; and
► If port district employees are placed under a stronger form of union security by dove-tailing Chapter 53.18 RCW with Chapter 41.56 RCW (as authorized in RCW 53.18.015), the nonassociation language in RCW 41.56.122 would apply.
♦ Chapter 54.04 RCW does not contain any nonassociation language, but:
► If federal substantive law is applied, the right of nonassociation in Section 19 of the NLRA would permit the employee to make alternative payments to a charity.
► If Chapter 41.56 RCW is applied (by dove-tailing of the statutes as described in Clark County Public Utility District v. PERC, 110 Wn.2d 114 (1988)), the non-association language in RCW 41.56.122 would apply.
11.4.1 Early Interpretation Limited to Church Teachings
PERC initially interpreted and applied the “right of nonassociation” language in Chapters 41.56 and 41.59 RCW as meaning that the right of nonassociation was only available to employees who were members of an organized religious body and were asserting rights based on the tenets or teachings of that religious body. The Supreme Court of the State of Washington affirmed that view in its first Grant v. Spellman decision [GRANT I].
11.4.2 The GRANT II Decision
With assistance from the American Civil Liberties Union, the employee whose petition for
nonassociation was rejected in GRANT I sought review by the Supreme Court of the
United States. That court remanded the case in a delphic one-paragraph opinion, calling
for reconsideration in light of a Minnesota tax case. In Larson v. Valente, 456 U.S. 228
(1982), the Supreme Court had overturned a Minnesota law that had been passed to limit
or control the commercial activities of the “Moonies” sect, finding that such an enactment
violated the establishment of religion clause of the federal constitution.
When the Supreme Court of the State of Washington got the case back, it did cartwheels to preserve the constitutionality of union security in the Washington law. Rather than striking down the right of nonassociation clause and leaving the rest of union security intact, it essentially inserted a comma between the “bona fide religious tenets” and “or teachings of a church or religious body” clauses in the statute. As re-interpreted by the state Supreme Court, the statute allows individuals who are not associated with any organized religious body to assert the right of nonassociation based on personal religious beliefs. Grant v. Spellman, 99 Wn.2d 815 (1983) [Grant II]. Our Supreme Court recognized that its new interpretation put PERC in the unenviable role of passing judgment on personal religious beliefs, but it kept the focus of that inquiry on whether asserted beliefs were bona fide and sincerely held.
11.4.3 Precedents under Grant II and the PERC Rule
Since Grant II, numerous individual employees have filed petitions with PERC, asserting the right of nonassociation based on claimed personal religious beliefs. Most of those employees have appeared pro se. Many of them have been highly emotional about their situations.
After applying GRANT II in several decisions, the Commission codified the tests formulated in those decisions in WAC 391-95-230, as follows:
WAC 391-95-230 HEARINGS--REOPENING OF HEARING. (1) Hearings shall be public and shall be limited to the portions of a petition found to state a cause of action under WAC 391-95-150.
(2) The employee has the burden to make a factual showing, through testimony of witnesses and/or documentary evidence, of the legitimacy of his or her beliefs, as follows:
(a) In cases where the claim of a right of nonassociation is based on the teachings of a church or religious body, the claimant employee shall demonstrate:
(i) His or her bona fide religious objection to union membership; and
(ii) That the objection is based on a bona fide religious teaching of a church or religious body; and
(iii) That the claimant employee is a member of such church or religious body.
(b) In cases where the claim of a right of nonassociation is based on personally held religious beliefs, the claimant employee shall demonstrate:
(i) His or her bona fide religious objection to union membership; and
(ii) That the religious nature of the objection is genuine and in good faith. . . .
As had been stated in some of the decisions that were codified by the rule, it is much easier to meet the 3-part test for organized religious teachings than to meet the 2-part test for personal religious beliefs. Employees claiming nonassociation based on the teachings of an organized religious body will be able to place membership records and / or doctrinal documents of the church body in evidence, and may even bring in their clergy (or equivalent) to testify on their behalf. Employees claiming nonassociation based on their personal religious beliefs have to prove their claims without third-party documents or assistance.
In applying WAC 391-95-230, the Examiner and Commission do not affirm or accept the
validity of any of what the employee believes. The Superior Court for King County gave
broad reach to individual beliefs and approved the claim of nonassociation in a close case,
after an Examiner ruled that an employee met the burden of proof,
and the Commission
went the other way.
11.5 THE ALTERNATIVE PAYMENTS
It is possible that the same individual could have both a constitutional basis for an “apportionment” demand and a religious basis for “nonassociation” claim, but the amounts and dispositions of funds differ.
♦ Most of the money paid by a successful apportionment claimant under the federal constitution still goes into the union treasury.
► The union can lawfully charge the proportion of its overall dues amount that it can relate to the costs of collective bargaining and contract administration.
► The employee is entitled to all rights of bargaining unit employees except the voting rights associated with union membership.
♦ None of the money paid by a successful nonassociation claimant under Section 19 of the NLRA goes into the union treasury. The employee’s payments in lieu of union dues and fees go to a charity.
► The employee may be excluded from the “political” rights of union membership.
► Section 19 expressly allows unions to charge employees who have asserted the
right of nonassociation the full costs of pursuing grievances and arbitrations on
their behalf.
♦ None of the money paid by successful nonassociation claimants under most
Washington laws goes into the union’s treasury. The employee’s payments in lieu of
union dues and fees go to a charity.
Those statutes are:
► Chapter 28B.52 RCW.
► Chapter 41.56 RCW.
► Chapter 41.59 RCW.
► Chapter 41.76 RCW.
► Chapter 53.18 RCW, if a port district employee is subjected to a union security obligation by application of Chapter 41.56 RCW.
The employee is entitled to all rights of bargaining unit employees except the voting rights associated with union membership.
♦ None of the money paid by successful nonassociation claimants under Chapter 54.04 RCW will go into the union treasury. Under either Section 19 of the NLRA or RCW 41.56.122, the employee’s entire payments in lieu of union dues and fees go to a charity. The ability of the union to charge the claimant employee for grievance and arbitration costs would depend on which law is applied.
♦ Money paid by a successful nonassociation claimant under Chapter 41.80 RCW may go through the union’s books and may even go into the union treasury. RCW 41.80.100 is unique in providing:
(2) An employee who is covered by a union security provision and who asserts a right of nonassociation based on bona fide religious tenets, or teachings of a church or religious body of which the employee is a member, shall, as a condition of employment, make payments to the employee organization, for purposes within the program of the employee organization as designated by the employee that would be in harmony with his or her individual conscience. The amount of the payments shall be equal to the periodic dues and fees uniformly required as a condition of acquiring or retaining membership in the employee organization minus any included monthly premiums for insurance programs sponsored by the employee organization.
(emphasis added). An absence of interpretive precedent under the State Civil Service Law and the PSRA left some open questions to be answered as of the time this chapter was written, including:
► What happens if the union fails or refuses to identify any purpose that the employee will accept under the “in harmony with his or her individual conscience” test?
► What happens if the union puts forth a list of charities (as some PSRA unions have done) and the employee fails or refuses to select one of those charities? Can PERC name a charity from the union’s list?
The PSRA goes on to explicitly state that the employee is entitled to all of the representation rights of a union member but is not a union member.
Given their separate sources, it is possible that an employee could assert both sets of rights: (1) wanting a reduced dues rate under the federal “apportionment” right; and (2) wanting to send the reduced amount to a charity or acceptable program under the nonassociation clause.
11.6 FRAMING OF ISSUES BY THE PARTIES
The first few rules in Chapter 391-95 WAC are intended to get a dissenting employee and the union talking to one another before either of them brings the dispute to PERC.
♦ WAC 391-95-010 is designed to give employees notice of their union security obligations and to head off parties from bringing unit determination or contract interpretation disputes to PERC.
♦ WAC 391-95-030 is designed to give employees with religious objections some direction about how to start the process of seeking nonassociation status.
♦ WAC 391-95-050 is designed to elicit a response from the union to the employee before either of them brings a case to PERC. The time limit is not a statutory timeframe that can be enforced by application of a “default” concept.
♦ WAC 391-95-070 reinforces that PERC only decides limited issues concerning the right of nonassociation.
11.7 NATURE OF NONASSOCIATION PROCEEDINGS
Nonassociation proceedings are adversarial in nature. They are formal adjudicative proceedings under the APA, including a petition, a hearing, a burden of proof, findings of fact, conclusions of law, and a potential for an order controlling the disposition of disputed funds. Lack of a pre-trial “discovery” process is consistent with PERC rules and NLRB practices limiting discovery.
11.8 THE ROLE OF PERC
In processing nonassociation 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 . . . .”
♦ The Executive Director, Unfair Labor Practice Manager, or Operations Manager (referred to collectively in this chapter as the “Unfair Labor Practice Manager”) reviews incoming nonassociation petitions on a “matter of law” analysis in the preliminary ruling process.
♦ The assigned Examiner oversees prehearing procedures, including ruling on proposed amendments to petitions.
♦ The Examiner schedules and conducts a formal hearing under the APA, ensuring due process for all parties.
♦ The Examiner prepares and signs an initial decision (including an order concerning disposition of disputed funds, where appropriate) on cases.
Examiner decisions are subject to appeal to the Commission.
11.9 RESULTS OF NONASSOCIATION PROCEEDINGS
PERC issues formal orders in all nonassociation cases.
♦ The Unfair Labor Practice Manager or Examiner can issue interlocutory orders on
procedural matters which are not subject to appeal until an order is issued which
could become final in the absence of an appeal (hereinafter a “potentially-final”
order).
♦ The Unfair Labor Practice Manager or Examiner must issue a final order closing a case that has been withdrawn.
♦ The Unfair Labor Practice Manager issues a potentially-final order of dismissal if the petition is defective at the preliminary ruling stage.
♦ The Examiner must issue a potentially-final order on-the-merits, dismissing the petition if the employee asserting the right of nonassociation fails to carry the burden of proof or granting the nonassociation (and disposing of disputed funds) if the employee carries the burden of proof.
Final orders issued by the Commission in nonassociation cases are subject to judicial review under the APA.
11.10 PROFESSIONAL RESPONSIBILITY
PERC staff members must be impartial at all times in nonassociation proceedings and never engage in advocacy for or against any party.
♦ The making of preliminary rulings under WAC 391-95-150 is management-level work, within the job functions of the Executive Director, Unfair Labor Practice Manager, and Operations Manager.
♦ The conduct of prehearing conferences and hearings and issuance of interlocutory and potentially-final decisions is 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.
PERC staff members exercising substantive authority in nonassociation 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.
11.11 RULES AND FORMS
Chapter 391-95 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 nonassociation cases.
♦ The applicable statutes (select from the "Statutes" page).
♦ The applicable rules (select from the "Rules" page).
♦ The nonassociation petition form (select “Form N-1" from the "Forms" page).
♦ A summary of the nonassociation 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 PERC 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.
11.12 ASSISTANCE TO CLIENTELE
Whenever an inquiry is received about nonassociation case procedures, explore the facts to determine whether the situation is under PERC's jurisdiction:
11.12.1 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.
11.12.2 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 petition with PERC.
♦ Provide a copy of the "Your Right to be Heard" pamphlet on nonassociation cases to individual employees making inquiry (potential "pro se" parties).
♦ 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.
♦ 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.
11.13 FILING OF PETITION
All nonassociation cases must be initiated by filing a written petition with PERC.
11.13.1 Contents of Petition [WAC 391-45-050]
PERC Form N-1, "Petition for Ruling on Nonassociation" 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 N-1 contains detailed instructions!
11.13.2 Who May File [WAC 391-95-090]
Legal standing to file and pursue nonassociation cases is limited.
♦ An employee organization (union) can pursue a petition concerning an employee it represents if a contract containing a union security provision is in effect.
♦ Individual employees can pursue nonassociation petitions if they are obligated by union security provisions of a contract currently in effect.
CAUTION: Employers do not have legal standing to file or process “non-association” cases even if they hold disputed funds in escrow, because they can never benefit from the final outcome of a nonassociation case.
11.13.3 Location for Filing [WAC 391-08-120; WAC 391-95-090]
Petitions must be filed at the Commission's Olympia office during normal business hours.
♦ Parties cannot "file" nonassociation petitions directly from the PERC website
.
♦ A petition 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.
11.13.4 Methods for Filing [WAC 391-08-120; WAC 391-95-090]
PERC’s rules permit filing by multiple methods, including some technology-friendly methods.
♦ Personal delivery or delivery service to PERC’s Olympia office.
♦ Mailing to PERC’s Olympia office.
♦ Fax sent to PERC’s Olympia office PLUS same-day mailing
of the original papers to PERC’s Olympia office.
♦ 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 petition at a PERC branch office, the PERC staff can only forward the materials to the Olympia office for filing.
♦ Notify the person of a potential defect. Say, "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.
11.13.5 Service of Petition on Other Parties [WAC 391-08-120; 391-95-090]
The party filing a petition with PERC must serve a copy of the petition on the other parties. Service is a "due process" requirement, but is easy for parties to complete.
♦ Service by handing a copy to the other party or his/her/its representative.
♦ Service by sending a copy to the other party by first class mail or a delivery service.
♦ Service by fax to the other party, with a follow-up copy by mail.
♦ Service by e-mail attachment to the other party, with a follow-up copy by mail.
Failure to serve a petition will result in dismissal of the petition and/or vacating any proceedings held prior to the petition being properly served.
CAUTION: PERC rules do not require parties to file proof of service with each document (which would needlessly set up clientele to fail), but do require the person who serves papers to make a same-day written record of when and how service was made. See WAC 391-08-120(5).
11.14 DOCKETING OF NONASSOCIATION CASES
All nonassociation cases are docketed under the "N" case type in the Public Employment Relations Commission Case Information System (PERCCINS). The term “Nonassociation” is also the Nature of Dispute Code for nonassociation cases. If parties ask for explanation of these codes, or even take offense at them, say, "The computer codes are used to categorize cases for statistical purposes and do not constitute a ruling by the Commission."
11.14.1 Notice of Case Filing
PERC mails a Notice of Case Filing to each party and representative listed for a newly-docketed case, giving them the case number, the name/address/phone information then on file for the case, and the "Nature of Dispute" code. That notice encourages parties to submit changes or corrections to PERC as soon as possible.
11.14.2 Updating the Docket Record
The PERC support staff processes routine “Notice of Appearance” papers filed by parties. A Record of Appearance is issued to each party and representative, giving them the latest information on PERCCINS and encouraging them to submit any further changes or corrections to PERC. If a PERC staff member learns of other changes of representatives or contact information while processing an “N” case, forward the information to the support staff for posting on PERCCINS.
11.15 COMMUNICATIONS WITH PARTIES
Parties can be represented in PERC proceedings by an attorney or by any bona fide officer, employee or other authorized representative of an employer or union. Individual employees may also represent themselves. [WAC 391-08-010]
♦ After an attorney or representative enters an appearance, PERC must serve all correspondence, notices and other documents on that person.
♦ PERC staff members must honor the requests of attorneys or other representatives that all communications (both oral and written) must be with or through that person.
Even where a party is represented by an attorney, the state APA requires that all final
orders be served upon the parties as well as upon their attorneys or representatives.
11.16 INTERESTED PARTIES
The parties in a nonassociation case are limited to the employee who is subject to the union security obligation and the employee organization (union) that is the party to the collective bargaining agreement containing the union security obligation.
CAUTION: The name of the employer will appear on the docket records for the case and in the caption of any decision issued, because:
• All cases processed by PERC must arise out of an employment relationship that is subject to PERC’s jurisdiction; and
• The PERCCINS system requires the name and other information concerning the employer for each case docketed.
Having its name in the paperwork is not a basis for the employer to become a party to or take any role in nonassociation proceedings!
If nonassociation disputes exist concerning two or more employees in the same bargaining unit, separate cases must be docketed for each employee. The focus of attention in each “N” case is on the religious beliefs of that particular employee.
11.17 THE PRELIMINARY RULING PROCESS
The Unfair Labor Practice Manager reviews incoming nonassociation petitions under WAC 391-95-150.
♦ At this stage of the proceedings, all of the facts alleged in the petition are assumed to be true and provable.
► PERC does not "investigate" the facts alleged in a petition.
► PERC makes no judgment under WAC 391-95-150 concerning the quality of the evidence that is or may be available to an employee.
► PERC ignores letters filed to contest the factual allegations set forth in a petition or to state alternative facts.
♦ The question at hand is whether the petition states a claim for relief available through nonassociation proceedings before PERC. This is similar to the legal analysis done under Section 12(b)(6) of the Federal Rules of Civil Procedure.
♦ The state APA entitles parties to a hearing on the merits of their petition before a state agency makes any factual determination.