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Washington Public Employment
Relations
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The Commission upheld the Executive Director's dismissal of a
complaint filed by the Technical Employees' Association (TEA) alleging that
King County wrongfully barred the union, under threat of discipline, from using
the employer's e-mail system to communicate with its members.
The employer sent a letter to the union's attorney accusing the union of
using the e-mail system for organizing activities and distribution of the
union's newsletter. The employer threatened the union with lawsuits if it did
not comply. In response, the union filed unfair labor practice charges with
the Commission. In its original complaint, it contended the employer allowed
it to use the e-mail system as a past practice, and the employer unilaterally
changed the practice with its letter. It further claimed that the employer
was showing preference to another union by allowing it access to the system.
It accused the employer of interference because employees could reasonably
perceive a threat of discipline from the tone of the letter.
The employer later withdrew the letter, but the Commission rejected the
employer's claim that the issue was moot:
Because we are making a ruling
on whether a statutory unfair labor practice was committed, the fact that the
employer has retracted the disputed letter does not make the issue moot. If
the employer committed a violation of the statute, the union would be
entitled, at a minimum, to an order that the employer refrain from such
conduct in the future.
The Commission found that the employer "was under no obligation to
allow its resources to be used by any union," as no provision of State
statute or administrative code allows the private use of public property. The
Commission found no evidence in the record of such a written policy or past
practice on the part of the employer. In fact, the employer's written policy
states that "the use of County equipment for ... advocacy of a cause or
special interest ... is prohibited."
To support its claim of favoritism, the union attached an e-mailed
document to its complaint that was supposedly generated by the other union.
The Commission found this evidence insufficient because it appeared that the
document was not generated by that union. The Commission dismissed the interference
charge, finding that the union did not "sufficiently tie any potential
discipline to protected activity." The Commission added that although
"the employer threatened sanctions, the threats were for inappropriate
use of its resources, rather than for union activity."
King County, PECB 6734-A (2000)
EMPLOYER HAS NO DUTY TO PRODUCE GRIEVANCE MEETING WITNESSES
In an issue of first impression, the Commission held that an
employer has no duty to produce witnesses for questioning during a grievance
meeting. A third step grievance meeting was held on an employee transfer
grievance. Teamsters Local 174 complained that the King County failed to
produce managerial witnesses and information when specifically requested to
do so. The union contended that the employer violated its duty to disclose
and thus engaged in bad faith bargaining.
Relevancy of Information Must Be Shown
The Commission observed that the statutory duty to bargain includes the
duty to provide relevant information needed by a requesting party for the
proper performance of its duties in the collective bargaining process. It
cautioned, however, that the union must show that the requested information
was actually relevant to its case. The bare assertion that it needs the
information "in order ... to fulfill its responsibilities as collective
bargaining representative" is insufficient.
Witnesses Not Same as Documentation
The Commission rejected the union's charge on the grounds that supplying
witnesses during a grievance meeting is qualitatively different from
supplying documentation:
An order for the employer to
supply witnesses would involve those witnesses' availability for
cross-examination and involve the witnesses in a dispute. The duty to provide
information has never involved a requirement that the party, in addition to
providing the information, justify it, explain it, or respond to extensive
questions about the content.
Turning to National Labor Relations Board (NLRB) precedent, the Commission
noted that the NLRB has decided that such a requirement "would diminish
rather than foster the integrity of the grievance and arbitration
process."
Prior Ruling Distinguished
The Commission attempted to distinguish its ruling in Seattle School
District, Decision 5542-C (PECB, 1997), a case that concerned the
"employer's blanket refusal" to provide the requested information.
(See, the Summer, 1997 REVIEW). The Commission observed, somewhat
surprisingly (considering how the Seattle School District case reads), that
absent certain aggravating considerations, the school district "might
have been excused for its failure or refusal to supply witness statements and
student complaints." The Commission observed that unlike the instant
case, in the Seattle School District case:
The witness statements had already been procured and documents were in
existence. The requested information was inferred to be probably relevant to
the union's need to represent its members. The requested information would
have been helpful to the union to potentially "sift out unmeritorious
claims" before a grievance was filed, or to otherwise work with the
employer on related issues to attempt to resolve disputes. In addition, the
union received no response to early requests for information.
The union also argued that the employer undermined its effectiveness by
making access to the witnesses conditional upon the grieving employee's
abandoning his civil court case. The Commission found this circumstance to be
irrelevant.
Lastly, the Commission found that the fact the collective bargaining agreement
contained disclosure language did not help the union's case. The Commission
reiterated that it "does not assert jurisdiction to remedy violations of
collective bargaining agreement through the unfair labor practice provisions
of the statute."
King County, PECB 6772-A (1999)
PERC BANS EMPLOYEE QUESTIONING ABOUT
MISCONDUCT AT UNION MEETINGS
The Public Employment Relations Commission sustained unfair
labor practice charges filed by the Vancouver Police Officer's Guild against
the City of Vancouver, overturning an examiner's ruling favorable to the
city. (See, the Fall, 1999 REVIEW).
A City of Vancouver police officer provided information to the employer
during an internal investigation. The officer answered all questions fully,
volunteering relevant information rather than limiting his responses to the
exact questions asked. Fellow union members, who happened to be sergeants,
allegedly labeled him a "snitch" for volunteering information
during the investigation and stated that he needed to be "taught a lesson."
One of the sergeants was the officer's SWAT team leader. The officer told the
employer that he believed that certain union executive board members and
other employees were engaging in a concerted effort to "get even"
with him. A deputy chief also heard rumors of retaliation against the
officer. The employer believed the talk had occurred during union meetings.
The employer was concerned that SWAT leaders might not back up the officer in
a dangerous situation because of their hostility toward him or that there may
other kinds of retaliation. The employer also was concerned that a "code
of silence" might develop among union members regarding officer
misconduct that would prevent the internal investigative process from working
properly.
Employer Takes Structured Approach
The employer launched another internal affairs investigation and made
plans to question employees about statements made during union executive
board and membership meetings. The deputy chief directed the investigators
to: 1) have their questions prepared and reviewed by counsel; 2) not ask
questions concerning union policies, practices or strategies; and 3) stay
within the specific confines of the issue at hand. During the conduct of the
questioning, the employer did not ask questions concerning union strategy and
policy, and every witness was given the opportunity to have a union
representative present.
Competing Interests at Issue
The union filed unfair labor practice charges against the employer,
contending that it had interfered with employee and union rights. While it
did not question the employer's right to investigate and remedy employee
misconduct, it argued that union meetings give members a chance to express
themselves freely and that the ability of the employer to investigate those
meetings would have a chilling effect on the exercise of their statutory
rights. It urged the Commission to adopt a per se rule that would make union
meetings categorically off-limits to employer questioning.
The essence of the employer's case was that it could not tolerate
harassment and discrimination of this kind in the work place, and it needed
the tools to ascertain the merits of charges so that it could take
appropriate action. It pointed out that its questioning was carefully tailored
to avoid intruding into legitimate union activity.
Perceptions Are What Counts
At the outset of its discussion, the Commission noted that to sustain an
interference charge, the union did not need to prove the employer's specific
intent to interfere, nor did it need to provide actual interference or
coercion, or union animus: "The operative test in an 'interference' case
turns on what the employees reasonably perceived, not on what the employer
intended."
The right at issue, the Commission explained, was "the right to
attend and participate in union meetings" and "an employer commits
a violation if it creates the impression that it is engaged in surveillance
of employees engaged in protected activities."
The parties vigorously debated the law that should be applied to the case.
The Commission reviewed NLRB precedent at length, as well as a prior PERC
case in which the Executive Director issued a summary judgment against an
employer for having interrogated employees about a union meeting. It noted
also a Washington appeals court decision holding that under RCW 41.56,
"reasonable employee activity is protected while unreasonable employee
activity is not."
Per Se Rule Rejected
Rather than adopting the per se approach urged by the union, the
Commission, as did the examiner, took a fact-specific approach in which it
weighed and balanced the particular facts and circumstances of the case. The
Commission implicitly differed with the examiner, however, as to the
weighting of those facts. The Commission took into consideration the
following in sustaining the union's charges:
- Union members were not
in the practice of freely discussing with management the goings-on at
union meetings (unlike the situation in a small category of NLRB cases);
- The employer ordered
employees to respond to its questions under threat of discipline;
- The questions were not
of a casual, minor or unobtrusive nature made by lower-ranking managers;
- The employer did not
show that "widespread interrogation" regarding employee
conduct at particular union meetings was necessary to its investigation
- The employer appeared
to have overreacted to exceedingly limited information and simply went
on a "fishing expedition;'
- Despite its
intimations of possible racial or national origin discrimination, the
employer did not have evidence of illegal conduct by union members or an
unlawful conspiracy;
- The employer did not
establish a legitimate factual basis for its concern about the alleged
harassment victim's safety;
- The employee could
have handled its concerns in a manner less intrusive to union affairs,
such as by issuing a warning to the suspect officers or to all
bargaining unit members about the kind of behavior that would not be
tolerated.
The Commission opined that the "employer somewhat confused the roles
of law enforcer and employer:"
While investigation by a law enforcement agency of a crime committed at a
union meeting would be entirely appropriate, an employer might be well
advised to bring in a special prosecutor or another law enforcement agency to
avoid the type of problems that have arisen in this case.
This dictum did not clarify whether an employer could (or should) bring in
a third party investigator if it had reasonable grounds to believe unlawful
(e.g., sexual or racial harassment), but not necessarily criminal conduct,
took place at a union meeting.
The Commission merely hinted at areas where an employer's questions about
a union meeting might be allowed. It indicated that "isolated and
innocuous" questions, particularly concerning the fact the meeting took
place, as opposed to its content, could be alright. And, according to the
Commission, "circumstances may exist where it would be lawful for an
employer to interrogate its employees about some unlawful conspiracy
developed (or being developed) behind the closed doors of a union
meeting." Finally, it observed that the 'collective bargaining law' does
not protect person(s) who commit crimes at union meetings."
City of Vancouver, PECB 6732-A (1999)
LABOR AGREEMENT TRUMPS CIVIL SERVICE
AUTHORITY IN SPOKANE CONFLICT
Prior to the events giving rise to this dispute, the Spokane
Civil Service Commission had sole responsibility for promoting uniformed
patrol officers to sergeant. The Commission used a multiple-choice
examination to determine who should be promoted and made each promotion based
on the "rule of one." Under this rule, the highest ranked candidate
on the exam was the person certified to the police department for promotion.
The dispute arose when the City of Spokane and the Spokane Police Guild
entered into a collective bargaining agreement which contained a new
procedure for promotions. The employer and the union agreed that an
assessment center, a process to further evaluate candidates, should be used
to supplement the Civil Service Commission's testing procedure. The
assessment center would evaluate the leadership and supervisory abilities of
the top 12 scorers on the civil service exam and determine who was the best
qualified patrol officer for promotion.
The Civil Service Commission decided not to recognize the change and it
advised the employer and the union that it would not certify the pay for any
individual who was promoted to sergeant under the new procedure. The city and
the union took the dispute to court and prevailed.
Division III of the Court of Appeals noted that although civil service
systems were designed to protect public employees from arbitrary and
capricious employer action, in "the mid-1960s, public employees began to
view civil service systems as an extension of management and demanded
collective bargaining on issues traditionally left to civil service
commissions." Thus, in 1967, RCW 41.56, the Public Employment Collective
Bargaining Act was enacted.
The court found that promotion procedures are normally a mandatory subject
of bargaining, making the subject one which the employer had to negotiate
with the union. By statute, an exception to the obligation to negotiate
occurs if an employer "delegates such matters to a civil service
commission that is similar in scope, structure, and authority to the state
personnel board." On appeal, the Spokane Civil Service Commission
claimed to meet those requirements.
Scope, Structure and Authority Examined
According to the appeals court, the "scope" of a civil service
commission or personnel board refers to that body's jurisdiction or power to
take various actions. The state personnel board has jurisdiction over a wide
variety of state employees, as does the Spokane commission. Thus, it found
the latter agency met the "scope" requirement.
However, the Spokane Civil Service Commission failed on the
"structure" requirement. The court explained that the
"structure" of a civil service commission "relates to the
organization of the body, including the manner in which the members are
appointed and removed." Persons appointed to the state's personnel board
must have "demonstrated an interest and belief in the merit
principle," must not be a state employee, and must steer clear from
partisan politics. Spokane commission members, by comparison, do not have to
commit to the merit principle, and nothing prevents them from engaging in
partisan politics.
The Spokane commission also failed the "authority" test. The
"authority" of a civil service commission or personnel board
relates to the "breadth of subject matters covered or regulated by that
body," the appellate court stated. Unlike the state personnel board, the
Spokane commission has no authority over wages or wage related matters,
call-back or standby pay, compensation, workers' compensation, compensatory
time off, training or performance evaluations.
Terms of Labor Agreement Control
The court found a statutory conflict existed because without the Civil
Service Commission's cooperation, the employer could not abide by the terms
of the collective bargaining agreement. Accordingly, under RCW 41.56.905, the
terms of the negotiated agreement control:
The purpose of the Act is not
served if a city complies with its obligation to collectively bargain, only
to have the civil service commission refuse to abide by the collective
bargaining agreement. The intent of the Act is that the Agreement supersede
the Commission's rules.
City of Spokane v. Spokane Civil Service Commission, No. 17956-7-III, (Wn.
App., December 21, 1999)
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