STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
PHILIP IRVIN	CASE 7453-D-88-77
for determination of a dispute concerning union security arising under a collective bargaining agreement between:	DECISION 3344-A - PECB
CITY OF SEATTLE
and
INTERNATIONAL FEDERATION OF PROFESSIONAL and TECHNICAL ENGINEERS, LOCAL 17, AFL-CIO	DECISION OF COMMISSION

Philip Irvin, appeared pro se.

Joseph L. McGee, Business Representative, appeared on behalf of the union.

Douglas Jewett, City Attorney, by Patrick J. Oshie, Assistant City Attorney, appeared on behalf of the employer.

This case comes before the Commission on timely cross-petitions for review filed by both parties regarding a decision issued by Examiner Rex L. Lacy.

On June 23, 1988, Philip Irvin filed a petition with the Public Employment Relations Commission, seeking a ruling pursuant to Chapter 391-95 WAC concerning his obligations under the union security provisions of a collective bargaining agreement between the City of Seattle and International Federation of Professional and Technical Engineers, Local 17, AFL-CIO. A hearing was held before Examiner Lacy on May 3, 1989, and post-hearing briefs were filed in June, 1989.

Examiner Lacy issued a decision on November 17, 1989, ruling that Irvin was entitled to assert a right of non-association under RCW 41.56.122(1). Local 17 filed a timely petition for review. Irvin filed a timely cross-petition for review as well as a motion to Add to Record Newly Discovered Evidence. Irvin subsequently responded to the union's Petition for Review.

BACKGROUND

Philip Irvin commenced employment with the City of Seattle in October of 1978, in a position within one of the bargaining units represented by Local 17. Irvin was obligated by the union security clause in effect at the time he commenced employment, and he joined the union. He has been a member in good standing of Local 17 since that time. Irvin is a member of the Calvary Temple, an affiliate of the Assemblies of God denomination.

In late May or early June of 1988, Irvin saw a notice posted on a union bulletin board, announcing a forum on "domestic partnership" rights. Local 17 was listed as a co-sponsor of the event, along with the Mayor's Lesbian/Gay Task Force. Irvin attended the forum on June 14, 1988. During the course of the forum, a Local 17 business representative explained the union's general position on the issue, and detailed the union's processing of a grievance filed by a member of the bargaining unit named Smiley, to seek extension of medical and dental insurance benefits to union members involved in "domestic partnership" relationships.

On June 23, 1988, Irvin filed the petition to initiate this proceeding. He asserts a right of non-association based on religious beliefs which conflict with what he states is support and advocacy of objectionable lifestyles by Local 17.

The legal basis for Irvin's claim is contained in WAC 391-95-230:

WAC 391-95-230 Hearings--Nature and Scope. Hearings shall be public and shall be limited to matters concerning the determination of the eligibility of the employee to make alternative payments and the designation of an organization to receive such alternative payments. 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:

(1) In cases where the claim of a right of non-association is based on the teachings of a church or religious body, the claimant employee must demonstrate:

(a) His or her bona fide religious objection to union membership; and

(b) That the objection is based on a bona fide religious teaching of a church or religious body; and

(c) That the claimant employee is a member of such church or religious body.

(2) In cases where the claim of a right of non-association is based on personally held religious beliefs, the claimant employee must demonstrate;

(a) His or her bona fide religious objection to union membership; and

(b) That the religious nature of the objection is genuine and in good faith.

After a hearing, Examiner Lacy concluded that Irvin had sustained his burden of proof.

THE PETITION FOR REVIEW

The union objects that both Irvin and the Examiner have misinterpreted its actions. Local 17 states that its activities relating to "domestic partnerships" were taken to fulfill its legal obligation to fairly represent some of its members, that those activities did not constitute support or advocacy of particular lifestyles, and that its activities therefore cannot be a basis for religious-based non-association. Local 17 maintains that Irvin has not established the required nexus between his religious beliefs and union membership, and it contends that the Examiner erred in nine separate actions or rulings, as follows:

1. The decision overlooks or ignores the union's obligation to pursue the grievance with "domestic partnership" implications on which the petitioner rests his religious objections. This obligation is based on public policy, municipal ordinance and the union's duty of fair representation.

The union sees a conflict between the Seattle Fair Employment Practices Ordinance and the employer's denial of medical and dental plan benefits to the "domestic partner" of a City of Seattle employee that was represented by Local 17. The union pursued the issue before the Seattle Human Rights Department, resulting in a "proposed determination and offer to conciliate" that is in evidence here.[1] Local 17 states that the union has filed only one grievance on the issue of "domestic partnerships", and that its participation in the public forum and its notification in the union newspaper were directed at resolving the same conflict that was presented in the grievance. Finally, the union points to paragraph 9 of the Examiner's Findings of Fact, which states: "The evidence in this matter fails to establish that Local 17 is involved in the direct support of homosexuality or cohabitation." The union points out that Irvin's claimed basis for assertion of a right of non-association is union support for such lifestyles.

In response, Irvin contends that the union's activities exceeded its legal obligations, and amounted to discretionary activity. In so doing, according to Irvin, Local 17 crossed the line from representative to advocate. Irvin bases part of his argument on Local 17's pursuit of the Smiley grievance while rejecting the notion that a "domestic partner" could be a former spouse.

On this pivotal question of distinguishing legally required "fair representation" from voluntary "advocacy", the Commission agrees with the union's arguments. We find that the union's actions were entirely consistent with its duty of fair representation. Nothing in the record shows Local 17 to be a prime sponsor of or advocate for the Fair Employment Practices Ordinance. Rather, the union's actions were part of its representative role, and for which it stood liable if it did not act in an appropriate manner.

2. The Examiner made improper value judgments by repeatedly referring to "non-traditional" domestic partnerships.

This dispute revolves around the personal relationships and living arrangements of some employees of the City of Seattle. The term "domestic partnerships" has been attached to this subject matter by the parties, but that term is so vague as to even include married couples. The Examiner coined his own amendment of the parties' terminology, referring to the disputed arrangements in his decision as "non-traditional domestic partnerships". The union now asserts that the Examiner's terminology is judgmental and unfair.

Irvin asserts that the Examiner should have adopted a clear definition of "domestic partnership", suggesting as a definition: "an unmarried, cohabiting homosexual or heterosexual couple".

The Commission is not persuaded that the terminology used by the Examiner implies any value judgment. Further, we are not persuaded that this issue is material to the outcome of the case. No error is found.

3. The last sentence of Finding of Fact 4.

The Examiner found: "Irvin has bona fide religious beliefs, consistent with church doctrine, against homosexuality and cohabitation without the benefit of marriage." Local 17 recognizes Irvin's objections to certain lifestyles, but points out that those objections do not relate to union membership. Just as it contends that its pursuit of a grievance is not an endorsement of any particular living arrangement, Local 17 contends that being a member of Local 17 does not conflict with Irvin's religious beliefs.

Irvin responds that his beliefs are religious and moral in nature, and are consistent with church doctrine.

We have examined the record and find no error. It is clear that Irvin is adamant in his opposition to homosexuality and cohabitation outside of marriage, and that his opposition is of a religious nature.

4. The last sentence of Finding of Fact 5.

The Examiner found: "Irvin has bona fide personal religious beliefs against union support for such relationships and grievances." The union responds that its meeting of its legal obligation in handling a grievance does not constitute support for a lifestyle.

Although he does not appear to oppose as strongly the union's efforts in meeting its legal obligations to represent members, Irvin does state some skepticism over the union's legal requirement to pursue grievances. Because the grievance area is less well established by the record, the reference to "grievances" will be deleted from paragraph 5 of the findings of fact.

5. Finding of Fact 7 misstates as a "fact" that "Local 17 has supported bargaining unit employees engaged in non-traditional domestic partnerships ..."

The union argues, again, that the only "support" advanced by Local 17 was related to meeting its representative obligations in handling a grievance and co-sponsoring a forum for discussion of domestic partnership issues.

Irvin finds the statement in paragraph 7 of the Examiner's findings of fact to be too narrow, by reason of its failure to note the union's activities as "discretionary". Irvin otherwise agrees with the finding.

Paragraph 7 of the findings of fact speaks to Irvin's claims. The union may disagree with the correctness of Irvin's claims, but Irvin is a good judge of whether they were accurately re-stated by the Examiner. Additionally, the record supports the finding.

6. Finding of Fact 9 dictates a different result than that reached by the Examiner.

The Examiner found that "The evidence in this matter fails to establish that Local 17 is involved in the direct support of homosexuality and/or cohabitation." The point made by the union is the same one noted in the first assignment of error. Simply stated, the union asks how a claim of religious-based non-association can be upheld if the union does not "directly support" what Irvin finds objectionable?

While agreeing that the union does not "directly support" homosexuality or cohabitation, Irvin maintains that the union's discretionary activities show support for domestic partnership rights. Irvin would have the finding deleted as being unrelated.

The Commission agrees with the Examiner's finding of fact.

7. Conclusion of Law 2

The Examiner concluded that Irvin sustained his burden of proof demonstrating a right of non-association, under RCW 41.56.122, from Local 17. The union reiterates, however, that Irvin is not opposed to union membership, and that it does not advocate homosexuality, co-habitation or gay rights. Therefore, it urges that no nexus was made between Irvin's religious objections and his union membership.

Irvin agreed with paragraph 2 of the Examiner's conclusions of law.

After reviewing the revised findings of fact, the Commission concludes that paragraph 2 of the Examiner's conclusions of law must be reversed. We agree with the union that the crucial, qualifying link between Irvin's religious beliefs and his objection to union membership has not been made.

8. Reliance on facts not in evidence.

The Examiner inferred that certain documents in the record were authored by Irvin under a pen-name. The union characterizes its objection as reliance on facts not in the record, but it actually takes issue with the inferences drawn by the Examiner.

Irvin indicated lack of understanding of the contention on appeal, and so did not directly respond to the issue.

The Commission has reviewed the record, and does not share the union's view that the Examiner's decision was made on facts not in evidence. In view of our conclusion on the previous issue, however, the point is not determinative in this case.

9. The decision is inconsistent with other decisions of the Commission and courts.

As already indicated, the Commission shares the union's view that reversal of the Examiner's decision is necessary. The revised conclusions of law and order issued herewith are in conformity with past decisions of the Commission and courts.

THE CROSS-PETITION FOR REVIEW

Irvin's cross-petition for review claimed ten errors in the Examiner's decision.

1. The decision fails to provide a definition of a "domestic partnership", thereby leaving everyone groping for an understanding of the issues (as evidenced by the description of a "non-traditional" domestic partnership.) A domestic partnership must be defined in the decision as an "unmarried, cohabitating homosexual or heterosexual couple."

This issue is related to the second point raised by the union in its petition for review. Irvin indicated that, with a definition such as that he proposes, he would have no objection to removing the "non-traditional" qualifier objected to by the union.

The Commission finds that the issues in this case are clear enough to be decided without establishing the definition of "domestic partnership." Additionally, the Commission is not convinced that it should be the body that defines the term, since our only role in this proceeding is to determine whether Irvin qualifies to assert a right of non-association from union security obligations under RCW 41.56.122.

2. Misleading and inflammatory characterization of Irvin's past union activity.

In a paragraph setting forth the position of the union, the Examiner stated: "The union also claims that Irvin volunteered to serve on the union's negotiating committee after he filed the petition to initiate these proceedings." Irvin claims that the Examiner's statement was misleading and inflammatory in the absence of explanation of Irvin's stated reasons for his action. Further,[2] Irvin claims that the statement should have included that he withdrew from participation a few days later, before any activities associated with negotiations took place.

The disputed statement is found to be an accurate reflection of the union's claim, and will not be amended or stricken.

3. Erroneous and prejudicial characterization of the "forum" co-sponsored by the union.

Irvin takes issue with the Examiner's characterization of the event co-sponsored by the union and attended by Irvin as a "forum", claiming that the event was advertised as, and was, a "public forum". Irvin asserts that the Examiner's frame of reference was erroneous and prejudicial, by giving the misleading impression that this event was intended primarily for union members, and not for members of the general public.

The union document announcing the event at issue referred to it as "Domestic Partnership Public Forum." The supposed relevance of the event to this case was its co-sponsorship by Local 17, and that fact is clear from the Examiner's decision. The Commission does not find the Examiner's simplified reference to the event was either erroneous or misleading.

4. Findings of Fact 5, 7 and 8.

Irvin contends that the Examiner's repeated references to the union's filing of a grievance was an improperly narrow view of what Irvin perceived was objectionable conduct by the union. Irvin urges that paragraphs 5, 7 and 8 of the Examiner's findings of fact were in error, in that:

a.                   They fail to mention that the union provided its name as a resource in the publication titled "Questions and Answers about Domestic Partnerships" published by the Mayor's Lesbian and Gay Task Force, and that this document is intended for use by the general public and not just for members of Local 17;

b.                  They fail to mention that the union published an article in the union newspaper, attempting to recruit union members to file a grievance or take other actions to secure domestic partnership rights;

c.                   They fail to note that the union displayed its support for domestic partnership rights by the reasoning it employed to support those rights; and

d.                  They fail to note the union's co-sponsorship, together with the Mayor's Lesbian/Gay Task Force, of the public forum on the domestic partnership issue.

We are unable to adopt Irvin's reasoning that the listing of Local 17 in a publication as a resource demonstrates advocacy for the type of living arrangements offensive to Irvin. Discussion does not equate with advocacy, so the same can be said for the union's co-sponsorship of the forum on the subject, regardless of the audience. As indicated above, we find that the union's pursuit of a grievance on the subject was to fulfill its legal obligation to represent its members.

5. Finding of Fact 9, in its entirety.

Irvin's arguments were considered and rejected in connection with the union's arguments on the same finding. The Commission agrees with the Examiner's finding that: "The evidence in this matter fails to establish that Local 17 is involved in the direct support of homosexuality and/or cohabitation."

Irvin contends that using the union's same reasoning for providing domestic partnership benefits leads to the "ludicrous" conclusion that the divorced and engaged non-cohabiting partners of employees are entitled to the same benefits as married partners.

6. The Union has no obligation to pursue dissemination of any information or advice on any subject to non-union members.

Irvin assigns error to the Examiner's failure to find that the union pursued a course of action that included becoming a source of public information on the domestic partnership issue.

As indicated above, we do not find that participation in meetings or conferences necessarily equates to endorsing the ideas expressed at such gatherings. The record in this case does not establish that Local 17 advocated any of the lifestyles identified by Irvin as objectionable.

7. The union had no obligation to recruit grievants among its membership to seek to set legal precedents.

Irvin also assigns error to the Examiner's failure to find that an article in the union newspaper solicited grievances on the domestic partnership issue.

A union is entitled to communicate with its members, and may even have a legal obligation to request member information to develop its case on a potentially viable grievance. In this situation, the viability of the claim being made by bargaining unit employees drew some support from the employer's own Human Rights Department. Local 17 may very well have had good reason to inform its members of the active grievance on the "domestic partners" issue. We are thus unable to fault Local 17 for its disclosure of its lawful activities to its members through the union newspaper.

8. The union's inconsistency as evidence of its support for objectionable causes.

Irvin again claims that the Examiner's findings of fact improperly omitted information that should have been included. On this point, Irving attached a motion to admit newly discovered evidence to his cross-petition for review. Irvin therein offered to show that the union has refused to pursue a grievance to obtain employer-provided benefits for the former wife of a certain named City of Seattle employee. Based on the premise that the legal arguments supporting extension of benefits to an ex-wife are identical to those supporting extension of benefits to "domestic partners", Irvin reasons that the union's support of the "domestic partner", but not the ex-wife, was evidence of its true advocacy for domestic partnership arrangements that he finds to be objectionable.

It is not necessary for the Commission to grant the motion to admit newly discovered evidence, or to consider the offered evidence, in this case. Whether the union is required to pursue a grievance to obtain benefits for a former spouse is a separate question that has no relevance to the case that is before us. There is no indication in Irvin's offer of proof that the former spouse in question was "cohabiting" with the bargaining unit employee at the time the request for benefits was made. Thus, the relationship does not meet Irvin's own definition of an "unmarried, cohabiting ... couple". The motion for admission of newly discovered evidence is denied.

9. By the actions which the Union pursued for which it has no legal or other obligation to pursue, it has become an advocate seeking additional legal benefits and rights for domestic partnerships.

Irvin urges that a finding of fact should have been made along the lines indicated.

This allegation appears to repeat arguments made earlier. As already indicated, we disagree with Irvin's allegation that the union has become an advocate for "domestic partnerships".

10. The Union's direct support of domestic partnership rights at least indirectly supports the social acceptance of homosexuality and cohabitation.

Irvin urges that a finding of fact should have been made along the lines indicated.

This proceeding is conducted pursuant to Chapter 391-95 WAC, for the limited purpose of determining Irvin's obligations under the union security provision of the contract between the City of Seattle and Local 17. Although the record shows no direct or indirect support by the union for homosexuality and cohabitation of unmarried persons, we are not called upon to rule directly on that question. It is sufficient for us to conclude, as already stated, that Irvin has failed to sustain his burden of proof under WAC 391-95-230.

AMENDED FINDINGS OF FACT

1.                  The City of Seattle is a municipal corporation of the state of Washington pursuant to RCW 41.56.020, and is a "public employer" within the meaning of RCW 41.56.030(1).

2.                  International Federation of Professional and Technical Engineers, Local 17, AFL-CIO, is a "bargaining representative" within the meaning of RCW 41.56.030(3). Local 17 is the exclusive bargaining representative of a bargaining unit of City of Seattle employees which includes professional, technical, business, recreational, and human rights employees.

3.                  The employer and the union have been parties to a series of collective bargaining agreements containing union shop provisions requiring all bargaining unit employees to maintain their membership in the union. Such union security provisions safeguard the right of non-association of employees based upon bona fide religious tenets or teachings of a church or religious body.

4.                  Philip Irvin is an employee of the City of Seattle, within a bargaining unit represented by Local 17. Irvin was a member of Local 17 from 1978 to 1988. Irvin is a member of the Calvary Temple Church, an affiliate of the Assembly of God denomination. The church does not have teachings which directly prohibit its members from joining or remaining members of labor unions. Irvin has bona fide religious beliefs, consistent with church doctrine, against homosexuality and cohabitation without benefit of marriage.

5.                  In June of 1988, Irvin attended a forum where he became aware of Local 17's support for employee grievances seeking to extend benefits to bargaining unit employees engaged in non-traditional domestic partnership relationships. Irvin has bona fide personal religious beliefs against union support for such relationships.

6.                  On June 23, 1988, Irvin filed this petition asserting a right of non-association, because of his dissatisfaction with the direction the union was taking in regard to the domestic partnership issue. Irvin seeks to make alternative payments to a charity, rather than the payments required to the union under the union security provision of the collective bargaining agreement between the employer and union.

7.                  Irvin's claim of a right of non-association is based upon the claim that Local 17 has supported bargaining unit employees engaged in non-traditional domestic partnerships, and Irvin's belief that the union has thereby aligned itself as an organization seeking to elevate the social and/or legal acceptability of homosexuality and/or cohabitation, in conflict with Irvin's personally-held bona fide religious beliefs.

8.                  The evidence in this matter establishes that Local 17 has, in fact, been involved in processing of a grievance concerning extension of employee benefits to those members of the union who were involved in non-traditional domestic partnerships.

9.                  The evidence in this matter fails to establish that Local 17 is involved in the direct support of homosexuality and/or cohabitation.

AMENDED CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and Chapter 391-95 WAC.

2.                  Philip Irvin has not sustained his burden of proof demonstrating a nexus between his religious beliefs and his assertion of a right of non-association, under RCW 41.56.122, from International Federation of Professional and Technical Engineers, Local 17, AFL-CIO.

AMENDED ORDER

1.                  Philip Irvin is directed to make payments of union dues to International Federation of Professional and Technical Engineers, Local 17, AFL-CIO, in accordance with the union security provisions of the collective bargaining agreement between that organization and the City of Seattle.

2.                  If no petition for judicial review of this order is filed within 30 days following the date of this order, the City of Seattle shall thereafter remit to Local 17, in accordance with WAC 391-95-130, any and all funds withheld and retained from the pay of Philip Irvin, pursuant to WAC 391-95-130.

3.                  If a petition for judicial review of this order is filed, such filing shall automatically stay the effect of this order.

ISSUED at Olympia, Washington, this 16th day of August, 1990.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARK C. ENDRESEN, Commissioner

[SIGNED]

JOSEPH F. QUINN, Commissioner

Chairperson Janet L. Gaunt did not take part in the consideration or decision of this case.