James B. Lambert, appeared pro se at the hearing. John C. Scully, attorney at law, filed the petition for review and supporting brief.

Sheryl Stevens, UniServ Director, appeared on behalf of the Association at the hearing. Kathy O'Toole and Faith Hanna, attorneys at law, filed the brief.

On December 14, 1987, James B. Lambert filed a petition with the Public Employment Relations Commission, seeking a ruling concerning his obligations under the union security provisions of a collective bargaining agreement between the Battle Ground School District and the Battle Ground Education Association, WEA/NEA. Mark S. Downing was designated as Examiner pursuant to Chapter 391-95 WAC. A hearing was held, before the Examiner, on June 9, 1988.

A motion filed on behalf of the petitioner on August 12, 1988 enclosed a number of documents, including resolutions adopted by various National Education Association (NEA) general assemblies, which Lambert asserts prove that the NEA supports abortion. The Examiner denied the motion by written order dated September 2, 1988.[1] The Examiner issued his findings of fact, conclusions of law and order on February 10, 1989, ruling that the petitioner had not sustained his burden of proof that the union has position on various societal issues that are in conflict with his religious beliefs.[2] Lambert filed a timely petition for review, bringing the matter before the Commission.

POSITIONS OF THE PARTIES

Lambert's petition for review asserts that the Examiner made five errors:

1.                  That Lambert is entitled to a religious accommodation because of his opposition to the confrontational model upon which the union is based.

2.                  That Lambert presented sufficient evidence to prove that the union took a pro-choice position on abortions.

3.                  That Lambert is entitled to a religious accommodation, even if the union did not take positions that Lambert objects to.

4.                  That the union has the burden of proof to produce their resolutions and to prove their positions on those issues.

5.                  That the record should have been kept open or reopened in order to allow the receipt of other documentary evidence.

The union argues that the evidence submitted by the petitioner with his brief was untimely, in that the hearing in the matter was already closed at the time it was submitted. The union claims that the additional evidence cannot now be considered by the Commission. Specifically, it relies upon the Administrative Procedures Act in effect at the time of the hearing, RCW 34.04.100, as support for the proposition that all evidentiary materials must be presented during the hearing. The union claims that petitioner failed to demonstrate that the union supports issues to which he has religious-based opposition, or that his religious objection is linked to union membership. The union thus urges the Commission to affirm the Examiner's decision.

DISCUSSION

The Educational Employment Relations Act provides the legal basis for the petitioner's claim of a right of non-association:

A collective bargaining agreement may include union security provisions including an agency shop, but not a union or closed shop. If an agency shop provision is agreed to, the employer shall enforce it by deducting from the salary payments to members of the bargaining unit the dues required of membership in the bargaining representative, or, for nonmembers thereof, a fee equivalent to such dues. All union security provisions must safeguard the right of nonassociation of employees based on bona fide religious tenets or teachings of a church or religious body of which such employee is a member. Such employee shall pay an amount of money equivalent to regular dues and fees to a nonreligious charity or to another charitable organization mutually agreed upon by the employee affected and the bargaining representative to which such employee would otherwise pay the dues and fees. The employee shall furnish written proof that such payment has been made. If the employee and the bargaining representative do not reach agreement on such matter, the commission shall designate the charitable organization.

RCW 41.59.100 (emphasis supplied)

Certain procedural steps and the evidentiary standards for public employees to follow in pursuing a religious-based claim of non-association are set forth in 391-95 WAC:

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 nonassociation 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 nonassociation 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.

WAC 391-95-230 (emphasis supplied)

In this case, the petitioner is affiliated with the Cherry Grove Friends Church, but does not claim that the church itself teaches against union membership. Accordingly, he claims a right of non-association based on personally held religious beliefs, and the burden was on him to demonstrate his religious objections to union membership, as well as the sincerity of that religious objection. While Lambert's views on a variety of societal issues appear to be sincere, they do not meet the tests for a claim of religious objection. Grant v. Spellman, 99 Wn.2d 815 (1983) (Grant II) ; Edmonds School District, Decision 1239-A (EDUC, 1983); Snohomish County, Decision 2859-A (PECB, 1988). Lambert's stated objections are not to union membership, but to positions which he believes the union supports. An objection to a labor organization must, however, be based upon evidence establishing the union conduct or position to which objection is taken. Brewster School District, Decision 3027 (EDUC, 1988). Objections based on misinformation or erroneous assumptions do not constitute a basis for assertion of the right of non-association provided by statute. North Thurston School District, Decision 2433 (EDUC, 1986); Puyallup School District, Decision 2711 (EDUC, 1987). On the record made at the hearing, Lambert is not entitled to exercise a right of non-association to avoid the payment of union dues.

In his post-hearing brief, the petitioner presented a number of documents in support of his claimed right of non-association. In order to be considered by the Examiner and the Commission, evidence must be presented at a formal hearing, where it is subject to cross-examination and contradiction under normal evidentiary standards applicable in administrative adjudication. See: Chapter 10-08 WAC, Chapter 391-08 WAC, Chapter 391-95 WAC. In this case, the petitioner has not claimed or shown that the additional evidence tendered with the post-hearing brief was newly discovered evidence which could not with reasonable diligence have been discovered and produced at the hearing. The additional documents were properly excluded by the Examiner.

Contrary to the claim advanced by the petitioner in his brief, the Commission believes that the petitioner was adequately notified of the formal hearing conducted in this case. Notice was issued on April 5, 1988, in the Commission's standard notice of hearing form. That notice recited the need for factual information to be presented at the hearing, as follows:

[T]he parties have the right to appear in person or otherwise and give testimony. The parties are requested to bring to the hearing any relevant facts and documentation bearing on the question of the eligibility of petitioner to make alternative payments or as to the organization which is to receive such payments in lieu of payments to the union.

Many cases involving claims of the right of non-association have been presented and carried forward before the Commission by pro se claimants working from the standard hearing notice used in this case. Some of those claimants have demonstrated a fair degree of skill in presenting their case. Some have met with success and others with failure, depending on the evidence presented at the hearing. Our rules do not require that claimants be represented by legal counsel in such proceedings, and we acknowledge that a pro se claimant may be treading on unfamiliar ground in presenting evidence at a formal hearing. Nevertheless, with respect to the evaluation of the evidence, no greater consideration can be given to a pro se litigant than to a party represented by experienced counsel.

Further, while the union representative testifying in this proceeding claimed that their organization does not hold the positions on social issues claimed by Lambert, the collective bargaining agreement in evidence in this proceeding provides for payment of a representation fee by those individuals who do not wish their money to go to political action activities supported by the union. The petitioner has not taken advantage of this possibility.

Finally, it must be noted that a petition for a ruling on union security obligations may be filed at any time a petitioner believes that additional evidence or witnesses are available to make a case for non-association.

The decision of the Examiner is AFFIRMED.

Issued at Olympia, Washington, this 29th day of September, 1989.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JANE R. WILKINSON, Chairman

[SIGNED]

MARK C. ENDRESEN, Commissioner

[SIGNED]

JOSEPH F. QUINN, Commissioner