Elliott Willman, Business Representative, appeared on behalf of the petitioner.

Connor, Gravrock and Treverton, by David Gravrock, Labor Relations Consultant, appeared on behalf of the employer.

Richard Berkowitz, Business Representative, appeared on behalf of the incumbent intervenor, Washington State Nurses Association.

United Staff Nurses Union, Local 141, (USNU) affiliated with the United Food and Commercial Workers, AFL-CIO, (UFCW) filed a petition for investigation of a question concerning representation with the Public Employment Relations Commission on July 31, 1989, seeking certification under Chapter 41.56 RCW and Chapter 391-25 WAC as exclusive bargaining representative of certain registered nurses employed by Public Hospital District 3 of Okanogan County, d/b/a Mid-Valley Hospital. The Washington State Nurses Association (WSNA) was granted intervention in the proceedings, based on its status as the incumbent exclusive bargaining representative of the petitioned-for employees.

A pre-hearing conference was held on October 16, 1989, at which time the parties executed an election agreement pursuant to WAC 391-25-230, subject to a ruling by the Executive Director on a previously filed motion for an indefinite delay of the proceedings. The Executive Director has considered the stipulations and positions of the parties, as framed at the pre-hearing conference and in their correspondence, and concludes that the remaining issue can properly be resolved by summary order issued pursuant to WAC 391-08-230.

The instant case is among several representation cases that have been initiated by the USNU with the Commission or with the National Labor Relations Board (NLRB) during the summer and autumn of 1989. The USNU is seeking by those cases to obtain certification as exclusive bargaining representative of registered nurses employed at various public or private hospitals in Washington in bargaining units that have heretofore been represented by the WSNA.

The WSNA has moved for an indefinite suspension of the proceedings in this case, based on its claim that a "no-raid" agreement exists between it and the United Food and Commercial Workers Union, AFL-CIO. The "letter of understanding" relied upon is dated April 19, 1985 and contains the following that is of interest here:

SEIU, WSNA and UFCW are committed to respect each others' traditional units and are prepared to jointly do whatever is necessary to preserve the long established rights of our members. To this end all three labor organizations are prepared to actively and aggressively involve themselves in coordinated activities whenever and wherever an existing or traditional unit of any of the three organizations is in question. We want to assure our members, as well as notify others in the health care field, that we are fully prepared to deal with these recent changes.

Each of the three labor organizations will continue to respect the independence and individual integrity of the other two labor organizations.

The document contains a list of the "changes" referred to, including "disruptive National Labor Relations Board decisions" affecting health care facilities.

The WSNA has filed suit in federal court, seeking specific enforcement of the purported "no-raid" agreement. The WSNA contends in its federal court lawsuit that the "no-raid" agreement is still in effect, and that the UFCW willfully and in bad faith violated its terms by chartering the USNU to pursue representation petitions in a number of hospitals. The WSNA also contends that the USNU's actions violated the "laboratory conditions" necessary to conduct a fair election.

The USNU contends that the instant petition must be processed without regard to the "no raid" agreement. The USNU notes that it was not chartered nor did it commence operations until July 6, 1989, so that it was not a party to the purported "no-raid" agreement. It notes that, while the Northwest Region UFCW is a party to the purported "no-raid" agreement, the USNU is not and has not been a member of the Northwest Region UFCW. The USNU also contends that the document in question is a "letter of understanding" rather than a true "no raid" agreement specifying strict adherence to existing union jurisdictional boundaries. The USNU maintains in any case that the document relied upon by the WSNA is terminable at will, because it has no fixed termination date. Further, the USNU argues that the document must not be given effect by the Commission, because it does not contain any mechanism for expedited resolution of disputes. Finally, the USNU contends that acceptance of the WSNA argument would effectively deprive employees of a free choice of their exclusive bargaining representative.

The employer did not take a position on the "no raid" issue.

Section 11052.1 of the NLRB's Case Handling Manual sets forth the NLRB procedure where a delay of representation proceedings is sought because of a claimed "no-raid" pact. The NLRB's procedures permit deferral of representation proceedings involving AFL-CIO affiliates for up to 30 days, while the parties attempt to resolve their "jurisdictional" dispute under the terms of Article XX of the AFL-CIO Constitution.[1] In situations involving organizations that are not AFL-CIO affiliates, the NLRB's procedures permit a similar deferral for up to 30 days "in cases where it appears that their operation holds similar promise of resolving representation disputes among the parties to the agreement".

The cases currently pending before the Commission are not the first in which a "no-raid" agreement has been advanced in opposition to a representation case, but they do present the first occasion for the Commission to rule formally on the subject. In South Columbia Basin Irrigation District, Case 4467-E-83-825, guidance for an administrative delay was drawn from the NLRB's procedure. The dispute in South Columbia involved two local organizations affiliated with the AFL-CIO, and the "no-raid" question was promptly processed under the internal procedures of that organization, with the result that the petitioner withdrew the petition.

In a subsequent case, South Columbia Basin Irrigation District, Decision 2894 (PECB, 1988), the same petitioner initiated representation proceedings before the Commission for the same unit, and the claimed-incumbent was again granted a delay to pursue internal AFL-CIO procedures. The Commission later resumed the processing of the case in the absence of a timely withdrawal, consistent with the NLRB's procedure.[2]

As in four other cases where the same issue was recently decided,[3] the purported "no-raid" agreement relied upon by the WSNA in the instant case lacks important elements that were present in the South Columbia cases and appear to be required by the NLRB's policy as conditions precedent to delay of representation proceedings. Most important, there is no procedure within the document for a prompt determination of disputes arising between the parties. Since the WSNA is not affiliated with the AFL-CIO, the internal procedures of that organization for the determination of "jurisdictional" disputes cannot be imputed to the situation at hand.

The lawsuit initiated by the WSNA in federal court does not satisfy a requirement for "procedures for prompt determination", as federal court procedure provides little hope of the issue being determined within "30 days" or any other reasonably predictable time in the near future. The parties were about to embark on "discovery" under the Federal Rules of Civil Procedure, and there are indications that a trial date in federal court is much more than 30 days away.

Even if the federal court case were to get to trial in a timely manner, the prevailing federal precedent in the 9th Circuit is Local 1547, International Brotherhood of Electrical Workers v. Local 959, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, 507 F.2d 872 (9th Circuit, 1974), where the court denied specific enforcement to a "no-raid" agreement on the basis that such agreements are contrary to the public policy of employee free choice that is stated in Section 7 of the National Labor Relations Act (NLRA). Like Section 7 of the NLRA, RCW 41.56.040 assures public employees the right to select representatives of their own choosing.

NOW, THEREFORE, it is

ORDERED

1.                  The motion of the Washington State Nurses Association for delay of these proceedings is denied.

2.                  Further proceedings will be conducted in conformity with the election agreement filed by the parties.

DATED at Olympia, Washington, this 18th day of October, 1989.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This order may be appealed by filing objections pursuant to WAC 391-25-590.