Omak School District, Decision 6041 (PECB, 1997)

STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of a dispute concerning the obligations of:
RITCHARD POMEROY	CASE 12973-N-97-00001
Under union security provisions of a collective bargaining agreement between:	DECISION 6041 - PECB
OMAK SCHOOL DISTRICT and PUBLIC SCHOOL EMPLOYEES OF OMAK	FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

Ritchard Pomeroy, appeared pro se.

Eric T. Nordlof, Attorney at Law, appeared on behalf of Public School Employees of Omak.

LeAnne Breiler, Payroll Officer, appeared on behalf of the Omak School District.

On February 11, 1997, Public School Employees of Omak (PSE) filed a petition with the Public Employment Relations Commission under Chapter 391-95 WAC, seeking a ruling on the union security obligations of bargaining unit member Ritchard Pomeroy under a collective bargaining agreement between PSE and the Omak School District (employer). The petition indicated there was a dispute regarding the eligibility of the employee to assert a right of nonassociation under RCW 41.56.122(1), and also a dispute involving the designation of a charity to receive alternative payments. A hearing was held May 14, 1997 in Omak, Washington, before Examiner Katrina I. Boedecker. Pomeroy submitted oral closing argument at the hearing. PSE filed a post-hearing brief. The employer did not submit a closing argument.

BACKGROUND

PSE and the employer were parties to a collective bargaining agreement for the period from September 1, 1995 through August 31, 1997, which included the following language:

Section 13. 2 ... [A]11 employees subject to this Agreement who are hired at a time subsequent to the effective date of this Agreement, shall, as a condition of employment, become members in good standing of the Association within sixty (60) calendar days of the effective date of this Agreement or within sixty (60) calendar days of the hire date, whichever is applicable. Such employee shall then maintain membership in the Association in good standing during the period of this Agreement.

Section 13. 3. The parties recognize that an employee should have the option of declining to participate as a member in the Association, yet contribute financially to the activities of the Association in representing such employee as a member of the collective bargaining unit. Therefore, as an alternative to, and in lieu of the membership requirements of the previous sections of this Article, an employee who declines membership in the Association may pay to the Association each month a service charge as a contribution towards the administration of this Agreement in an amount equal to the regular monthly dues. This service charge shall be collected by the Association in the same manner as monthly dues.

...

Section 13.6. Nothing contained in this Agreement shall require Association membership of employees who object to such membership 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 equivalent to normal dues to a non-religious charity or other charitable organization mutually agreed upon by the employee and the Association. The employee shall furnish written proof that such payment has been made. If the employee and the Association cannot agree on such matter, it shall be resolved by the Public Employment Relations Commission.

Ritchard Pomeroy began work for the Omak School District in September 1996, as the director of student services at the Omak Middle School. When he commenced that employment, he was given a copy of the 1995 - 1997 collective bargaining agreement.

Pomeroy has been a pastor of the Omak Four Square Church for six years. He testified that, in preparation for beginning his job with the Omak School District in September of 1996, he asked God whether he should become a member of PSE. He further testified that God told him “not to join the union and that to donate that money to Crisis Pregnancy Center”. Pomeroy testified:

I believe God directs and speaks through His word and through the Holy Spirit. The Holy Spirit is the third person God has. God gives me direction and guidance along with many other incredible and wonderful things. God has put it to me not to participate in the union; thus, I have not. ... [M]y objection is based on God telling me not to join; and, that as a licensed minister of the Church of Four Square Gospel, I give my word that this objection is from God.

Pomeroy stated that he does not hold religious beliefs against unions, but that he does have an abiding belief that God has told him not to join PSE at this time. Pomeroy does donate $1.00 from his pay check to the Omak chapter of PSE, to support its administration of the collective bargaining agreement.

The employer made dues deductions from Pomeroy’s pay checks for September and October of 1996, while Pomeroy was attempting to obtain information regarding how to assert his right of non-association from the union. In November of 1996, Pomeroy wrote to PSE, asserting that he had not signed a release to have any dues money deducted from his pay check and advising that he desired to have an amount equivalent to his dues sent to the Crisis Pregnancy Center. He sent PSE, at the same time, a PSE form in which he claimed a bona fide religious objection to paying either membership dues or service fees. The employer continued to make dues deductions from Pomeroy’s pay checks through February of 1997, and to remit those funds to PSE headquarters in Auburn, Washington. In February of 1997, PSE notified both the employer and Pomeroy that the employer should establish an escrow account in accordance with the provisions of WAC 391-95-130, [1] and place into that account an amount equal to regular PSE dues deducted from Pomeroy’s pay.

In February of 1997, Pomeroy authorized the employer to send his dues monies to the Crisis Pregnancy Center. Pomeroy testified that the Crisis Pregnancy Center is a nationwide organization to help unmarried mothers. In providing support for a healthy pregnancy, it furnishes counseling, other services and needed items, such as cribs. Although it allows the individual mothers their free will to chose whether or not to have an abortion, its belief is that it is best not to have an abortion. Pomeroy advanced that several certificated staff of the Omak School District designate the Crisis Pregnancy Center as the non-religious, nonprofit organization to receive their alternative dues payments. Pomeroy submitted an April 4, 1995 statement from the Internal Revenue Service that classified the Crisis Pregnancy Center of Okanogan County as “... [E]xempt from federal income tax under section 501 (a) of the Internal Revenue Code as an organization described in section 501 (c) (3) . ”

PSE proposed that Pomeroy’s alternative payments should be made to the Unemployment Law Project or to the Equal Access to Justice Committee. The Unemployment Law Project assists workers who have been denied unemployment benefits after they have been discharged or left employment, and is recognized by the Internal Revenue Service as a “501(c)3” non-profit organization. It has no religious affiliations.

POSITIONS OF THE PARTIES

Pomeroy argues that he qualifies for non-association based on his personally held religious beliefs. He contends that he demonstrated his bona fide religious objection to union membership and that the religious nature of his objection is in good faith.

PSE contends that Pomeroy did not build a convincing record about the sincerity and religious basis of his beliefs. Although it acknowledges that God told Pomeroy not to join the PSE, it distinguishes that there is no testimony that God advised against providing financial support to PSE. PSE also points to Pomeroy’s voluntary contribution of the local PSE chapter dues as establishing that Pomeroy’s religious beliefs do not exclude his providing financial support (as opposed to becoming a member) of a union. In the event that Pomeroy’s claim of non-association is upheld, PSE advances that the Crisis Pregnancy Center of Okanogan County offers virtually every pregnancy-related service available with the exception of abortion referrals, and that this discrepancy raises a question as to whether the Crisis Pregnancy Center may be promoting a religious agenda even if it is not a religious organization on its face. Finally, the union contends that a charity qualifying to receive alternative payments should have statewide activities, not localized ones.

The employer was represented at the hearing and questioned witnesses, but did not take a position in the matter.

DISCUSSION

Appropriate Legal Standard

The Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, permits employers and unions to include “union security” provisions in their collective bargaining agreements, and thus to obligate some or all bargaining unit employees to pay dues to the union which represents. The same statute requires that public employees who are obligated under union security clauses be given the opportunity to pay the equivalent of union dues to a non-religious charity, if their religious beliefs prevent them from associating with the union.[2]

It is well-established that the religious beliefs which support assertion of the right of non-association may be either personally-held or the tenets of a religious body to which the employee belongs. Grant v. Spellman, 99 Wn.2d 815 (1983) [Grant II]. When a public employee and his or her union cannot agree on entitlement to the religious exemption, or on the identity of the non-religious charity, it is the Commission’s responsibility to make sometimes difficult decisions. King County, Decision 5275 (PECB, 1995) .

The Commission has adopted a rule which guides the parties in these matters:

WAC 391-95-230 HEARINGS--NATURE AND SCOPE. ... The employee [requesting the religious exemption] 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.

(3) Once a hearing has been declared closed, it may be reopened only upon the timely motion of a party upon discovery of new evidence which could not with reasonable diligence have been discovered and produced at the hearing. ...

[Emphasis by bold supplied.]

The Commission does not inquire into the reasonableness or plausibility of the religious beliefs claimed by an employee who asserts a right of non-association, but instead applies an objective standard to determine whether the claimed belief is religious, as compared with philosophical, sociological, ethical, or moral.[3] Personal political grounds do not suffice, and neither will a claim based upon erroneous understandings of union actions or positions.[4]

Eligibility to Assert Non-Association

Religious Beliefs -

The belief that Pomeroy relies upon as a basis for asserting a right of nonassociation is personally held. He testified that the Omak Four Square Church teachings are not involved in his personal decision with respect to union membership.

The belief that Pomeroy relies upon as a basis for asserting a right of nonassociation are, however, religious. He advanced that he has an abiding belief that God spoke to him in September, 1996:

My basis is ... I believe that the God that I serve has indicated to me not to join this union at this time. I do not know why that is. I take that in faith. I take it in faith that God told me to – my God had told me to donate what I would have donated to the union, minus the dollar, to an organization which He prescribed.

Pomeroy testified, without impeachment, that he has a personally-held religious belief that he must obey the word of God.

In the absence of any legislative definition, the Commission has adopted the ordinary meaning of “religion” for these decisions:

[T]he personal commitment to and serving of God or a god with worshipful devotion, conduct in accord with the divine commands especially as found in accepted sacred writings or declared by authoritative teachers, a way of life recognized as incumbent on true believers, and typically the relating of oneself to an organized body of believers.

Edmonds School District, Decision 1239-A (EDUC, 1983), quoting Webster’s Third New International Dictionary.

In La Conner School District, Decision 5327, (PECB, 1995), the term “religious” was defined as inherently connoting reverence, worship, obedience or submission to the mandates and precepts of superior beings. Black’s Law Dictionary, Fourth Edition, p. 1455. In making its inquiry into the basis for a claimant’s objection to union membership under RCW 41.56.122, the Commission necessarily operates within the narrow limits on governmental intrusion into religious beliefs which are imposed by the first amendment to the United States Constitution. Mere assertion of a religious basis, without explanation, will not suffice. Mukilteo School District, Decision 1323-B (EDUC, 1984); Tacoma School District, Decision 2018 (EDUC, 1984) . Purely secular views, no matter how strongly held, do not qualify an employee for nonassociation. Pomeroy has sustained his burden of proof in this case.

Good Faith -

Pomeroy acknowledged that he does not hold religious beliefs against unions in general.[5] However, Pomeroy maintains that God directed him specifically to not join PSE at this time. His belief in God’s word is based on his interpretation of teachings of the Bible and his church.

The Commission is required to look for “bona fide” religious beliefs, but cannot inquire into the quality of an employee’s religious beliefs beyond determining whether such beliefs are bona fide and held in good faith. Brewster School District, Decision 2888 (EDUC, 1988). Pomeroy gave his word as a licensed minister of the Church of Four Square Gospel that the objection is from God. There is no evidence that Pomeroy is being fraudulent or deceitful in describing his religious beliefs or their influence on his life. See: Hoquiam School District, Decision 5735 (EDUC, 1996). Pomeroy met his burden of proof to show that his religious beliefs are sincerely and honestly held.

The Union’s “Financial Support” Distinction -

The union attempts to draw a distinction between joining PSE and paying dues to PSE, arguing that just because God directed Pomeroy not to join the union does not prevent him from giving financial support to the union. Thus, the union contends that Pomeroy should be required to pay an “agency fees” or a “service charge” (i.e., a payment for the services provided) instead of a mandated organizational membership. PSE does not cite any statute, Commission precedent or judicial precedent in support of its argument.

Analysis of or comment on PSE’s novel legal argument is unnecessary in this case, where a close reading of the transcript shows that Pomeroy gave uncontroverted testimony that God directed him to donate the amount of the dues money to the Crisis Pregnancy Center.[6] This met Pomeroy’s burden of proof that God has also directed him not to give financial support to PSE.

Designation of Charity for Alternative Payments

Pomeroy submitted an Internal Revenue Service document showing that the Crisis Pregnancy Center of Okanogan County has been granted status as a charitable organization under Section 501(c) (3) of the federal tax code. PSE argues that the Crisis Pregnancy Center’s brochure reveals that it offers virtually every pregnancy-related service except abortion referrals. PSE thus questions whether the center, although not affiliated with a religious organization on its face, may be promoting a religious agenda. PSE points out that if the center is promoting a “pro-life” agenda, that agenda is identified with certain socially conservative religious beliefs. PSE’s innuendos are not, however, enough to overcome the Internal Revenue Service document that classifies the center as a non-religious tax-exempt organization.

PSE supported directing Pomeroy’ s alternative payments to the Unemployment Law Project, and submitted a flyer from that organization which states, at one point:

You can help. Make a tax deductible contribution. The Unemployment Law Project depends on grants and contributions for funding of our work.

In safeguarding the right of nonassociation of public employees, the statute acknowledges individual rights. In choosing between two qualifying non-religious organizations to receive alternative payments, the statutory focus on individual rights weighs in favor of the qualifying body advanced by the individual employee.

The union and employer are directed to: (1) release any dues money which the employer has withheld from the pay of Ritchard Pomeroy and held in escrow since the petition to initiate this proceeding was filed on February 11, 1997; and (2) refund and release any dues money which the employer has withheld from the pay of Ritchard Pomeroy and forwarded to PSE without written authorization from the employee, and which PSE has accepted, since the date when Pomeroy notified PSE, in November of 1996, of his desire to assert the statutory right of non-association. The funds shall be released to the Crisis Pregnancy Center of Okanogan County.

Conclusion

The collective bargaining agreement negotiated by the union and employer compels employees to provide financial support to the union, absent an employee exercising his or her statutory right of nonassociation. Pomeroy has proven that his objection to union membership is based on his personally held religious beliefs, which are genuine and held in good faith. He is entitled to assert a right of nonassociation under RCW 41.56.122.

FINDINGS OF FACT

1.         The Omak School District is a “public employer” within the meaning of RCW 41.56.030(1).

2.         Public School Employees of Omak (PSE), a “bargaining representative” within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of a unit of all classified employees of the Omak School District.

3.         The employer and PSE are signatories to a collective bargaining agreement for the period of September 1, 1995 through August 31, 1997. Under the agreement, employees must: 1) join the union; 2) pay a service charge equal to the regular monthly dues to the union; or 3) assert a right of nonassociation under RCW 41.56.122.

4.         Ritchard Pomeroy is a classified employee of the Omak School District, within the bargaining unit represented by PSE.

5.         During or about September through October of 1996, Pomeroy was engaged in seeking information concerning the right of non-association protected by RCW 41.56.122(1).

6.         During or about November of 1996, Pomeroy requested that the union allow him to make alternative payments to a nonreligious charity, pursuant to the collective bargaining agreement. The union refused the request, and it filed a petition to initiate this proceeding on February 11, 1997.

7.         Pomeroy is a minister of the Four Square Church of Omak. His church does not prohibit its members from joining labor organizations.

8.         Pomeroy has personal beliefs that God speaks to him, and that he must obey God’s words. Pomeroy gave unrebutted and credible testimony that God spoke to him in September of 1996, directed him not to join PSE at that time, and directed him to send the equivalent of union dues to the Crisis Pregnancy Center. His beliefs are religious in nature and are sincerely held in good faith.

9.         The Crisis Pregnancy Center of Okanogan County is a non-profit charitable organization exempt from federal taxation under Section 501 (c) (3) of the United States Internal Revenue Code.

CONCLUSIONS OF LAW

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

2.         Ritchard Pomeroy has demonstrated that his objection to membership in the Public School Employees of Omak is based upon bona fide personally-held religious beliefs, and has sustained his burden of proof to assert a right of nonassociation under RCW 41.56.122(1), so that he is eligible to make alternative payments to the Crisis Pregnancy Center of Okanagan County.

ORDER

1.         Ritchard Pomeroy shall be permitted to make alternative payments, in lieu of paying union dues, as follows:

a.         The alternative payments shall be in an amount equal to the periodic dues and initiation fees required for membership in the union.

b.         The alternative payments shall be made to the Crisis Pregnancy Center of Okanagan. Ritchard Pomeroy shall furnish proof to Public School Employees of Omak that such payments have been made, in accordance with the union security provisions of the collective bargaining agreement between the Public School Employees of Omak and the Omak School District.

2.         If no petition for review of this order is filed with the Public Employment Relations Commission within 20 days following the date of this order, the Omak School District shall:

a.         Obtain refund from PSE of any funds deducted from the pay of Ritchard Pomeroy without authorization and transmitted to PSE and retained by PSE, for the period since the date in November of 1996 when Pomeroy notified PSE of his claim of a right of non-association.

b.         Remit any funds recouped under the preceding paragraph, together with any funds deducted from the pay of Ritchard Pomeroy and held in escrow pursuant to WAC 391-95-130, to the Crisis Pregnancy Center of Okanagan County.

3.         If a timely petition for review of this order is filed with the Public Employment Relations Commission, such filing shall automatically stay the effect of this order pending a ruling by the Commission.

Issued at Olympia, Washington, the 19th day of September, 1997.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

KATRINA I. BOEDECKER, Examiner

This order will be the final order of the agency unless appealed by filing a petition for review with the Commission pursuant to WAC 391-95-270.