The complaint charging unfair labor practices was filed in the above-entitled matter on December 21, 1987, and is now before the Executive Director for a preliminary ruling pursuant to WAC 391-45-110. At this stage of the proceedings, it must be assumed that all of the facts alleged are true and provable. The question at hand is whether an unfair labor practice violation could be found.

At the outset, it needs to be noted that the so-called "troopers" of the Washington State Patrol did not become "public employees" within the meaning of Chapter 41.56 RCW until the July, 1987, effective date of amendments contained in Chapter 135, Laws of 1987. Prior to that time, the employees involved in this proceeding had no statutory collective bargaining rights, and neither the employer nor the employees involved in this case were subject to the jurisdiction of the Public Employment Relations Commission.

According to the allegations of the complaint, the employer had acted during the "pre-bargaining" era to set up a special position for the President of the Washington State Patrol Troopers Association. The position was titled "Employee Relations Officer", and the employer provided office space, secretarial service, use of the employer's telephone system, use of a car and full pay to the individual, who "was allowed to conduct Association business at any time during the work day." This practice remained in effect for some time following the July, 1987 effective date of the legislation which included the Washington State Patrol troopers under Chapter 41.56 RCW.

The docket records of the Commission disclose that the Washington State Patrol Troopers Association filed a representation petition with the Public Employment Relations Commission on August 20, 1987.[1] An Election Agreement was filed, and an election was held by mail ballot issued on October 21 and counted on November 16, 1987. An Interim Certification was issued thereafter, naming the complainant in this case, the Washington State Patrol Troopers Association, as the exclusive bargaining representative of the non-supervisory commissioned employees of the employer.

According to the allegations of the complaint, the "Employee Relations Officer" position and practices were discontinued on November 13, 1987, when the employer transferred the individual (apparently without loss of pay and employee benefits) to a detective position, citing "... a conflict of interest between his job and his position as Association President", and at the same time prohibited his further conduct of association business during work time. The union has filed "refusal to bargain" charges, claiming that the employer has unilaterally changed matters which are mandatory subjects of bargaining.

DISCUSSION

With the passage of time, perhaps memories have dimmed or a new generation of participants in the collective bargaining process have neglected to read and understand their history. The arrangement which the union seeks to preserve in this case may have been perfectly lawful prior to the employees involved becoming "public employees" within the meaning of the collective bargaining act (or may not, for reasons outside the scope of the Commission's jurisdiction). It appears certain that the continuation of the arrangement would have been unlawful under RCW 41.56.140(2).

Historical Perspective

History suggests that situations of "unlawful assistance" and "employer-dominated unions" should be taken quite seriously. In his March 1, 1934 speech upon introduction of the bill that eventually became the National Labor Relations Act, Senator Wagner said:

The greatest obstacles to collective bargaining are employer-dominated unions, which have multiplied with amazing rapidity since the enactment of the [National Industrial R]ecovery [Act] law. ... Under the employer-dominated union, the worker, who cannot select an outside representative to bargain for him, suffers two fatal handicaps. In the first place, he has only slight knowledge of the labor market, or of general business conditions. ... If forbidden to hire an expert in industrial relationships, he is entirely ineffectual in his attempts to take advantage of legitimate opportunities.

Legislative History of National Labor Relations Act, 1935, Volume I, pages 15 - 17.

Thus, the "company union" was the first evil addressed by the legislation in the view of its prime sponsor in Congress.

Senator Wagner authored an article on the subject of "Company Unions: A Vast Industrial Issue" which appeared in the New York Times on March 11, 1934. He therein stated:

At the present time genuine collective bargaining is being thwarted immeasurably by the proliferation of company unions. Let me state at the outset that by the term "company union" I do not refer to all independent labor organizations whose membership lists embrace only the employees of a single employer. I allude rather to the employer-dominated union, generally initiated by the employer, which arbitrarily restricts employee cooperation to a single employer unit, and which habitually allows workers to deal with their employer only through representatives chosen from among his employees.

* * *

The principal argument advanced by the proponents of company unionism is that it promotes industrial harmony and peace without subjecting the individual company to the intrusion of outside labor groups who have no interest in the company's practices. Of course in our complicated economy the interests of all employers and all employees are inextricably intertwined, and the assumption that outside workers have no valid interest in the labor standards prevailing within a plant is demonstrably false. Besides, a tranquil relationship between employer and employee, while eminently desirable, is not a sole desideratum. It all depends upon the basis of tranquility. The slave system of the old South was as tranquil as a summer's day, but that is no reason for perpetuating in modern industry any of the aspects of a master-servant relationship.

• • •

The final argument advanced for company unionism is that it should be allowed to compete against trade unionism in an open field. If by company unionism one means simply the right of employees to confine their activities to a single employer unit when they wish to do so, I do not object to that principle in the slightest, and there is nothing contrary to it in the bill which I have introduced. But if by company unionism one includes the right of employers to obstruct the development of a more widespread employee cooperation, such a policy cannot be allowed to continue if we intend to pursue the philosophy of the new era.

* * *

The New Bill

The new bill forbids any employer to influence any organization which deals with problems such as wages, grievances, and hours. ...

Legislative History of National Labor Relations Act, 1935, Volume I, pages 22-27.

The actual language of the original bill was:

It shall be an unfair labor practice for an employer, or anyone acting in his interest, directly or indirectly

...

(3) To initiate, participate in, supervise, or influence the formation, constitution, bylaws, other governing rules, operations, policies, or elections of any labor organization.

(4) To contribute financial or other material support to any labor organization, by compensating anyone for services performed in behalf of any labor organization, or by any other means whatsoever.

Legislative History of National Labor Relations Act 1935, Volume I, page 3.

Testifying before the Senate Committee on Education and Labor, Professor Sumner Slichter of Harvard University generally favored the bill, indicating that he understood the basic policy of the bill was to prevent the growth of employer-dominated unions, but took issue with the language used, out of concern that it would not be sufficient for that task.[2]

AFL-CIO President William Green brought out specific examples in his testimony of employers paying officials of employer-dominated unions handsome salaries for performing their "union" duties.[3]

Dr. Francis J. Haas, a member of the National Labor Board created by the National Industrial Recovery Act, commented in testimony: "It is inconceivable that a right-minded employer would initiate a labor organization which would run counter to his interests."[4]

The original bill was replaced in May of 1934 with a bill calling for creation of a "National Industrial Adjustment Board", which contained language making it unlawful:

(3) For an employer to interfere with or dominate the administration of any labor organization or contribute financial support to it: Provided, That, subject to rules and regulations prescribed by the Secretary of Labor, an employer shall not be prohibited from permitting an employee, individually, or local representatives of employees, from conferring among themselves or with management during working hours without loss of time while engaged in the business of a labor organization.

Thus, the language of the current law began to emerge. In its final form, the NLRA makes it unlawful under Section 8(a)(2) for an employer:

(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay.

Domination and assistance were thus clearly outlawed by the Wagner Act (National Labor Relations Act of 1935).

NLRB Precedent

There have been relatively few attempts to foster or maintain employer-dominated unions during the 52+ years the NLRA has been in effect, and so relatively few violations have been found. The subject is treated extensively in The Developing Labor Law, Second Edition, beginning at page 276. A few key cases are worthy of note here:

Pennsylvania Greyhound Lines, Inc., 1 NLRB 1 (1935), enf. 303 U.S. 261 (1938) involved the complete dis-establishment of an organization created by the employer in an effort to avoid dealing with a more militant outside organization.

Newport News Shipbuilding and Drydock Co. v. NLRB, 308 U.S. 241 (1939) approved the NLRB's dis-establishment remedy, even though the challenged organization had employee support and there was no evidence that the employer had actually exercised its power to control it. It was deemed sufficient that the employer had such control of the form and structure of the organization as to deprive the employees of the complete freedom of action guaranteed to them by the NLRA. Similarly, in NLRB v. Brown Paper Mill Co., 108 F.2d 867 (5th Circuit, 1940) an organization supported by the employer at its formation was ordered dis-established, notwithstanding the testimony of employees that they desired representation by the organization.[5]

In general, unlawful assistance has been found where:

... an employer furnishes a meeting place on its premises to a union and pays employees for time spent at such meetings or during other union-related activities, or provides supplies and other services of benefit to a union. An employer also engages in unlawful support if it requires job applicants to sign union dues check-off cards as a condition precedent to their future employment, pays membership fees or other dues to a union on behalf of its employees or gives direct financial assistance to a union or its members.

Morris, The Developing Labor Law, 2nd Edition, P. 296. It remains a violation for an employer to recognize or bargain with a union that has not established majority status in an appropriate bargaining unit, or to recognize one union while it is in competition with another in representation proceedings.[6]

Washington Law and Precedent

Like most of Chapter 41.56 RCW, RCW 41.56.140(2) is a paraphrase of the federal law, making it unlawful for an employer:

(2) To control, dominate or interfere with a bargaining representative

We have no legislative history indicating that our legislature intended anything substantially different from the federal law. Indeed, the "assistance/domination" provisions of the Educational Employment Relations Act adopted in 1975 (RCW 41.59-.140(1)(b)), of the Marine Employees Act adopted in 1983 (RCW 47.64.130(1)(b)) and of the Community College Faculty Collective Bargaining Act adopted in 1987 (RCW 28B. 52.073 (1) (b)) are also essentially the same.

The Commission has dealt firmly with the few cases of unlawful employer assistance which it has encountered:

In Enumclaw School District, Decision 222 (EDUC, 1977), aff. King County Superior Court (1977), the Commission "saw a serious problem" with a provision under which the employer was to grant union officials leave with full pay to conduct unrestricted union business. The union urged that it was sufficient for it to pay for the costs of a substitute employee, but the Commission found there was a subsidy by the employer to the extent of the difference in pay between the substitute and the regular full-time employee.

In Renton School District, Decision 1501-A (PECB, 1982), a summary judgment was issued against the employer based on admissions it made. It was pointed out that RCW 41.56.110 favors only the incumbent exclusive bargaining representative with checkoff of union dues. The employer's attempt to deduct dues in favor of a competing organization was found to be an unfair labor practice. This employer was only required to post notice, in the context of this being a case of first impression and a conclusion that the employer did not intend any mischief.

In Pierce County, Decision 1786 (PECB, 1983), an "unlawful assistance" violation was found with respect to an organization founded by employees to petition for representation rights. The new union was conducting its affairs on the employer's premises, making unauthorized use of the employer's time, telephones, and other facilities. The employer was only required to post notice, based on a conclusion that it had not intentionally provided or tolerated, or even negligently allowed, the union's use of its resources. Additionally, it was noted that the employer had immediately curtailed the inappropriate usage of its resources upon learning of it.[7]

The Case At Hand

This employer could be subject to some criticism for not acting as soon as Chapter 135, Laws of 1987 took effect. Consistent with Pierce County, however, it has now discontinued the use of its time and resources for the conduct of union business.

What we appear to have here is an organization that did not understand the import (and obligations) of its becoming a "bargaining representative" under a collective bargaining law. Any doubt about the nature or status of the organization should have been resolved when the parties executed Election Agreement forms pursuant to WAC 391-25-230. The form signed by the parties includes, on its face, a stipulation that each organization involved qualifies as a "bargaining representative" within the meaning of Chapter 41.56 RCW. The organization and its official were not entitled to continue to take benefit of assistance from the employer which, on its face, is of the very type prohibited by RCW 41.56.140(2). Accordingly, the employer could not be compelled to restore the unlawful situation or to bargain its decision to bring itself into compliance with the requirements of the law.

NOW, THEREFORE, it is

ORDERED

The complaint charging unfair labor practices in this matter is DISMISSED for failure to state a cause of action.

DATED at Olympia, Washington, this 31st day of March, 1988.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This Order may be appealed by filing a petition for review with the Commission pursuant to WAC 319-45-350.