DECISIONS

APPEARANCES:

Pamela G. Bradburn, General Counsel, appearing on behalf of complainant.

Charles R. Byrd, Attorney at Law, appearing on behalf of employer.

This matter comes before the Commission on a petition to review findings of fact, conclusions of law and an order entered December 11, 1978 by Jack T. Cowan, Examiner.

We have been invited by the complainant to dismiss the petition for failure to comply with WAC 391-21-534. Since both parties are represented by legal counsel, we might consider the technical sufficiency of the petition, but we prefer to dismiss it on the merits.

The complaint charges the respondent with refusal to bargain in good faith with the certified bargaining agent of a unit of its employees.

The petition for review states in paragraph III:

"It is the County's position that to require the County to bargain with a bargaining agent, which does not represent all of the members of the bargaining unit, and which does and steadfastly has refused to allow those persons in the bargaining unit who are not members of the union to participate in discussion and formulation of bargaining proposals to be laid before the employer, would be to require the employer to engage in an unfair labor practice."

The complainant has been certified as the representative of all the employees in the bargaining unit. Until bargaining is undertaken, there is no basis for assuming that complainant will fail in its duty of fair representation.

What respondent is doing by refusing to bargain for the reason stated, is attempting to police the manner in which the bargaining agent formulates its proposals. This is none of the respondent's business, any more than it is the complainant's business to police the manner in which respondent formulates its responses and counterproposals.

No law except, perhaps, its own bylaws directs the bargaining agent as to how to formulate its proposals. It need not consult all, or any, of its own members. It certainly need not consult nonmembers, although we observe that it is admitted by the respondent that the complainant did in fact consult with nonmembers on at least one occasion.

Here the employer is setting itself up as the representative of its employees who have not chosen to become members of the bargaining agent. The employer has misconceived its rights and duties. The certified bargaining agent rep­resents all the employees in the unit and the manner in which it conducts its internal affairs is no concern of the employer.

This proposition is so self evident that few cases illustrating it have arisen under the National Labor Relations Act. The leading case for many years has been NLRB v. Corsicana Cotton Mills, (CA-5,1949), 178 F.2d 344, where the Court of Appeals for the Fifth Circuit said:

"This is not to say, however, that though taken in good faith, the positions were rightly taken or may be maintained. On the contrary, we are not in any doubt that Roe was mistaken in his view that he had a right to insert in the recognition paragraph the non union voting clause, nor that to the extent that he insisted on so doing, respondent withheld recognition from the union as bargaining agent, as ordered by our decree, and caused a rupture of the bargaining negotiations."

Distinguishing Corsicana Cotton Mills, the Court of Appeals for the Seventh Circuit, in Allis-Chalmers Manufacturing Co., v. NLRB, 213 F.2d 380 (CA-7, 1954) said:

"In the Cotton Mills case, the clause proposed by the employer required the union to notify nonmember employees of union meetings, permit them to attend and vote on every decision of the union as bargaining agent, each such decision to be valid only upon majority vote of all the employees who attended such meeting. The court held in 178 F.2d page 347 that by this proposal the Company sought to withhold 'recognition from the union as bargaining agent'. We see no occasion to take issue with that conclusion."

The Fourth Circuit approved the same rule in NLRB v. Darlington Veneer Co., (CA-4,1956) 236 F.2d 85, 89. The Supreme Court of the United States approved the rule in NLRB v. Borg-Warner Corp., 356 US 342, 348-350. See also Ezrine:

Nadir of the No-Strike Clause, 8 LLJ 769, 773-775 (1957), and Morris, The Developing Labor Law, 431-432.

The law is thus well-settled that an employer may not justify its refusal to bargain on the basis of how the bargaining agent manages its internal affairs.

The complainant has asked that we award it attorneys' fees. Without reaching the issue of our authority to do so, we shall follow the example of the Fifth Circuit which declined to find the employer in Corsicana Cotton Mills in contempt of its bargaining order. We shall not award attorneys' fees at this time in the hope and with the expectation that respondent will enter into negotiations in good faith promptly. Such bargaining will have no legal effect whatever on its appeal from our decision in case number 1496-U-78-192.

The decision of the examiner is affirmed.

Dated at Olympia, Washington, this 9th day of February, 1979.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARY ELLEN KRUG, Chairman

[SIGNED]

PAUL A. ROBERTS, Commissioner

[SIGNED]

DON E. OLSON, JR., Commissioner