City of Lynnwood, Decision 10522 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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THE washington state council of county and city employees, afscme, council 2,
Complainant,
vs.
City of lynnwood,
Respondent.
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CASE 22404-U-09-5716
DECISION 10522 - PECB
FINDINGS OF FACT,
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David M. Kanigel, Attorney at Law, for WSCCCE.
Inslee, Best, Doezie & Ryder, P.S. by Katherine F. Weber, Attorney at Law, for the employer.
On May 12, 2009, the Washington State Council of County and City Employees, AFSCME, Council 2 (WSCCCE) filed an unfair labor practice complaint against the City of Lynnwood (employer). In the complaint, WSCCCE alleges that the employer unlawfully dominated or assisted the Lynnwood Engineers Group (LEG) and interfered with employee rights. LEG is seeking to represent employees in the public works engineering services division who are currently represented by WSCCCE. Specifically, the allegations stem from LEG’s use of employer contact information on a representation petition. The Public Employment Relations Commission (Commission) appointed Jessica J. Bradley as the Examiner. I conducted the hearing on July 16, 2009. The parties filed post-hearing briefs on August 10, 2009.
ISSUES
1. Did the employer unlawfully dominate or assist the Lynnwood Engineers Group (LEG) in violation of RCW 41.56.140(2)?
The evidence in this case does not establish employer intent to dominate or support LEG in violation of RCW 41.56.140(2).
2. Did the employer interfere with employee rights in violation of RCW 41.56.140(1)?
The employer did not interfere with employee rights in violation RCW 41.56.140(1).
ISSUE 1 – EMPLOYER DOMINATION OR ASSISTANCE
Applicable Legal Standards
Under RCW 41.56.140(2) it is an unfair labor practice for a public employer “to control, dominate or interfere with a bargaining representative.” This statute has been interpreted by the Commission to prohibit “employers from involving themselves in the internal affairs of unions, from showing a preference among two or more unions competing for the same group of employees, or from providing financial or other support to a union . . . .” Tacoma School District (Tacoma Education Association), Decision 5465-E (EDUC, 1997) citing Washington State Patrol, Decision 2900 (PECB, 1987); Spokane Transit Authority, Decision 5742 (PECB, 1996).
In King County, Decision 2553-A (PECB, 1987) the Commission held “that an ‘assistance’ violation requires proof of employer intent to assist one union (bargaining representative within the meaning of RCW 41.56.030(3)) to the detriment of others.” citing Pierce County, Decision 1786 (PECB, 1982); Renton School District, Decision 1501-A (PECB, 1982).
Analysis
WSCCCE alleges that the employer engaged in unlawful domination or assistance of LEG. WSCCCE’s main argument is that the employer knowingly allowed LEG to conduct union business using employer resources. Specifically, the employee who filed the petition on behalf of LEG listed an employer maintained P.O. Box, phone number and e-mail address as contact information for LEG. The following events are relevant to understanding this allegation:
• May 2003. In City of Lynnwood, Decision 8080 (PECB, 2003) and City of Lynnwood, Decision 8080-C (PECB, 2006) WSCCCE was certified by the Commission as the exclusive bargaining representative of a bargaining unit described as:
All full-time and regular part-time clerical, technical and professional employees of the City of Lynnwood, excluding supervisors, confidential employees, maintenance employees, recreational employees, and all other employees.
• December 2008. Bill Keenan, WSCCCE representative, contacted the employer. Keenan informed the employer that bargaining unit employees were concerned that employee Jared Bond was collecting union authorization signatures during work time.[1] The employer responded promptly and informed Bond that he could not collect signatures on work time. According to the employer, Bond denied engaging in such conduct.[2]
• February 25, 2009. Bond, an engineer for the City of Lynnwood, filed a petition for investigation of a question concerning representation (QCR petition) with the Commission on behalf of LEG. That matter was docketed as Case No. 22295-E-09-3435. LEG seeks to represent all full-time and part-time employees in the public works engineering services division of the employer. The petitioned-for employees are currently included in a larger clerical, professional and technical bargaining unit represented by WSCCCE. On the petition, Bond listed the contact address for LEG as a post office box that is maintained by the employer. Bond also listed his work phone number and work e-mail address as the phone number and e-mail of LEG. Bond listed a different valid employer address, phone number and e-mail in the employer contact portion of the petition. The employer and WSCCCE were served with copies of the QCR petition.
• On March 3, Sally Iverson, the Commission’s representation coordinator, sent the employer a letter with copies of the QCR petition and a notice to employees. The letter stated in part:
The Commission’s rules provide, at WAC 391-25-140, for the posting of a "NOTICE TO EMPLOYEES", as follows:
The employer shall post a copy of the petition and a notice, in the form specified by the commission, to inform employees of the existence of proceedings under this chapter. The agency shall furnish the employer with copies of the petition and notice, and the employer shall post them in conspicuous places on its premises where notices to affected employees are usually posted. The petition and notice shall remain posted until a certification or interim certification is issued in the proceeding.
• March 6, 2009. The employer notified the Commission that it had complied with the March 3 letter from Iverson and had posted the petition and notice to employees. [3]
• March 10, 2009. On behalf of LEG, Bond filed an amended QCR petition with the Commission. Bond listed the same employer and petitioner addresses. Bond again listed his work phone number and e-mail address in the petitioner’s contact information.
• March 24, 2009, at 11:00 A.M. Iverson conducted an investigation conference by conference call to discuss the QCR petition with the parties. Representatives of LEG, WSCCCE and the employer participated. Iverson read each party’s address out loud and asked the parties to confirm the address was correct. During the call, the president of the local WSCCCE noticed that the address used by LEG was an address maintained by the employer, but WSCCCE did not raise concerns about LEG’s address during the conference call.
• March 24, 2009. Sometime after 11:00 A.M., Bill Keenan, WSCCCE representative, called Paula Itaoka, the employer’s labor relations program manager. Keenan informed Itaoka that the WSCCCE was concerned that LEG was using an address maintained by the employer in filing the QCR petition.
• March 24, 2009. After speaking with Keenan, Itaoka called deputy public works director Jeff Elekes. Elekes is Bond’s direct supervisor. Itaoka told Elekes that it was inappropriate for Bond to use any of the city’s contact information to conduct LEG business. Elekes promptly contacted Bond and informed him that he needed to change LEG’s contact information. Elekes told Bond to contact Itaoka if he had further questions. Bond agreed to take action to change LEG’s contact information.
• March 24, 2009. At 5:31 P.M. Itaoka sent an e-mail to Bond titled “Use of City Resources.” In the e-mail the employer stated:
Dear Jared:
It's come to my attention that an unfair labor practice occurs if an employer allows the use of City resources for union organizing. I'm not an attorney, but this principle flows from RCW 41.80.110 and RCW 41.56.140 and also from numerous cases on the subject of employer interference or assistance. Since the Lynnwood Engineers Group is in the process of organizing and seeking certification I need to inform you that you may not use any City resources in that effort. That means you should not use the City's address as the Union address. Also, just in case you didn't know already, you should not use any of the following for union business (City offices, phones, facilities, supplies, etc.). If the Lynnwood Engineers Group becomes certified as the official representative for purposes of collective bargaining, the same business courtesies extended to other Unions at the City would be extended to the Lynnwood Engineers Group.
Since this communication falls within the City's responsibility to inform you not to use City facilities, and since I have no other means of communicating with you promptly, I am sending this to you in an e-mail and will also send a letter to your home address since I have no other address for the Lynnwood Engineers Group. If you need to respond to me within the capacity of the Lynnwood Engineers Group, please use a form of communication that does not originate from the City's e-mail, the City’s US or interoffice mail systems or the City's telephone numbers.
Thank you for your understanding as we all do our best to follow the correct (and sometimes complicated) procedures in this process.
• March 25, 2009. Itaoka sent Bond a letter with the same contents of the March 24, 2009, e-mail.
• March 25, 2009. Bond called the Commission to change the contact information for LEG. The Commission sent all parties an updated record of appearance on March 25, 2009, which listed a different address and phone number for LEG. The new address and phone number are not maintained by the employer.
In order to establish an employer domination or interference violation the evidence must prove that the employer intended to assist one union to the detriment of others.
WSCCCE argues that the employer implicitly supported LEG, by allowing LEG to use the employer’s contact information to conduct its union business for approximately one month. WSCCCE points out that the employer was put on notice of the problem when it received the initial QCR petition on February 25, 2009.
The employer argues that it did not notice that Bond had listed the employer’s contact information as LEG’s contact information on the QCR petition. Itaoka, the employer representative who was served with the petition and related correspondence, explained that she was focused on the fact the petition had been filed. Itaoka also explained that she had just started working for the employer in October of 2008 and testified that she was not familiar with the city address used by LEG on the petition. Itaoka works at a different physical address and does not use the post office box address listed by Bond. The employer also points out that it curtailed LEG’s use of employer contact information immediately upon learning of the problem.
Conclusion
The evidence in this case does not establish employer intent to dominate or support LEG in violation of RCW 41.56.140(2). The employer did not give LEG or Bond permission to use the employer’s contact information to conduct LEG business. The evidence indicates that Bond acted on his own when he listed the employer’s contact information as the contact information for LEG on the QCR petition. I find credible Itaoka’s testimony that she did not notice that Bond had listed employer contact information for LEG. When WSCCCE notified the employer of the problem, the employer took immediate action to stop LEG from using the employer’s contact information.
ISSUE 2 - INTERFERENCE
Applicable Legal Standards
RCW 41.56.040 gives employees the right to organize and designate representatives without interference. RCW 41.56.140(1) enforces those statutory rights by establishing that an employer who interferes with, restrains, or coerces public employees in the exercise of their collective bargaining rights commits an unfair labor practice.
As the Commission explained in Seattle School District, Decision 9628-A (PECB, 2008):
The burden of proving unlawful interference rests with the complaining party. An interference violation exists when an employee could reasonably perceive the employer's actions as a threat of reprisal or force, or promise of benefit, associated with the protected union activity of the employee or other employees. Kennewick School District, Decision 5632-A (PECB, 1996). The employee is not required to show an intention or motivation to interfere on the part of the employer. City of Tacoma, Decision 6793-A (PECB, 2000). Nor is it necessary to show that the employee was actually coerced or that the employer had a union animus for an interference charge to prevail. City of Tacoma, Decision 6793-A.
Because the interference standard is based on the perception of a reasonable employee and does not require proof of employer intent or motivation, an employer may commit an interference violation even in situations where it did not intend to support one union over another. Renton School District, Decision 1501-A (PECB, 1982); Pierce County, Decision 1786 (PECB, 1983); North Thurston School District 3, Decision 4765-B (EDUC, 1995).
Analysis
On March 3, 2009, the Commission sent the parties a letter directing the employer to post copies of the QCR petition and standard notice to employees at its facilities. On March 6, 2009, the employer sent the Commission a letter confirming the fact it had posted the QCR petition and notice to employees. Pursuant to WAC 391-25-140, “The petition and notice shall remain posted until a certification or interim certification is issued in the proceeding.”
In order to find employer interference, an employer official has to be the actor causing the interference. In this case, the petitioner filled out the petition and used the employer’s contact information without the employer’s approval. The employer posted the QCR petition because the Commission’s rules require it to do so. The employer did not take any action that would constitute an interference violation.
However, the ongoing posting of the QCR petition, as directed by the Commission, is problematic because the petition contains contact information for LEG that could lead a reasonable employee to believe that LEG is somehow sponsored by or connected with the employer. This situation needs to be addressed in order to provide employees with accurate information concerning the pending representation petition and possible election.
In order to clear up any misinformation resulting from the posting of the petition the representation coordinator for the Commission will, within one week of the date of this decision, send each of the employees affected by the petition[4] a letter explaining:
- On February 25, 2009, the Lynnwood Engineers Group filed a petition with the Public Employment Relations Commission (PERC) seeking to represent a group of employees in the Public Works Engineering Service Division for the purpose of collective bargaining. That matter was docketed as Case No. 22295-E-09-3435.
- On March 3, 2009, PERC directed the employer to post copies of the petition in the workplace.
- The City of Lynnwood (employer) did not give the Lynnwood Engineers Group permission to use employer contact information to conduct Lynnwood Engineers Group business.
- The contact information that the Lynnwood Engineers Group listed on the petition is not correct. On March 25, the Lynnwood Engineers Group corrected its contact information with the Commission as follows:
Address: 16616 71st Place W
Lynnwood, WA 98037
Phone: (206) 235-6978
The representation coordinator for the Commission will also provide the employer with copies of the letter and direct the employer to post them next to the QCR petition and general notice to employees.
Conclusion
The employer did not interfere with employee rights in violation RCW 41.56.140(1). To clear up any confusion resulting from the posting of the original QCR petition in the workplace, the representation coordinator for the Commission will send an informational letter to all parties. This letter will become part of the official notice to employees relating to the QCR petition.
OTHER ARGUMENTS
In its brief WSCCCE makes legal arguments concerning refusal to bargain and failure to provide information. These arguments are outside the scope of this case. WSCCCE did not allege a refusal to bargain violation in the complaint. Likewise, the preliminary ruling did not list refusal to bargain or refusal to provide information as a cause of action. Under WAC 391-45-110 (2) (b), “The preliminary ruling limits the causes of action before an examiner and the commission.”
FINDINGS OF FACT
1. The City of Lynnwood (employer) is a public employer within the meaning of RCW 41.56.030(1).
2. The Washington State Council of County and City Employees, AFSCME, Council 2 (WSCCCE) is a bargaining representative within the meaning of RCW 41.56.030(3).
3. In City of Lynnwood, Decision 8080, (PECB, 2003) and City of Lynnwood, Decision 8080-C, (PECB, 2006) WSCCCE was certified by the Commission as the exclusive bargaining representative of a bargaining unit described as:
All full-time and regular part-time clerical, technical and professional employees of the City of Lynnwood, excluding supervisors, confidential employees, maintenance employees, recreational employees, and all other employees.
4. On February 25, 2009, Jared Bond, an engineer for the City of Lynnwood, filed a petition for investigation of a question concerning representation (QCR petition) with the Commission on behalf of the Lynnwood Engineers Group (LEG). LEG is seeking to represent a group of employees in the public works engineering service division for the purpose of collective bargaining. That matter was docketed as Case No. 22295-E-09- 3435. Bond listed the contact address for LEG as a post office box that is maintained by the employer. Bond listed his work phone number and work e-mail address as the phone number and e-mail of LEG.
5. On March 3, 2009, the Commission’s representation coordinator sent the employer a letter with copies of the QCR petition and a notice to employees. The letter cited WAC 391-25-140 and directed the employer to post the petition and notice “in conspicuous places on its premises where notices to affected employees are usually posted. The petition and notice shall remain posted until a certification or interim certification is issued in the proceeding.”
6. On March 6, 2009, the employer sent the Commission a letter confirming the fact it had posted the QCR petition and notice to employees.
7. On March 10, 2009, Bond, on behalf of LEG, filed an amended QCR petition with the Commission. Bond listed employer contact information as contact information for LEG.
8. On March 24, 2009, sometime after 11:00 A.M., Bill Keenan, WSCCCE representative, called Paula Itaoka, the employer’s labor relations program manager. Keenan informed Itaoka that WSCCCE was concerned that LEG was using an address maintained by the employer in filing the QCR petition.
9. On March 24, 2009, after participating in the phone conversation described in Finding of Fact 8, Itaoka called deputy public works director Jeff Elekes. Elekes is Bond’s direct supervisor. Itaoka told Elekes that it was inappropriate for Bond to use any of the city’s contact information to conduct LEG business. Elekes promptly contacted Bond and informed him that he needed to change LEG’s contact information.
10. On March 24, 2009, at 5:31 P.M., Itaoka sent an e-mail to Bond titled “Use of City Resources.” In the e-mail the employer informed Bond that he could not use the employer’s contact information or other resources to conduct LEG business.
11. On March 25, 2009. Itaoka sent Bond a letter with the same contents as the e-mail described in Finding of Fact 10.
12. On March 25, 2009, Bond called the Commission to change the contact information for LEG. The Commission sent all parties an updated record of appearance on March 25, 2009, which listed a different address and phone number for LEG. The new address and phone number are not maintained by the employer.
13. The employer did not give LEG or Bond permission to use the employer’s contact information to conduct LEG business.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW.
2. As described in the above Findings of Fact, the employer did not attempt to dominate or assist the Lynnwood Engineers Group or otherwise violate RCW 41.56.140(2).
3. As described in the above Findings of Fact, the employer did not interfere with employee rights in violation of RCW 41.56.140(1).
ORDER
The complaint charging unfair labor practices filed in
the above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 26th day of August, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
JESSICA J. BRADLEY, Examiner
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.
[1] This fact is included for background information only. The fact that the union raised the concern with the employer is the only information that is relevant to the allegations contained in the complaint.
[2] Bond did not testify at the hearing.
[3] I take administrative notice of the March 6, 2009 letter the employer sent to Iverson in the representation case.
[4] The letter will be sent to all employees on the list of employees provided by the employer in case 22295-E-09-3435. A copy will also be sent to all parties to this proceeding.