Bellevue, Clark, Pierce, Walla Walla, and Wenatchee Valley Community Colleges, Decision 11469-A (PSRA, 2013)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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Bellevue Community College, clark community college, COLUMBIA BASIN COMMUNITY COLLEGE, PIERCE COMMUNITY COLLEGE, wallA Walla communty college, and wenatchee valley community college,
Complainant,
vs.
washington public employees association,
Respondent.
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CASES 25040-U-12-6404, 25042-U-12-6406, 25043-U-12-6407, 25044-U-12-6408, 25051-U-12-6415, 25052-U-12-6416, 25058-U-12-6422, 25059-U-12-6423, 25060-U-12-6424
DECISIONS 11469-A – PSRA, 11471-A – PSRA, 11472-A – PSRA, 11473-A – PSRA, 11480-A – PSRA, 11481-A – PSRA, 11487-A – PSRA, 11488-A – PSRA, 11489-A - PSRA
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER |
Robert W. Ferguson, Attorney General, by Andrew L. Logerwell, Assistant Attorney General, and Charlynn R. Hull, Assistant Attorney General, for the employer.
Schwerin, Campbell, Barnard, Iglitzin & Lavitt, by Kathleen Phair Barnard, Attorney at Law, and Danielle Franco-Malone, Attorney at Law, for the union.
On August 7, 2012, twenty-one unfair labor practice complaints were filed on behalf of thirteen state community colleges (employers) against the Washington Public Employees Association (union). The employers alleged the union refused to bargain and interfered with employer rights when the union sent correspondence to the employers seeking to renegotiate the 3 percent temporary salary reduction prior to its implementation on July 1, 2012.
On September 22, 2012, preliminary rulings were issued finding the complaints stated a cause of action for union interference. The union filed answers and subsequently, twelve of the complaints were withdrawn. The remaining nine complaints were consolidated and a hearing was held before Examiner Robin A. Romeo on March 12, 13, 14, and 15, 2013. The parties submitted post-hearing briefs.
ISSUE
Did the union interfere with the employers’ choice of bargaining representative by attempting to sever the relationship between the colleges and the Labor Relations Office (LRO)[1] when it sought to re-negotiate a 3 percent temporary salary reduction with the employers?
Based upon the record as a whole, I find that the union did not interfere with the employers’ choice of using the LRO as its bargaining representative.
BACKGROUND
In May 2011, the Governor signed into law the state budget bill for fiscal years 2011-2013. The law contained a temporary salary reduction of 3 percent for certain state employees, effective fiscal year 2012-2013.[2] The temporary salary reduction applied to classified staff at state community colleges who were members of the union.
In September 2011, the employers bargained in a multi-employer coalition with the union for a 2012-2013 collective bargaining agreement. The multi-employer coalition was represented in bargaining by the LRO. Each college was party to individual interagency agreements with the LRO that allowed the LRO to represent them in bargaining. In September 2011, a new collective bargaining agreement was reached with the employers and the union which included the 3 percent temporary salary reduction.
On March 30, 2012, the union President sent a letter to the LRO Director, demanding to renegotiate the 3 percent salary reduction. The letter stated:
Please accept this letter as our demand to bargain the 2012-2013 Higher Education Statewide Agreement for the purpose of renegotiating the 3% Temporary Salary Reduction.
We are taking this action because a number of community college officials told us they would prefer not to implement the temporary salary reduction, and that they could afford not to. One college official told us that the college presidents voted “nearly unanimously to try to override” the temporary salary reduction.
On that date, identical letters were sent to the employers, asking them to direct the LRO to engage in bargaining with the union. The letters enclosed a copy of the union’s letter to the LRO and informed them that the union was demanding to reopen the collective bargaining agreement to negotiate the 3 percent temporary salary reduction. The letters stated:
It is imperative that negotiations take place because of the inherent unfairness of the temporary salary reduction with regard to our members. As I am sure you know, the temporary salary reduction singles out union-represented classified employees, without impacting administrative, exempt, faculty, or non-represented classified employees.
As noted in the enclosed letter, a number of college officials have told us they would prefer not to implement the salary reduction, and that they could afford not to. In one case, a college official told our members that the temporary salary reduction was unnecessary and that they should talk to their union.
Just to set the record straight, the temporary salary reduction was imposed on our members by the Labor Relations Office – your collective bargaining agent – as part of its “last best and final” contract offer in December of 2010. So we find it more than a little ironic that some college officials are now claiming that the contract “ties their hands” with regard to implementing the reduction.
Nonetheless, if circumstances have changed and if you have indeed changed your mind, we would be more than willing to work with you in eliminating, adjusting or mitigating the effects of the temporary salary reduction on our members.
The letters conclude with the request to direct the LRO to renegotiate or in the alternative, implement the temporary salary reduction fairly in relation to other bargaining units and non-represented employees.
Before responding to the letter, the employers sought guidance from John Bosenberg, Vice President of the State Board for Community and Technical Colleges (SBCTC). The SBCTC is an agency that provides advice to the colleges on collective bargaining. Bosenberg sent an e-mail to the college presidents stating that all requests to bargain should be sent to the LRO. He also explained that a request to renegotiate the temporary salary reduction would require the legislature to set aside the statutory process and deadlines to allow for new bargaining.
On April 24, 2012, the LRO director responded to the union’s demand and declined to bargain with the union stating that it will implement the contract effective July 1, 2012, as previously agreed. The LRO also notified the employers that their interagency agreement would be terminated if they entered into an agreement with the union on the temporary salary reduction.
On May 15, 2012, the union sent another letter to the employers stating that the LRO had declined their request to bargain but there were options for renegotiating the 3 percent temporary salary reduction with the union. The letter stated:
1. You could redirect the Labor Relations Office – your bargaining agent – to negotiate with WPEA for a supplemental agreement to the 2012-2013 contract, which would be specific to your college. This option is available under RCW 41.80, Section 2(a).
2. You could by-pass the Labor Relations Office and negotiate directly with WPEA for a supplemental agreement to the 2012-2013 contract. Under RCW 41.80, the Labor Relations Office has no authority to prevent you – the employer – from negotiating with the union.
3. You could withdraw from your relationship with the Labor Relations Office and negotiate directly with WPEA for a supplemental agreement to the 2012-2013 contract as well as for a stand-alone 2013-2015 contract. The option to withdraw is available to you under your Interagency Agreement with the Labor Relations Office.
A copy of this May 15, 2012 letter was sent to the LRO.
On May 17, 2012, the LRO director, a union contract negotiator and a LRO contract negotiator discussed the union’s letters sent to the employers. During that conversation, the LRO director stated that the union had committed an unfair labor practice by sending the letters and that any employer who negotiated outside of the coalition may not have an enforceable agreement.
On May 22, 2012, the union sent a letter to its members updating them on the status of the 3 percent temporary salary reduction. The letter asked it members to “Please join us in calling on your college president to negotiate with your union.” On June 12, 2012, the union sent another letter to its members enclosing a postcard to send to the college president stating “We know you believe in fairness. Please negotiate with our union.”
On May 29, 2012, the union sent a third letter to the employers. This letter reiterated the union’s request to renegotiate the 3 percent temporary salary reduction “due to the inherent unfairness of the salary reduction” on its members. In the letter, the union stated its viewpoint that the 3 percent temporary salary reduction was not required.
On July 1, 2012, the employer implemented the collective bargaining agreement containing the 3 percent temporary salary reduction that was bargained and agreed to between the union and employers.
LEGAL STANDARDS
The Personnel System Reform Act of 2002 (PSRA) was signed into law in 2002, enacting a new collective bargaining system for state civil service workers. PSRA is codified in Chapter 41.80 RCW which asserts jurisdiction over community colleges.
When interpreting the statutes administered by this Commission, we must ascertain the meaning of the words within those statutes and give the words the full effect of the Legislature’s intent. State – Transportation, Decision 8317-B (PSRA, 2005). In ascertaining the meaning of a particular word or words in the statute, this Commission must consider both the statute’s subject matter and the context in which the word is used. Chamberlain v. Department of Transportation, 79 Wn. App 212 (1995); State – Transportation, Decision 8317-B. Statutes must be interpreted and construed so that all language is given effect, and no portion is rendered meaningless or superfluous. Whatcom County v. City of Bellingham, 127 Wn. 2d 537 (1996). Absent a specific definition, contrary legislative intent, or ambiguity, statutes are accorded their plain and ordinary meaning. Dennis v. Department of Labor and Industries, 109 Wn. 2d 476 (1987).
Under Chapter 41.80 RCW, it is an unfair labor practice for a union to interfere with rights guaranteed by PSRA. RCW 41.80.110 provides:
(2) It is an unfair labor practice for an employee organization:
(a) To restrain or coerce an employee in the exercise of the rights guaranteed by this chapter: PROVIDED, that this subsection shall not impair the right of an employee organization to proscribe its own rules with respect to the acquisition or retention of membership in the employee organization or to an employer in the selection of its representatives for the purpose of bargaining or the adjustment of grievances.
ANALYSIS
The employer argues the union violated RCW 41.80.110(2)(a) by interfering with employer rights when it sent letters to the colleges urging them to bypass or withdraw from its relationship with the LRO. The employer believes this behavior interfered with its rights to select its own representative under Chapter 41.80. Both parties argue that Fort Vancouver Regional Library, Decision 2350-D (PECB, 1989) is applicable to this case. In that case, the Commission found a violation where the union attempted to remove certain employer representatives from bargaining. However, Fort Vancouver Regional Library comes under the jurisdiction of Chapter 41.56 RCW, which is distinctly different from Chapter 41.80 RCW. RCW 41.56.150 states:
It shall be an unfair labor practice for a bargaining representative:
(1) To interfere with, restrain, or coerce public employees in the exercise of their rights guaranteed by this chapter;
(2) To induce the public employer to commit an unfair labor practice;
(3) To discriminate against a public employee who has filed an unfair labor practice charge;
(4) To refuse to engage in collective bargaining.
Not only is the language of RCW 41.56.150 considerably different from that of Chapter 41.80 RCW, but in Fort Vancouver Regional Library, the Commission found a refusal to bargain violation, not an interference violation. Here, the refusal to bargain allegation was dismissed in the preliminary ruling. The only remaining allegation in this case is the interference claim. The Commission’s finding of a refusal to bargain violation would not apply to similar facts in addressing an interference violation because it is a different analysis.
RCW 41.80.110(2)(a) states that it is an unfair labor practice for an employee organization to restrain or coerce an employee, provided, this restraint or coercion against the employee shall not impair the right of an employer in the selection of its representatives for the purpose of bargaining or the adjustment of grievances. Examining the language of RCW 41.80.110(2)(a) reveals that it only applies to the protection of employees, not employer rights. This language does not extend a right to the employer to be free from interference in the selection of its bargaining representative. This language conditions the finding of an unfair labor practice by a union for actions taken against an employee. The language creates an exception to the protection of employee rights. It does not create an independent right for employers to allege union interference. The second part of the sentence modifies the first part.
Chapter 41.80 RCW prohibits different actions by the employer and an employee organization. RCW 41.80.110(1)(b) and (c) states:
(1) It is an unfair labor practice for an employer:
(b) To dominate or interfere with the formation or administration of any employee organization or contribute financial or other support to it: PROVIDED, That subject to rules adopted by the commission, an employer shall not be prohibited from permitting employees to confer with it or its representatives or agents during working hours without loss of time or pay;
(c) To encourage or discourage membership in any employee organization by discrimination in regard to hire, tenure of employment, or any term or condition of employment;
RCW 41.80.110(1)(b) contains language specifically prohibiting an employer from interfering with the organization or administration of a labor organization. RCW 41.80.110(1)(c) prohibits an employer from discouraging membership in an employee organization. RCW 41.80.110(2) does not contain a similar prohibition for an employee organization to interfere with or discourage an employer in its choice of representative. Nowhere in the statute does it state that it is an unfair labor practice for an employee organization to interfere with or discourage an employer in its choice of representative.
Had the legislature intended to protect the employer from union restraint or coercion in the selection of its bargaining representative in Chapter 41.80 RCW, it could have specifically done so. Chapter 41.59 RCW contains language that specifically protects the employer from union restraint or coercion in the selection of its bargaining representative. RCW 41.59.140(2)(a) states:
(2) It shall be an unfair labor practice for an employee organization:
(a) To restrain or coerce (i) employees in the exercise of the rights guaranteed in RCW 41.59.060: PROVIDED, That this paragraph shall not impair the right of an employee organization to prescribe its own rules with respect to the acquisition or retention of membership therein; or (ii) an employer in the selection of his or her representatives for the purposes of collective bargaining or the adjustment of grievances;
Unlike RCW 41.80.110(2)(a), the structured language provides that it is an unfair labor practice for an employee organization to restrain or coerce an employer in the selection of his or her representative. There is no modification to the restraint or coercion of an employee as in RCW 41.80.110(2)(a).
Whether the absence of language similar to RCW 41.59.140(2)(a) by the legislature was intentional or by mistake, it is not within the power of the Examiner to impose a cause of action on the statute to mirror those sections. Thus, analyzing RCW 41.80.110 in its context does not provide employers the right to assert a claim of union interference.
The employers have also couched the allegation of union interference as a charge of direct dealing and circumvention. They allege that by contacting the college presidents to re-negotiate the 3 percent temporary salary reduction, the union circumvented the LRO. The employers argue that because an employer can be found guilty of circumvention under RCW 41.80.110(1) the union should be found to have violated RCW 41.80.110(2) for circumventing the LRO and trying to negotiate directly with the employers.
The employers’ argument is irrelevant. A charge of circumvention falls under a refusal to bargain charge. The refusal to bargain charge was dismissed and a claim of circumvention has no relevance here.
Based on the reasons above, this case is dismissed because the statutory language does not prohibit an employee organization from interfering with the employer’s decision to choose its bargaining representative.
FINDINGS OF FACT
1. Bellevue Community College, Clark Community College, Columbia Basin Community College, Pierce Community College, Walla Walla Community College, and Wenatchee Valley Community College (employers) are institutions of higher education included within the meaning of RCW 41.80.005(10).
2. Washington Public Employees Association (union) is the exclusive bargaining representative for classified employees at community colleges within the meaning of RCW 41.80.005(9).
3. In May 2011, the Governor signed into law the state budget bill for fiscal years 2011-2013. The law contained a temporary salary reduction of 3 percent for certain state employees, effective fiscal year 2012-2013. The temporary salary reduction applied to classified staff at state community colleges who were members of the Washington Public Employees Association.
4. In September 2011, state community colleges bargained in a multi-employer coalition with the Washington Public Employees Association for a 2012-2013 collective bargaining agreement. The multi-employer coalition was represented in bargaining by the Office of Financial Management, Labor Relations Office. A new collective bargaining agreement was reached between the employer and union which contained the 3 percent temporary salary reduction.
5. On March 30, 2012, the union sent a letter to the Director of the Labor Relations Office demanding to re-negotiate the 3 percent salary reduction.
6. On March 30, 2012, the union sent identical letters to the Presidents of the employers, requesting them to direct the Labor Relations Office to engage in bargaining with the union.
7. On April 24, 2012, the employer responded to the union’s demand and declined to bargain stating it will implement the contract on July 1, 2012 as previously agreed.
8. On May 15, 2012, the union sent another letter to the Presidents of the employers stating that LRO had declined their request to re-bargain and provided three options for renegotiating the 3 percent temporary salary reduction with the union.
9. On May 22, 2012, the union President sent a letter to the members updating them on the status of the 3 percent temporary salary reduction. The letter asked it members to “Please join us in calling on your college president to negotiate with your union”.
10. On May 29, 2012, the union sent a third letter to the Presidents of the employers. This letter reiterated the union’s request to renegotiate the 3 percent temporary salary reduction.
11. On July 1, 2012, the employer implemented the 3 percent temporary salary reduction that was bargained and agreed to between the union and the employers.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.80 RCW and Chapter 391-45 WAC.
2. By its actions described in the Findings of Fact above and engaging in a series of correspondence between the Labor Relations Office, the Presidents of the employers, and its members, the Washington Public Employees Association did not interfere with the employers’ rights in violation of RCW 41.80.110(2)(a).
ORDER
The complaints charging unfair labor practices filed in the above-captioned matters are dismissed in their entirety.
ISSUED at Olympia, Washington, this 10th day of, October, 2013.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
ROBIN A. ROMEO, 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.