University of Washington, Decision 11499-A (PSRA, 2013)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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washington federation of state employees,
Complainant,
vs.
university of washington,
Respondent.
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CASE 24344-U-11-6238
DECISION 11499-A - PSRA
DECISION OF COMMISSION
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Younglove and Coker, P.L.L.C., by Edward Earl Younglove III, Attorney at Law, for the union.
Robert W. Ferguson, Attorney General, by Mark K. Yamashita, Assistant Attorney General, for the employer.
On October 20, 2011, the Washington Federation of State Employees (union) filed a complaint alleging that the University of Washington (employer) refused to bargain and interfered with employee rights by failing to provide information. After reviewing the complaint pursuant to WAC 391-45-110, the Unfair Labor Practice Manager issued a preliminary ruling. The complaint stated a cause of action for refusal to bargain in violation of RCW 41.80.110(1)(e) by failing to provide requested information and using that information in an arbitration hearing. The employer filed a timely answer.
Examiner Guy O. Coss conducted a hearing and issued a decision finding that the employer refused to bargain by failing to produce the requested information and using that information in a grievance hearing without prior notice or production.[1] The Examiner ordered the employer to cease and desist from failing to provide relevant requested information; to give notice and, upon request, negotiate with the union “before failing to provide relevant documents upon request by the union and/or using requested, relevant documents at grievance arbitration hearings without prior notice or production;” and to post copies of the notice. The Examiner did not order the employer to read the notice at a Board of Regents meeting. On October 10, 2012, the union filed a motion for the Examiner to modify the order to include a reading of the notice at the Board of Regents meeting. The employer opposed the union’s motion. The Examiner refused to modify the order.
The union appealed the failure of the Examiner to include a reading of the notice in the order. The employer appealed the Examiner’s conclusion that the employer refused to bargain by failing to provide requested information.
ISSUES
1. Did the employer refuse to bargain when it failed to provide interview notes requested by the union?
2. If the employer failed to provide requested information, what is the appropriate remedy?
The employer violated RCW 41.80.110(e) when it failed to provide interview notes requested by the union. We modify the remedy issued by the Examiner.
RELEVANT FACTS
The employer’s main human resources department is known as upper campus HR. Labor relations is a division of human resources. Other employer departments may have employees who perform some internal human resources functions. Typically, upper campus HR is involved in employee work performance issues, corrective action, or disciplinary action.
Donna Schmidt (Schmidt) is the Assistant Director of Organization Resources and Relations for Facilities Services. The organization resources and relations division performs internal human resources functions, safety administration, payroll, and training for the division. Schmidt, and the employees she supervises, may become involved in investigations, negotiations, arbitrations, and mediations. If Schmidt is asked to participate in an investigation, the notes she takes are maintained in a file within organization resources and relations.
Peter Denis is the Assistant Vice President for Labor Relations. Carly Williams is the Administrative Specialist in labor relations. Williams is the employer’s designated contact for receiving information requests and is responsible for processing information requests from unions. When Williams receives an information request, she forwards the request to the people identified in the request or the department that would maintain the information. After documents are returned to Williams, Denis reviews the documents prior to the information being provided to the union.
In the fall of 2009, the employer investigated and disciplined an employee in the facilities services division. Scott Spencer (Spencer), the supervisor, and Schmidt conducted interviews in the investigation. Both Spencer and Schmidt took notes during the interviews and kept copies of the notes. Prior to issuing discipline, Spencer discussed the investigation with Schmidt. The employer disciplined the employee. Spencer and Irene Hrab, an employee in upper campus HR, attended the disciplinary meeting
On December 23, 2009, the union requested “[a]ll investigatory notes, documents, and records used by management to reach the conclusion that corrective action was necessary and that final counseling was the appropriate level of discipline.” Williams sent an e-mail to Denis, Spencer, and Hrab requesting responsive information. No employer official contacted Schmidt for a copy of her notes.
The employer did not include Schmidt’s notes in its response to the union’s information request. Subsequently, the employer presented the notes as evidence at the grievance arbitration of the employee’s discipline. The union was provided an opportunity to present rebuttal evidence.
ISSUE 1
LEGAL PRINCIPLES
The duty to bargain includes a duty to provide relevant information needed by the opposite party for the proper performance of its duties in the collective bargaining process. City of Bellevue, Decision 3085-A (PECB, 1989), aff’d, City of Bellevue v. International Association of Fire Fighters, Local 1604, 119 Wn.2d 373 (1992). The obligation extends not only to information that is useful and relevant to the collective bargaining process, but also encompasses information necessary to the administration of the parties’ collective bargaining agreement. King County, Decision 6772-A (PECB, 1999). Failure to provide relevant information upon request constitutes a refusal to bargain unfair labor practice. University of Washington, Decision 11414-A (PSRA, 2013).
Upon receiving a relevant information request, the receiving party must provide the requested information or notify the other party if it does not believe the information is relevant to collective bargaining activities. Seattle School District, Decision 9628-A (PECB, 2008). If a party perceives that a particular request is irrelevant or unclear, the party is obligated to communicate its concerns to the other party in a timely manner. Pasco School District, Decision 5384-A (PECB, 1996). If the requesting party does not believe the provided information sufficiently responds to the intent and purpose of the original request, the requesting party has a duty to contact the responding party and engage in meaningful discussions about what type of information the requestor is seeking. Kitsap County, Decision 9326-B (PECB, 2010). The parties are expected to negotiate any difficulties they encounter with information requests. Port of Seattle, Decision 7000-A (PECB, 2000); City of Yakima, Decision 10270-B (PECB, 2011).
Parties must be prompt in providing relevant information. Unreasonable delay in providing necessary information may constitute an unfair labor practice. Fort Vancouver Regional Library, Decision 2350-C (PECB, 1988).
When responding to an information request, an employer has an obligation to make a reasonable good faith effort to locate the requested information. Seattle School District, Decision 9628-A (PECB, 2008).
ANALYSIS
The employer admits that it did not include Schmidt’s notes in response to the union’s initial information request. Employer Appeal Brief pages 1, 4, and 10. However, the employer argues that it did not commit an unfair labor practice because the failure to provide Schmidt’s notes from the investigatory interview “was not willful and neither the union nor the member were prejudiced by not having the notes” and the union had enough information to adequately evaluate the grievance. The employer asserts that “the error was inadvertent” and that the facts support finding that the employer did not violate Chapter 41.80 RCW.
It is undisputed that the employer did not provide Schmidt’s notes from the October 28, 2009 investigatory interview with the employee. The union requested “[a]ll investigatory notes, documents, and records used by management to reach the conclusion that corrective action was necessary and that final counseling was the appropriate level of discipline.” The union’s request encompassed Schmidt’s notes.
The employer asserts “the union had more than enough information to reasonably believe that Ms. Schmidt may have had notes concerning the interview” and did not follow up when the notes were not included in response to the information request. The union requested all investigatory notes. There is no testimony that the union knew Schmidt took or kept notes from the October 28, 2009 interview. The employer does not deny that it failed to provide Schmidt’s notes.
The employer asserts that “The University did not ignore the request or refuse to engage in good faith negotiations. Rather, it appears that Mr. Spencer inadvertently failed to contact Ms. Schmidt to see if she had additional records to add to the information provided from Human Resources, Labor Relations and his office at Building Services.”
The issue is not whether the employer inadvertently failed to provide information. The issue is whether the employer failed to provide the requested information. Testimony revealed that the employer has a process for tracking, gathering, responding to, and preserving information requests. However, the employer’s process failed to identify an individual who possessed documents responsive to the information request. This employer, with a sophisticated process for tracking information requests, lacked a system for identifying what responsive information existed and gathering all responsive information.
The employer asserts that in City of Wenatchee, Decision 8898-A (PECB, 2006), the Commission has taken into account employer motivation. The employer misconstrues the Commission’s precedent.
In City of Wenatchee, Decision 8898-A, the union requested information that was held by the Civil Service Examiner, not the employer. After the employer directed the union to the appropriate source for the requested information, the union did not attempt to obtain the information. The employer took action that complied with the law when it directed the requesting party to the entity that controlled the requested information. The employer’s motivation was not considered.
In this case, Schmidt was in the employ of the employer and the information was within the employer’s control. Schmidt’s investigatory notes were regularly maintained in a file within facilities services. The employer need only properly identify the participants in the investigation and contact those individuals to obtain the information responsive to the union’s request. In this case, the labor relations office did not identify the individuals who may have possessed responsive documents. This failure does not lie further down the chain, but rests in the office responsible for responding to information requests.
Further, the employer argues that the union was not harmed by not having Schmidt’s notes. The employer asserts that “the grievance was sustained and the corrective action was rescinded” as a basis for why the union was not prejudiced and the employer did not violate the law.
Employer arguments that the failure to provide information was inadvertent and harmless have not been found to be a defense to the failure to provide information. City of Bremerton, Decision 5079 (PECB, 1995). In City of Bremerton, the union requested “all police reports, witness statements, and all other documents prepared by, or in the possession of” the employer related to an incident. The police chief had made notes about the incident and pre-disciplinary meeting. The employer withheld documents that were responsive to the union’s information request, including the police chief’s notes. The union did not receive the police chief’s notes until they were offered as exhibits in the grievance arbitration hearing. The employer argued that withholding an employer official’s investigatory notes did not harm the union because those notes duplicated information contained in information provided to the union. The Examiner rejected the employer’s argument that the union was not harmed. The Examiner held that the union was entitled to the information and the employer violated the statute when it failed to provide the requested information.
The standard is not whether the union was prejudiced or harmed as a result of the employer’s failure to provide information. The standard is whether the union made a request relevant to the performance of its duties in administering the collective bargaining agreement. The request was clear, as evidenced by the fact that the employer did not seek clarification from the union about the information request. The information the union requested was in its role of processing an employee’s grievance. The employer failed to provide relevant requested information.
CONCLUSION
The employer failed to provide the union with documents within the employer’s control that were responsive to the union’s request. The employer failed to identify an individual who possessed documents responsive to the information request and obtain responsive documents from that individual. The employer violated RCW 41.80.110(1)(e) when it failed to provide the union with a copy of Schmidt’s notes from the investigatory interviews in response to the union’s December 23, 2009 information request.
ISSUE 2
APPLICABLE LEGAL PRINCIPLES
In creating the Commission, the Legislature expressed its intention to provide uniform and impartial adjustment and settlement of complaints, grievances, and disputes arising from employer-employee relations and to provide efficient and expert administration of public labor relations to ensure the public of quality public services. RCW 41.58.005. When the Legislature enacted Chapter 41.80 RCW, the Legislature granted the Commission the power to remedy unfair labor practices.
RCW 41.80.120 Unfair labor practice procedures -- Powers and duties of commission. (1) The Commission is empowered and directed to prevent any unfair labor practice and to issue appropriate remedial orders: PROVIDED, That a complaint shall not be processed for any unfair labor practice occurring more than six months before the filing of the complaint with the commission. This power shall not be affected or impaired by any means of adjustment, mediation, or conciliation in labor disputes that have been or may hereafter be established by law.
(2) If the commission determines that any person has engaged in or is engaging in an unfair labor practice, the commission shall issue and cause to be served upon the person an order requiring the person to cease and desist from such unfair labor practice, and to take such affirmative action as will effectuate the purpose and the policy of this chapter, such as the payment of damages and the reinstatement of employees.
Fashioning remedies is a discretionary act of the Commission. Public Utility District 1 of Clark County, Decision 2045-B (PECB, 1989); State – Department of Corrections, Decision 11060-A (PSRA, 2012). The statutes the Commission administers are remedial in nature, and those “provisions should be liberally construed to effect its purpose.” Local Union No. 469, International Association of Fire Fighters v. City of Yakima, 91 Wn.2d 101, 109 (1978).[2]
The Commission’s authority to fashion remedial orders has included awards of attorney fees and interest arbitration. Municipality of Metro. Seattle, 118 Wn.2d at 633. “Agencies enjoy substantial freedom in developing remedies.” Id. at 634. The Commission has authority to issue appropriate orders that, in its expertise, the Commission “believes are consistent with the purposes of the act, and that are necessary to make [its] orders effective unless such orders are otherwise unlawful.” Id. at 634-5. See also Snohomish County, Decision 9834-B (PECB, 2007).
“Appropriate remedial orders” are those necessary to effectuate the purposes of the statute and to make the Commission’s lawful orders effective. Municipality of Metro. Seattle, 118 Wn.2d at 633. The standard remedy for an unfair labor practice violation includes ordering the offending party to cease and desist and, if necessary, to restore the status quo; make employees whole; post notice of the violation; publicly read the notice; and order the parties to bargain from the status quo. State – Department of Corrections, Decision 11060-A (PSRA, 2012); City of Anacortes, Decision 6863-B (PECB, 2001). Requiring an employer to read a copy of the notice at a meeting of its governing body has become part of the standard remedy in an unfair labor practice hearing. Seattle School District, Decision 5542-C (PECB, 1997); University of Washington, Decision 11414 (PSRA, 2012), aff’d, Decision 11414-A (PSRA, 2013); City of Yakima, Decision 10270-A (PECB, 2011); Port of Seattle, Decision (PECB, 2000). Deviation from the standard remedy, including not ordering a portion of the standard remedy, is an extraordinary remedy.
Extraordinary remedies are used sparingly, and ordered only when a defense is frivolous, or when the respondent has engaged in a pattern of conduct showing a patent disregard of its good faith bargaining obligation. State – Department of Corrections, Decision 11060-A; Seattle School District, Decision 5542-C (PECB, 1997). The Commission is not authorized to issue remedies that are punitive. City of Burlington, Decision 5841-A (PECB, 1997); Pierce County, Decision 1840-A (PECB, 1985); RCW 41.56.160. When asked to review an extraordinary remedy that has been properly explained in an examiner’s decision, the Commission generally will not disturb a remedial order that is consistent with the purposes of Chapter 41.80 RCW. State – Department of Corrections, Decision 11060-A, citing METRO, 118 Wn.2d 621. An extraordinary remedy is not appropriate when a standard remedy will suffice.
Deviations from the standard remedy, such as not ordering a portion of the standard remedy, attorney fees, and interest arbitration are extraordinary remedies.
Attorney Fees
RCW 41.56.160 is the statutory basis for a remedial order, including an award of attorney fees. State ex rel. Washington Federation of State Employees v. Board of Trustees, 93 Wn.2d 60, 69 (1980). The language used by the Legislature in RCW 41.80.120 is identical to the language used by the Legislature in RCW 41.56.160. An award of attorney fees should not be commonplace; it should be reserved for cases in which a defense to an unfair labor practice charge can be characterized as frivolous or meritless. State ex rel. Washington Federation of State Employees, 93 Wn.2d at 69. “The term ‘meritless’ has been defined as meaning groundless or without foundation.” Id. Attorney fees are appropriate in cases in which the employer engages in a pattern of bad faith bargaining. Lewis County. v. PERC, 31 Wn. App. 853 (Div. 2, 1982), review denied, 97 Wn.2d 1034 (1982).
The authority granted to the Commission by the remedial provision of the statute has also been interpreted to authorize an award of awarded attorney fees. Attorney fees can be granted (1) if such an award is necessary to make the Commission’s orders effective, and (2) the defense to the unfair labor practice charge was meritless or frivolous, or the respondent has engaged in a pattern of conduct showing a patent disregard of its good faith bargaining obligation. Lewis County, Decision 644 (PECB, 1979), aff’d, Lewis County v. PERC, 31 Wn. App. 853 (1982); Municipality of Metropolitan Seattle (METRO), Decision 2845-A (PECB, 1988), aff’d, Municipality of Metropolitan Seattle, 118 Wn.2d 621 (affirming the Commission’s authority to order interest arbitration); Pasco Housing Authority, Decision 5927-A (PECB, 1997), aff’d, Pasco Housing Authority v. PERC, 98 Wn. App. 809 (2000) (affirming the Commission’s order of attorney fees when such an order was necessary to make the order effective, the defenses were frivolous, and the violations evidenced a pattern of bad faith conduct); Spokane County Fire District 9, Decision 3373-A (PECB, 1992) (attorney fees awarded for a frivolous appeal) reversed on other grounds International Association of Fire Fighters, Local 2916 v. Public Employment Relations Commission, 128 Wn.2d 375 (1996).
ANALYSIS
The decision initially issued by the Examiner did not order the employer to read a copy of the notice at a Board of Regents meeting. The union promptly moved for the Examiner to modify the order to include the reading. The employer opposed the union’s motion. On October 16, 2012, the Examiner issued a letter refusing to modify the order. The Examiner did not order the standard remedy when he failed to order the employer to read the notice. The union appealed this omission.
Deviation, either adding to or subtracting from the standard remedy constitutes an extraordinary remedy. When the standard remedy will suffice, Examiners should not grant extraordinary remedies. State – Department of Corrections, Decision 11060-A. Rather, the Examiner should include the customary remedies. When an Examiner deviates from the standard remedy, the Examiner should explain such deviation.
The Examiner’s failure to order the employer to read the notice at a Board of Regents meeting was an inexplicable and unwarranted departure from a common remedial provision. The standard remedy, including ordering a reading, would have effectuated the statute. One purpose of the reading requirement is to keep the employer’s governing body and the public it serves aware of the actions the employer took.
In the initial decision, the Examiner failed to explain the rationale for omitting the reading from the order. The Examiner’s October 16, 2012 correspondence to the parties’ denying the motion is the only explanation of the order. That explanation came only after the union objected to the order. The Examiner wrote:
The remedies ordered in this case were not extraordinary, and in fact included the routinely used remedies of orders to 1.) cease and desist from committing such violations, 2.) cease and desist from interfering, 3.) give notice and negotiating and 4.) posting copies of the Notice provided concerning the employer’s unfair labor practice violation. The decision specifically cited a finding of credible testimony showing that the employer’s violation was inadvertent and not willful or intentional. The remedies ordered were not mistakenly issued. The remedies ordered resulted from consideration of the facts and evidence presented and the exercise of Examiner discretion to “fit the remedy to the violation.”
In his October 16, 2012 letter, the Examiner relied on the fact that the employer’s violation was inadvertent and not willful. As discussed above, the employer’s defense that the failure to produce requested information was “inadvertent” is not an affirmative defense supported by the Commission’s precedent. The employer’s motivation does not mitigate the fact that it violated the law. The employer’s motivation is not an element of the standard for determining whether the employer failed to provide relevant information in violation of the statute. The employer’s asserted defense is not an adequate reason to reduce the standard remedy. The Examiner deviated from the standard remedy when he did not require the employer to read the notice as part of the remedy and failed to explain his rationale in his decision. The case before the Examiner did not meet the criteria for an extraordinary remedy calling for an exercise of Examiner creativity.
The Commission does not find the employer’s failure to adequately respond to the union’s information request to be a basis for not ordering the employer to read the notice at a Board of Regents meeting. We modify the order to include a reading of the notice at a Board of Regents meeting.
The Examiner’s remedy included an order for the employer to:
a. Give notice to and, upon request, negotiate in good faith with the Washington Federation of State Employees, before failing to provide relevant documents upon request by the union and/or using requested, relevant documents at grievance arbitration hearings without prior notice or production.
The order is redundant. The order is modified to include the standard language used when an employer fails to provide requested information. If the union requests relevant information, and the employer provides that information, then there is no issue of whether the employer would be using undisclosed relevant requested information in any subsequent grievance arbitration hearing that may arise.
Attorney Fees
In its complaint, the union requested an order of attorney fees. The Examiner declined to grant the union’s request on the grounds that the employer’s failure to produce the notes was “found to have been inadvertent and non-willful.” The case before the Examiner did not call for an award of attorney fees to effectuate the statute.
At all stages of the proceeding the employer has admitted that it did not provide Schmidt’s notes in response to the union’s information request. In its answer to the complaint, the employer admitted that it did not provide the union with Schmidt’s notes. In its brief to the Examiner, the employer wrote, “The University does not dispute that it failed to provide the notes to Mr. Kendo.” Employer Post-hearing Brief at 6. The employer nonetheless appealed the ruling against it.
In its appeal, the employer again admits that it did not provide the requested information, and therefore, admits that it violated the law. On the first page of its appeal brief the employer wrote, “the University admits that it inadvertently failed to produce a single page of notes.” The size of the omission is not a defense to failing to provide information. The employer’s motivation or oversight for not providing the information is not a defense to failing to provide requested information. As discussed above, the employer failed to properly identify individuals who maintained documents responsive to the union’s information request. The employer did not provide the union with all relevant documents responsive to the union’s information request.
A standard remedy at the Examiner level was appropriate in this case. There were no facts before the Examiner that warranted ordering attorney fees. However, on appeal the issue of whether attorney fees are appropriate is a viable question when the appeal is frivolous.
There is no colorable basis for the employer’s appeal in this matter. The employer’s appeal in this matter is frivolous. As discussed above, the well established standard is not, as the employer argues, whether the union was harmed or prejudiced by the employer’s failure to adequately respond to the information request. Nor is the standard, as the employer argues, whether the employer intended to fail to provide documents responsive to the request. Employer Appeal Brief at 8.
The employer appealed issues that are clearly resolved by longstanding Commission law and precedent. In support of its appeal, the employer advanced interpretations of Commission precedent that misconstrued or ignored the law. The employer failed to address a case that presented a similar fact pattern in which a similar defense was rejected. While the Examiner may have been persuaded that the employer’s actions were inadvertent, there is no basis in Commission law or precedent for finding that an unfair labor practice has not been committed when an employer inadvertently fails to provide information.
The defenses advanced in support of the employer’s appeal fall to the level of being frivolous or meritless, and appear calculated to prolong the process. The Commission grants the union’s reasonable attorney fees and costs incurred in the appeal.
CONCLUSION
Requiring an employer to read the notice of an unfair labor practice violation is a standard remedy in unfair labor practice complaints. In the decision, the Examiner failed to adequately explain the rationale for omitting a reading. Requiring a reading effectuates the purposes of Chapter 41.80 RCW.
The employer’s appeal was frivolous and had no basis in the Commission’s law or precedent. Thus, we grant the union’s attorney fees and costs for the appeal.
NOW, THEREFORE, it is
ORDERED
The Findings of Fact and Conclusions of Law issued by Examiner Guy O. Coss are affirmed and adopted as the Findings of Fact and Conclusions of Law of the Commission.
The Order issued by Examiner Guy O. Coss is modified:
1. CEASE AND DESIST from:
a. Refusing to bargain in violation of RCW 41.80.110(1)(e), and derivatively interfering in violation of RCW 41.80.110(1)(a) by failing to provide relevant documents upon request by the union.
b. In any other manner interfering with, restraining or coercing its employees in the exercise of their collective bargaining rights under the laws of the State of Washington.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter 41.80 RCW:
a. Give notice to and, upon request, negotiate in good faith with the Washington Federation of State Employees, before failing to provide relevant documents upon request.
f. Post copies of the notice provided by the Compliance Officer of the Public Employment Relations Commission in conspicuous places on the employer’s premises where notices to all bargaining unit members are usually posted. These notices shall be duly signed by an authorized representative of the respondent, and shall remain posted for 60 consecutive days from the date of initial posting. The respondent shall take reasonable steps to ensure that such notices are not removed, altered, defaced, or covered by other material.
g. Read the notice provided by the Compliance Officer into the record at a regular public meeting of the Board of Regents of the University of Washington, and permanently append a copy of the notice to the official minutes of the meeting where the notice is read as required by this paragraph.
h. Upon demand, pay the Washington Federation of State Employees for their reasonable attorney fees and costs incurred in presentation of the appeal of the instant unfair labor practice complaint.
i. Notify the complainant, in writing, within 20 days following the date of this order, as to what steps have been taken to comply with this order, and at the same time provide the complainant with a signed copy of the notice provided by the Compliance Officer.
j. Notify the Compliance Officer, in writing, within 20 days following the date of this order, as to what steps have been taken to comply with this order, and at the same time provide him with a signed copy of the notice he provides.
ISSUED at Olympia, Washington, this 24th day of June, 2013.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
THOMAS W. McLANE, Commissioner