DECISIONS

King County, Decision 12878 (PECB, 2018)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

David Kirk,   Complainant,   vs.   King County,   Respondent.

CASE 130506-U-18   DECISION 12878 - PECB     PRELIMINARY RULING AND ORDER OF PARTIAL DISMISSAL

 

On March 20, 2018, David Kirk (complainant) filed a complaint charging unfair labor practices with the Public Employment Relations Commission (PERC) under Chapter 391-45 WAC, naming King County (employer) as respondent.  The complaint was reviewed under WAC 391-45-110,^[1] and a deficiency notice issued on April 12, 2018, indicating that it was not possible to conclude that a cause of action existed at that time.  Kirk was given a period of 21 days in which to file and serve an amended complaint, or face dismissal of the case.  No further information has been filed by Kirk.

 

The Unfair Labor Practice Administrator dismisses the defective allegations of the complaint for failure to state a cause of action, and finds a cause of action for the employer domination allegations of the complaint.  The employer must file and serve its answer to the domination allegation within 21 days following the date of this Decision.

 

ISSUES

 

The complaint alleges:

           

Employer interference with employee rights in violation of RCW 41.56.140(1), within six months of the date the complaint was filed by providing an endorsement letter for James McComas who was a candidate for a treasurer position in the internal union election.

 

Employer domination or assistance of a union in violation of RCW 41.56.140(2), [and if so, derivative interference in violation of RCW 41.56.140(1)], within six months of the date the complaint was filed, by writing an endorsement letter for James McComas who was a candidate for a treasurer position in the internal union election.

 

The complaint lacks paragraph numbers, cites the wrong statute, and lacks facts alleging employer interference.  The complaint did describe facts that could constitute an employer domination violation within the Commission’s jurisdiction.

 

BACKGROUND

 

According to the complaint, David Kirk is a member of the union and works for the employer at the King County Department of Adult Detention.  The union allegedly announced its election nomination period on November 29, 2017.  The election included the treasurer position.  The election nomination period allegedly ended on December 27, 2017.  Election ballots were distributed to the union members on January 10, 2018.  Allegedly four candidates were on the ballot for the treasurer position, which caused a runoff election between the top two candidates, who were Kirk and James McComas.  The runoff election commenced on February 14, 2018, and ballots were counted on February 28, 2018.

 

During the initial election process McComas allegedly produced a campaign flyer featuring his qualifications for treasurer and an endorsement letter written by an employer representative.  The union president allegedly posted McComas’ endorsement letter from the employer on the union webpage on January 10, 2018.

 

ANALYSIS

 

Statutory Reference

Chapter 41.56 RCW regulates collective bargaining by all correctional employees who are uniformed and nonuniformed, commissioned and noncommissioned security personnel employed in a jail as defined in RCW 70.48.020(9), by a county with a population of seventy thousand or more, and who are trained for and charged with the responsibility of controlling and maintaining custody of inmates in the jail and safeguarding inmates from other inmates.  The complaint alleges violations of Chapter 41.56 RCW and Chapter 28B.52 RCW.  Chapter 28B.52 RCW regulates community college academic personnel.

 

This case involves an employee who is a member of a bargaining unit of corrections officers and sergeants at the King County Department of Adult Detention.  King County corrections officers and sergeants are covered by Chapter 41.56 RCW.  The complainant was provided an opportunity to correct the defect and did not file an amended complaint.

 

Employer Interference

Applicable Legal Standard

It is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their statutory rights.  RCW 41.56.140(1).  The Commission clarified the standard for employer interference in City of Mountlake Terrace, Decision 11831-A (PECB, 2014).  To prove interference, the complainant must prove, by a preponderance of the evidence, the employer’s conduct interfered with protected employee rights.  Grays Harbor College, Decision 9946-A (PSRA, 2009); Pasco Housing Authority, Decision 5927-A (PECB, 1997), remedy aff’d, Pasco Housing Authority v. Public Employment Relations Commission, 98 Wn. App. 809 (2000).  An employer interferes with employee rights when an employee could reasonably perceive the employer’s actions as a threat of reprisal or force, or a promise of benefit, associated with the union activity of that employee or of other employees.  Kennewick School District, Decision 5632-A (PECB, 1996).

 

An employer may interfere with employee rights by making statements, through written communication, or by actions.  Snohomish County, Decision 9834-B (PECB, 2008); Pasco Housing Authority, Decision 5927-A.

 

The complainant is not required to demonstrate that the employer intended or was motivated to interfere with employees’ protected collective bargaining rights.  City of Tacoma, Decision 6793-A (PECB, 2000).  Nor is it necessary to show that the employee involved was actually coerced by the employer or that the employer had union animus for an interference charge to prevail.  Id.

 

Application of Standard

The complaint lacks facts alleging an employer interference violation.  The complaint alleges the employer provided McComas with an endorsement letter.  The complaint lacks facts whether Kirk perceived the employer’s action of providing an endorsement letter to McComas as a threat of reprisal or force, or promise of benefit, associated with a protected activity.  Because the complaint lacks facts alleging employer interference, the alleged employer interference violation is dismissed.

 

Employer Domination and Numbered Paragraphs

Complainants must number the paragraphs in the attached statement of facts.  The requirements for filing a complaint charging unfair labor practices (ULP) are described in WAC 391-45-050.  Numbering paragraphs is important to allow the respondent to reference specific allegations within the complaint when filing an answer, but technical defects can be waived under WAC 391-08-003 in the absence of actual prejudice.  City of Ellensburg, Decision 5659 (PECB, 1996), see also South Whidbey School District, Decision 10880-A (EDUC, 2011).

 

The complaint alleges employer domination or assistance of a union in violation of RCW 41.56.140(2).  A cause of action for employer domination is provided for in all statutes administered by the Commission.  The origins of the violation are based upon the concerns set forth in the test’s second clause, that is, whether an employer has attempted to create, fund, or control a company union.  See Washington State Patrol, Decision 2900 (PECB, 1988).

 

Commission decisions have generally revolved around whether employers have unlawfully rendered assistance to unions.  Examples of such assistance are allowing the free use of employer buildings and resources for union business, providing aid to employees serving as union officers, or favoring one union over another during a representation proceeding.  The meaning of the term “domination” is thus directly tied to the term “assistance” and does not imply a cause of action for alleged negative acts directed toward the union or union members.

 

An employer’s actual or attempted control of a union through assistance, ranging from favoritism to a full-fledged company union, is deleterious to the collective bargaining rights of employees; however, those actions are distinct from interference.  It’s appropriate to file a complaint alleging employer domination or assistance of a union if the facts suggest that the employer is violating the statute through such acts as rendering assistance to a union or union officers, supporting a company union, or showing favoritism to one union over another during an organizing campaign.

 

In the deficiency notice that the complainant was provided it stated that the complaint needed to be corrected by numbering the individual paragraphs to receive a preliminary ruling for employer domination.  While the complainant did not file an amended complaint numbering his paragraphs, the complaint is sufficiently intelligible to understand the employer domination allegations.  The complaint will be move forward for further case processing.  The Commission has declined to dismiss complaints on the technicality of lacking paragraph numbers when the complaint is sufficiently intelligible.  South Whidbey School District, Decision 10939-A (EDUC, 2011); City of Ellensburg, Decision 5659.  The statement of facts in this case is sufficiently intelligible so that the complainant’s failure to cure this defect does not, in and of itself, require dismissal of the complaint.

 

The complaint alleges the employer provided an endorsement letter for McComas during the union election, and the letter was then posted on the union’s webpage.  The complaint alleges elements necessary for further case processing of an employer domination violation.

 

                                                                        ORDER

 

1.                  Assuming all of the facts alleged to be true and provable, the employer domination allegations of the complaint states a cause of action, summarized as follows:

 

Employer domination or assistance of a union in violation of RCW 41.56.140(2), [and if so, derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by writing an endorsement letter for James McComas who was a candidate for a treasurer position in the internal union election.

 

The employer domination allegations of the complaint will be the subject of further proceedings under Chapter 391-45 WAC.

 

2.                  King County shall:

 

File and serve its answer to the allegations listed in paragraph 1 of this Order, within 21 days following the date of this Order.

 

An answer shall:

 

a.         Specifically admit, deny, or explain each fact alleged in the complaint, except if a respondent states it is without knowledge of the fact that statement will operate as a denial; and

 

b.         Assert any affirmative defenses that are claimed to exist in the matter.

 

The answer shall be filed with the Commission at its Olympia office.  A copy of the answer shall be served on the attorney or principal representative of the person or organization that filed the complaint.  Service shall be completed no later than the day of filing.  Except for good cause shown, a failure to file an answer within the time specified, or the failure to file an answer to specifically deny or explain a fact alleged in the complaint, will be deemed to be an admission that the fact is true as alleged in the complaint, and as a waiver of a hearing as to the facts so admitted.  WAC 391‑45‑210.

 

3.                  The allegations of the complaint concerning employer interference in violation of RCW 41.56.140 (1) are DISMISSED for failure to state a cause of action.

 

ISSUED at Olympia, Washington, this  13th  day of June, 2018.

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

                                               

 

EMILY K. WHITNEY, Unfair Labor Practice Administrator

 

Paragraph 3 of this order will be

the final order of the agency on

any defective allegations, unless

a notice of appeal is filed with

the Commission under WAC 391-45-350.