City of Moses Lake (Washington State Council of County and City Employees), Decision 12996 (PECB, 2019)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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City of Moses lake,
Employer.
reuel klempel
Complainant,
vs.
Washington State Council of COunTy and City Employees,
Respondent.
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CASE 130541-U-19
DECISION 12996 - PECB
FINDINGS OF FACT,
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Reuel Klempel appeared on his own behalf.
Ed Stemler, General Counsel, for the Washington State Council of County and City Employees.
On April 4, 2018, Reuel Klempel filed an unfair labor practice complaint against the Washington State Council of County and City Employees (union) with the Public Employment Relations Commission. The complaint was amended on May 10, 2018. A preliminary ruling was issued on May 29, 2018, which found that the complaint had stated a cause of action in violation of RCW 41.56.150(1) for union restraint and coercion by failing to provide election information to Klempel when he attempted to run in an election.
On July 10, 2018, the union made a motion for summary judgement. I denied that motion on October 3, 2018, and held a hearing on December 6, 2018. The union made a closing argument at the hearing. Neither party filed post-hearing briefs.
ISSUES
1. Does the Commission have jurisdiction over the union’s communication about a union officer election with a nonmember of the union?
No. Communication about the process of running for an office inside of a union is an internal union matter and beyond the Commission’s jurisdiction.
2. If the Commission determines that it should exercise jurisdiction over this communication, did the union commit an unfair labor practice by failing to provide election information to Klempel (a nonmember) when he attempted to run in the union election?
No. Even if the Commission has jurisdiction, the union did not commit an unfair practice violation. Klempel had the option of signing an authorization card, joining the union, and providing his mailing address, which he chose not to do. Had he done so, he would have received election information and been permitted to run for union office. The union’s communication with Klempel regarding the election did not interfere with Klempel’s collective bargaining rights.
BACKGROUND
Klempel’s allegations against the union involve the union’s election of its bargaining unit officers. The union was certified on January 31, 2018. Simultaneous to the representation proceeding, Klempel was hired into the bargaining unit. He was such a new employee that he was not included on the bargaining unit member address list provided by the employer.
On Saturday, March 3, 2018, the union’s director of organizing, Bill Keenan, held the initial bargaining unit meeting. This meeting was intended to include the bargaining unit’s officer elections. It was a sunny springtime Saturday and attendance was low. Due to the light turnout, Keenan collected nominations but delayed the election. He conducted the rest of the election by mail.
At the March 3 meeting, Klempel nominated himself as a candidate for two positions, the unit’s president and the water department shop steward. The union required all officers to be members of the union by way of filling out dues authorization cards. Keenan offered Klempel a packet of paperwork, which included an authorization card that asked employees to provide a mailing address. Klempel declined to complete the card at the meeting.
On March 8, 2018, Keenan mailed out election information that included the list of nominees and a nomination deadline of March 19. Klempel was not mailed this document because the union did not have his mailing address. Klempel learned from other bargaining unit members about this mailing and attempted to contact Keenan. He first attempted to reach Keenan on his cell phone, and then he called the union’s office on Friday, March 16, 2018, at which time he provided his address to the woman who answered that phone. A copy of the March 8 election memorandum was mailed to Klempel. It was postmarked Monday, March 19 and arrived on March 21.
On March 21 Keenan waited until the mail arrived at the union office before finalizing the election ballot. After verifying that Klempel had not mailed in a dues authorization card, Keenan finalized the election ballot by removing Klempel’s name from the ballot and mailing them. The election process was completed by mail. Klempel was not elected to office, and Klempel never became a member of the union.
ANALYSIS
Applicable Legal Standards
Jurisdiction
The Commission has long-standing case precedent avoiding its involvement in internal union affairs. Lewis County (Washington State Council of County and City Employees, AFSCME, AFL‑CIO), Decision 464-A (PECB, 1978); Lake Washington School District (Lake Washington School District Bargaining Council), Decision 6891 (PECB, 1999). Typically, in allegations related to internal union affairs, a preliminary ruling is not issued and the case is dismissed without a hearing.
There are rare exceptions where a matter related to internal affairs was found to contain a union interference cause of action and proceeded to hearing. An example of this occurred in Western Washington University (Washington Public Employees Association), Decision 8849 (PSRA, 2005), which involved the ratification vote of a collective bargaining agreement. In Western Washington University, the union delegated its role as exclusive bargaining representative to a referendum vote among all bargaining unit employees but ran the election in an unfair way. That case was one of a trio of decisions in which the Commission found jurisdiction over disputes regarding communicating election information to nonunion members. Western Washington University (Washington Public Employees Association), Decision 8849-A (PSRA, 2005); Community College District 7 – Shoreline (Washington Federation of State Employees), Decision 9094 (PSRA, 2005); Columbia Basin College (Washington Public Employees Association), Decision 9210-A (PSRA, 2006). All three cases stemmed from negotiations for first contracts under the Personnel System Reform Act (PSRA), Chapter 41.80 RCW, where the union and the employer negotiated contracts with union security provisions and agreed to allow all bargaining unit members to vote on contract ratification, regardless of union membership.
Another rare situation where the Commission exercised jurisdiction related to an internal union election was when the union and employer jointly published rules about distributing election material. King County, Decision 8630 (PECB, 2004), aff’d, Decision 8630-A (PECB, 2005). In this consolidated case against both the employer and union, jurisdiction was found because the election rules were cosigned by the employer, creating a nexus between the rules and the employee’s relationship with the employer.
With few exceptions, the Commission’s general practice is to avoid involvement in internal union affairs such as elections. Even where the Commission found jurisdiction in Community College District 7 – Shoreline, the general standard of noninvolvement in internal union affairs was reiterated. In the discussion of how it has applied this standard, the Commission re-stated its “hands‑off” approach.
Interference
The preliminary ruling in this case found a cause of action related to “union restraint and coercion in violation of RCW 41.56.150(1).” RCW 41.56.150(1) 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.” Thus, union restraint and coercion are a union interference cause of action. In King County (Amalgamated Transit Union, Local 587), Decision 8630-A (PECB, 2005), the Commission stated and applied the test for union interference as existing when
an employee could reasonably perceive actions as a threat of reprisal or force or promise of benefit associated with the union activity of that employee or of 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 respondent to demonstrate an interference with collective bargaining rights. See City of Tacoma, Decision 6793-A (PECB, 2000).
Where an unfair labor practice is alleged, the complainant bears the burden of proof and must prove by a preponderance of the evidence that the complained-of allegation occurred. WAC 391‑45-270(1)(a); Cowlitz County, Decision 7007-A (PECB, 2000).
Application of Standards
Jurisdiction
In Western Washington University, Community College District 7 – Shoreline, and Columbia Basin College, each union’s commitment to allow the nonmembers to vote was as part of a tentative agreement over a collective bargaining agreement with a union security clause that would have bound nonmembers to pay an agency fee. The Commission was merely enforcing a right the parties had given the nonmembers rather than a right that might grow out of the union’s constitution or bylaws. See Seattle School District, Decision 9359-A (EDUC, 2007). Conversely, in this case the election of union officials is an internal union matter that does not directly impact any employment relationship or working conditions of bargaining unit members. The union’s officer election was an internal union process.
The union and the employer did not have an agreement related to the involvement of nonmembers, like in Western Washington University, Community College District 7 – Shoreline, and Columbia Basin College. The employer had not signed off on the union’s election process, as it had in King County. There was no nexus between the union election and the employment relationship that Klempel had with the City of Moses Lake.
The Commission’s general “hands-off” approach to internal union matters is the appropriate standard to apply. Klempel’s behavior at the March 3 meeting demonstrated that he was behaving as a potential member of the union. He declined to take an authorization card on March 3, as he either stated that he already had a copy of the paperwork at home or took a packet from a pile in the back of the room. (Keenan testified that Klempel stated he had a packet at home, while Klempel testified that he took a packet from the back. In either case, Klempel was behaving as a potential member.) He nominated himself as a candidate in the officer elections. The fact that Klempel never completed his card and was removed from the union’s election ballot does not change the nature of the officer election as an internal union process that had no nexus with the employment relationship. To find jurisdiction over precisely what was communicated about the deadline for nominees to complete a dues authorization card, or to second guess whether Keenan should have more proactively communicated with Klempel, would contradict the Commission’s long-standing policy of noninvolvement in the internal workings of union elections.
Interference
Even if the Commission were to find jurisdiction in this matter, the union’s communication to Klempel was not an unfair labor practice. As a new employee, Klempel was not on the address list provided to the union during its certification process. He assumed that he should be receiving mailings from the union but declined to provide the union his mailing address when he declined to fill out a dues authorization card. The only contact information that he gave to the union on March 3 was a personal email address. At the March 3 meeting, Keenan gathered the personal email addresses of bargaining unit members because the union did not want to use work email addresses to discuss union matters. However, the union’s election process was done by physical mail. Keenan’s possession of Klempel’s email address did not create an obligation for him to email Klempel as the union has broad discretion over its internal processes. This discretion includes whether ballots are sent by physical mail or email. The union was within its discretion to use the mailing addresses provided by the employer during the certification process, along with updates from dues authorization cards, to conduct its election.
Testimony differs regarding what Keenan said at the March 3 meeting about the union membership election requirement. Klempel’s testimony conflicts with Keenan’s as well as that of bargaining unit president, Scott Allsbrook, and bargaining unit vice president, Jamie Lamb. Keenan, Allsbrook, and Lamb all testified that Keenan explained on March 3 that union membership was required to run for office. Klempel testified that Keenan said union membership was required to hold office. Klempel testified that although he knew union membership was a requirement for union office holders, he assumed this meant he could join the union after the election. I have evaluated this conflicting testimony and find the testimonies’ of Keenan, Allsbrook, and Lamb to be more credible than that of Klempel on what was said about the election requirement. Their testimony was more logical. Even if Keenan did not specify that union membership was required to run for office, it is unreasonable that Klempel would assume that a nonmember could run for an internal union office and that Klempel would not seek clarification at the March 3 meeting.
I also find that the union’s communication with Klempel after the March 3 meeting would not have constituted interference even if the Commission had jurisdiction over this communication. Klempel did not receive the union’s pre-election March 8 mailing because the union did not have his address until March 16. On March 16, Klempel called the union’s office and said he had not received the mailing. He gave his address, and he was promptly mailed the election information the next business day. This document arrived on March 20 and stated that the nomination deadline was March 19. Klempel testified that when he received this document on March 21 he assumed it was too late to complete a dues authorization card and have an amended ballot sent. There is no evidence in the record that Klempel ever attempted to complete a dues authorization card.
On March 21, Keenan removed Klempel’s name from the election ballot. An employee could not reasonably perceive this action as a threat of reprisal or force or promise of benefit associated with union activity. He was removed because he chose not to complete a dues authorization card. The evidence in this matter does not establish a violation of the law.
Summary
The union’s communication with Klempel regarding the election is beyond the Commission’s jurisdiction. Even if the communication were found to be within the Commission’s jurisdiction, it did not interfere with Klempel’s collective bargaining rights.
FINDINGS OF FACT
1. The City of Moses Lake is a public employer within the meaning of RCW 41.56.030(12).
2. The Washington State Council of County and City Employees is a bargaining representative within the meaning of RCW 41.56.030(2) and represents a bargaining unit employed by the employer.
3. Reuel Klempel is a member of the bargaining unit described in finding of fact 2.
4. Bill Keenan is the union’s director of organizing.
5. The union was certified on January 31, 2018. Simultaneous to the representation proceeding, Klempel was hired into the bargaining unit. He was such a new employee that he was not included on the bargaining unit member address list provided by the employer.
6. On Saturday, March 3, 2018, the union’s director of organizing, Bill Keenan, held the initial bargaining unit meeting. This meeting was intended to include the bargaining unit’s officer elections. It was a sunny springtime Saturday and attendance was low. Due to the light turnout, Keenan collected nominations but delayed the election. He conducted the rest of the election by mail.
7. At the March 3 meeting, Klempel nominated himself as a candidate for two positions, the unit’s president and the water department shop steward. The union required all officers to be members of the union by way of filling out dues authorization cards. Keenan offered Klempel a packet of paperwork, which included an authorization card that asked employees to provide a mailing address. Klempel declined to complete the card at the meeting.
8. Keenan explained on March 3 that union membership was required to run for office.
9. On March 8, 2018, Keenan mailed out election information that included the list of nominees and a nomination deadline of March 19. Klempel was not mailed this document because the union did not have his mailing address. Klempel learned from other bargaining unit members about this mailing and attempted to contact Keenan. He first attempted to reach Keenan on his cell phone, and then he called the union’s office on Friday, March 16, 2018, at which time he provided his address to the woman who answered that phone. A copy of the March 8 election memorandum was mailed to Klempel. It was postmarked Monday, March 19 and arrived on March 21.
10. On March 21 Keenan waited until the mail arrived at the union office before finalizing the election ballot. After verifying that Klempel had not mailed in a dues authorization card, Keenan finalized the election ballot by removing Klempel’s name from the ballot and mailing them. The election process was completed by mail. Klempel was not elected to office, and Klempel never became a member of the union.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission does not have jurisdiction in this matter pursuant to Chapter 41.56 RCW and Chapter 391-45 WAC.
2. Even if the Public Employment Relations Commission did have jurisdiction over this matter, based on finding of fact 3–10, the union did not interfere with, restrain, or coerce Klempel in the exercise of his collective bargaining rights in violation of RCW 41.56.150(1).
ORDER
The complaint charging unfair labor practices filed in the above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 6th day of May, 2019.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
Emily H. Martin, 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.