City of Lakewood, Decision 13044-A (PECB, 2021)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

Lakewood police independent guild, Complainant, vs. city of lakewood, Respondent.

CASE 131503-U-19 DECISION 13044-A - PECB Findings of Fact, Conclusions of Law, and Order

Alan E. Harvey, Attorney at Law, Northwest Legal Advocates, LLC, for Lakewood Police Independent Guild.

Michael C. Bolasina, Attorney at Law, Summit Law Group, PLLC, for the City of Lakewood.

On May 14, 2019, the Lakewood Police Independent Guild (union) filed an unfair labor practice complaint against the City of Lakewood (employer) with the Public Employment Relations Commission (Commission). A preliminary ruling was issued on July 31, 2019, and an answer was filed on August 21, 2019. A hearing was conducted by videoconference on April 15, April 16, June 9, and June 10, 2021.[1] The parties filed post-hearing briefs on August 16, 2021, to complete the record.

Issues

The issues, as framed by the preliminary ruling, include:

1.                  Did the employer refuse to bargain in violation of RCW 41.56.140(4) [and if so commit derivative interference in violation of RCW 41.56.140(1)] by refusing to bargain with the union’s designated collective bargaining representative?

2.                  Did the employer commit interference in violation of RCW 41.56.140(1) by threats of reprisal or force, or promise of benefit, through statements made to bargaining unit employee Sean Conlon?

I find that the employer refused to bargain with the union’s designated collective bargaining representative and thereby committed derivative interference. However, the union did not meet its burden of proving the independent interference claim.

Background

The union represents a bargaining unit of commissioned law enforcement officers including officers, detectives, and sergeants within the employer’s police department. The parties’ relationship dates back to the union’s certification as exclusive bargaining representative in 2005. Their most recent collective bargaining agreement at the time this unfair labor practice was filed was in effect from January 1, 2016, through December 31, 2020.

The instant dispute appears to have arisen during a time of change within the union. The events most relevant to the union’s claims date between May 2018 and late March 2019, during the union presidency of Jeremy Vahle. The union had recently shifted from being a fully independent guild to being affiliated with the Fraternal Order of Police (FOP). This change gave the union access to new legal representation and altered the process through which the union reached decisions about whether to take grievances to arbitration. Previously, the union had used an internal grievance committee to make such decisions. After its affiliation, the union relied on its FOP legal counsel for assistance with these decisions. For the first time in its history, the union moved two grievances, the Novasky and Bell grievances discussed below, to the arbitration step of the grievance process.

There is also evidence of internal discord within the union during this time. Concurrent to certain events underlying the union’s claims, Vahle faced a recall petition, which ultimately came to a vote of the union’s membership. According to Vahle’s testimony: “The guild E-Board… and the membership were in total chaos after the recall election, which did not pass, per [the union’s] bylaws. But there was another argument that it did pass, and I should have been immediately removed from office.” For some period of time not evident from the record, Vahle apparently agreed that he “would not make presidential decisions while still maintaining the title of president” while the union sought an independent legal opinion about its bylaws.[2] Sergeant Andy Suver, the union’s first vice president, was designated “as the point of contact for guild members” during that period. There is no evidence, however, that the employer officials involved in labor relations with the union were aware of this change in Vahle’s authority at the time of the events outlined below.

Collective Bargaining Agreement and the Parties’ Communication History

The parties have a three-step grievance process for resolving disputes under their collective bargaining agreement (CBA). The third step is an arbitration hearing. Article 16.01 of the parties’ CBA specifies that, “[o]nly the Guild, and not individual employees, may take a matter to arbitration.”

Also in their agreement, language in Article 2.05, “Designated Representative,” states, “The Guild President, or other members of the Guild appointed by the President, shall be recognized by the City as the official representatives of the Guild for the purpose of bargaining or resolving grievances with the City.” There is no evidence that the president had made any such appointments. There was testimony, however, that prior to March 2019, management personnel sent labor‑management communications to the union’s executive board, and not just its president, without objection. The union’s executive board members also regularly participated in labor‑management meetings and offered their perspectives during those meetings.

November 2018 and March 2019 Emails Regarding Novasky and Bell Grievances

In November 2018, the employer received a communication from attorney James David, the legal partner of union counsel Alan Harvey, seeking to move a grievance involving employee Scott Novasky (“the Novasky grievance”) to arbitration under the parties’ CBA. Chief Michael Zaro was unclear about the relationship between David and the union and whether David was seeking arbitration on behalf of the union or Novasky individually. Mindful of the Article 16.01 language, Zaro sent an email to the employer’s legal counsel Michael Bolasina asking for advice about how to handle David’s request. Bolasina recounted an experience in which another municipality allegedly faced an attempt by individual grievants to move grievances to arbitration and a legal dispute had ensued. His advice was that Zaro ask the union to confirm whether they were taking the matter to arbitration as a body.[3]

On November 27, 2018, Zaro sent an email to the union’s executive board, including Vahle, Suver, John Fraser, Peter Johnson, and Anthony Bucat, explaining the request that the employer had received from David. Zaro stated:

Section 16.01 of the our [sic] collective bargaining agreement prohibits us from entering into arbitration with [the Lakewood Police Independent Guild, or, LPIG] members as individuals and requires the action to be with the Guild. As such, I am asking you to confirm whether or not Mr. David’s request for arbitration is in compliance with section 16.01 of the [CBA].

Vahle replied, “Mr [sic] David has been given authority by the LPIG to conduct guild business related to the demotion including arbitration under section 16.01 of the CBA.” Zaro responded seeking further clarification, “Sorry, I think I made this more complicated than it needs to be. But to clarify, does Mr. David represent Scott Novasky on this matter or does he represent the Guild?” Vahle then clarified that “Mr. David was selected as the attorney to resolve the grievance on behalf of the guild which is representing Scott Novasky” and stated that David would be the union’s point of contact on the grievances moving forward. Zaro then indicated, “That is clear. Thank you.”

There is no evidence that the employer neglected to communicate with David regarding the Novasky grievance or continued directing communications regarding the grievance to the union’s executive board after this email exchange.

A similar occurrence arose some months later. On March 1, 2019, attorney Alan Harvey sent an email to employer HR Director Mary McDougal and City Manager John Caulfield regarding a grievance involving employee Eric Bell (“the Bell grievance”). Harvey purported to represent both Bell and the union:

My Client Eric Bell was terminated on February 20, 2019. I am an attorney and I have been representing the client in this matter from the outset. I also will be representing the LPIG through this process via our FOP contractual agreement.

Harvey requested a meeting regarding the Bell grievance and an extension of the Step 2 grievance filing deadline. The employer proceeded to have further Step 2 grievance correspondence with Harvey.

On March 27, 2019, Harvey sent an email with an attached letter to the employer. Harvey represented that he was moving the grievance to Step 3 on behalf of the union. The letter closed with the statement: “Finally, I am the point of contact for the LPIG in this matter. Any attempt to communicate with individual members of the LPIG is unacceptable.”

Two days later, on March 29, 2019, Zaro sent an email to the union’s executive board regarding the Bell grievance. Zaro stated:

Jeremy and E-Board,

Eric is requesting to take his termination to arbitration. Before the City agrees, we need to know that this is a guild action, not an individual action, so we don’t violate the CBA by going to arbitration with him.

Please let me know.

Suver responded on March 29, confirming, “Yes, this is a formal request by LPIG to move forward with arbitration.”

There is no evidence that the employer directed any further correspondence to the union’s executive board about the Bell grievance or neglected to communicate directly with Harvey about the grievance after Suver’s email. For example, on March 31, 2019, Bolasina emailed Harvey to notify him that the employer had retained him for representation in the Bell grievance arbitration. Thereafter, the two communicated regarding arbitrator selection, and the parties proceeded to arbitrate the Bell grievance.

March 26–31, 2019, Emails Regarding Sergeant Shift Bid

On March 26, 2019, Assistant Chief John Unfred sent an email seeking the union’s agreement to delay an upcoming sergeant shift bid. Unfred directed the email to the union’s executive board, including Vahle, Suver, Johnson, Fraser, and Bucat, and carbon-copied officer Nick McLelland and Lieutenant Jeff Alwine.[4] Union president Vahle responded on March 30, indicating the union’s non-agreement to the employer’s request. Vahle went on to state:

Lastly, I would like to remind you that in accordance with Article 2.05(A) of the CBA I am the official representative and sole point of contact for guild related matters. Please refrain from sending e-mails related to LPIG business to the entire E-board or others. Upon receiving a request such as this I will decide who within the LPIG needs to be notified, disseminate the e-mail or information accordingly, and respond to you directly.

Unfred responded on March 31, stating: “The Article you cite from the CBA only refers to bargaining and grievances. I will continue my longstanding practice of addressing regular communications to the entire LPIG executive board.” Unfred testified that he responded that way because he saw the matter being discussed more as an “operational” issue than as a bargaining or grievance matter governed by Article 2.05.

Conlon Promotion Incident

At some point in 2018, Officer Sean Conlon was promoted to the rank of detective. Vahle believed that a clause of the parties’ contract language regulated the number of detectives the employer could employ, and he informed Unfred in May 2018 that the union was contemplating filing a grievance over the promotion. In order to investigate the grievance, Vahle sent emails to the employer seeking information regarding the promotion, past promotions, and related staffing issues. In one such email, Vahle also stated, “If we decide to go forward with the grievance I would like to have an opportunity to speak with Conlon prior to filing it.”

One of the union’s information requests was a multipart request for documents that took the employer some months to fulfill, and the parties agreed at some point to pause the contractual grievance timeline. The employer completed its production of documents to the union in November 2018 and agreed to restart the 14-day timeline for the union to file a Step 1 grievance. Ultimately, the union did not file a grievance, and the 14-day period elapsed. Vahle and Conlon never had a conversation about the fact that a grievance was being contemplated, although there was testimony at hearing that another union executive board member, Fraser, informed Conlon. Unfred testified that he assumed, based on Vahle’s email, that someone from the union had had a conversation with Conlon about the potential grievance.

After the 14-day period elapsed, Unfred had a conversation in passing with Conlon at the police station during which he informed Conlon that the union would not be pursuing a grievance regarding his promotion. Unfred wanted to assure Conlon that any challenges to his promotion were done. The evidence is insufficient to conclude the exact words exchanged during the conversation.[5] Conlon testified at hearing and recalled Unfred saying something like “not to worry, I wasn’t getting demoted, and the grievance or whatever… it was over and I wasn’t getting demoted.” Conlon testified that he then asked Unfred what he was referring to. Conlon could not recall the exact words of Unfred’s reply but he testified that Unfred said something to the effect that Vahle had been looking to grieve Conlon’s promotion, get Conlon demoted, or take away the detective position from Conlon but that Conlon’s position was safe now. Conlon testified that he then asked why the union had never informed him of the potential grievance.[6] He recalled Unfred responding that it had not been his place to tell Conlon before then and that it would have been the union’s place to do so.

Unfred testified at hearing but did not testify as to the exact statements made during the conversation. He acknowledged that he had a conversation with Conlon in passing, testified regarding his purpose in initiating the conversation, and testified to Conlon’s reaction—which Unfred believed was surprise—to hearing that the union had been considering the grievance.

Vahle became aware of Conlon’s discussion with Unfred during a conversation with Conlon some months later. Vahle and Conlon were conversing in a parking lot shortly after another incident in which Vahle responded while on duty to a traffic accident in which Conlon’s wife had been involved. The conversation first pertained to that subject, then Conlon raised the fact that he was upset with Vahle for not informing him about the grievance the union had been contemplating. According to Vahle, Conlon took issue with having to hear about the grievance from the employer.

Analysis

Applicable Legal Standards

Refusal to Bargain with Designated Representative

Unions and employers both have the right to designate representatives for collective bargaining purposes. City of Tacoma, Decision 11064-A (PECB, 2012); Sultan School District (Teamsters Union, Local 763), Decision 1930-A (PECB, 1984). Where a party designates a particular representative for collective bargaining, the other party is generally not free to refuse the designation. See, e.g., Kiona Benton School District (Kiona Benton Education Association), Decision 11862-A (EDUC, 2014). However, a party does not bypass the other’s designated representative by communicating with other officials where there has been no direction not to communicate with those officials. Kiona Benton, Decision 11862-A, (citing Clallam County (Washington State Council of County and City Employees Council 2, Local 1619-MP and Local 1619-LC)), Decision 11829 (PECB, 2013).

The right to designate representatives is not absolute. For example, in the context of a Weingarten interview, an employer may prove that “special or extenuating circumstances” trumped an employee’s designation of the union representative of their choosing. City of Tacoma, Decision 11064-A (PECB, 2012) (internal punctuation omitted).

Interference

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). 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 (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 other employees. Kennewick School District, Decision 5632-A (PECB, 1996).

To prove an interference violation, the complainant must prove by a preponderance of the evidence that the employer’s conduct interfered with protected employee rights. Grays Harbor College, Decision 9946-A (PSRA, 2009); Pasco Housing Authority, Decision 5927-A. To meet its burden of proving interference, a complainant need not establish that an employee was engaged in protected activity. State – Washington State Patrol, Decision 11775-A (PSRA, 2014); City of Mountlake Terrace, Decision 11831-A (PECB, 2014). The complainant is not required to demonstrate that the employer intended or was motivated to interfere with an employee’s protected collective bargaining rights. City of Tacoma, Decision 6793-A (PECB, 2000). Nor is it necessary to show that the employee was actually coerced by the employer or that the employer had union animus. Id.

The burden of proof in an unfair labor practice lies with the complainant. State – Family Child Care Providers, Decision 12781-A (PECB, 2017).

Application of Standards

Refusal to Bargain with Designated Representative

The union argues that the employer refused to bargain with its designated representatives regarding the Bell and Novasky grievances in three ways: by including the union’s executive board members in November 2018 correspondence regarding the Novasky grievance; by refusing Vahle’s March 30, 2019, instruction to direct communications to him only; and by sending emails to the union’s executive board seeking confirmation that the union was behind the arbitration demands sent by attorneys David and Harvey. I find that the employer refused to bargain when it refused Vahle’s March 30, 2019, designation regarding communications but that the employer’s other actions did not constitute refusals to bargain.

First, the employer did not refuse to bargain by “bypassing” Vahle when it included union executive board members on email correspondence regarding the Novasky grievance. The evidence is insufficient to conclude that—prior to the March 30, 2019, directive—the union had clearly directed the employer that collective bargaining correspondence should be sent only to the union president and should not include the executive board. See Kiona Benton School District, Decision 11862-A; Clallam County, Decision 11829.

The union claims that Article 2.05 of the parties’ CBA provided sufficient prior notice that the employer should communicate exclusively and directly with the union president. That article states, “The Guild President, or any other members of the Guild appointed by the President, shall be recognized by the City as the official representatives of the Guild for the purpose of bargaining or resolving grievances with the City.” I do not find this language specific enough, on its face, to direct the employer to exclude the union’s executive board from labor-management correspondence. Nor has the union provided evidence in the form of bargaining history or past practice to support this interpretation of the language.[7]

The union did, however, put Unfred on notice of Vahle’s designation as its exclusive point of contact on March 30, 2019, in a fact pattern closely analogous to the facts of Kiona Benton School District (Kiona Benton Education Association), Decision 11862-A. In Kiona Benton School District, the employer instructed a union representative to contact a particular employer representative for collective bargaining matters before attempting other employer contacts. The union representative responded by email, refusing to communicate with the designated representative and proclaiming a right to communicate directly with the employer representative of his choosing. The Commission called this “a clear refusal to communicate with the employer’s designated collective bargaining representative” and upheld a finding that the union had refused to bargain. Id.

Similarly here, on March 30, Vahle issued an instruction to Unfred designating himself the employer’s point of contact for collective bargaining matters and unambiguously instructing the employer not to direct its communications to the union’s executive board. Unfred responded, flatly refusing to honor the designation: “I will continue my longstanding practice of addressing regular communications to the entire LPIG executive board.” This constitutes refusal to bargain, and I do not find that the circumstances argued by the employer justified Unfred’s refusal.

The employer claims that Unfred’s response was justified because: (1) Vahle’s instruction differed from the parties’ prior practice with email communications; and (2) the employer perceived Vahle as attempting to “cut out the rest of [the union’s] elected board from communications with management” and unjustly seize power in a time when his presidency was imperiled. The former is not a special or extenuating circumstance. Unions and workplaces are dynamic institutions and whatever the union’s prior designation regarding how labor relations communications should be directed, the union remained free to alter its designation at its discretion.

The latter argument significantly oversteps the employer’s role in the union’s internal affairs. It is not an employer’s place to police the democracy of its employees’ union or intercede between factions in a union’s leadership where they arise. In fact, collective bargaining law strongly militates against employers interfering in internal union business. See generally, RCW 41.56.140(2) (demonstrating employer commits unfair labor practice by controlling, dominating, or interfering with bargaining representative); North Thurston School District, Decision 4765-A (EDUC, 1995) (finding cause of action for alleged employer to attempt to influence outcome of internal union election). As the employer seems well aware, union‑represented employees have recourse through internal democratic processes (and/or relevant collective bargaining law) where they may be concerned about potential leadership abuses within their union.

Even if protecting the union from a rogue officer was a valid employer concern, there is no evidence that this was Unfred’s contemporaneous motivation for refusing Vahle’s directive. Unfred testified that he responded to Vahle’s email as he did because he did not see the shift bidding matter as a bargaining or grievance matter governed by Article 2.05 and instead saw it as an “operational” issue. He therefore did not feel bound to comply with Vahle’s request. Regardless of whether the employer had a contractual obligation to comply with Vahle’s designation, it had an obligation under chapter 41.56 RCW to do so, just as the union would have an obligation to honor the employer’s choice about whom to communicate with and whom not to communicate with for labor relations matters. See Kiona Benton School District (Kiona Benton Education Association), Decision 11862-A.

Finally, I find that the employer did not refuse to bargain through Zaro’s November 27‑28, 2018, and March 29, 2019, emails inquiring about the Novasky and Bell arbitration demands. Several factors distinguish these communications from the violative communication by Unfred above, foremost among them that the employer never refused to communicate with the union’s attorneys, David and Harvey.

In each instance, the employer had received a demand for arbitration from an attorney. The record shows that the union and employer had never been to arbitration before and that the union had recently changed legal representation. The employer was not clear whether the attorney was providing representation to the union or just the individual grievant. The parties have contract language specifying that only the union, and not an individual grievant, can move a grievance to the arbitration step of the grievance process. Therefore, Zaro sent an email to the union’s executive board seeking confirmation that David and Harvey represented the union in these arbitrations and were bringing the arbitration demands on the union’s behalf.

These emails, simply confirming the union’s designation of the attorney and not engaging in any other substantive discussion regarding the grievances or the union’s designation of representative, were not refusals to bargain. Kiona Benton School District (Kiona Benton Education Association), Decision 11862 (EDUC, 2013) (contrasting asking questions about the designation of a representative with the outright refusal to honor a designation), aff’d, Kiona Benton School District, Decision 11862-A. There is also no evidence that the employer refused to communicate with the attorneys once the union affirmed that the attorneys, in fact, represented the union such that the employer could be satisfied it was not breaching Article 16.01 by accepting the attorneys’ arbitration demands.

In his March 27, 2019, demand for arbitration, Harvey purported to represent the union and stated that any attempt by the employer to communicate with “individual members” of the union about the Bell arbitration was “unacceptable.” Given the context, including the union’s new relationship with Harvey and his law partner, I do not find that this instruction carried the same weight as the instruction of a known, elected union official like Vahle such that it was inappropriate for the employer to circle back with the union to confirm that Harvey was its designated representative.

Interference

The relevant question here is whether the union has proven by a preponderance of the evidence that the employer’s conduct involving bargaining unit member Conlon could reasonably be perceived by an employee to be a threat of reprisal or force, or a promise of benefit, associated with union activity. City of Mountlake Terrace, Decision 11831-A; Kennewick School District, Decision 5632-A. For the reasons that follow, the union fell short of its burden.

The union provided no direct evidence of the central event underlying its claim—the conversation between Unfred and Conlon—during its case in chief. The union offered only the hearsay testimony of Vahle to support this claim.[8] The union had an opportunity to elicit direct evidence of the conversation when the employer called both Conlon and Unfred in its defense case. On direct examination, Conlon and Unfred testified to the general outlines of the conversation. The union posed no questions of Conlon and Unfred on cross-examination that were aimed at pinning down either’s recollection of the exact statements exchanged.

Thus, while I can determine by a preponderance of the evidence the general contours of Conlon and Unfred’s conversation, I am not able to determine Unfred’s exact phrasing on several key statements or discern the tone of those statements. Unfred initially stated something along the lines that Conlon need not worry, that he would not be demoted, and that a situation was over. Conlon asked to what Unfred was referring. Conlon’s testimony regarding Unfred’s response left open several possibilities: (1) that Unfred stated that Vahle had been looking into filing a grievance regarding his promotion; (2) that Unfred stated that Vahle had been looking to get Conlon demoted; or (3) that Unfred stated that Vahle had been looking to take away the detective position from Conlon. Unfred stated that Conlon’s position was safe, and when Conlon asked Unfred why the union had not informed him (Conlon) of the potential grievance, Unfred said that it had not been his place before then to do so.

In its brief, the union correctly cites the standard for interference but fails to analogize the facts here to any case in which the Commission has found interference. The union emphasizes the employer’s “unilateral” disclosure to its member Conlon of the fact that the union had been considering a grievance as the source of the violation and asserts that this disclosure interfered with Vahle’s ability to pursue and investigate potential grievances and “created issues between” Vahle and Conlon. But the union wholly fails to articulate how the disclosure of the fact that Vahle was considering filing a grievance could reasonably be perceived to be a threat of reprisal or force, or a promise of benefit, associated with Vahle’s pursuit of grievances. City of Mountlake Terrace, Decision 11831-A; Kennewick School District, Decision 5632-A. Generally, the Commission has held that employers maintain the right to communicate with represented employees and provide them with information provided the communication does not veer into bargaining or other unlawful activity. University of Washington, Decision 10490-C (PSRA, 2011); State - Social and Health Services, Decision 9690-A (PSRA, 2008); City of Seattle, Decision 3566-A (PECB, 1991).

Nor has the union proven by a preponderance of the evidence that Unfred’s statements, based on the loose record at hearing, rose to the level of interference by disparaging Vahle or the union. King County, Decision 12582-A (PECB, 2017). From what can be discerned by a preponderance of the evidence, the thrust of Unfred’s initial remarks was to assure Conlon that his promotion was secure. The union has not proven how Unfred replied when Conlon asked what he was referring to: on the one hand, he may have simply stated that Vahle had been looking into filing a grievance. But on the other, he may have stated that Vahle was looking to “take away” Conlon’s position or “get” Conlon “demoted,” statements that would color the conversation with a significantly more negative cast. When Conlon asked why the union had not informed him and Unfred opined that he did not feel it was his place before then to inform him (and it would have been the union’s place), there is again no evidence that Unfred made any remarks disparaging the union’s or Vahle’s choice not to inform Conlon. In sum, the union has not presented a factual basis to conclude that Unfred’s statements crossed the line and could reasonably be perceived as disparaging the union or Vahle.

Appropriate Remedy

“Where the Commission finds that a party has committed an unfair labor practice, it must ‘issue [an] appropriate remedial order.” Amalgamated Transit Union, Local 1384 v. Kitsap Transit, 187 Wn. App. 113, 127 (2015) (citing RCW 41.56.160(1)). An appropriate remedial order requires the offending party “to cease and desist from [the] unfair labor practice, and to take such affirmative action as will effectuate the purposes and policy of” chapter 41.56 RCW. RCW 41.56.160(2). The standard remedy 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. City of Anacortes, Decision 6863-B (PECB, 2001). The Commission may order other relief, “such as the payment of damages and the reinstatement of employees,” where doing so “will effectuate the purposes and policy of [chapter 41.56 RCW].” City of Vancouver v. Public Employment Relations Commission, 180 Wn. App. 333, 347 (2014). For example, where an employer’s unlawful unilateral change resulted in lost wages and benefits to employees, an appropriate remedial order included a make‑whole remedy to compensate employees. King County, Decision 12582-B (PECB, 2018).

The union offers no justification for its request for a monetary remedy, and I do not find that a monetary remedy is needed to effectuate the purposes of chapter 41.56 RCW. Because the employer refused to bargain with the union’s designated representative, the employer is ordered to cease and desist from its refusal to bargain with the union’s designated representatives upon request and to post and publicly read a notice in compliance with the order below.

Conclusion

The employer failed to bargain with the union’s designated representative through Unfred’s March 30, 2019, email to Vahle but not through its other communications regarding the Novasky and Bell grievances. The standard remedy is appropriate. The union has not proven the interference claim; that claim is dismissed.

Findings of Fact

1.                  The City of Lakewood (employer) is a public employer within the meaning of RCW 41.56.030(13).

2.                  The Lakewood Police Independent Guild (union) is a bargaining representative within the meaning of RCW 41.56.030(2).

3.                  The union represents a bargaining unit of commissioned law enforcement officers including officers, detectives, and sergeants within the employer’s police department. The parties’ relationship dates back to the union’s certification as exclusive bargaining representative in 2005. Their most recent collective bargaining agreement at the time this unfair labor practice was filed was in effect from January 1, 2016, through December 31, 2020.

4.                  The instant dispute appears to have arisen during a time of change within the union. The events most relevant to the union’s claims date between May 2018 and late March 2019, during the union presidency of Jeremy Vahle. The union had recently shifted from being a fully independent guild to being affiliated with the Fraternal Order of Police (FOP). This change gave the union access to new legal representation and altered the process through which the union reached decisions about whether to take grievances to arbitration. Previously, the union had used an internal grievance committee to make such decisions.

5.                  After its affiliation, the union relied on its FOP legal counsel for assistance with these decisions. For the first time in its history, the union moved two grievances, the Novasky and Bell grievances discussed below, to the arbitration step of the grievance process.

6.                  There is also evidence of internal discord within the union during this time. Concurrent to certain events underlying the union’s claims, Vahle faced a recall petition, which ultimately came to a vote of the union’s membership. According to Vahle’s testimony: “The guild E‑Board… and the membership were in total chaos after the recall election, which did not pass, per [the union’s] bylaws. But there was another argument that it did pass, and I should have been immediately removed from office.”

7.                  For some period of time not evident from the record, Vahle apparently agreed that he “would not make presidential decisions while still maintaining the title of president” while the union sought an independent legal opinion about its bylaws. This testimony came out during the employer’s cross-examination of Vahle, when he was asked whether he had responded to a certain March 29, 2019, email. Vahle testified that he was not exercising his full presidential duties “at that exact moment in time” and explained the changed to his scope of presidential decision making. No attempt to clarify the specific time period or the scope of presidential duties that he was or was not authorized to use was made.

8.                  Sergeant Andy Suver, the union’s first vice president, was designated “as the point of contact for guild members” during that period. There is no evidence, however, that the employer officials involved in labor relations with the union were aware of this change in Vahle’s authority at the time of the events outlined below.

9.                  The parties have a three-step grievance process for resolving disputes under their collective bargaining agreement (CBA). The third step is an arbitration hearing. Article 16.01 of the parties’ CBA specifies that, “[o]nly the Guild, and not individual employees, may take a matter to arbitration.”

10.              Also in their agreement, language in Article 2.05, “Designated Representative,” states, “The Guild President, or other members of the Guild appointed by the President, shall be recognized by the City as the official representatives of the Guild for the purpose of bargaining or resolving grievances with the City.” There is no evidence that the president had made any such appointments.

11.              There was testimony, however, that prior to March 2019, management personnel sent labor‑management communications to the union’s executive board, and not just its president, without objection. The union’s executive board members also regularly participated in labor‑management meetings and offered their perspectives during those meetings.

12.              In November 2018, the employer received a communication from attorney James David, the legal partner of union counsel Alan Harvey, seeking to move a grievance involving employee Scott Novasky (“the Novasky grievance”) to arbitration under the parties’ CBA.

13.              Chief Michael Zaro was unclear about the relationship between David and the union and whether David was seeking arbitration on behalf of the union or Novasky individually. Mindful of the Article 16.01 language, Zaro sent an email to the employer’s legal counsel Michael Bolasina asking for advice about how to handle David’s request. Bolasina recounted an experience in which another municipality allegedly faced an attempt by individual grievants to move grievances to arbitration and a legal dispute had ensued. His advice was that Zaro ask the union to confirm whether they were taking the matter to arbitration as a body.

14.              On November 27, 2018, Zaro sent an email to the union’s executive board, including Vahle, Suver, John Fraser, Peter Johnson, and Anthony Bucat, explaining the request that the employer had received from David. Zaro stated:

Section 16.01 of the our [sic] collective bargaining agreement prohibits us from entering into arbitration with [the Lakewood Police Independent Guild, or, LPIG] members as individuals and requires the action to be with the Guild. As such, I am asking you to confirm whether or not Mr. David’s request for arbitration is in compliance with section 16.01 of the [CBA].

15.              Vahle replied, “Mr [sic] David has been given authority by the LPIG to conduct guild business related to the demotion including arbitration under section 16.01 of the CBA.” Zaro responded seeking further clarification, “Sorry, I think I made this more complicated than it needs to be. But to clarify, does Mr. David represent Scott Novasky on this matter or does he represent the Guild?” Vahle then clarified that “Mr. David was selected as the attorney to resolve the grievance on behalf of the guild which is representing Scott Novasky” and stated that David would be the union’s point of contact on the grievances moving forward. Zaro then indicated, “That is clear. Thank you.”

16.              There is no evidence that the employer neglected to communicate with David regarding the Novasky grievance or continued directing communications regarding the grievance to the union’s executive board after this email exchange.

17.              A similar occurrence arose some months later. On March 1, 2019, attorney Alan Harvey sent an email to employer HR Director Mary McDougal and City Manager John Caulfield regarding a grievance involving employee Eric Bell (“the Bell grievance”). Harvey purported to represent both Bell and the union:

My Client Eric Bell was terminated on February 20, 2019. I am an attorney and I have been representing the client in this matter from the outset. I also will be representing the LPIG through this process via our FOP contractual agreement.

18.              Harvey requested a meeting regarding the Bell grievance and an extension of the Step 2 grievance filing deadline. The employer proceeded to have further Step 2 grievance correspondence with Harvey.

19.              On March 27, 2019, Harvey sent an email with an attached letter to the employer. Harvey represented that he was moving the grievance to Step 3 on behalf of the union. The letter closed with the statement: “Finally, I am the point of contact for the LPIG in this matter. Any attempt to communicate with individual members of the LPIG is unacceptable.”

20.              Two days later, on March 29, 2019, Zaro sent an email to the union’s executive board regarding the Bell grievance. Zaro stated:

Jeremy and E-Board,

Eric is requesting to take his termination to arbitration. Before the City agrees, we need to know that this is a guild action, not an individual action, so we don’t violate the CBA by going to arbitration with him.

Please let me know.

21.              Suver responded on March 29, confirming, “Yes, this is a formal request by LPIG to move forward with arbitration.”

22.              There is no evidence that the employer directed any further correspondence to the union’s executive board about the Bell grievance or neglected to communicate directly with Harvey about the grievance after Suver’s email. For example, on March 31, 2019, Bolasina emailed Harvey to notify him that the employer had retained him for representation in the Bell grievance arbitration. Thereafter, the two communicated regarding arbitrator selection, and the parties proceeded to arbitrate the Bell grievance.

23.              On March 26, 2019, Assistant Chief John Unfred sent an email seeking the union’s agreement to delay an upcoming sergeant shift bid. Unfred directed the email to the union’s executive board, including Vahle, Suver, Johnson, Fraser, and Bucat, and carbon-copied officer Nick McLelland and Lieutenant Jeff Alwine. There was testimony at hearing that Officer McLelland was included because he was responsible for performing legwork necessary to complete the twice-annual shift bids. Union president Vahle responded on March 30, indicating the union’s non-agreement to the employer’s request. Vahle went on to state:

Lastly, I would like to remind you that in accordance with Article 2.05(A) of the CBA I am the official representative and sole point of contact for guild related matters. Please refrain from sending e-mails related to LPIG business to the entire E-board or others. Upon receiving a request such as this I will decide who within the LPIG needs to be notified, disseminate the e-mail or information accordingly, and respond to you directly.

24.              Unfred responded on March 31, stating: “The Article you cite from the CBA only refers to bargaining and grievances. I will continue my longstanding practice of addressing regular communications to the entire LPIG executive board.” Unfred testified that he responded that way because he saw the matter being discussed more as an “operational” issue than as a bargaining or grievance matter governed by Article 2.05.

25.              In a 2006 email, Zaro, during his own term as union president, admonished his fellow union officers for revealing the contents of a private executive board conversation to an employer official. Zaro asked other union officers “that any communications with the admin regarding guild matters be run through [him] first” so the union could speak with a unified voice.

26.              At some point in 2018, Officer Sean Conlon was promoted to the rank of detective. Vahle believed that a clause of the parties’ contract language regulated the number of detectives the employer could employ, and he informed Unfred in May 2018 that the union was contemplating filing a grievance over the promotion. In order to investigate the grievance, Vahle sent emails to the employer seeking information regarding the promotion, past promotions, and related staffing issues. In one such email, Vahle also stated, “If we decide to go forward with the grievance I would like to have an opportunity to speak with Conlon prior to filing it.”

27.              One of the union’s information requests was a multipart request for documents that took the employer some months to fulfill, and the parties agreed at some point to pause the contractual grievance timeline. The employer completed its production of documents to the union in November 2018 and agreed to restart the 14-day timeline for the union to file a Step 1 grievance. Ultimately, the union did not file a grievance, and the 14-day period elapsed. Vahle and Conlon never had a conversation about the fact that a grievance was being contemplated, although there was testimony at hearing that another union executive board member, Fraser, informed Conlon. Unfred testified that he assumed, based on Vahle’s email, that someone from the union had had a conversation with Conlon about the potential grievance.

28.              After the 14-day period elapsed, Unfred had a conversation in passing with Conlon at the police station during which he informed Conlon that the union would not be pursuing a grievance regarding his promotion. Unfred wanted to assure Conlon that any challenges to his promotion were done.

29.              The evidence is insufficient to conclude the exact words exchanged during the conversation. Conlon testified at hearing and recalled Unfred saying something like “not to worry, I wasn’t getting demoted, and the grievance or whatever… it was over and I wasn’t getting demoted.” Conlon testified that he then asked Unfred what he was referring to. Conlon could not recall the exact words of Unfred’s reply but he testified that Unfred said something to the effect that Vahle had been looking to grieve Conlon’s promotion, get Conlon demoted, or take away the detective position from Conlon but that Conlon’s position was safe now. Conlon testified that he then asked why the union had never informed him of the potential grievance. He recalled Unfred responding that it had not been his place to tell Conlon before then and that it would have been the union’s place to do so.

30.              Unfred testified at hearing but did not testify as to the exact statements made during the conversation. He acknowledged that he had a conversation with Conlon in passing, testified regarding his purpose in initiating the conversation, and testified to Conlon’s reaction—which Unfred believed was surprise—to hearing that the union had been considering the grievance.

31.              Vahle became aware of Conlon’s discussion with Unfred during a conversation with Conlon some months later. Vahle and Conlon were conversing in a parking lot shortly after another incident in which Vahle responded while on duty to a traffic accident in which Conlon’s wife had been involved. The conversation first pertained to that subject, then Conlon raised the fact that he was upset with Vahle for not informing him about the grievance the union had been contemplating. According to Vahle, Conlon took issue with having to hear about the grievance from the employer.

Conclusions of Law

1.                  The Public Employment Relations Commission has statutory jurisdiction in this matter pursuant to chapter 41.56 RCW and chapter 391-45 WAC.

2.                  By the actions described in findings of fact 3–25, the employer refused to bargain with the union’s designated representative in violation of RCW 41.56.140(4), and derivatively, RCW 41.56.140(1).

3.                  By the actions described in findings of fact 26–31, the employer did not commit interference in violation of RCW 41.56.140(1) by threats of reprisal or force, or promise of benefit, through statements made to bargaining unit employee Sean Conlon.

Order

The City of Lakewood, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

1.                  CEASE AND DESIST from:

a.                   Refusing to bargain with the designated representatives of the Lakewood Police Independent Guild.

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 41.56 RCW:

a.                   Upon request, negotiate in good faith with the Lakewood Police Independent Guild and its designated representatives.

b.                  Contact a compliance officer at the Public Employment Relations Commission to receive official copies of the required notice for posting. Post copies of the notice provided by the compliance officer 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.

c.                   Read the notice provided by the compliance officer into the record at a regular public meeting of the City Council of the City of Lakewood 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.

d.                  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.

e.                   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 the compliance officer with a signed copy of the notice the compliance officer provides.

ISSUED at Olympia, Washington, this  15th  day of November, 2021.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

Katelyn M. Sypher, 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.