Port of Seattle, Decision 13478 (PORT, 2022)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

TEAMSTERS LOCAL 117, Complainant, vs. PORT OF SEATTLE, Respondent.

CASE 134695-U-21 DECISION 13478 - PORT PRELIMINARY RULING AND ORDER OF PARTIAL DISMISSAL

Eamon McCleery, Staff Attorney, for Teamsters Local 117.

Shannon E. Phillips, Attorney at Law, Summit Law Group PLLC for the Port of Seattle.

On December 15, 2021, Teamsters Local 117 (union) filed an unfair labor practice complaint against the Port of Seattle (employer). The complaint was reviewed under WAC 391-45-110.[1] A partial deficiency notice issued on January 6, 2022, notified the union that a cause of action could not be found at that time. The union was given a period of 21 days in which to file and serve an amended complaint or face dismissal of the deficient allegations.

No further information has been filed by the union. The Unfair Labor Practice Administrator dismisses the deficient allegations and issues a preliminary ruling for other allegations of the complaint.

ISSUEs

The complaint alleges the following:

Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by skimming or contracting out work previously performed by Police Officers and Sergeants at the Port of Seattle, without providing the union an opportunity for bargaining.

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 subcontracting out bargaining unit work in the middle of ongoing negotiations.

The skimming/contracting out allegation of the complaint states a cause of action under WAC 391-45-110(2) for further case proceedings before the Commission.

The domination allegation of the complaint does not state a cause of action and is dismissed.

Background

Teamsters Local 117 (union) represents Police Officers and Sergeants at the Port of Seattle (employer). Prior to November 25, 2021, the Police Officers performed a variety of work including, but not limited to: (i) monitoring passenger entry points into the main terminal; (ii) making contact with individuals and verifying those entering the terminal have a business reason for entering; (iii) informing individuals of laws against trespassing and enforcing those laws; (iv) maintaining a visual presence throughout the airport to serve as a visual deterrent; (v) locking/unlocking multiple entry doors and restrooms; and (vi) baggage claim walk-throughs (bargaining unit work). Prior to November 25, 2021, Security Guards were never used to perform this bargaining unit work.

The union and employer had been engaged in bargaining over the employer’s decision to implement a COVID vaccine mandate. The implementation of the mandate allegedly resulted in a reduction in available Police Officers and Sergeants due to their unvaccinated status.

On November 9, 2021, the employer allegedly emailed the union with a draft scope of work for “professional guard services” the employer intended to use at the airport. That same day the union responded by notifying the employer it believed the proposed scope of work was bargaining unit work and demanded to bargain over the decision and impacts concerning the employer’s intent to use the professional guard services. The union also provided notice that if the employer implemented the plan, the union believed it would constitute an unfair labor practice. On November 10, 2021, the employer agreed to meet with the union. Later, on November 10, 2021, the union requested information necessary to engage in bargaining over the utilization of security services. The union requested that the employer provide the information prior to the first bargaining session.

On November 12, 2021, the union and employer met to discuss the professional guard services. The employer notified the union that the use of security services was related to a pilot program that had been in development for several months. During the meeting, the union asked the employer to provide a draft proposal. On November 18, 2021, the employer emailed a draft memorandum of understanding (MOU) regarding the private security services. The MOU allegedly proposed to have the private security services perform work that was historically performed by members of the bargaining unit.

On November 22, 2021, Chief Michael Villa allegedly called a union representative and indicated that he had just found out that the employer was going to be starting the security services that night. The union representative was on vacation and forwarded the union attorney’s contact information. There is no record of whether Villa contacted the attorney.

On November 25, 2021, a bargaining unit member spotted three private security guards working in the airport terminal. On November 30, 2021, another bargaining unit member notified the union that the employer had begun using private security guards to perform bargaining unit work. The private security guards were allegedly roaming around attempting to combat the number of homeless people in the airport.

On December 6, 2021, Acting Deputy Chief Sean Gillebo sent an email to bargaining unit members advising them that the private security services would be working the nonsecure side of the airport primarily services as “visual deterrent.”

On December 8, 2021, the employer contacted the union asking if the union would be responding to the MOU. The union responded that because the employer had unilaterally implemented the private security services an unfair labor practice complaint would be filed.

On December 9, 2021, the employer responded to the union’s November 10 request for information. This was two weeks after bargaining unit members first observed private security guards performing bargaining unit work. One of the requested items was a copy of the “proposed contract” with the “proposed security services.” The contract that was provided was dated effective February 21, 2020, and purportedly covered services provided at Pier 69, Pier 66, Shilshole Bay Marina, Fishermen’s Terminal, Terminal 91, and Terminal 46. There was allegedly not information regarding services performed at the airport.

Analysis

Domination – RCW 41.56.140(2)

Applicable Legal Standard

The complaint alleges employer domination or assistance of a union in violation of RCW 41.56.140(2). Other than referencing this statue, the complaint does not explain or develop this allegation. None of the facts alleged in the complaint suggest that the employer involved itself in the internal affairs or finances of the union or that the employer attempted to create, fund, or control a “company union.” 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 State – Washington State Patrol, Decision 2900 (PECB, 1988).

The 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.

Application of Standard

The partial deficiency notice informed the union that the facts alleged did not describe employer domination of the union. The complaint alleges the employer implemented the use of private security services prior to bargaining with the union to agreement or impasse. There are no facts alleging the employer intended to control or interfere with the administration of the union. The complaint does not describe employer domination of the union. The complaint does not allege how the employer (1) intended to control or interfere with the formation or administration of a union, (2) intended to dominate the internal affairs of a union, (3) intended to contribute financial or other support to a union, (4) recognized or bargaining with a union that had not established that it had the support of a majority of the employees involved, or (5) showed a preference between unions competing to represent particular employees. The union was provided an opportunity to correct the deficiency. The union did not file an amended complaint; thus the domination allegation must be dismissed.

Order

1.                  Assuming all of the facts alleged to be true and provable, the skimming/contracting out allegation of the complaint states a cause of action, summarized as follows:

Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so derivative interference in violation of RCW 41.56.140(1)] within six months of the date the complaint was filed, by skimming or contracting out work previously performed by Police Officers and Sergeants at the Port of Seattle, without providing the union an opportunity for bargaining.

This allegation will be the subject of further proceedings under chapter 391-45 WAC.

2.                  The respondent shall file and serve an answer to the allegation listed in paragraph 1 of this order within 21 days following the date of this order. The answer shall

(a)               specifically admit, deny, or explain each fact alleged in the complaint, except if the 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 and served in accordance with WAC 391-08-120. Except for good cause shown, if the respondent fails to file a timely answer or to file an answer that specifically denies or explains facts alleged in the complaint, the respondent will be deemed to have admitted and waived its right to a hearing on those facts. WAC 391‑45‑210.

3.                  The allegation of the complaint concerning domination is DISMISSED for failure to state a cause of action.

ISSUED at Olympia, Washington, this  17th  day of February, 2022.

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.