LEACH, A.C.J.
¶ 1 Johnnie's Poultry Co.
¶ 2 We must also decide whether RCW 41.56.140(4) required the City to disclose certain information about its interviews with bargaining unit members to the International Association of Firefighters, Local 2898 (Union) and whether the City provided a sufficient explanation for withholding the requested information. We hold the City was not required to divulge the information, but substantial evidence supports PERC's finding that the City's explanation was inadequate. As a result, we affirm the trial court's decision on this issue in part and reverse in part.
¶ 3 The Union represents all supervisory personnel of the City of Seattle Fire Department holding the rank of battalion chief and deputy chief. In October 2004, the Union filed a grievance on behalf of Battalion Chief Molly Douce, disputing disciplinary action the City took against her. The Union and the City scheduled arbitration. In preparation for the arbitration hearing, the City's attorney interviewed three deputy chiefs about their knowledge of the facts leading to the dispute. Upon learning of the interviews, the Union sent an e-mail to the City's attorney, asserting that the City could not question members of its bargaining unit without arranging the interviews through the Union. The Union also asked the City for the identities of everyone already interviewed, the questions asked and information provided, and a copy of all notes and statements. The City refused to comply with this request.
¶ 4 The Union filed an unfair labor practices complaint with PERC, alleging employer interference with employee rights in violation of RCW 41.56.140(1) and refusal to bargain in violation of RCW 41.56.140(4). The hearing examiner dismissed the complaint, finding that the interviewed employees were not questioned about activity involving their statutory rights and therefore the City did not interfere with those rights. The examiner found that the information sought by the Union was either protected by the work-product privilege or that it was easily obtainable by the Union through other means.
¶ 5 The Union appealed to PERC. PERC affirmed the hearing examiner's dismissal of the unfair labor practices complaint because the Union failed to show that the interviews were coercive. In so doing, however, PERC decided that the rights enunciated in Johnnie's Poultry, a 1964 decision of the National Labor Relations Board (NLRB), apply to employees covered by Washington State's collective bargaining laws. PERC also found that no privilege protected the names of the interviewees, copies of their statements, and redacted copies of the City attorney's notes and ordered the City to provide the Union with that information. Finally, PERC found the City's explanation for withholding the requested information untimely, as the City fully responded only after the Union filed its unfair labor practices complaint.
¶ 6 The City appealed PERC's decision to the superior court. The court reversed PERC's finding that the City violated the
¶ 7 The Union appeals.
¶ 8 We review PERC's decision under the standards set forth in chapter 34.05 RCW, the Washington Administrative Procedures Act.
¶ 9 A reviewing court must uphold an agency's determination of fact "unless the court's review of the entire record leaves it with the definite and firm conviction that a mistake has been made."
¶ 10 In addition to Washington law, this court looks to federal decisions construing the National Labor Relations Act (NLRA),
¶ 11 The Union first argues that the City should be required to comply with Johnnie's Poultry when interviewing bargaining unit member employees in preparation for a pending grievance arbitration. We disagree.
¶ 12 Public employees in Washington State have a "right to organize and designate representatives of their own choosing for the purpose of collective bargaining."
¶ 13 The NLRA contains similar provisions. Section 7 guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."
¶ 14 Johnnie's Poultry involved a section 8 unfair labor practices complaint, alleging that the employer interrogated, threatened, and coerced its employees and refused to bargain collectively with the employees' union.
¶ 15 The NLRB found that "by interrogating employees concerning their union adherence and activities Respondent engaged in interference, restraint, and coercion in violation of Section 8(a)(1) of the Act."
¶ 16 The NLRB continues to require employers to provide Johnnie's Poultry warnings to each employee it interviews in preparation
¶ 17 Two conditions must therefore be met before a court will require an employer to administer Johnnie's Poultry warnings. First, the questioning must concern a protected, union-related activity. The Union argues that the questioning here meets this condition because "PERC and Washington courts have consistently held that filing and processing grievances are activities protected by Chapter 41.56 RCW from employer interference." The protected right, however, is the right to pursue a grievance.
¶ 18 The Union further argues that "[e]mployees are protected when they associate with or support a grievant in the grievance procedure." The lone case the Union cites in support of that proposition, Isaac v. City of Omak,
¶ 19 In addition, for Johnnie's Poultry to apply, the questioning must occur in preparation for an employer's defense against an unfair labor practices complaint. The Union fails to persuade us that we should extend the federal decisions noted above to hold that Johnnie's Poultry warnings must be given before interviewing employees to prepare for a disciplinary grievance arbitration.
¶ 21 Next, the Union argues that the City violated RCW 41.56.140(4) when it refused to provide the information the Union requested after the City's interviews, including the identities of the employees and copies of the employees' statements and attorney's notes. The City does not dispute that it had a duty to provide the Union with certain information relating to the grievance. Rather, the dispute concerns when and under what circumstances that duty is owed. The City claims that it fulfilled its duty when it supplied all relevant information to the Union before disciplining Douce, and any information obtained between discipline and arbitration was irrelevant and unnecessary. Because the Union failed to establish that the information was relevant, we affirm the trial court as to the City's duty to disclose.
¶ 22 Under RCW 41.56.140(4), "[i]t shall be an unfair labor practice for a public employer ... to refuse to engage in collective bargaining." The duty to bargain includes providing relevant and necessary information needed by the union for the proper performance of its duties in the collective bargaining process
¶ 23 Here, the Union provides no more than a bare assertion that the information it requested was relevant. The Union asserts that "[i]n this case there is no dispute about the relevance of the information the Union requested concerning interviews by the City's attorney." This argument would be insufficient to establish relevance even if it were not directly contradicted by the City's contention that the information is irrelevant. The Union further claims that "[i]nformation pertaining to employees in the bargaining unit is presumptively relevant." While information such as wages, hours, and terms and conditions of employment is presumptively relevant,
¶ 24 Finally, the Union contends that the City violated its duty to explain why it denied the Union's request for information. Neither party disputes the duty, but the City contends that it fulfilled its obligation with two letters to the Union, one dated May 17, 2005, and another sent two days after the Union filed its unfair labor practices complaint. PERC found these letters insufficient. Substantial evidence supports this finding.
¶ 25 First, the City's May 17 letter simply stated that it "will not disclose to you
Here, PERC further elaborated, "[T]he employer's refusal coupled with its lack of explanation for its denial left the union with few options aside from filing a complaint."
¶ 26 Affirmed in part and reversed in part.
WE CONCUR: SPEARMAN and APPELWICK, JJ.
29 U.S.C.A. § 158.