By Therese Norton
During contract negotiations, the Washington State Employment Security Department ordered all employees to remove pro-union flyers from their cubicles. In State – Employment Security, Examiner Garcia found this directive interfered with employee collective bargaining rights in violation of the Personnel Reform Act of 2002. State – Employment Security, Decision 11962 (PSRA, 2013)
Several employees at the Skagit office of the Employment Security Department posted union-sponsored posters in their work cubicles. One poster, for example, read, “I AM A STATE EMPLOYEE.” A Union logo was printed at the bottom of some of the posters. The Department advised the Union’s shop steward, and later informed all employees, that the Union posters in employees’ cubicles should be taken down. Several Union witnesses testified during a hearing that they feared being found insubordinate and subject to discipline if they did not comply with the Department’s directive.
Examiner Garcia based her interference finding on a number of factors, including: the Department’s lack of a written policy; its selective enforcement of which Union-related posters or Union-bearing insignia could be placed in employees’ cubicles; and its allowance of other personal items in employee cubicles.
The Department argued that under the State Constitution employees do not have a right to use state property, and thus, had not engaged in protected activity. Examiner Garcia was not persuaded, and instead relied on decisions from the National Labor Relations Board that similarly found that the displaying of the Union posters in the employees’ cubicles was a protected activity. The examiner explained,
“In the instant case, the bargaining unit employees testified that they posted the aforementioned posters out of pride as state employees, as union members, and to support the union’s collective bargaining and contract negotiations. By the nature of the content of the posters and the fact that the union distributed them to employees at a union luncheon during a time when contract negotiations were occurring…there is little doubt that the disputed posters were meant to “assist” the union as provided for under RCW 41.80.050.
The directive to remove the posters, the Examiner concluded, had a chilling effect on protected activity by threat of discipline and possible termination.
Examiner Garcia also found thatthe Department had refused to bargain when it unilaterally changed to the cubicle posting policy without providing an opportunity for bargaining. The Examiner determined that the policy was a mandatory subject of bargaining. In this case, the employer unilaterally changed the past practice of allowing employees to post non-work materials, including Union materials, in their cubicles without restrictions.
The Examiner rejected the Department’s argument that the union had contractually waived its right to post Union-related materials in employee cubicles. The parties’ contract permitted a Union bulletin board for Union communications. However, the Department did not show that the contract language was meant to prohibit posters in employee cubicles. Here, there was no clear waiver by the Union in the contract.
Editor’s Note by Chris Casillas: One of the messages reinforced by this decision is that to the extent your employer lacks a clear policy on how their equipment or office space is to be used or if they expressly allow usage of employer property for personal reasons, the employer cannot subsequently target employees for posting Union-related materials at work. If your employer seeks to institute a policy or rule around the use of employer equipment or work space, be mindful of the fact that when de minimis personal use is permitted by employees then it is potentially unlawful for the employer to single out union-related uses as being prohibited.
