By Jim Cline and Stephen Hatton
In Ben Franklin Transit, Hearing Examiner Dario De La Rosa found that a Teamsters Union Representative had engaged in bad faith bargaining because of his hostile, discriminatory, and abusive conduct at the bargaining table.
Furthermore, Examiner De La Rosa found that the Transportation Employer had not bargained in bad faith when walking away from the bargaining table during the Union Representative’s outburst because they had notified the Representative that his behavior was inappropriate and provided the Representative with an opportunity to change his behavior before walking away from the table. But he did find that the Transportation Employer had unlawfully attempted to control the Union by using a restraining order against the Union Representative to exclude him from bargaining since he was the selected representative of the Union’s members. Notably, Examiner De La Rosa did not order the Union Representative to be excluded from bargaining, which he explained was an extraordinary remedy only necessary in situations involving actual violence or threats of violence.
The Employer in the case operated transit services in Benton and Franklin Counties. While the Union and the Employer were bargaining an open contract in 2019, the negotiations sessions heated up.
A Union Representative, who was frustrated with some of the Employer’s actions, lashed out at each Employer official in an explicit, hostile, profane, and intimidating manner. This included sexually pejorative language and continually pointing his finger at negotiators on the Employer’s team. When asked to calm down, the Union Representative fired off again. According to the evidence, the Union Representative also had a history of this behavior.
After the Rep’s outburst, one Employer representative objected to the Union Representative’s behavior. After the Rep continued yelling obscenities at the Employer representatives, the Employer’s team informed the Union that the bargaining session was over as a result of the Rep’s behavior.
In a second bargaining session about a month later, the same Union Representative made a series of offensive comments directed at women team members for the Union. Among the Union Representative’s remarks: that the Union president was so old her first uniform was a “gunny sack;” asking a female shop steward attending an emergency management training if her job at the meeting was “bringing the cookies;” and suggesting to another shop steward that “maybe if [she] took off [her] top [she] could get free booze.”
In a third bargaining session – shortly after the second – the Rep engaged in another profane rant directed towards an Employer official. The tirade began after the Rep was told that a particular proposal had not been adopted in other contracts by the Employer official. However, the Rep had mistakenly believed that the proposal had been adopted in other contracts.
After all three incidents, a member of the Employer’s bargaining team filed a civil restraining order against the Union Representative, which required the Rep to stay at least 500 feet away from the Employer official’s home or place of employment at all times. After obtaining the restraining order, the Employer official was then required to attend all future bargaining sessions by the Employer, although she hadn’t attended every meeting before the order.
Ultimately, the Employer filed three unfair labor practice complaints against the Union, and the Union filed five unfair labor practice complaints against the Employer, which were consolidated into the case.
The Union argued that the Employer had refused to bargain in good faith by (1) walking away from the table, (2) supporting its official to obtain the restraining order – which frustrated bargaining, (3) revoking a tentative agreement, and (4) failing to provide information to the Union as related to the restraining order civil case. The Union also argued that the Employer dominated the Union by using a restraining order to exclude the employees’ representative of choice from the bargaining table.
The Employer argued that the Union had refused to bargain in good faith by frustrating bargaining with its Rep’s extreme, over-the-top, and continual use of foul language, personal attacks, and gender-based attacks. According to the Employer, the Rep’s comments and actions were explicit, hostile, unreasonable, and intimidating; therefore, should not be protected by RCW 41.56, which admittedly permitted bargaining representatives to freely use abusive, intemperate, or insulting language without fear of restraint.
Both parties argued that the appropriate remedy in the case was for the Examiner to remove a representative from the other side’s bargaining team – the Union Rep and the Employer officer who obtained the restraining order.
Union Rep’s Negotiations Conduct as Bad Faith Bargaining
Examiner Dario De La Rosa adopted NLRB precedent to find that the Rep’s harassment, discrimination, and bullying at the bargaining table was “unprotected” by RCW 41.56. According to the Examiner, while the collective bargaining relationship may produce heated, volatile, or intemperate behavior, the sometimes-heated nature of collective bargaining does not justify harassment, discrimination, or bullying. Accordingly, the Examiner overturned the Commission’s precedents that permitted parties to freely use “intemperate, abusive or insulting language without fear of restraint.”
However, in order to appropriately object to a bargaining representative’s behavior, the Examiner explained:
a party faced with hostile, discriminatory, or abusive conduct must communicate its opposition to the behavior to the respondent and provide an opportunity for corrective action. If, after notice, the respondent continues to engage in conduct that is hostile, discriminatory, or abusive, the complaining party may extricate itself from the situation. Either party is then free to file a complaint alleging bad faith bargaining, and this agency would then determine whether the conduct was protected activity and, if not, whether the conduct hampered the bargaining process.
According to the Examiner, the Employer’s representatives had credibly testified that they all felt verbally assaulted, threatened, and viewed the first outburst as a hostile personal attack against their team that left them shaken and upset to the point that they could not continue bargaining. Since that was the case, and when considering the Rep’s history of outbursts, Examiner De La Rosa found that the Rep’s hostile, threatening, and unreasonable behavior in the first outburst was unprotected, and had negatively impacted the bargaining process with the Employer to such a degree that it constituted bad faith bargaining in violation of RCW 41.56.150(4) and (1).
As for the second incident, Examiner De La Rosa found that the gender-motivated statements were not protected. However, no one on the Employer’s negotiating team objected to the statements at the time they were made, and there was no evidence demonstrating that the Union Representative’s offensive comments impacted the bargaining process. Therefore, the Examiner found that the Union had not bargained in bad faith on account of the Rep’s gender-motivated remarks.
As for the third incident, Examiner Dario De La Rosa found that the Rep’s conduct was not protected. The Union had failed to prove that the Union Representative’s belief was correct. Since the Union Representative threw a temper tantrum based on a mistaken belief, the Examiner found that the Union Representative’s response was unreasonable and unprotected. However, the Examiner determined that the behavior was not bad faith bargaining because neither party could dictate ground rules for bargaining, including the language used by the parties; and the Examiner found that the behavior, although unreasonable, did not adversely affect bargaining.
Requesting a Restraining Order as Bad Faith Bargaining
In terms of the restraining order, Examiner De La Rosa found that the Employer did bargain in bad faith by assisting its employee to obtain a restraining order against the Union Rep and then using that to justify excluding the Union Rep from the table.
Additionally, the Examiner found that the Employer stood ready to engage in good faith negotiations with the Union and took steps to keep the bargaining process moving forward despite the difficulties between the feuding representatives on both sides of the table.
Employer Domination
Examiner Dario De La Rosa then found that the Employer had dominated the Union by asking the Union to identify a new bargaining representative in light of the restraining order. The Examiner found that the letter demonstrated the Employer’s intent to control the Union because it assumed that the restrained Rep could not continue at least some of his bargaining functions for the Union. Furthermore, the Examiner found that the Employer had passively attempted to prevent the restrained Rep from bargaining by requiring the Employer official with the no-contact order to be present at all upcoming bargaining sessions, even though she had not attended all prior bargaining sessions. According to the Examiner, the Employer needed to work with the Union to find other ways for the Union Representative to engage as the employees’ representative of choice.
Extraordinary Remedy Not Granted
Examiner Dario De La Rosa finally found that the extraordinary remedy of removing a representative from the bargaining table was inappropriate here. The Examiner explained that doing so was only appropriate in the most extreme situations, such as actual violence or threats of violence. Since the Rep did not engage in conduct that rose to the level of physical threats or actual violence, the Examiner concluded that the extraordinary remedy of removing him from the bargaining table was inappropriate.
Seems like the initial lesson here shouldn’t even need to be taught – your bargaining team members shouldn’t engage in obscene and sexually harassing conduct.
The PERC cases on protected activity provide a fairly wide berth to what otherwise might be characterized as bad behavior. But this behavior crossed the line by a mile (or more). Conduct so bad that it would violate discrimination or sexual harassment laws would certainly not be protected.
On the other hand, the employer’s tactic of obtaining a restraining order and then sending the protected party to the bargaining table to block the misbehaving negotiator doesn’t pass muster. Clever, but not fully consistent with the duty to bargain. Based on the apparent fact as described in the written Decision, the Examiner seemingly did a good job of striking the right balance in a challenging situation.
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