City of Bellingham (Guild of Pacific Northwest Employees), Decision 13525 (PECB, 2022)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

City of Bellingham, Employer.
MORGAN LIBBY, Complainant, vs. GUILD OF PACIFIC NORTHWEST EMPLOYEES, Respondent.	CASE 134326-U-21 DECISION 13525 - PECB FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Darin M. Dalmat and Alyssa Garcia, Attorneys at Law, Barnard Iglitzin & Lavitt, LLP, for Morgan Libby.

Nicholas E.D. Power, Attorney at Law, The Law Office of Nicholas Power, and Dean I. Tharp, Staff Representative, for the Guild of Pacific Northwest Employees.

On July 13, 2021, Morgan Libby (Libby or complainant) filed an unfair labor practice complaint with the Public Employment Relations Commission (PERC or agency) against the Guild of Pacific Northwest Employees (guild). The guild is a bargaining representative within the meaning of chapter 41.56 RCW and represents a bargaining unit of employees at the City of Bellingham Police Department. The City of Bellingham (employer) is not a party to the issues directly before PERC.[1] The complainant asserts that the guild filed an unsubstantiated lawsuit against her in superior court in retaliation for creating a Facebook page that disparaged the guild and used its name as the title for the page. A preliminary ruling issued on August 5, 2021, giving a cause of action for alleged guild interference. On August 26, 2021, the guild filed its answer to the complaint. I held a hearing on January 11, January 12, and February 8, 2022. The parties submitted post-hearing briefs to complete the record.

ISSUE

The issue presented is whether the guild interfered with employee-protected rights in violation of RCW 41.56.150(1) by filing and continuing baseless civil litigation against Libby in retaliation for Libby’s expression of representation by the union of her choice. I find that the guild did not interfere with Libby’s protected rights. The lawsuit was not objectively baseless and does not require an analysis of the respondent’s motives. Additionally, the lawsuit survived a motion to dismiss in the superior court proceeding. The case is dismissed.

BACKGROUND

Libby is a records specialist for the City of Bellingham’s police department and a longtime member of Local 114, which is an affiliate of Council 2 and under the umbrella of the American Federation of State, County and Municipal Employees International (AFSCME). She has worked in her position for 14 years. Libby’s job requires her to keep track of case files and prepare background investigations and checks for people purchasing guns and obtaining concealed pistol licenses. She also records FBI statistics and uploads the employer’s data into a program for the FBI. Libby was treasurer for Local 114 in 2014 and a shop steward for two years following her role as treasurer.

In 2018, members of Local 114 began to inquire into AFSCME’s financial records and filed requests for information (RFIs). These requests were made to determine how AFSCME was using members’ dues. Colin Maycock, an AFSCME statewide representative, began a search for these records on behalf of Local 114 by filing RFIs with AFSCME. In winter 2018, Local 114 came under administratorship, and AFSCME took back all documents collected by the local. Multiple Local 114 members, including Jael Komac (president at the time), were unhappy with the process and retained legal representation in early 2019 to further pursue the RFIs. To pay the $14,000 attorney’s retainer fee, Local 114 leadership cashed out two certificates of deposit (CDs) and withdrew money from union bank funds. According to their bylaws, any expenses over $500 needed to be approved by a quorum of the membership (10 percent), and the final check would need two signatures. The legal budget in 2019 was $500.

Komac retained Nicholas Power and Jamie Grifo for legal services, but Komac had neither a quorum for the vote nor two signatures on the check for the retainer. Libby and a fellow coworker, Karen Powers, were upset that the recognized processes for withdrawing funds and retaining an attorney were not met. Powers wrote an open letter to Local 114 on how the money was being used for the lawsuit. Libby filed a request with AFSCME’s judicial panel to review the authorization process for the expenses to determine whether it met AFSCME financial standards. Charges were made and upheld against Komac, who resigned as president in October 2019.

Discontentment continued to grow between AFSCME and Local 114. Some members, including Komac, reached out to Dean Tharp, their former Local 114 business representative, to discuss forming a guild, which ultimately became a reality. On January 28, 2019, Tharp filed papers of incorporation. There were organizing campaigns in October and November 2019, and in January 2020; the guild began collecting authorization cards on October 12, 2019. The guild created a Facebook page on October 17, 2019. The official logo, showing a picture of an orca, was created and posted on the page in fall 2020.

On October 12, 2019, Libby created a Facebook page titled “Guild of Pacific Northwest Employees.” Libby later changed the page name to “I don’t support the Guild.” The handle on the page was always labeled “@guildofpnwe.” The page is identified as a labor union. Libby used her Facebook page as a platform to voice her concerns about the guild and to show her support for Local 114. She also provided Council 2’s contact information at the bottom of the page. The photo at the top of her page was of Squalicum Harbor and Mt. Baker, different from the guild’s orca logo. When searching for the guild’s page on Facebook, Libby’s page would appear in the results.

Comments on Libby’s page mainly consisted of statements made by her supporting AFSCME and Local 114 and statements chastising actions of the guild. Powers chimed in and agreed to most of the posts. Libby’s page was active while the guild was conducting its organizing campaigns but became quiet for many months until the guild began to bargain their new contract after it won its election in May 2020. On October 8, 2020, Libby began posting on her Facebook page again, this time focusing her disappointment on the negotiated contract (the lack of wage increases, for example) while the petition for new representation was pending. She stated that the bargaining group was inexperienced and that certain items, like negotiating away a past overtime holiday practice for an increase in salary, was not a skilled maneuver. Libby questioned the cost used to retain the attorneys for the RFI lawsuit, claimed the guild’s actions against her were retaliatory, and provided details about the lawsuit that the guild brought against Libby. Only one member of the police records department, where Libby and Powers work, was a dues-paying guild member.

Individuals in the guild and in the community began to take notice of Libby’s page. Comments on the page showed that guild members knew Libby’s page was not the real guild page. Guild member Amy Baker Lathrop commented that the page was fake; another member, Donna Grasdock, agreed with Lathrop. Grasdock wrote on the page that no one at Facebook was responding to her messages that the page was fake. Trisha Lee posted on January 2, 2020, that the page was fake.

Tharp was concerned individuals in the community would visit Libby’s page and become either confused or put off by the rhetoric. The guild started to receive attention from outside individuals in late summer and early fall 2020. Groups contacted Tharp from such various locations as Spokane, Olympia, outside Seattle, San Juan County, Skagit County, California, and New York City—all showing interest in joining the guild. Two individuals who spoke with Tharp had searched for the guild’s page on Facebook and found Libby’s page instead. They identified Libby’s page as a fake and recognized that it must not have been made by the guild.

In summer 2020 the guild began discussing how to approach Libby to take down her Facebook page. The guild was concerned that prospective members would look up the guild’s Facebook page, find Libby’s page instead, and either be confused as to who was controlling the page or be put off from the guild and not contact them at all. The guild found they had to explain Libby’s posts to their current members and reassure them, as well. On November 30, 2020, the first text message was sent to Libby requesting she take down her Facebook page. Libby testified that she did not receive this text message because she had blocked many telephone numbers on her phone. On December 26, 2020, Komac sent a letter to Libby and Powers requesting that the Facebook page be taken down. Libby stated she never received this letter. Libby did not take down or change the name of the page prior to the guild’s lawsuit against her.

On January 14, 2021, the guild filed a lawsuit against Libby for trade name infringement under the Consumer Protection Act. The guild pled damages related to member dues that potentially were not realized because of the page. The guild felt it was necessary to file a lawsuit as a next step since Libby had not been responsive to their earlier requests to take down her page. Libby filed a motion to dismiss on February 9, 2021, but the motion was denied by the judge. Libby stated that she felt the lawsuit was retaliatory and was concerned she would need to pay for attorney fees, penalties, and costs. In the end, AFSCME paid for her costs and represented her in the case. Ultimately the guild withdrew the lawsuit before a final order was issued.

ANALYSIS

Applicable Legal Standards

Interference

It is an unfair labor practice for a bargaining representative to interfere with, restrain, or coerce public employees in the exercise of rights guaranteed by chapter 41.56 RCW. RCW 41.56.150(1). A showing of intent is not required to prove an interference violation under RCW 41.56.150(1). King County (Public Safety Employees Union), Decision 10183-A (PECB, 2008). To establish union interference and coercion in violation of RCW 41.56.150(1), a complainant must establish the existence of “union tactics involving violence, intimidation and reprisals.” Community College District 13 (Lower Columbia College), Decision 8117-B (PSRA, 2005) (citing National Labor Relations Board v. Drivers Local 639, 362 U.S. 274 (1960)). The standard for establishing an interference violation is whether the typical employee in similar circumstances could reasonably perceive the conduct as a threat of reprisal or force, or a promise of benefit, related to the pursuit of rights protected by the statute. Community College District 13 (Lower Columbia College), Decision 8117-B.

“Bill Johnson” Standard

The Washington Supreme Court has held that decisions construing the National Labor Relations Act (NLRA), while not controlling, are generally persuasive in interpreting state labor laws that are similar to or based upon the NLRA. Nucleonics Alliance v. Washington Public Power Supply System, 101 Wn.2d 24 (1984). In situations where PERC law is similar to National Labor Relations Board (NLRB) law, the agency may rely upon NLRB decisions. Lewis County Public Utility District, Decision 7277-A (PECB, 2002); King County (Washington State Nurses Association), Decision 10389-A (PECB, 2011) (citing Nucleonics Alliance v. Washington Public Power Supply System, 101 Wn.2d 24). NLRB law is particularly useful when evaluating cases of first impression. Ben Franklin Transit (Teamsters Local 839), Decision 13409 (PECB, 2021).[2]

The NLRB’s approach of examining whether a lawsuit was reasonably based or objectively baseless is a sound approach for determining whether the lawsuit constitutes an unfair labor practice. The filing of a civil suit, as opposed to the threat to file a civil suit, has been considered a lawful practice provided the suit is filed in good faith. S. E. Nichols Marcy Corp., 229 NLRB 75 (1977). In Bill Johnson’s Restaurants v. National Labor Relations Board (Bill Johnson), 461 U.S. 731 (1983), the U.S. Supreme Court held that a civil suit could violate the NLRA if the suit lacked a reasonable basis in fact or law and was brought with a retaliatory motive.

In BE & K Construction Co. v. National Labor Relations Board, 536 U.S. 516 (2002), the U.S. Supreme Court rejected the NLRB’s approach as overboard. It determined that its prior statements in Bill Johnson were dicta. Importantly, the Supreme Court did not give rule guidance as to whether a reasonably based, but unsuccessful, lawsuit would constitute an unfair labor practice. Ben Franklin Transit (Teamsters Local 839), Decision 13409.

On remand, the NLRB held “that the filing and maintenance of a reasonably based lawsuit does not violate the [NLRA], regardless of the motivation for bringing it.” BE & K Construction Co., 351 NLRB 451 (2007). A lawsuit lacks reasonable basis or is objectively baseless if “no reasonable litigant could realistically expect success on the merits.” Id. (citing Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49, 60 (1993)).

Application of Standards

In order to successfully prove an interference claim, Libby must show that the guild’s trade name infringement claim and alleged violation under the Consumer Protection Act (CPA) was objectively baseless and that a reasonable litigant would not have a realistic expectation of success in civil court. See BE & K Construction Co., 351 NLRB 451; Milum Textile Services Co., 357 NLRB 2047, 2053 (2011). Conversely, for the guild to prevail in court, it would need to show the two elements of a trade name infringement violation: (1) the trade name was used in a competing, commercial manner; and (2) the manner tends to confuse the two businesses in the public mind. See Eastern Outfitting Co. v. Manheim, 59 Wash. 428 (1910). The guild also pled an unfair trade practice under the CPA; however, since a CPA claim is a derivative of a trade name infringement claim, if the trade name claim fails, then so does the CPA claim. See Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735 (1987).

In the instant case, Libby was unable to prove the first element in a trade name infringement claim. She did not show that her page was not used in a competing, commercial manner. Libby argues that her Facebook page was not used for trade or commerce because she did not receive or was not involved in any direct exchange of money. Libby argues websites that provide information without charging do not engage in trade or commerce. She also asserts that the First Amendment protects her noncommercial speech. These arguments are narrow in scope and fail to address the monetary element of union operation: collecting dues.

A reasonable litigant could believe that a Facebook page that disparages a guild over a union could affect that guild’s current and future membership and revenue collection. Evidence showed that there was disconcertion among the guild members regarding Libby’s Facebook page. The topic of Libby’s page arose at multiple member meetings. Discussion over Libby’s posts and the accuracy of her comments could have created riffs through the guild and dissuaded current members to not pay dues. Only one member of the police records department, where Libby and Powers work, was a dues-paying guild member. Additionally, prospective parties or individuals that would consider joining the guild may be put off by finding Libby’s page instead of the guild’s page. At the time the lawsuit was filed, if an individual searched for the guild’s name on Facebook, Libby’s page would be among the results due to the similarity in name. Seeing Libby’s disparaging comments could realistically deter current members from paying dues and future members from joining the guild.

In Nordstrom, Inc. v. Tampourlos, 107 Wn.2d 735, a beauty salon operated out of a Nordstrom store. When Nordstrom decided to move buildings and not renew beauty salon services, the salon opened a new store nearby called Nostrum. The new store had the same type face as the Nordstrom logo. The trial court found that it was not necessary to show monetary damages to prove trade name infringement and that Nordstrom had been injured by the new salon. No monetary damages needed to be proven. Rather, nonquantifiable injuries, such as loss of goodwill, were sufficient. Id. at 211. Similarly, in the instant case, it is conceivable that the operation of the guild could be harmed by Libby’s Facebook page. Libby not only encouraged viewers to consider reverting membership back to Council 2 but also strongly disparaged the actions of the guild. The guild explained it felt legal action was the necessary next step in their efforts to continue developing the guild’s reputation.

The second element of a trade name infringement claim is whether use of the trade name would confuse the two businesses in the public’s mind. I believe Libby’s initial name for her Facebook page, before she changed it to “I don’t support the Guild,” could confuse the public. Libby’s Facebook page initially was called “Guild of Pacific Northwest Employees.” The handle of Libby’s page is still “@guildofpnwe.” The page is categorized as a labor union. Libby argues that the public would know the difference between her page and the guild’s because her page does not have the guild’s logo at the top. However, if a prospective member who was unfamiliar with the guild was looking at the page, this distinction could be lost. Although the guild was unable to show specific examples of public confusion, I do not believe this lack of evidence negates the possibility that a reasonable person could be confused by Libby’s page. See Money Savers Pharmacy, Inc. v. Koffler Stores (Western), Ltd., 37 Wn. App. 602 (1984) (finding that proof of actual confusion is not required to sustain a claim of trade name infringement).

Additionally, the guild’s lawsuit does not seem objectively baseless where a reasonable litigant could not expect to prevail on the merits. The guild was able to file a complaint with the court and that complaint survived a motion to dismiss. If the lawsuit appeared baseless, then the motion to dismiss would have been granted.[3]

Libby is unable to prove a retaliatory motive. Libby argues that the filing of the lawsuit was retaliatory in nature because of the guild’s negative feelings toward Council 2 and her support of AFSCME. This argument is not persuasive. The guild attempted on multiple occasions to contact Libby and request that she take down her Facebook page. The guild tried to contact her via text message on November 30, 2020. On December 26, 2020, Komac sent a letter to Libby and Powers asking that the page be removed. Neither Libby nor Powers responded to the communications. Although neither a settlement was reached nor order issued, the lawsuit was not based on retaliatory motives.

CONCLUSION

Libby failed to prove that the guild’s lawsuit was baseless and that a reasonable litigant could not expect success on the merits. The guild was able to show that Libby’s page could affect the guild’s ability to collect dues from current and future members. Libby’s page could cause confusion by using the same name for the page and handle as the guild and by labeling itself as a labor union. Finally, the survival of the motion to dismiss showed that the claim was not baseless. The case is dismissed.

FINDINGS OF FACT

1.                  The Guild of Pacific Northwest Employees (guild) is a bargaining representative within the meaning of chapter 41.56 RCW and represents a bargaining unit of employees at the City of Bellingham Police Department.

2.                  The City of Bellingham (employer) is not a party to the issues directly before the Public Employment Relations Commission.

3.                  Morgan Libby is a records specialist for the City of Bellingham’s police department and a longtime member of Local 114, which is an affiliate of Council 2 and under the umbrella of the American Federation of State, County and Municipal Employees International (AFSCME).

4.                  Libby has worked in her position for 14 years. Her job requires her to keep track of case files, and prepare background investigations and checks for people purchasing guns and obtaining concealed pistol licenses. She also records FBI statistics and uploads the employer’s data into a program for the FBI.

5.                  Libby was treasurer of Local 114 in 2014 and a shop steward for two years following her role as treasurer.

6.                  In 2018, members of Local 114 began to inquire into AFSCME’s financial records and filed requests for information (RFIs). These requests were made to determine how AFSCME was using members’ dues. Colin Maycock, an AFSCME statewide representative, began a search for these records on behalf of Local 114 by filing RFIs with AFSCME.

7.                  In winter 2018, Local 114 came under administratorship, and AFSCME took back all documents collected by the local. Multiple Local 114 members, including Jael Komac (president at the time), were unhappy with the process, and they retained legal representation in early 2019 to further pursue the RFIs.

8.                  Local 114 leadership cashed out two certificates of deposit (CDs) and withdrew money from union bank funds.

9.                  According to Local 114 bylaws, any expenses over $500 needed to be approved by a quorum of the membership (10 percent), and the final check would need two signatures.

10.              The legal budget in 2019 was $500.

11.              Komac retained Nicholas Power and Jamie Grifo for legal services.

12.              Komac had neither a quorum for the vote nor two signatures on the check for the retainer.

13.              Powers wrote an open letter to Local 114 about how the money was being used for the lawsuit.

14.              Libby filed a request with AFSCME’s judicial panel to review the authorization process for the expenses to determine whether it met AFSCME financial standards. Charges from the judicial panel were upheld against Komac, who resigned as president in October 2019.

15.              On January 28, 2019, Tharp filed papers of incorporation.

16.              There were organizing campaigns in October and November 2019, and in January 2020; the guild began collecting authorization cards on October 12, 2019.

17.              The guild created a Facebook page on October 17, 2019.

18.              The official logo, showing a picture of an orca, was created and posted on the page in fall 2020.

19.              On October 12, 2019, Libby created a Facebook page titled “Guild of Pacific Northwest Employees.” Libby later changed the page name to “I don’t support the Guild.” The handle on the page was always labeled “@guildofpnwe.” The page is identified as a labor union.

20.              Libby provided Council 2’s contact information at the bottom of the page. The photo at the top of her page was of Squalicum Harbor and Mt. Baker.

21.              Comments on Libby’s page mainly consisted of statements made by her supporting AFSCME and Local 114 and statements chastising actions of the guild, with Powers chiming in and agreeing to most of the posts.

22.              Libby’s page was active while the guild was conducting its organizing campaigns but became quiet for many months until the guild began to bargain their new contract after it won its election in May 2020.

23.              On October 8, 2020, Libby began posting on her Facebook page.

24.              Libby stated that the bargaining group was inexperienced and cited negotiating away a past overtime holiday practice for an increase in salary as an example.

25.              On her Facebook page, Libby questioned the cost used to retain the attorneys for the RFI lawsuit, claimed the guild’s actions against her were retaliatory, and provided details about the lawsuit that the guild brought against Libby.

26.              Comments on the page showed that guild members knew Libby’s page was not the real guild page. Guild member Amy Baker Lathrop commented that the page was fake; another member, Donna Grasdock, agreed with Lathrop. Grasdock wrote on the page that no one at Facebook was responding to her messages that the page was fake. Trisha Lee posted on January 2, 2020, that the page was fake.

27.              Groups contacted Tharp from such various locations as Spokane, Olympia, outside Seattle, San Juan County, Skagit County, California, and New York City—all showing interest in joining the guild. Two individuals who spoke with Tharp had searched for the guild’s page on Facebook and found Libby’s page instead. They identified Libby’s page as a fake.

28.              On November 30, 2020, the first text message was sent to Libby requesting she take down her Facebook page. Libby testified that she did not receive this text message because she had blocked many telephone numbers on her phone.

29.              On December 26, 2020, Komac sent a letter to Libby and Powers requesting that the Facebook page be taken down. Libby stated she never received this letter. Libby did not take down or change the name of the page prior to the guild’s lawsuit against her.

30.              On January 14, 2021, the guild filed a lawsuit against Libby for trade name infringement under the Consumer Protection Act. The guild pled damages related to member dues that potentially were not realized because of the page.

31.              Libby filed a motion to dismiss on February 9, 2021, but the motion was denied by the judge.

32.              AFSCME paid for her costs and represented her in the case. Ultimately the guild withdrew the lawsuit before a final order was issued.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to chapter 41.56 RCW and chapter 391-25 WAC.

2.                  By the actions described in findings of fact 3–32, the complainant failed to show that the lawsuit was objectively baseless and retaliatory.

ORDER

The complaint charging unfair labor practices filed in the above-captioned matter is DISMISSED.

ISSUED at Olympia, Washington, this  6th  day of July, 2022.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

Elizabeth Snyder, 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.