City of Brier, Decision 10013-A (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
PAUL GRASS, )
)
Complainant, ) CASE 20933-U-07-5342
)
vs. ) DECISION 10013-A - PECB
)
CITY OF BRIER, )
)
Respondent. ) DECISION OF COMMISSION
)
___________________________________)
Emmal Skalbania & Vinnedge, by Alex J. Skalbania, Attorney at
Law, for the complainant.
Davis Grimm Payne & Marra, by Eileen M. Lawrence, Attorney at
Law, for the employer.
This case comes before the Commission on a timely appeal filed by
the City of Brier (employer) seeking review and reversal of certain
Findings of Fact, Conclusions of Law, and Order issued by Examiner
Karyl Elinski.(fn:1) Complainant Paul Grass (Grass) supports the
Examiner's decision.
____________________
fn:1 City of Brier, Decision 10013 (PECB, 2008).
ISSUE PRESENTED
Did the Examiner err in concluding that the employer discriminated
against Grass by terminating his employment in reprisal for engaging
in protected union activities?
For the reasons set forth below, we reverse the Examiner's decision
that the employer violated RCW 41.56.040 and RCW 41.56.140(1) when
it terminated Grass's employment. The record does not support a
finding that union animus played a substantial motivating factor in
the employer's decision. Furthermore, although the employer did not
appeal the Examiner's findings and conclusion that it committed an
independent interference violation by making certain statements to
the complainant, we reverse that conclusion because the statements
were made more than six months prior to Grass's complaint.(fn:2)
____________________
fn:2 As a result of the dismissal of this case, it is unnecessary
to address the issue raised by the employer concerning whether
Grass's post-termination conduct impacts the Examiner's
reinstatement order.
STANDARD OF REVIEW
This Commission reviews conclusions and applications of law and
interpretations of statutes de novo. We review findings of fact to
determine if they are supported by substantial evidence and, if so,
whether those findings support the examiner's conclusions of law.
C-TRAN (Amalgamated Transit Union, Local 757), Decision 7087-B
(PECB, 2002). Substantial evidence exists if the record contains a
sufficient quantity of evidence to persuade a fair-minded, rational
person of the truth of the matter. Renton Technical College,
Decision 7441-A (CCOL, 2002). The Commission attaches considerable
weight to the factual findings and inferences, including credibility
determinations, made by its examiners. Cowlitz County, Decision
7007-A (PECB, 2000). If the examiner applied the correct legal
standard to facts supported by substantial evidence, the decision
should be upheld. Clark County, Decision 9127-A (PECB, 2007).
ANALYSIS
Applicable Legal Standards
An employer unlawfully discriminates against an employee when it
takes action against the employee which is in reprisal for the
employee's exercise of rights protected by Chapter 41.56 RCW.
Educational Service District 114, Decision 4361-A (PECB, 1994). The
employee maintains the burden of proof in employer discrimination
cases. To prove discrimination, the employee must first set forth a
prima facie case by establishing the following:
1. The employee participated in an activity protected by the
collective bargaining statute, or communicated to the employer
an intent to do so;
2. The employer deprived the employee of some ascertainable right,
benefit, or status; and
3. A causal connection exists between the employee's exercise of a
protected activity and the employer's action.
Ordinarily, an employee may use circumstantial evidence to establish
the prima facie case because parties do not typically announce a
discriminatory motive for their actions. Clark County, Decision
9127-A (PECB, 2007). Where the employee establishes a prima facie
case, the employee creates a rebuttable presumption of
discrimination.
In response to an employee's prima facie case of discrimination, the
employer need only articulate its non-discriminatory reasons acting
in such a manner. The employer does not bear the burden of proof to
establish those reasons. Port of Tacoma, Decision 4626-A (PECB,
1995). Instead, the burden remains on the employee to prove by a
preponderance of the evidence that the disputed action was in
retaliation for the employee's exercise of statutory rights. Clark
County, Decision 9127-A. The employee meets this burden by proving
either that the employer's reasons were pretextual, or that union
animus was a substantial motivating factor behind the employer's
actions. Port of Tacoma, Decision 4626-A.
To prove discriminatory motivation, the employee must establish that
the employer had knowledge of the employee's union activity. An
examiner may base such a finding on an inference drawn from
circumstantial evidence although such an inference cannot be
entirely speculative or improbable. An examiner can infer knowledge
when the employee has engaged in overt union activities and when the
employer's operation is small in size. Metropolitan Park District
of Tacoma, Decision 2272, aff'd, Decision 2272-A (PECB, 1986).
Application of Standards
The employer maintains a police force fluctuating in size from four
to seven officers. The employer hired Grass as a full-time police
officer effective October 1, 2005. Consistent with the collective
bargaining agreement between the employer and the Brier Police
Association (union), Grass worked subject to a twelve-month
probationary period. During the probationary period, the employer
could terminate Grass's employment without establishing "just
cause." On August 31, 2006, prior to the end of the probationary
period, the employer terminated Grass's employment. In the notice
of termination, Chief of Police Don Lane stated:
The City has decided to release you while on probation; this
decision is related to your performance and attitude,
specifically the City of Brier being a community friendly city
and your continued condescending and arrogant attitude to
citizens in Brier and other citizens traveling through. I have
received ongoing complaints about this from members of the
community and confirmed these concerns. I have also discussed
our interest in remaining a community friendly policing agency
with you and have seen no improvement in your performance or
reduction in the number of complaints and concerns. Your
performance and attitude does not meet with the City's
objectives and our officer standards.
Employee's Prima Facie Case
The employer argues that the Examiner erred in determining that
Grass established a prima facie case of discrimination. We
disagree. No question exists that the employee met the first two
elements in establishing a prima facie case. The employee
participated in protected activity, including serving as vice-
president of the union, and participating on the union's bargaining
team. The employer knew of this protected activity when it
terminated Grass's employment. The only question remains whether
Grass established the required causal connection.
Examiner's Finding of Causal Connection
The Examiner found a causal connection between Grass's termination
and the following:
* In December of 2005, Lane initiated a meeting with Grass.
During that meeting, Grass advised Lane that he had been
elected vice-president of the union. At that time, Lane
warned Grass that "new hires in union positions get the short
end of the stick." (Finding of Fact 7).
* Grass supported Murphy(fn:3) in his union activities. (Finding of
Fact 10).
____________________
fn:3 Officer Pat Murphy served as union president during the time
of Grass's employment.
* Grass helped prepare the union's initial bargaining proposal
for contract negotiations in the summer of 2006. (Finding of
Fact 11).
* Grass served on the union's bargaining team in the summer and
fall of 2006, and was an active participant in contract
negotiations during that time. (Finding of Fact 12).
* On August 30, 2006, Grass was "vocal" at a union meeting
concerning contract negotiations. (Finding of Fact 16).
The employer argues that substantial evidence does not support a
number of the Examiner's findings, including the above-referenced
Findings of Fact 10, 11, 12 and 16, and that substantial evidence
does not support a causal connection between those findings and
Grass's termination from employment. We review each of the
Examiner's five findings of fact that form the basis of her causal
connection determination.
Lane's December 2005 Statement to Grass
Although the employer contested the December 2005 statement at
hearing, the employer did not appeal this finding of fact. As a
result, we treat it as a verity on appeal. City of Redmond,
Decision 8863-A (PECB, 2006).
Grass Supported Murphy in his Union Activities
It is undisputed that Grass served as vice-president and Murphy
served as president of the union. Both were members of the union's
bargaining team. To the extent the Examiner intended this finding
to capture something more than the above, the record does not
support it.
The record clearly demonstrates conflict between Murphy and Lane as
well as conflict between Murphy and other bargaining unit employees.
For example, as the Examiner found, shortly after Mayor Bob Colinas
took office in November 2005, Murphy aired some of his concerns
regarding Lane with Colinas, as did Grass. During the December
2005 meeting between Grass and Lane when Lane made the "short end of
the stick" comment, he also expressed concern that Grass was
aligning himself with Murphy. Grass testified that he thought his
relationship with Murphy played a role in his termination because "I
definitely was vocal about supporting Pat [Murphy] in the union as
well as in his -- in several of the claims against him. That's
pretty much all."
The record does not support a conclusion that any of these conflicts
or concerns with Murphy related to union matters. No evidence
suggests that Murphy or Grass spoke with Colinas in their capacity
as union officers. Grass testified that as union officers he and
Murphy worked together on union matters. Other than working
together to negotiate a new collective bargaining agreement, this
record contains insufficient evidence to establish that the
conflicts involving Murphy related to union matters or involved him
or Grass as union representatives.
We do not disturb the finding that Grass supported Murphy in his
union activities. We simply emphasize a narrow reading of the
finding of fact.
Grass's Involvement with Union's Initial Bargaining Proposal
Although the record contains substantial evidence demonstrating how
Grass helped prepare the union's initial bargaining proposal, the
record is less clear on the employer's awareness of Grass's role.
In a footnote in the decision, the Examiner states:
Detective Lori Batiot, an apparent confidante of Lane, was
aware that Grass participated in preparing the proposal. Given
the small size of the department, it is not a stretch to assume
that Chief Lane was also aware of that fact.
Officer Michael Javorsky, a probationary employee who also served on
the union's bargaining team, testified that he thought it was just
Murphy who prepared the proposal and that he was unaware of the fact
Grass helped to prepare the proposal.
Although we are concerned by the Examiner's "stretch" to assume that
the employer was aware of something that a union bargaining team
member was not even aware of, we do not disturb this finding as it
does not impact the outcome.
Grass's Service on the Bargaining Team
The employer minimizes Grass's role on the bargaining team stating
that he did not play a central role and that at most he attended two
sessions, the first of which established ground rules, the last of
which was in June of 2006. Grass testified he attended two or three
sessions and that he was an active participant. The parties agree
that during a bargaining session Grass explained how twelve-hour
shifts could work for overtime purposes.
Because his employment ended effective August 31, 2006, the Examiner
erred in finding that Grass served on the bargaining team in the
fall of 2006. We revise Finding of Fact 12 to delete reference to
Grass bargaining in the fall of 2006. We find substantial evidence
supports that Grass was an active participant on the bargaining team
even if he only attended two sessions.
Grass "Vocal" at August 30, 2006 Union Meeting
Despite the small size of the employer's operation, the record does
not support that the employer was aware a union meeting took place
on August 30, 2006, or who said what at the meeting. At hearing,
Grass admitted that he had no information other than pure
speculation that Lane was aware of what Grass said at the union
meeting.
Furthermore, the record supports that the employer had already
decided to terminate Grass's employment by August 30, 2006. The
undisputed testimony shows that Lane informed Mayor Colinas one to
two weeks prior to the termination meeting of his intention to
terminate Grass's employment. As a result, substantial evidence
does not support a finding that the employer knew Grass was vocal at
an August 30, 2006, union meeting when it decided to terminate him.
We amend Finding of Fact 16 accordingly.
Causal Connection
After removing from consideration those findings for which there is
not substantial evidence, we consider whether Lane's December 2005
warning, coupled with Grass's support of Murphy in his union
activities, including serving as vice-president, serving on the
bargaining team, and helping to prepare the initial contract
proposal in the summer of 2006, establish a causal connection to
Grass's termination from employment. We find that the Examiner did
not err in finding a causal connection between Grass's union
activity and his termination. Accordingly, Grass established a
prima facie case for discrimination.
The Employer's Non-Discriminatory Reasons
We agree with the Examiner that the employer met its burden of
articulating legitimate, non-retaliatory reasons for its actions.
During the eleven months of Grass's employment, the employer
received a number of complaints and concerns about Grass's
performance.(fn:4) The complaints came from members of the public as
well as Grass's colleagues. Lane and two bargaining unit employees
testified at hearing about the concerns with Grass's performance.(fn:5)
____________________
fn:4 Lane estimated that he counseled Grass about seven to ten
complaints. Grass testified that he specifically recalled Lane
advising him of four complaints.
fn:5 Batiot, one of the bargaining unit employees who testified,
served as union secretary "for years" and was serving as union
president at the time of the hearing.
Lane testified that Grass failed to understand the community
policing concept and that Grass's approach to members of the
community was inappropriately aggressive, condescending, and
demeaning. Grass's demeanor toward co-workers, citizens and his
supervisor also showed a consistent pattern of difficulty in
accepting constructive criticism, following instructions, and
interacting appropriately with others. In one instance, Lane warned
Grass about potential insubordination if Grass did not cooperate
with an investigation Grass himself initiated.
Lane testified that each complaint by itself was not necessarily a
major issue but the pattern caused him concern. He testified that
he spoke with Grass about the concerns as they arose and counseled
him. Lane acknowledged that he neither disciplined Grass nor placed
him on any type of improvement plan.
Employee's Ultimate Burden of Proof
The Examiner concluded that Grass met his ultimate burden, proving
that union animus played a substantial motivating factor in his
termination from employment. In reaching this conclusion the
Examiner rejected consideration of the fact that Grass was not
retained past his probationary period with two other law enforcement
agencies, disputed the significance of the fact that the other
probationary employee on the union bargaining team suffered no
adverse impact, and discredited the employer's reasons for
terminating Grass's employment during his probationary period.
While discrediting the employer's positions, the Examiner identified
very limited evidence of union animus and failed to explain or
provide a basis for resolving her credibility findings.
The Examiner pointed to the employer's bargaining proposal that
would have excluded probationary employees from participating on the
union bargaining team, the employer's frustration with the union's
initial bargaining proposal, contentiousness at the bargaining
table, and Lane's December 2005 statements.
Grass's Prior Employment Terminations
The record demonstrates that Grass had been employed by two other
law enforcement agencies prior to working for this employer and that
he did not continue with those agencies past his probationary
periods. Grass was allowed to resign from King County prior to the
conclusion of his probationary period. The Duvall-Carnation Police
Department terminated his employment at the conclusion of his
probationary period. Grass testified that in King County he had a
problem with multi-tasking and was not a good fit. In Duvall, he
was not given a reason for his firing, but Grass testified that he
thought it was due to a car accident.
Lane talked with David Merryman, Police Chief of the
Duvall-Carnation Police Department, prior to terminating Grass's
employment. During that meeting he learned that Merryman's concerns
with Grass's performance were similar to his own concerns, including
Grass's inability to adapt and fit with the culture of Duvall, his
difficulty getting along with others, and his questionable judgment.
The Examiner appeared skeptical about Lane contacting Merryman. Her
decision stated: "Shortly after the union presented its initial
bargaining proposal, Lane began to build his case against Grass.
Lane met with Duvall's Chief of Police for the sole purpose of
determining why Duvall did not retain Grass, despite the employer's
thorough pre-hire investigation of Grass." The Examiner does not
address the fact that two other agencies let Grass go at the end of
probation or that the last agency had concerns with Grass's
performance that were similar to the employer's concerns. The
Examiner's negative inference from Lane's actions is not warranted
or supported by the record. We amend Findings of Fact 20 and 21
accordingly.
No Adverse Action Against Other Probationary Employee
The Examiner did not find it compelling that another probationary
employee, Javorsky, served on the union's bargaining team without
suffering any adverse employment action. Testimony from multiple
witnesses demonstrate that Javorsky had an adversarial approach
toward the employer at the bargaining table and that he did not
fully support the union's proposal. Javorsky testified:
The whole contract was I felt was garbage. And the city had
ultimate power over the officers, it wasn't like a 50/50 thing.
There were so many issues in there that they just had the
power over us. And I brought it up, and one of the negotiators
on the city side was saying, well, you know we spend all the
time working on this, we spent weeks and we're very proud of
it, etcetera, etcetera. I said I don't care, it's irrelevant,
it's garbage. You spent two weeks on garbage. And you know, I
I was the one who was the most adversarial in the whole
situation.
The fact that other employees who were involved in union activities,
including another probationary employee, were not subject to any
adverse employment action supports the employer's defense that
Grass's protected activities did not play a substantial role in its
decision.
Employer Bargaining Proposal
One of the Examiner's findings of fact addresses the employer's
bargaining proposal that would have barred a probationary employee
from serving on the union bargaining team. The employer presented
this proposal after terminating Grass. The employer readily
withdrew the proposal in response to the union's objections.
The employer argues that this evidence is inadmissible
post-termination evidence. We disagree. Case precedent
specifically authorizes consideration of such evidence to prove
motive. Pasco Housing Authority, Decision 6248-A (PECB, 1998).
Although the evidence is admissible, the Examiner drew a negative
inference from the evidence and did not appear to consider the
employer's rationale for the proposal. After terminating Grass's
employment, Lane and Colinas heard the allegation that Grass was
fired because of his involvement with bargaining. The testimony and
evidence demonstrate that Lane and Colinas were concerned that when
a probationary employee participated in bargaining, the union would
argue any adverse action taken against the employee was
union-related. The fact that this proposal came after Grass's
termination is important because it demonstrates that Lane and
Colinas wished to avoid future situations similar to the one
presented in this case. Substantial evidence does not exist in this
record supporting the Examiner's negative inference that the
employer's bargaining proposal represents union animus.
Accordingly, that finding must be reversed.
Frustration with Union's Proposal, Contentious Bargaining
The record reflects that Lane and Colinas, the two members of the
employer's bargaining team, were frustrated by the union's initial
bargaining proposal and that bargaining was contentious. The
union's initial proposal constituted a significant re-write of a
bargaining agreement that Lane and Colinas had participated in
negotiating. The record contains no allegations of employer bad
faith bargaining and no evidence of anti-union remarks stemming from
the proposal or bargaining. Lane and Colinas' feelings of
frustration during the bargaining process and contentiousness at the
bargaining table do not constitute evidence of union animus.
Employer's Termination of Grass's Employment During Probation
The Examiner discredits the employer's reasons for terminating
Grass's employment. Specifically, the Examiner noted that the
employer took no disciplinary action against Grass, did not place
him on an improvement plan, and did not advise him he needed to
improve.
The employer terminated Grass's employment during his probationary
period. Employers are not required to use progressive discipline
with probationary employees or place those employees on plans for
improvement to help correct performance deficiencies. Furthermore,
unless collective bargaining agreements or employer policies provide
otherwise, this Commission cannot mandate that employers implement
progressive discipline for probationary employees through our
interpretation of Chapter 41.56 RCW. Simply put, probationary
employees serve as "at will" employees whose employment may be
terminated without cause.(fn:6) In this case, the parties' bargaining
agreement did not require the employer to use progressive
discipline, to develop plans for improvement, or to use a just cause
disciplinary standard for probationary employees.
____________________
fn:6 However, an employer may not discriminatorily terminate a
probationary employee in violation of RCW 41.56.140(3), or in
violation of other public policy against discrimination based upon
race, religion, or gender.
The record contains limited documentation of the employer's concerns
with Grass's performance. It may have been a better human resources
practice for the employer to fully document the performance
concerns, even for a probationary employee. The record, however,
including the testimony of two bargaining unit employees, clearly
establishes that the employer's concerns with Grass's performance
were real and not pretextual.
We cannot agree that the Examiner's negative credibility findings
are supported by this Commission's precedents or by the evidence.
By discrediting the employer's non-discriminatory reasons based upon
the employer's failure to have disciplined Grass or place him on an
improvement plan, the Examiner essentially shifted the burden to the
employer to prove that its motives were non-discriminatory. That is
not the standard set forth in Educational Service District 114,
Decision 4361-A, which clearly requires the complainant to carry the
burden throughout the proceedings.
Summary
In the eight months following Lane's December 2005 statements to
Grass, the record shows no other statements or actions that support
a finding of union animus. The record contains no evidence that the
employer targeted Grass for his union activities. Instead, the
record demonstrates that the employer had legitimate concerns with
Grass's performance and took action to terminate his employment
during his probationary period. Substantial evidence does not
support the Examiner's conclusion that Grass met his ultimate burden
of proof.
CONCLUSION
We reverse the Examiner's conclusion that the employer discriminated
against Grass when it terminated his employment. We conclude that
Grass's protected union activities were not a substantial motivating
factor for the employer's decision and the employer's reasons for
discharge were not pretextual.
DISMISSAL OF INTERFERENCE COMPLAINT
RCW 41.56.160(1) limits the Commission's ability to process unfair
labor practices that occur more than six months before the filing of
the complaint. The Examiner concluded that the employer interfered
with Grass's rights when Lane advised Grass that probationary
employees in union positions "get the short end of the stick" and
warned Grass not to align himself with Murphy. This conclusion is
based on a statement made in December of 2005. The employee filed
his complaint on February 22, 2007, well past the six-month statute
of limitations.
Although the employer did not raise the statute of limitations as a
defense, this is a jurisdictional issue that the Commission may
raise at any time. City of Bellevue, Decision 9343-A (PECB, 2007).
As a result, we vacate Conclusion of Law 3.(fn:7)
____________________
fn:7 It is also appropriate to dismiss the interference complaint
where, as here, we have dismissed the discrimination complaint. The
Commission does not find independent interference violations based
upon the same facts in a dismissed discrimination complaint.
Reardan-Edwall School District, Decision 6205-A (PECB, 1998).
NOW, THEREFORE, the Commission makes the following:
AMENDED FINDINGS OF FACT
We adopt the Findings of Fact issued by Examiner Karyl Elinski as
the Commission's Findings of Fact except: we strike paragraph 25
from the record, we renumber paragraph 26 as paragraph 25, we add a
new paragraph 26, and we amend paragraphs 12, 16, 19, 20, 21, and 24
as follows:
12. Grass served on the union's bargaining team in the summer of
2006, and was an active participant in contract negotiations
during that time.
16. On August 30, 2006, Grass was "vocal" at a union meeting
concerning contract negotiations. Grass failed to establish
that the employer was aware of the meeting or who said what.
19. Grass was the subject of several citizen complaints regarding
his performance. None of these resulted in discipline or
corrective action. The parties' collective bargaining
agreement did not require the employer to take discipline or
corrective action.
20. The employer conducted a thorough background investigation of
Grass prior to extending him an offer of full-time employment.
Grass did not make it past his probationary period with two
other law enforcement agencies.
21. Before terminating Grass's employment, Lane contacted the City
of Duvall to determine why Grass was not retained as a police
officer and learned that the City of Duvall had similar
concerns with Grass's performance.
24. A causal connection exists between Grass's union activities
described in Findings of Fact 7 and 10 through 12, and the
employer's termination of Grass's employment described in
Finding of Fact 17.
26. Grass filed the complaint alleging employer interference on
February 22, 2007; this was more than six months after the
conduct described in Findings of Fact 7 and 8 which are the
basis for the Examiner's interference conclusion.
AMENDED CONCLUSIONS OF LAW
We affirm and adopt Conclusions of Law 1 and 4 issued by Examiner
Karyl Elinski. We strike from the record Conclusions of Law 2 and 3
and replace those conclusions of law with the following:
2. The employer did not discriminate against Paul Grass in
violation of RCW 41.56.040 or 41.56.140(1) when it terminated
his employment.
3. Grass did not file the complaint alleging interference based
upon statements made in December of 2005 within the statute of
limitations set forth in RCW 41.56.160(1).
AMENDED ORDER
The complaint filed by Paul Grass against the City of Brier alleging
unfair labor practices is DISMISSED.
Issued at Olympia, Washington, the 18th day of May, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
THOMAS W. MCLANE, Commissioner