City of Brier, Decision 10013 (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
PAUL GRASS, )
)
Complainant, ) CASE 20933-U-07-5342
)
vs. ) DECISION 10013 - PECB
)
CITY OF BRIER, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Emmal Skalbania & Vinnedge, by Alex J. Skalbania, Attorney at
Law, for the complainant employee.
Davis Grimm Payne & Marra, by Eileen M. Lawrence, Attorney at
Law, for the employer.
On February 22, 2007, Paul Grass (Grass) filed a complaint charging
unfair labor practices with the Public Employment Relations
Commission, naming the City of Brier (employer) as respondent. A
preliminary ruling was issued finding that the complaint stated
causes of action for interference with employee rights and
discrimination in reprisal for union activities protected by Chapter
41.56 RCW.
A hearing was held on August 14 and 15, 2007, before Examiner Karyl
Elinski. The parties filed post-hearing briefs.
ISSUES PRESENTED
1. Did the employer discriminate against Grass in violation of RCW
41.56.140(1) by terminating him in reprisal for engaging in
protected union activities?
2. Did the employer interfere with Grass's rights in
violation of RCW 41.56.140(1) when Chief of Police Don
Lane warned Grass about his union association?
3. Did the employer interfere with Grass's rights in violation of
RCW 41.56.140(1) by refusing his request for union
representation during his termination meeting?
The Examiner rules that the employer retaliated against Grass for
participating in union activities, including serving as union vice
president, participating in contract negotiations, and "aligning
himself" with the activities of union president Pat Murphy. The
employer interfered with Grass's rights and discriminated against
him for engaging in activities protected by Chapter 41.56 RCW. The
employer did not commit an unfair labor practice when it failed to
honor Grass's request for union representation at his termination
meeting.
ISSUE 1: Did the employer discriminate against Grass in
violation of RCW 41.56.140(1) by terminating him in
reprisal for engaging in protected union activities?
The burden of proving any unfair labor practice claim rests with the
complaining party and must be established by a preponderance of the
evidence. Okanogan-Douglas County Hospital, Decision 5830 (PECB,
1997). WAC 391-45-270(1)(a) provides: "The complainant shall be
responsible for the presentation of its case, and shall have the
burden of proof."
It is an unfair labor practice for a public employer to
"discriminate against any public employee or group of public
employees in the free exercise of their right to organize and
designate representatives of their own choosing for the purpose of
collective bargaining, or in the free exercise of any other right
under this chapter." RCW 41.56.040. The Commission decides
discrimination allegations under standards drawn from decisions of
the Supreme Court of the State of Washington. Wilmot v. Kaiser
Aluminum, 118 Wn.2d 46 (1991) and Allison v. Seattle Housing
Authority, 118 Wn.2d 79 (1991). First, the injured party must make
a prima facie case showing retaliation. To do this, a complainant
must show:
1. The exercise of a statutorily protected right, or
communicating to the employer an intent to do so;
2. The employee has been deprived of some ascertainable
right, benefit, or status; and
3. That there is a causal connection between the exercise of
the legal right and the discriminatory action.
If an employee claiming discrimination provides evidence of a causal
connection then he/she creates a rebuttable presumption in his or
her favor. The complainant carries the burden of proof throughout
the entire matter, but there is a shifting of the burden of
production to the employer. Once the employee establishes his or
her prima facie case, the employer has the opportunity to articulate
legitimate, non-retaliatory reasons for its actions.
The employee may respond to an employer's defense in one of two
ways: (1) by showing that the employer's reason is pretextual; or
(2) by showing that, although some or all of the employer's stated
reason is legitimate, the employee's pursuit of the protected right
was nevertheless a substantial factor motivating the employer to act
in a discriminatory manner. Educational Service District 114,
Decision 4361-A (PECB, 1994); Brinnon School District, Decision
7210-A (PECB, 2001); and Dieringer School District, Decision 8956-A
(PECB, 2007).
Accordingly, an employee must first prove that he or she was engaged
in the exercise of a statutorily protected right, or communicated to
the employer an intent to do so. The "mere assertion that one is
engaged in a protected activity does not extend statutory permission
to that specific act. Unless the underlying activity is a
'protected activity,' actions arising from the disputed activity
cannot be defined as protected activities. . . ." City of Tacoma,
Decision 6793 (PECB, 1999). Additionally, an employer must be aware
of an employee's protected activities in order to form the requisite
motivation and intent to react against that conduct. Seattle Public
Health Hospital, Decision 1911 (PECB, 1984), aff'd, Decision 1911-C
(PECB, 1984); Metropolitan Park District of Tacoma, Decision 2272
(PECB, 1986), aff'd, Decision 2272-A (PECB, 1986).
Analysis
The employer maintains a small police force, which fluctuates in
size from four to seven police officers. The officers are members
of the Brier Police Association (union). Chief Lane is the only
member of the force who is not in the police officer bargaining
unit. Grass first began working as a temporary police officer for
the employer in August 2005. On October 1, 2005, Lane hired Grass
as a full-time police officer after Grass served approximately one
month as a reserve officer. Pursuant to the collective bargaining
agreement in effect between the employer and union at that time, all
newly-hired police officers, including Grass, were subject to a
twelve-month probationary period. During the probationary period,
the employer did not need "just cause" to terminate an employee.
Grass's probation was slated to end on September 30, 2006.(fn:1)
____________________
fn:1 According to the terms of the collective bargaining agreement,
the employer must have "just cause" to terminate an employee who has
completed his or her probationary period.
a. The Union's Prima Facie Case
In December 2005, during a meeting that Lane initiated, 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." Lane also asked Grass about his
relationship with union president Murphy. Lane expressed his
concern to Grass that Grass was aligning himself with Murphy. From
all testimony presented, Lane had a very difficult relationship with
Murphy. Shortly after Mayor Bob Colinas took office in November
2005, Murphy aired some of his concerns regarding Lane with Colinas.
Grass eventually did too. Although Lane denied warning Grass about
his involvement with the union or Murphy, two other former officers
testified that Lane made similar comments to them during their
probationary periods. Lane's testimony is simply not credible on
this point.
Grass was undoubtedly engaged in protected union activity. His
uncontroverted testimony was that he supported Murphy in his union
activities. In the summer and fall of 2006, the union and the
employer engaged in contract negotiations. Grass participated in
the preparation of the union's proposal in the summer of 2006, as
well as two or three negotiation sessions.(fn:2) On August 30, 2006,
Grass was "vocal" at a union meeting concerning contract
negotiations. On August 31, 2006, Lane requested a meeting with
Grass. At their August 31 meeting, Lane summarily dismissed Grass,
just one month short of the end of his probationary period. During
the meeting, Grass requested union representation but his request
was denied. Lane brought in Batiot to witness the meeting, but she
advised Grass that she was not acting in the capacity of a union
representative.
____________________
fn:2 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.
Shortly after terminating Grass's employment, the employer presented
a proposal in negotiations to prohibit probationary employees from
participating in contract negotiations. The employer later withdrew
its proposal after protest from the union. Grass met his prima
facie burden of proving that his protected union activities led to
his termination.
b. The Employer's Burden of Production
In order to refute Grass's prima facie case, the employer must
articulate legitimate, non-retaliatory reasons for its actions. The
employer presented evidence that Grass's employment was marred by
complaints about his attitude when handing out tickets, his request
for cell phone numbers from teens who agreed to participate in an
"essay program,"(fn:3) and a few other matters. Officer Michael
Javorsky and Detective Batiot testified on the employer's behalf.
Both expressed strong opinions about how officers serving their
probationary period should act. Batiot stated that they should be
"humble." Javorsky stated that they "should keep their mouth shut."
Both testified that Grass did not act as they believed he should
have given his probationary status.
____________________
fn:3 Under the terms of the program, teens stopped for traffic
infractions could have their tickets eliminated if they wrote an essay.
Although the employer conducted a background check prior to hiring
Grass, it re-investigated Grass's prior employment just before
terminating him. Lane contacted the Duvall Chief of Police to find
out why the City of Duvall did not retain Grass. During the
termination meeting, Lane also mentioned that he had someone
"tailing" Grass, and that he suspected that Grass slept while on duty.
Given the perceived challenges Grass presented, the employer met its
burden of production to articulate non-retaliatory reasons for its
decision to terminate Grass.
c. Substantial Motivating Factor
During Grass's employment, the City's police department was subject
to rampant turnover and was marred by poor relationships within the
force. Union president Murphy had a tumultuous relationship with
Lane. Lane warned Grass, as well as two other officers, not to
align themselves with Murphy. Grass supported Murphy in union
activities and in several complaints against Murphy. Both Colinas
and Lane served on the employer's bargaining team for contract
negotiations in the summer of 2006. Both admitted dissatisfaction
with the union's opening proposal, and expressed frustration that
the union's proposal represented a complete rewrite of the existing
contract. Batiot, who served as Lane's witness during Grass's
termination meeting, was aware that Grass helped to prepare the
union proposal. She described the negotiations as "contentious." A
day after Grass was "vocal" during a union meeting, he was
terminated.(fn:4)
____________________
fn:4 Although Javorsky and Colinas testified that Javorsky was more
vocal than Grass during contract negotiations, Javorsky expressed
his opinion that the union focused on the "bells and whistles"
instead of keeping their jobs. Javorsky stated that he attempted to
re-focus the union's efforts. Although Javorsky may have been more
vocal than Grass during negotiations, he did not fully support the
union's proposal.
The employer presented weak evidence to buttress its claim of
non-retaliatory reasons for terminating Grass. During his tenure
with the police department, Grass was never disciplined and he was
never advised that he needed to improve his performance. 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. Lane also appeared to have clandestinely followed Grass
on his graveyard shift. During the termination meeting, Lane
claimed, for the first time, that Grass slept while on duty. Lane
also brought up previous matters which were investigated, but which
did not result in discipline, to justify Grass's termination.(fn:5)
____________________
fn:5 Even Lane's testimony confirms that it is not unusual for
irate citizens to complain about police officers who have given them
a ticket.
Grass's exercise of protected union activities was a substantial
motivating factor in the employer's decision to terminate his
employment. Grass has shown that the employer discriminated against
him in reprisal for protected union activities in violation of RCW
41.56.140(1).
ISSUE 2: Did the employer interfere with Grass's rights in
violation of RCW 41.56.140(1) when Chief of Police
Lane warned Grass about his union association?
Interference claims involve a less complex analysis than
discrimination charges. To sustain an interference violation, the
complainant bears the burden of demonstrating that a typical
employee, in the same circumstances, could reasonably perceive the
employer's action as discouraging his or her union activities. Grant
County Public Hospital District 1, Decision 8378-A (PECB, 2004). It
is not necessary for a complainant to show that the employer
intended to interfere, or even that the employees involved actually
felt threatened. City of Omak, Decision 5579-B (PECB, 1998); City
of Tacoma, Decision 8031-B (PECB, 2004).
Analysis
As discussed in the discrimination analysis, Grass engaged in
protected union activity through his service as vice president of
the union, his support of union president Murphy and his
participation in contract negotiations. Lane warned Grass that
probationary employees serving in union leadership get the "short
end of the stick." Lane also cautioned Grass about "aligning
himself" with Murphy. Any typical employee could reasonably
perceive these remarks as intimidating and coercive. These remarks
present clear evidence of an intent to discourage Grass from
engaging in protected union activity. The employer interfered with
Grass's rights in violation of RCW 41.56.140(1).
ISSUE 3: Did the employer interfere with Grass's rights in
violation of RCW 41.56.140(1) by refusing his request for
union representation during his termination meeting?
Employees have a right to union representation at an investigatory
interview where the employee reasonably believes the interview might
result in disciplinary action. Denial of a request for such union
representation is an unfair labor practice in the private sector,
under the National Labor Relations Act. National Labor Relations
Board v. Weingarten, Inc., 420 U.S. 251 (1975). The same right has
been found applicable to public employees in this state under
Chapter 41.56 RCW. An employer's denial of this right constitutes
interference with employee rights in violation of RCW 41.56.140(1).
Cowlitz County, Decision 6832-A (PECB, 2000); Okanogan County,
Decision 2252-A (PECB, 1986); Washington State Patrol, Decision 4040
(PECB, 1992); King County, Decision 4299 (PECB, 1993), aff'd,
Decision 4299-A (PECB, 1993).
An investigatory interview is one in which the employer seeks
information from an employee. The purpose of having a union
representative present at such times is to assist employees who
may be unfamiliar with and intimidated by the situation. When
an employer questions an employee, a union representative might
be able to point out ambiguous or misleading questions,
intercede if the questioning invades a statutory privilege the
employee has the right to invoke or, if the questioning becomes
harassing or intimidating, keep the interviewer and/or employee
on task,(fn:6) or bring out all of the facts (or at least facts
unknown to or overlooked by the employer official).
Historically, the Commission has firmly protected the rights of
employees in this area. An employer official who dissuades an
employee from exercising this statutory right takes on a
substantial risk, and extraordinary remedies have been awarded
in such cases. City of Seattle, Decision 3593-A (PECB, 1991).
____________________
fn:6 Close reading of the decision in Weingarten discloses that,
while being questioned without union assistance about an allegation
of improperly giving away food to a customer, the employee at issue
in that case blurted out an unrelated fact which led to discipline.
The Supreme Court saw the value of union representation in such as
situation.
Cowlitz County, Decision 6832-A (PECB, 2000)
Analysis
The existence of a right to union representation for Grass turns on
whether the termination meeting was of an investigatory nature.
During the termination meeting, at Grass's request, Lane gave Grass
the option of resigning rather than being terminated. Faced with
the uncertainty of whether he should resign or be terminated, Grass
requested the opportunity to place a telephone call to his union
representative. Lane denied his request. Grass requested
permission to contact his wife. Lane also denied that request.
Grass requested to meet with Batiot alone. Although this request
was granted, Batiot advised him that she was not acting in the
capacity of a union representative. Lane demanded that Grass
immediately submit a written resignation, or, alternatively, Lane
would summarily terminate his employment. Grass opted to resign.
Shortly thereafter on the same day, Grass rescinded his resignation.
He was then terminated.
The disputed meeting was not investigatory. The evidence
established that Lane called Grass into his office to terminate his
employment. The decision had been made prior to the meeting. Grass
pleaded with Lane to reconsider his decision, but the unrefuted
testimony established that Lane had already made his decision. The
employer did not interfere with Grass's rights or violate RCW
41.56.140(1), by refusing Grass's request for union representation
during his termination meeting.
FINDINGS OF FACT
1. The City of Brier is a public employer within the meaning of
RCW 41.56.030(1).
2. The Brier Police Association (union) is a bargaining
representative within the meaning of RCW 41.56.030(3).
3. The employer maintains a small police force, which fluctuates
in size from four to seven police officers.
4. On October 1, 2005, Chief of Police Don Lane hired Paul Grass
as a full-time police officer with the employer after Grass
served approximately one month as a reserve officer.
5. Pursuant to the collective bargaining agreement in effect
between the employer and union at the time of Grass's hire, all
newly-hired police officers, including Grass, were subject to a
twelve month probationary period. During his probationary
period, the employer did not need "just cause" to terminate
Grass's employment.
6. Grass's probationary period was slated to end on September 30,
2006.
7. In December 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."
8. During the December 2005 meeting, Lane asked Grass about his
relationship with union president Pat Murphy. Lane expressed
his concern to Grass that Grass was aligning himself with
Murphy.
9. Lane had a very difficult relationship with Murphy. Shortly
after Mayor Bob Colinas took office in November 2005, Murphy
aired some of his concerns regarding Lane with Colinas. Grass
eventually did too.
10. Grass supported Murphy in his union activities.
11. Grass helped to prepare the union's initial bargaining
proposal for contract negotiations in the summer of 2006.
12. 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.
13. Lane and Colinas served on the employer's bargaining team for
contract negotiations in the summer of 2006.
14. Both Lane and Colinas were dissatisfied with the union's
opening proposal during contract negotiations in the summer of
2006.
15. Contract negotiations between the employer and union during the
summer of 2006 were "contentious."
16. On August 30, 2006, Grass was "vocal" at a union meeting
concerning contract negotiations.
17. On August 31, 2006, Lane requested a meeting with Grass. At
their August 31 meeting, Lane summarily dismissed Grass. Grass
was one month away from completing his probationary period.
During the meeting, Grass requested union representation but
his request was denied.
18. Shortly after terminating Grass's employment, the employer
presented a proposal in negotiations to prohibit probationary
employees from participating in contract negotiations. The
employer later withdrew its proposal after protest from the union.
19. Grass was the subject of several citizen complaints regarding
his performance. None of these resulted in discipline or
corrective action.
20. The employer conducted a thorough background investigation of
Grass prior to extending him an offer of full-time employment.
21. Just before terminating Grass, Lane contacted the City of
Duvall to determine why Grass was not retained as a police
officer there.
22. During the termination meeting of August 31, 2006, Lane accused
Grass of sleeping on the job. The employer did not make any
such allegation to Grass prior to this meeting.
23. During his tenure with the police department, Grass was never
disciplined and he was never advised that he needed to improve
his performance.
24. A causal connection exists between Grass's union activities
described in Findings of Fact 7, 10 through 12 and 16, and the
employer's termination of Grass's employment described in
Finding of Fact 17.
25. Grass's protected union activities were a substantial
motivating factor for his termination.
26. The termination meeting of August 31, 2006, described in
Findings of Fact 17 and 22 was not investigatory in nature.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter pursuant to Chapter 41.56 RCW and Chapter 391-45 WAC.
2. The employer unlawfully discriminated against Paul Grass in
violation of RCW 41.56.040 and 41.56.140(1) when it terminated
him in reprisal for his participation in protected union
activities.
3. The employer unlawfully interfered with Paul Grass' rights in
violation of RCW 41.56.140(1) when Chief of Police Don Lane
advised Grass that probationary employees in union positions
"get the short end of the stick," and warned Grass not to align
himself with union president Pat Murphy.
4. The employer did not commit an unfair labor practice under RCW
41.56.140(1) when it denied Grass union representation during a
meeting in which his probationary employment was summarily
terminated.
ORDER
The City of Brier, its officers and agents, shall immediately take
the following actions to remedy its unfair labor practices:
1. CEASE AND DESIST from:
a. Discriminating against Paul Grass in reprisal for his
participation in protected union activities;
b. Interfering with Paul Grass's employee rights under
Chapter 41.56 RCW;
c. In any other manner interfering with, restraining or
coercing its employees in the exercise of their collective
bargaining rights under the laws of the state of Washington.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the
purposes and policies of Chapter 41.56 RCW:
a. Offer Paul Grass immediate and full reinstatement to his
former position or a substantially equivalent position, as
though he had fully completed his probationary period, and
make him whole by payment of back pay and benefits in the
amounts he would have earned or received from the date of
the unlawful termination to the effective date of the
unconditional offer of reinstatement made pursuant to this
order. Back pay shall be computed in conformity with WAC
391-45-410.
b. Post copies of the notice attached to this order in
conspicuous places on the employer's premises where
notices to all bargaining unit members are usually posted.
These notices shall be duly signed by an authorized
representative of the respondent, and shall remain posted
for 60 consecutive days from the date of initial posting.
The respondent shall take reasonable steps to ensure that
such notices are not removed, altered, defaced, or covered
by other material.
c. Read the notice attached to this order into the record at
a regular public meeting of the City Council of the City
of Brier, and permanently append a copy of the notice to
the official minutes of the meeting where the notice is
read as required by this paragraph.
d. Notify the complainant, in writing, within 20 days
following the date of this order, as to what steps have
been taken to comply with this order, and at the same time
provide the complainant with a signed copy of the notice
attached to this order.
e. Notify the Compliance Officer of the Public Employment
Relations Commission, in writing, within 20 days following
the date of this order, as to what steps have been taken
to comply with this order, and at the same time provide
the Compliance Officer with a signed copy of the notice
attached to this order.
ISSUED at Olympia, Washington, this 21st day of March, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
KARYL ELINSKI, 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.
Case 20933-U-07-5342
PUBLIC EMPLOYMENT RELATIONS COMMISSION
NOTICE
THE WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION CONDUCTED A LEGAL
PROCEEDING IN WHICH ALL PARTIES HAD THE OPPORTUNITY TO PRESENT EVIDENCE AND
ARGUMENT. THE COMMISSION RULED THAT WE COMMITTED UNFAIR LABOR PRACTICES IN
VIOLATION OF STATE COLLECTIVE BARGAINING LAWS, AND ORDERED US TO POST THIS
NOTICE TO EMPLOYEES:
WE UNLAWFULLY discriminated against Paul Grass in violation of RCW
41.56.140(1) by terminating him in reprisal for engaging in protected union
activities.
WE UNLAWFULLY interfered with Paul Grass's rights in violation of RCW
41.56.140(1) when Chief Lane warned Paul Grass about his union association.
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes
and policies of Chapter 41.56 RCW:
a. Offer Paul Grass immediate and full reinstatement to his
former position or a substantially equivalent position, as
though he had fully completed his probationary period, and
make him whole by payment of back pay and benefits in the
amounts he would have earned or received from the date of the
unlawful termination to the effective date of the
unconditional offer of reinstatement made pursuant to this
order. Back pay shall be computed in conformity with WAC
391-45-410.
b. Read this notice into the record at a regular public meeting
of the City Council of the City of Brier, and permanently
append a copy of this notice to the official minutes of the
meeting where the notice is read as required by this paragraph.
WE WILL NOT discriminate against Paul Grass in reprisal for his union
activities;
WE WILL NOT interfere with Paul Grass's employee rights under Chapter 41.56
RCW;
WE WILL NOT, in any other manner, interfere with, restrain, or coerce our
employees in the exercise of their collective bargaining rights under the
laws of the State of Washington.
DATED: _________________ City of Brier
BY: ______________________________
Authorized Representative
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
This notice must remain posted for 60 consecutive days, and must not be
altered or covered by any other material. Questions about this notice or
compliance with the Commission's order may be directed to the Public
Employment Relations Commission (PERC), 112 Henry Street NE, Suite 300, PO
Box 40919, Olympia, Washington 98504-0919. Telephone: (360) 570-7300.
The full decision will be published on PERC's web site, www.perc.wa.gov.