Seattle School District, Decision 10066 (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL UNION OF OPERATING )
ENGINEERS, LOCAL 609, )
)
Complainant, ) CASE 21266-U-07-5428
)
vs. ) DECISION 10066 - PECB
)
SEATTLE SCHOOL DISTRICT, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Schwerin Campbell Barnard & Iglitzin, LLP, by Kathleen Phair
Barnard, Attorney at Law, for the union.
John M. Cerqui, Senior Assistant General Counsel, for the
employer.
On September 26, 2007, the International Union of Operating
Engineers (union) filed a complaint charging unfair labor practices
against the Seattle School District (employer). The complaint
alleged employer interference with employee rights by denial of
Michael Wade's right to union representation in connection with
investigatory meetings. A preliminary ruling issued on September
28, 2007, stated that a cause of action existed. A hearing was held
before Examiner Katrina I. Boedecker on December 12, 2007, in
Seattle, Washington. The parties filed written argument by February
4, 2008.
ISSUE PRESENTED
Did the employer unlawfully deny Michael Wade his right to union
representation during two separate meetings?
The union did not establish by a preponderance of the evidence that
Wade actually made a request for union representation during the
first meeting between Wade and his supervisor Shelly Ward.
Ward's stated purpose for her second visit with Wade was to hand him
a previously prepared letter of direction. The letter of direction
documented observations and discussions from Ward's visit earlier in
the week. The parties agree that Wade requested union
representation at this meeting. Ward did not compel Wade to attend
the meeting. Additionally, a significant purpose of the meeting was
not investigatory; it was to deliver to Wade the already drafted
letter of direction. The conversation between Wade and Ward turned
into a confusing and elaborate discussion about what is discipline.
Also, given Ward's assurance that he could have union
representation, it was not reasonable for him to believe that
discipline, beyond the letter of direction, would result from this
meeting.
Based on all the sworn testimony, the evidence admitted into the
record, and the arguments submitted by the parties, I rule that the
employer did not unlawfully deny Michael Wade his right to union
representation. Therefore, the employer did not interfere with
employee rights in violation of RCW 41.56.140(1).
APPLICABLE LEGAL PRINCIPLES
The Supreme Court of the United States has ruled that an employer
commits an "interference" violation under Section 8(a)(1) of the
National Labor Relations Act if it refuses an employee's request for
union representation at an investigatory interview. National Labor
Relations Board v. Weingarten, Inc., 420 U.S. 251 (1975). The
Commission embraced the Weingarten principle in Okanogan County,
Decision 2252-A (PECB, 1986).
To successfully pursue a Weingarten violation theory, the
complainant must establish that:
* The employer compelled an employee to attend an interview.
* A significant purpose of the interview was (or became)
investigatory to obtain facts which might support disciplinary
action.
* The employee reasonably believed that discipline might result
from the interview.
* The employee requested the presence of a union representative.
* The employer rejected the employee's request and went ahead
with the investigative interview without a union representative
present.
BACKGROUND
Michael Wade works for the employer as a custodial engineer. A
custodial engineer is the lead custodian in charge of a school
building. Wade and other custodial employees are in a bargaining
unit represented by the union.
The incidents involved in the present complaint occurred in April
2007. Other factual events that took place before April 2007 are
relevant for orientation. They will be discussed in chronological
order.
November 2006
On November 9, 2006, the employer gave Wade a written warning for
inappropriate behavior. The letter detailed an investigation in
which the employer found "several boxes of your personal belongings,
including bedding, videos, CDs, TV, VCR, bicycles, clothing, towels,
and personal records . . . ." in the boiler room at the Old Hay
School, where Wade was assigned at the time.
The investigation also found that there were incidents when he was
not scheduled to be in the building, but would appear unexpectedly.
During the investigation, the employer learned that district
security had found Wade in the Old Hay School at 3:55 A.M., barefoot
and wearing a gray t-shirt and plaid sleeping pants. He had
appeared in the middle of the night, startling another custodian,
Debbie Beausoleil. The employer believed that Wade's unscheduled
presence in the building, along with the household items stored at
school, gave the appearance that Wade was living in the building.
Later, Beausoleil found notes that she felt were left for her in
retaliation for her reporting seeing Wade at night. She was
concerned for her safety. As a result, she filed a formal complaint
against Wade for creating a hostile work environment.
The union met with the employer regarding the written warning given
to Wade. Wade denied living at the school. He presented receipts
showing that he was leasing an apartment on Queen Anne Hill in
Seattle. Shortly after this incident, the employer transferred Wade
to Viewlands Elementary School.
When Wade transferred to Viewlands, Custodial Area Supervisor Shelly
Ward became Wade's supervisor. As part of her job responsibilities,
Ward performs building inspections, discusses building maintenance
and cleanliness issues with custodians, trains custodians, coaches
and counsels custodians, and conducts their performance evaluations.
Ward became aware of the fact that Wade was directed not to keep
personal items at school.
February 2007
At Viewlands, Wade's office is in a small electrical room. There he
has a desk and a chair. In February 2007, Ward saw a television set
and a VCR on Wade's desk. When she asked him about them, he told
her they had been given to him by the Boys and Girls Club, which
operates an after-school day care program at the school. He
explained to Ward that the Boys and Girls Club had given the items
to him because they were going to have to throw them away or have
someone take them away. Ward asked Wade if he had something in
writing reflecting that, in case someone questioned it. Wade
assured her he did. She then asked him to be sure to take the items
off the premises. Based on what she knew about the earlier incident
that caused him to be transferred, she reminded him that he had been
told before not to store his personal belongings at the school.
Wade said he would remove the items. During this encounter, Wade
did not ask for union representation.
March 2007
Custodial employees are part of the employer's Facilities, Custodial
and Grounds Department. Senior Facilities Manager Lynn Good gave
Wade a written letter of reprimand on March 23, 2007, for failure to
report to work, failure to report leave status, and unsafe working
conditions. Good found that Wade had created an extremely dangerous
boiler condition when he failed to show up to work. "You left the
boiler on automatic, you left the city water feed on and the make-up
tank on, it created a potentially explosive and dangerous
situation." The letter also documented that the employer was
worried about Wade's memory: "I am concerned that you were unaware
of what day it was and that you thought it was a weekend, not a
workday and that the confusion prevented you from reporting to
work."
April 2007
On April 5, 2007, Ward and Good met with Wade and his union
representative Mike McBee, to hear Ward's explanation of incidents
that had occurred since Wade received the letter of reprimand. Good
learned that on two occasions Wade had been late for work without
notifying anyone. Thus, when staff arrived, the building was locked
and, since Wade was not there to turn the boiler on, cold inside.
Good recommended a three week suspension. McBee argued that was too
harsh; he suggested a three day suspension. Wade was suspended
without pay for three days for not following the instructions of his
supervisor. Wade started his suspension without pay on April 9, 2007.
Around April 21, 2007, Wade purchased a TV at an auction to benefit
Viewlands, which was held at the school. Organizers gave away
items left over from the auction. Wade received some of those items
on the following Monday, Tuesday, and Wednesday.
Week of April 23-27, 2007
During the week of April 23, 2007, Ward and Wade had two meetings.
Those meetings are the basis for the union's unfair labor practice
complaint.(fn:1)
____________________
fn:1 Ward testified, citing contemporaneous notes, that these two
meetings took place on April 23, 2007, and April 26, 2007. Wade
testified that the two critical meetings took place on April 24,
2007, and April 26, 2007. Both witnesses testified to somewhat
similar events at the first meeting, whether it be April 23 or April
24, with the important exception of whether Wade made a request for
union representation. For purposes of this decision, the exact
meeting dates are not important. The meeting of either April 23 or
April 24 will be referred to as "the first visit." The meeting that
took place on April 26, 2007, will be referred to as "the April 26
visit" or "the second visit."
The week following the auction, Ward went to see Wade about a
doctor's note he had sent her regarding a lifting restriction. When
she stopped by Wade's office, she noticed a fish tank behind his
desk. Wade's recollection is that when Ward came into his office,
she simply said, "nice fish tank" and left. She then returned the
next day and told him to remove the fish tank.
Ward recalls that she told Wade to remove the fish tank during the
first visit of the week. During the first visit, Ward also noticed
a box containing non-commercial vacuum cleaner parts on Wade's desk,
as well as a Macintosh notebook computer, which was not a school
computer. Ward asked Wade about these things. He told her he had
bought them from the school at the auction. Ward reminded Wade that
he needed to take personal items home, that he could not store them
at the school. He explained that he was not storing them at the
school, that he had only just purchased them. Ward followed Wade to
the boiler room where he poured out the water from the fish tank.
In the boiler room, Ward saw a bookshelf containing dishes, cooking
and eating utensils, and other kitchen items. On a table she saw
boxes with towels on top. Ward asked Wade about these items. He
explained that they were left over from the auction and that he had
been told he could take them because they were going to be given
away. He had the items in a box ready to take home. Ward was
concerned that he was starting to stockpile personal items. Wade
said he needed the utensils to eat his meals; Ward said that was
fine. Ward explained to Wade that she was worried that people might
think he was living there. Since she did not want him to get into
trouble, she directed him to take the things, other than the eating
utensils, home. He said he would.
Ward also had come to talk to Wade that day about flushing water
pipes to clear them of arsenic. Due to high arsenic levels in the
water at district schools, the pipes have to be flushed for 30
seconds any time the water is shut off or inactive for several days.
Wade told her that Viewlands was using all bottled water. Ward
advised him that the pipes still had to be flushed and that he had
to log when he did so.
Wade testified that "She [Ward] was like pushing me about having the
stuff there and I felt like I had to keep explaining myself." Wade
remembers telling her that if their conversation was going to lead
to discipline, he wanted to have a union representative present.
Ward does not recall Wade asking for union representation during
their discussion in the boiler room on the first visit. Ward
recorded the meeting in her daily log; she did not list any request
by Wade for union representation. In her experience, requests for
union representation are rare (for her, only five times in the past
two years), so it is her habit to record such a request in her log.
Wade did not phone his union representative after the first visit.
He claimed that he wrote a letter to the union stating that he had
requested union representation. No such letter was offered into
evidence.
April 26, 2007
Based on the observations made during the first visit, Ward wrote
Wade a letter of direction to not store personal items at school and
to flush the water pipes at appropriate times. Ward claims letters
of direction are not part of the disciplinary process because the
letter does not go in the employee's personnel file. She does
acknowledge that if an employee who received a letter of direction
repeated the misdeed, the employee could be disciplined. Then the
letter memorializing the conversation that had occurred could be
used in the disciplinary process. Ward testified that she prepares
letters of direction; her supervisor [Good] prepares letters of
reprimand; and the employer's human resources staff issues letters
involving suspensions. She went to deliver the letter to Wade on
April 26, 2007. Ward located him in his office. Ward entered the
office, closing the door behind her for privacy. Ward had the
letter of direction, already prepared, in her hand.
Wade secretly taped the conversation they had that day. The
employer submitted a copy of the certified transcription of the
taped conversation into evidence. The transcript was corrected by
stipulation of the parties at the hearing. The conversation, with
telephone interruptions, lasted approximately 15 minutes. The
conversation proceeded as follows:
* Ward compliments Wade, telling him that he is "doing a good job."
* Ward reminds Wade that he must flush water pipes.
* Ward tells Wade that she is there to give him a letter of
direction. "Remember I told you I was going to give you a
letter of direction for two things that we talked about
[storage of personal items and flushing the water pipes]. . ."
* Wade asks for union representation. "Okay, I'd like to have
someone from the union if this has anything to do with
discipline."
* Ward explains that a letter of direction is not discipline, but
a memo of what they had talked about already.
* Wade states "I'd like to have someone from the union..." as he
tries to clarify that he did not have personal things at
Viewlands, but rather the items in his office and boiler room
were all from the auction or the daycare.
* Wade and Ward continue to talk about the storage of personal
items. Ward focuses on the prior directive to not store
personal items at school. Wade states that he did not bring
the items from home, and that he needs to have some personal
utensils at work. Ward asks, "And did you have the kitchen set
up down there? You had, like, the shelf with all the kitchen
stuff on it." Wade says he needs stuff here. Ward counters
that it looks like storage. Wade states "this sounds like a
disciplinary kind of meeting. I mean, you're going to give me
a letter."
* Ward states "This is the letter saying that we've talked about
it. I mean, if you want to have your representative here when I
hand it to you that's fine."
* Wade tells Ward that he "didn't bring anything from home." This
banter continues for some time. Ward denies that she said he
brought items from home. She explains her concern that he is
storing personal items at the school.
* Wade states that the letter sounds like a disciplinary letter.
* Ward explains that it is a letter of direction to document what
they had talked about, and that the next step is a letter of
reprimand which would be disciplinary.
* Wade states that if it is leading up to discipline that he
would "like to have someone from the - - - [inaudible]."
* Ward agrees to give the letter to Wade in front of his union
representative. She asks if he wants to meet downtown or at
the school.
* Wade says, "I keep telling you I didn't bring nothing from
home." He reiterates that he got the items from the auction.
He asks whether teachers would get a letter for buying
something at the auction.
* Ward cautions Wade not to raise his voice to her. He tells
Ward that she is not listening to him.
* Ward reminds him about the prior TV and VCR incident and that
it took him a week to remove the TV and VCR.
* Wade states he thinks "it's a disciplined [sic] nature. I'd
like to get someone from the union present."
* Ward says fine. She asks Wade to find a time, then she would
schedule the meeting. She reiterates that it is not discipline
at this point. She asserts that the meeting can take place
with a union representative, "that's actually your right."
* Wade continues to ask why he cannot buy items at the auction.
* Ward explains to Wade what she saw when she first visited.
* Wade again states that the discussion sounds disciplinary.
* Ward again conveys that a letter of direction documents
something that they had discussed previously.
* Ward states that she will set up a time to meet with Wade and
his union representative when they are both available.
* Wade states that "this" sounds disciplinary. Ward informs him
that it is a reminder about what they talked about and what he
was told not to do.
* Ward acknowledges to Wade "you have a right to union
representation."
* Wade requests union representation.
* Ward says "Okay. Thank you. Have a good weekend."
* Wade apologizes for getting mad.
The meeting ended without Ward delivering Wade the letter of
direction. Ward tried to leave the meeting on three occasions.
Each time she opened the door to leave, she felt that Wade was
continuing to ask her questions in a louder voice. She then would
shut the door so that other staff or students, who were outside the
door, would not hear. She also was trying to de-escalate the
situation. She felt Wade was pulling her back in; "I didn't want
them to hear him yelling. There were kids going through the
hallway." Ward did record in her daily log that Wade had asked for
representation when she tried to deliver the letter of direction.
May 7, 2007
The next meeting took place on May 7, 2007. Present at the meeting
were Senior Facilities Manager Good, Ward, Wade, and Recording and
Corresponding Secretary for Local 609 McBee.
The employer gave Wade the letter of direction that Ward had
prepared and brought to him April 26th. The first part of the
meeting lasted from 12:40 P.M. to 1:15 P.M. and centered on Wade's
work performance and behavior at Viewlands, including his flushing
the water pipes. The storage of personal items at work was
discussed in detail. Wade gave an adequate explanation and the
employer agreed to delete any reference to his storing personal
belongings at the school from the letter. The only issue that
remained for inclusion in the letter of direction was the flushing
of the pipes. The employer mailed a revised letter of direction to
Wade on May 9, 2007. That letter directs him to flush water at his
school following a break of some days; it does not discuss the
storage of personal items at work.
At approximately 1:15 P.M., after the parties had discussed Wade's
performance, McBee asked Ward if Wade had asked for union
representation during their April 26, 2007, meeting. McBee then
advised that Wade had tape recorded the meeting. Ward acknowledged
that Wade had requested union representation.
Wade is not certain if he mentioned at this meeting that he had
asked for union representation during Ward's first visit. He
testified that he was focusing on the meeting of April 26th. In
response to his performance evaluation in November 2007, Wade wrote
that he was denied union representation on April 26, 2007, but did
not mention making a request at the first meeting.
ANALYSIS
The First Visit
Wade claims that he did ask for union representation during the
first visit. Ward denies that he did. City of Renton, Decision
1825 (PECB, 1984) held that when "the facts remain substantially in
dispute, the complainant has not sustained his burden of proof. In
such a situation, the unfair labor practice complaint must be
dismissed." In addition to the Renton standard, multiple other
facts in evidence, including testimonial and circumstantial
evidence, support a finding that the union did not satisfy its
burden of proof.
First, Wade did not claim during his May 7, 2007, meeting with the
employer that he had asked for union representation during the first
visit. At that meeting, Wade was represented by McBee. McBee said
that the stated purpose of the second part of this meeting was to
talk about an alleged Weingarten violation on April 26, 2007. McBee
and Wade only talked about Wade's request for union representation
at the April 26th meeting. Wade's failure to follow up on the
possible additional violation goes to the credibility of his
recollection. It makes no logical sense that he would not mention
the first alleged denial of union representation during the meeting
investigating the April 26th denial.
Second, Wade allegedly wrote a letter to his union about his request
for union representation with respect to the first visit. He did
not produce this letter. McBee is an experienced union
representative. McBee's notes from the May 7, 2007, meeting were
placed into evidence. If McBee had received this letter, I find it
most likely that he would have saved it. If the letter existed, it
likely would have been placed into evidence. Wade's recollection is
not credible on this point.
Third, when Wade responded to his fall performance evaluation, he
wrote that he requested union representation on April 26, 2007, but
did not mention that he requested any during the first visit. His
explanation that "I didn't think about it. I just forgot about it"
is not convincing.
Fourth, Ward's notes do not reference any request from Wade for a
union representative at the first meeting, but her notes confirm
that he asked for union representation on April 26, 2007. Ward has
seldom been asked for union representation, so when this happens it
stands out to her. Ward prepared her notes after her first visit
near the time of the event in question.
Finally, I also find it noteworthy that Wade did not call his union
to report that he allegedly asked for union representation, and was
denied, after the first visit. This is relevant because Wade had
multiple occasions where he had union representation in the previous
six months. He was disciplined in November 2006, March 2007, and
April 2007. He was familiar with his union representative McBee.
It would have been easy for Wade to call and report this alleged
violation after the first visit. He did not do so.
Based on the record, the union has not established by a
preponderance of the evidence that Wade asked for union
representation during the first visit.
The April 26, 2007 Meeting
Forced attendance
An employee's right to union representation arises where the
employer compels the employee to attend an investigatory meeting.
The purpose for the meeting on April 26th was for Ward to deliver a
letter of direction to Wade. She had already written the letter
before the meeting. After introductory pleasantries, Ward stated
the purpose for her visit: "Remember I told you I was going to give
you a letter of direction for two things that we talked about . . . ."
When Wade asked for a union representative to be present when he
received the letter, Ward agreed. She did not deliver the letter.
She invited Wade to determine where the meeting would be. She asked
him to let her know when his union representative would be
available.
Additionally, there were times that Ward attempted to end the
meeting. Each time she tried to leave Wade would draw her into his
office with his questions. Each time, she came back to answer his
questions. She would close the office door to protect the privacy
of their conversation from staff and students who were nearby.
There is no evidence that she was compelling him to stay in his
office. This visit is not the same as the situation found to be
illegal in City of Puyallup, Decision 6784 (PECB, 1999), where the
employer denied the employee's request and compelled the employee to
appear unassisted at an interview which put his job security in
jeopardy. The record does not establish that Wade was compelled to
attend the meeting on April 26th.
Purpose of the interview
Weingarten rights do not extend to all meetings that take place
between an employer and an employee. Weingarten does not apply to
meetings where the employer only gives notice of a disciplinary
action or other information to the employee. "An employer may call
a meeting for the purpose of discussing general work problems, or
even to cite certain workers to illustrate or correct problems."
Pierce County Fire District, Decision 3334 (PECB, 1989). "[T]he
right does not attach if the meeting is intended to review
discipline already imposed." City of Renton, Decision 1825. In
City of Seattle, Decision 5093 (PECB, 1995), a complaint was
dismissed after it was determined that the meeting was not
investigatory. "There is no obligation upon either an employer or
union to have a union representative present, or even to inform an
employee that a union representative will be furnished upon request,
if the meeting is merely for the purpose of imposing a disciplinary
sanction already determined by the employer."
The facts of this case are similar to the facts in Pierce County
Fire District, Decision 3334. In that case, an employee was
summoned to the Battalion Chief's office. The employee requested
union representation. A dispute arose over whether the employee was
entitled to union representation. The examiner held "it is apparent
that the decision to reprimand Miller had already been [made], and
that the reprimand document was already prepared. Therefore, the
purpose of the meeting was only to issue the reprimand to Miller."
The union argues that during their conversation on April 26, 2007,
Ward started asking "investigatory" questions. When this happened,
the union contends, Wade had a right to union representation. In
Cowlitz County, Decision 6832-A (PECB, 2000), the employer was found
to have converted a meeting to deliver discipline into an event
covered by Weingarten, when it asked questions of an investigatory
nature.
In the instant case, when the transcript of the Ward/Wade
conversation on April 26, 2007, is carefully reviewed, it is clear
that Ward was not conducting an investigatory meeting. Ward was
attempting to counsel and inform Wade as to why she was delivering
the letter of direction. She attempted to answer questions that
Wade was raising. She did ask questions about the kitchen set-up.
These are not significantly investigatory in nature. The few
questions that Ward asked did not obtain information to be used to
discipline Wade. Ward did not gain any information from this
meeting to alter the letter of direction that she had already
prepared by April 26th and later presented to Wade in front of his
union representative. Ward made her comments in response to
statements by Wade that he should not be disciplined because he had
just bought the items and did not bring items from his home. Here
Ward agreed to give the letter of direction to Wade at a future
meeting when his union representative could be present.
Further, a "significant purpose" of the April 26th Ward/Wade
conversation was not to obtain facts. Washington State Patrol,
Decision 4040 (PECB, 1992) discussed the "significant purpose"
standard. In that case, the examiner found that the nature of the
meeting changed during the discussion between the supervisor and the
employee. "It went from being notification of a letter of reprimand
for failure to report to the Goodwill Games, to being investigatory
as to whether Bennett had illegally tape recorded phone
conversations and whether Bennett was being insubordinate in his
refusal to provide any such tape recording to Sherman." In the
situation at issue here, the nature of the meeting did not change.
Employee's reasonable beliefs
The union argues that Wade should have been granted union
representation at the April 26th meeting because he reasonably
believed that responding to Ward's comments and questions could lead
to discipline. Okanogan County, Decision 2252-A (PECB, 1986).
Wade did express his concern early and often in the conversation.
Ward however continually reassured him it was his right. She
invited him to contact his union representative to see when it was
convenient for them to meet. She allowed Wade to choose a meeting
site where he would be comfortable. Wade had received discipline in
the immediate past, so he might have a heightened sensitivity to
receiving a letter of direction. However, his past experience does
not convert a paranoid reflex to a reasonable belief. Mason County,
Decision 7048 (PECB, 2000) directs parties to apply objective
standards: "Particularly relevant in the this case, the existence
of reasonable grounds for concerns about potential discipline is not
predicated upon the subjective perceptions of individuals in each
case, but upon objective standards based upon all of the
circumstances of the particular case."
Ward did not, in fact, deliver the letter of direction at the
meeting because of Wade's request for representation. She left it
up to Wade to arrange for that representation.
CONCLUSION
The employer did not deny Wade his right to union representation
during the week of April 23, 2007. With respect to the first
meeting, the union did not establish by a preponderance of the
evidence that a request for union representation was made during the
first visit between Wade and his supervisor Ward. Since the initial
request for union representation is disputed, all the testimonial,
documentary, and circumstantial evidence must be considered. I
conclude that the union did not satisfy its burden of proof.
With respect to the second request, to trigger Weingarten rights a
significant purpose of the interview must be to gather facts. The
parties agree that Wade requested union representation at this
meeting, but the clear purpose of the meeting was not investigatory,
it was to hand him the previously drafted letter of direction.
Ward's few clarifying comments/questions did not turn this into an
investigatory meeting. After reviewing the transcript of the
15-minute meeting, I conclude that a reasonable employee would not
believe that the meeting could lead to discipline.
ORDER
The complaint charging unfair labor practices filed in the
above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 7th day of May, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
KATRINA I. BOEDECKER, 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.