Port of Seattle, Decision 10097-A (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL UNION OF OPERATING )
ENGINEERS, LOCAL 286, )
)
Complainant, ) CASE 21698-U-08-5533
)
vs. ) DECISION 10097-A - PECB
)
PORT OF SEATTLE, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Terry A. Roberts, Attorney At Law, for the union.
David Leon, Labor Relations Manager, and Lisa Hornfeck, Labor
Relations Manager, for the employer.
On May 8, 2008, the International Union of Operating Engineers,
Local 286 (union) filed an unfair labor practice complaint with the
Public Employment Relations Commission, naming the Port of Seattle
(employer) as the respondent. The union alleged that the employer:
interfered with employee rights and discriminated in violation of
RCW 41.56.140(1) by its termination of Mark Cann, an operating
engineer; violated RCW 41.56.140(4) by refusing to provide relevant
information about the termination; and attempted to dominate or
assist the union in violation of RCW 41.56.140(2). A preliminary
ruling issued on June 6, 2008, dismissed the allegation regarding
illegal domination and assistance. The employer filed its answer to
the complaint on June 26, 2008, and a hearing was held on September
23 and 24, 2008, before Examiner Terry Wilson. During the hearing,
the union dropped its allegation that the employer refused to
provide information, and the parties stipulated that the sole issue
to be determined is whether the employer violated RCW 41.56.140(1)
when it terminated the employment of Mark Cann.
APPLICABLE LEGAL STANDARDS
Under RCW 41.56.160, the Commission is empowered to hear and
determine unfair labor practice allegations and to issue appropriate
remedies. WAC 391-45-270(1)(a) provides that the complainant in any
unfair labor practice proceeding has the burden of proof.
In addition, RCW 41.56.140 reads as follows:
It shall be an unfair labor practice for a public employer:
(1) To interfere with, restrain, or coerce public
employees in the exercise of their rights guaranteed by this
chapter;
An "interference" violation occurs under RCW 41.56.140(1), when an
employee could reasonably perceive an employer action as a threat of
reprisal or force or promise of benefit associated with union
activity. Port of Tacoma, Decision 4626-A (PECB, 1995). A finding
that interference has occurred is not based on the actual feelings
of a particular employee, but on whether a typical employee in the
same circumstances could reasonably see the employer's actions as
discouraging union activity. An employer's intentions when engaging
in the disputed actions are legally irrelevant. City of Bremerton,
Decision 2994 (PECB, 1988); City of Seattle, Decision 3066 (PECB,
1988), aff'd Decision 3066-A (PECB, 1989).
A "discrimination" violation occurs under RCW 41.56.140(1) when an
employer actually takes action against an employee in reprisal for
union activity. The standard for determining discrimination
allegations was adopted by the Commission in Educational Service
District 114, Decision 4631-A (PECB, 1994) and City of Federal Way,
Decisions 4088-B and 4495-A (PECB, 1994) based on the decisions of
the Supreme Court of the State of Washington in Wilmot v. Kaiser
Aluminum, 118 Wn.2d 46 (1991) and Allison v. Seattle Housing
Authority, 118 Wn.2d 79 (1991).
The first step in the processing of a "discrimination" claim is for
the injured party to make out 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; and
2. That he or she was discriminated against; and
3. That there was a causal connection between the exercise of
the legal right and the discriminatory action.
If a plaintiff provides the evidence of a causal connection, a
rebuttable presumption is created in favor of the employee. While
the complainant carries the burden of proof throughout the entire
matter, there is a shifting of the burden of production. Once the
employee establishes his or her prima facie case, the employer has
the opportunity to articulate a 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
protected rights was nevertheless a substantial factor
motivating the employer to act in a discriminatory manner.
Educational Service District 114 Decision 4631-A. That standard has
been followed in numerous subsequent decisions. See Mansfield
School District, Decision 5238-A (EDUC, 1996); Pasco Housing
Authority, Decisions 6248, 6248-A (PECB, 1998).
DISCUSSION
Mark Cann testified that, on December 12, 2007, he was told by his
foreman, Wallace Mathes, to pick up a rope located in the Satellite
Transit System maintenance area. Mathes explained that the rope
could be a safety hazzard. According to Cann, in response, he told
Mathes how he had tied the rope in a noose in the past. Mathes
laughed, and nothing more was said between the two. Later that work
day, Cann re-visited the maintenance area accompanied by co-workers
Terry Chapman and Marty Jewell. They were later joined by Barry
Basher, another co-worker. Cann testified that he picked up the
rope, and in a joking fashion, he tied one end of the rope into a
noose. He then had Terry Chapman hold the rope as he tightened the
knot. As he was tying the knot, Cann said to his co-workers that
this is for Richard Calhoun to put himself out of his misery. After
which, he threw the rope over a beam. Rafael Rivera, an African
American employee of the Port, was in the immediate area when the
above incident occurred.
That night, Cann received a phone call from a co-worker, informing
him that Rivera was upset by the incident. Cann immediately
contacted a supervisor and made arrangements to discuss the
situation. On December 13, 2007, Cann and Rivera met with Tim Wray,
a first line supervisor at the Port. Cann apologized to Rivera and
thought the incident was resolved. However, he was placed on
administrative leave on December 14, 2008, after John Okamoto, a
senior official at the Port of Seattle, learned about the incident.
And, following an investigation conducted by the human resources and
development department, Cann was fired on February 11, 2008.
The union contends that Cann's motivation in tying the noose was to
joke about Calhoun, whom Cann describes as his 75 year-old white
friend. It argues that he was not trying to insult or offend
anyone, nor was he trying to make a socio-political statement. It
asserts that his true motivation is reflected in the fact that upon
realizing he offended Rivera he apologized immediately.
The union also argues that Cann was actually terminated due to his
union activities as a shop steward. It asserts that others have
violated the employer's anti-harassment policies, including those
who assisted Cann in the noose incident; however, those employees
were treated with much more leniency. This difference in treatment,
the union argues, is due to Cann's position as a union shop steward,
a position he held since June 2006.
The employer counters that Cann was terminated because he violated
their human resource policy concerning harassment, specifically, HR
Policy 22. HR Policy 22 states that the Port of Seattle will not
tolerate any conduct, including unwelcomed gestures or symbols, that
is derogatory of a person's age, race, or color. According to the
employer, prior to the noose incident, it had gone through a highly
scrutinized investigation in which port police officers were found
to be in violation of anti-harassment policies. During this time,
Mick Dinsmore, the Port Chief Executive Officer, ordered all
employees, including Cann, to retake training on the anti-harassment
policy. To further cement their dedication for creating a better
work environment, the employer issued an e-mail in June 2007 which
stated that there would be zero tolerance for violating HR Policy
22. Thus, in line with this policy, Cann's employment was
terminated because he violated HR Policy 22. The employer argues
that Cann's status as a union member was not a determining factor.
ANALYSIS
The union attempts to establish an interference claim and a prima
facie case of discrimination based on Cann's work as a shop steward.
Around the time of the noose incident and the resulting discipline,
Cann was active in representing a union member whose employment was
being terminated due to attendance issues. Thus, the employer
clearly had recent notice of Cann's status with the union. That the
employer was motivated to terminate Cann for purely retaliatory
reasons, in the union's view, is illustrated by the fact that his
employment was immediately terminated despite having no history of
disciplinary problems while Chapman, who also participated in the
incident, received only a verbal warning. According to the union,
the employer's motivation is also exemplified in a letter authored
by Okamoto, which reads "the perpetrator (a shop steward) has been
identified."
Prima Facie Case of Discrimination and Interference
Cann's active representation of a union member is the type of
protected activity the Commission envisioned when it issued
Educational Service District 114, Decision 4631-A (PECB, 1994).
Thus, the union meets the first element in establishing a prima
facie case of discrimination. The termination of Cann was a
negative action, thus meeting the second element in establishing a
prima facie case. However, now the union has the burden to prove
that the employer terminated Cann due his union activities.
Similarly, in order to prove a claim of illegal interference, the
preponderance of the evidence must establish that the employer
terminated Cann in retaliation for union activity. In essence, the
record must demonstrate that there existed a causal connection
between Cann's activity as a shop steward and his termination. The
union offers that in Wilmot v. Kaiser Aluminum, 118 Wn.2d 46 (1991)
the court noted that a prima facie case may be shown by
circumstantial evidence. While it is true that circumstantial
evidence may establish a prima facie case, the totality of that
evidence must still be persuasive.
The union offers four arguments to support its assertion that Cann
was discriminated against and illegal interference occurred: other
employees involved in the incident were not terminated; Cann had no
prior disciplinary problems; Cann did not intend to offend anyone;
and the proximity between the time Cann worked as a shop steward and
his termination.
Others Were Not Terminated
Given the facts presented, there is little probative value to the
fact that the employer chose to give Chapman, who is a not a union
steward, a verbal warning, while terminating Cann. Chapman
testified he felt compelled to adhere to Cann's request to hold the
rope because Cann had a supervisory role over him. Chapman also
testified that he initially refused Cann's request at least three
times. There is also little value to the fact that Basher and
Jewell were not terminated, for the record does not indicate they
were actively involved in tying the noose or making comments
concerning possible uses for the noose. Basher testified that he
arrived at the maintenance area at the time when Cann asked Chapman
to hold the rope while he tightened it.
Cann Had No Prior Disciplinary Record
There is little evidentiary value to the fact that Cann did not have
a prior disciplinary record. The environment at the Port of Seattle
changed dramatically since the publicized investigation involving
Port police officers. The Port was much more sensitive to issues
involving harassment. Accordingly the employees, including Cann,
underwent anti-harassment re-training months prior to the noose
incident, and they were notified that the employer had adopted a
zero tolerance policy concerning harassment issues. Given the vile
historical background of the noose in American history and its
continued use as a symbol of racial intolerance, it is
understandable why Rafael Rivera was initially offended and why the
employer reacted so strongly.
Cann Did Not Intend To Offend
There was some testimony to support the argument that Cann did not
intend to offend Rivera or to make a racist statement by tying and
displaying a hanging noose. Basher and Chapman testified that they
believed that Cann was making a joke at the expense of Calhoun and
not Rivera. Various notes taken during the employer's
investigation, including a police report, reflect that Rivera may
have come to believe that Cann did not mean to harm or offend.
While this may be true, the issue before the Examiner is not whether
the employer was justified in terminating Cann's employment. The
issue is solely whether the employer terminated Cann's employment
because he had been performing the protected duties of a shop
steward. Cann's intent is not relevant.
Proximity Between Cann's Union Work and Termination
During Cann's tenure as a shop steward, he participated in contract
negotiations, and he worked to protect bargaining unit work. In
late 2007, Cann provided representation to an employee who was being
disciplined for attendance issues. The union finds significance in
the proximity between Cann's termination and his union activities.
Proximity between a union activity and a discipline issued by an
employer does not alone establish a prima facie case of
discrimination, however. With a significant union base and an
active bargaining unit, it is not surprising that Cann would have
been an active shop steward. Thus, the Examiner finds little value
in the fact that Cann was provided representation to another
employee when the incident occurred, without some other evidence of
a connection between his union responsibilities and his termination.
Summary
The union did not meet its burden of proving that the employer
terminated Mark Cann in reprisal for protected union activity.
Thus, it failed to establish that the employer interfered with
Cann's rights, and a prima facie case of discrimination due to
union activity was not established.
FINDINGS OF FACT
1. The Port of Seattle is a municipal corporation of the state of
Washington, and is a public employer within the meaning of RCW
41.56.020 and .030(1).
2. The International Union of Operating Engineers, Local 286, is
the exclusive bargaining representative of certain engineers
employed by the Port of Seattle.
3. Mark Cann, was an employee of the Port of Seattle and worked
within a bargaining unit represented by International Union of
Operating Engineers, Local 286. Cann began serving as a union
shop steward in June 2006.
4. In late 2007, Cann, while serving as a shop steward,
represented an employee who the Port of Seattle was trying to
discipline for attendance issues.
5. On December 12, 2007, Cann he was told by his foreman to pick
up a rope located in the Satellite Transit System maintenance
area. Later that day, Cann tied one end of the rope in a noose
and, with the assistance of another employee, tossed the other
end over a beam. He stated that this is for employee Richard
Calhoun to put himself out of his misery.
6. Rafael Rivera, an African American employee of the Port, was in
the immediate area when the above incident occurred.
7. Cann was placed on administrative leave for this incident on
December 14, 2008.
8. Following an investigation conducted by the employer's human
resources department, the Port of Seattle terminated Cann's
employment on February 11, 2008.
9. On May 8, 2008, the International Union of Operating Engineers,
Local 286 filed an unfair labor practice complaint, naming the
Port of Seattle as the respondent. The Union alleged that the
Port of Seattle, by terminating Cann, illegally interfered with
and discriminated against him in violation of RCW 41.56.140(1).
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.56 RCW and Chapter 391-45 WAC.
2. The evidence fails to establish the existence of any causal
connection between the exercise of protected activity described
in paragraph 4 of these findings of fact and the termination of
employment described in paragraph 8 of these findings of fact
that would support of violation of RCW 41.56.140(1).
3. The employer, by its termination of Mark Cann, did not
interfere or discriminate in violation of RCW 41.56.140(1).
ORDER
The complaint charging unfair labor practices filed in the
above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 2nd day of February, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
TERRY WILSON, 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.