City of Spokane, Decision 10299 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
SPOKANE POLICE GUILD, )
)
Complainant, ) CASE 21697-U-08-05532
)
vs. ) DECISION 10299 - PECB
)
CITY OF SPOKANE, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Atchison & Vick, Inc., by Derrick Issackson, Attorney at Law,
for the union.
City Attorney Howard F. Delaney, by Pat Dalton, Assistant City
Attorney, for the employer.
On May 8, 2008, the Spokane Police Guild (union) filed an unfair
labor practice complaint against the City of Spokane (employer)
charging employer interference and domination in violation of RCW
41.56.140(1) and (2) when the employer passed over detective Dean
Sprague for a promotion. A preliminary ruling was issued on May 20,
2008, stating a cause of action to exist under RCW 41.56.140(1) and
(2). The employer filed an untimely answer on July 2, 2008. Based
on the untimely answer, the union filed a motion for a default
judgment and requested the Examiner to treat all alleged facts as
true and waive the hearing. In a joint conference call on August
19, 2008, the Examiner denied the motion. On August 26, 2008, the
union filed an amended complaint charging employer refusal to
bargain under RCW 41.56.140(4). An amended preliminary ruling was
issued and a timely answer to the amended complaint was received.
On September 3, 2008, the parties filed a joint request for the
Examiner to accept the parties' stipulated facts in lieu of a
hearing. Since an examination of the answer revealed that no facts
were in dispute, the motion was granted. Simultaneous briefs were
subsequently submitted on October 3, 2008.
Issues Presented
1: Did the employer violate RCW 41.56.140(4) and refuse to bargain
when it passed over bargaining unit member Dean Sprague for a
promotion?
2: Did the employer violate RCW 41.56.140(1) and interfere with
Sprague's protected rights when it passed him over for a promotion?
3: Did the employer violate RCW 41.56.140(2) and assist the
Lieutenant and Captain's Association by passing over Sprague for a
promotion?
Based on the arguments and evidence submitted by the parties, the
Examiner finds that the employer did not commit any of the alleged
unfair labor practices and therefore dismisses the complaint.
Issue 1: Did the employer refuse to bargain with the union when it
passed over bargaining unit member Dean Sprague for a promotion?
Duty to Bargain
An employer and union are required to bargain in good faith on
personnel matters, including wages, hours and working conditions
under RCW 41.56.030. It is illegal for an employer to implement
changes to the status quo or Civil Service Rules affecting mandatory
subjects of bargaining until it has satisfied its bargaining
obligation under Chapter 41.56 RCW. See City of Yakima, Decision
3504-A (PECB, 1990).
Application of Standard
Lieutenant Sprague was a member of the Spokane Police Lieutenants
and Captains Association (association) when he entered into a last
chance agreement with the employer on February 7, 2006. As part of
this agreement, Sprague agreed to a voluntary reduction in rank from
lieutenant to detective. This reduction in rank moved Sprague from
membership in the Lieutenants and Captains Association bargaining
unit to membership in the union's bargaining unit.
On December 31, 2007, Detective Sprague was placed on a certified
promotional list for the position of sergeant. As of December 31,
2007, Sprague was the highest ranking employee on the promotional
list, but on April 29, 2008, Sprague was notified that he would be
passed over for the sergeant position. Subsequently, on May 4,
2008, the employer offered the sergeant position to the next ranking
officer on the promotional list.
The union argues that the employer changed the status quo by
offering the sergeant position to an employee other than the top
ranked employee on the civil service promotional list. The union
states, and the employer agrees, that according to status quo, as
written into the Civil Service Rules, the top ranked employee on the
promotional list is the next to be promoted. However, the employer
defends that the union has overlooked an exception to this rule
provided by Civil Service Rule V, Section 4 which allows for an
employee to be passed over for a promotion if there is reasonable
cause to do so.
In a letter dated April 30, 2008, from the police chief to the
City's Civil Service Commission, the employer explained that it
offered the vacant sergeant position to the second ranked candidate
based upon Civil Service Rule V, Section 4. According to this rule,
a candidate may be passed over for substandard work performance,
prior disciplinary problems, errors in the candidate's judgement,
any other documented performance-related reasons, or by mutual pass
over. The employer's letter to the Civil Service Commission also
explained that the employer was not prohibited from following Civil
Service Rule V, Section 4 by the last chance agreement entered into
with Sprague and therefore there was no reason why it could not
invoke the established Civil Service Rule.
The employer proved that it passed over Sprague for the promotion
under the existing Civil Service Rules. Since the employer did not
change the status quo, as codified in its Civil Service Rules, it
did not have a duty to bargain and this issue is dismissed.
Issue 2: Did the employer interfere with employee rights by passing
over Sprague for a promotion?
Interference
RCW 41.56.140(1) prohibits employer interference with the exercise
of employee collective bargaining rights. An interference violation
will be found when an employee could reasonably perceive the
employer's actions as a threat of reprisal or force or a promise of
benefit associated with the union activity of that employee or other
employees. Kennewick School District, Decision 5632-A (PECB, 1996).
The complainant must establish its burden of proof by a
preponderance of the evidence. Dieringer School District, Decision
8956-A (PECB, 2007).
Application of Standard
As recounted above, the employer passed over Sprague for the
promotion under the Civil Service Rules. None of the facts argued
by the union convinces the Examiner that a reasonable person could
perceive the employer's action of using the established Civil
Service Rules as interference. The decision was neither a threat of
reprisal nor a promise of benefit. Therefore, the employer did not
interfere with employee rights and this issue is dismissed.
Issue 3: Did the employer assist the Lieutenant and Captain's
Association by passing over Sprague for a promotion within the
Spokane Police Guild?
Employer Assistance
An employer commits an unfair labor practice when it controls,
dominates or interferes with a bargaining representative. RCW
41.56.140(2). Commission decisions have found domination or
assistance when an employer involves itself in the internal affairs
or finances of the union, shows a preference between two unions or
groups that are competing for the same bargaining unit, or in
attempts to create, fund or control a "company union." State -
Labor and Industries, Decision 9348 (PSRA, 2006). The union
maintains the burden of proving the allegations of its complaint by
a preponderance of the evidence. WAC 391-45-270(1)(a). Thus, in
unfair labor practice complaints alleging domination or assistance
violations, the union must prove the employer intended to assist one
union to the detriment of another. Community College District 13 -
Lower Columbia, Decision 8117-B (PSRA, 2005).
Application of Standard
The union argues that the employer showed preference to the
Lieutenants and Captains Association by relying on the last chance
agreement entered into between the association and the employer to
pass over Sprague for a promotion. From the stipulations provided,
the union did not prove that the employer relied upon the last
chance agreement for passing Sprague over for the promotion.
Rather, the employer relied upon the Civil Service Rules for its
reason to deny Sprague the promotion. There is no evidence provided
that the employer showed any preference for the Lieutenants and
Captains Association. No evidence was provided to show that the
employer's decision to pass over Sprague for the promotion based on
the Civil Service Rules was intended to or did in fact assist the
Lieutenants and Captains Association. Therefore, this issue is also
dismissed.
FINDINGS OF FACT
1. The City of Spokane is a public employer within the meaning of
RCW 41.56.030(1) and has established a Civil Service Commission
pursuant to Chapter 41.12 RCW. That Civil Service Commission
has established rules which cover, among other subjects,
promotions from rank to rank within the police department.
2. The Spokane Police Guild, a bargaining representative within
the meaning of RCW 41.56.030(3), is the exclusive bargaining
representative of all commissioned police employees up through
the rank of sergeant.
3. The parties to this charge of unfair labor practices agreed
that there were no disputed facts in their allegations and
therefore submitted joint stipulations in lieu of a hearing.
4. The City of Spokane and Spokane Police Guild are parties to a
collective bargaining agreement through December 31, 2009.
5. On December 31, 2007, Detective Sprague was the next employee
to be promoted on the lieutenant's promotional list established
by the employer's Civil Service Commission.
6. On May 4, 2008, the employer passed over Sprague for a
promotion and promoted another employee on the civil service
list pursuant to Civil Service Rule V, Section 4.
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 Examiner granted a joint request to accept the parties'
stipulated facts in lieu of a hearing under WAC 10-08-135.
3. The employer did not refuse to bargain or interfere with
employee rights violating RCW 41.56.140(1) or (4) by using its
Civil Service Rules to pass over Sprague for a promotion.
4. The employer did not assist the Lieutenants and Captains
Association violating RCW 41.56.140(2) by using the Civil
Service Rules to pass over Sprague for a promotion.
ORDER
The complaint charging unfair labor practices filed in the
above-captioned matter is DISMISSED.
ISSUED at Olympia, Washington, this 9th day of February, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CHRISTY YOSHITOMI, 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.