Seattle School District, Decision 10328 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
SEATTLE-KING COUNTY BUILDING )
AND CONSTRUCTION TRADES COUNCIL, )
)
Complainant, ) CASE 22140-U-08-5642
)
vs. ) DECISION 10328 - PECB
)
SEATTLE SCHOOL DISTRICT, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Robblee Brennan & Detwiler, by Daniel R. Hutzenbiler, Attorney
at Law, for the union.
John M. Cerqui, Senior Assistant General Counsel, for the
employer.
On December 4, 2008,(fn:1) the Seattle-King County Building and
Construction Trades Council(fn:2) (union) filed an unfair labor
practice complaint against the Seattle School District (employer).
The complaint alleges the employer discriminated and interfered with
employee rights in violation of RCW 41.56.140(1) when it (1)
terminated Roger Mayfield's employment in retaliation for engaging
in union activities and (2) failed to maintain the status quo under
WAC 391-25-140(2) while a representation petition was pending before
the Public Employment Relations Commission. The Commission
appointed Jamie L. Siegel as the Examiner and I held a hearing on
January 13, 2009. The parties filed post-hearing briefs on February
4, 2009.
____________________
fn:1 All dates refer to 2008 unless otherwise noted.
fn:2 The union comprises 12 affiliate labor organizations and
represents the following job classifications: asbestos worker,
bricklayer, carpenter, carpet layer, electrician, electronic tech,
glazier, laborer, painter, plasterer, plumber/steamfitter, rigger,
roofer, and sheet metal.
ISSUES
1. Did the employer discriminate against Roger Mayfield or
interfere with employee rights when it terminated his
employment for possession of sexually explicit material at work
and excessive use of work time and resources for non-business
purposes?
2. Did the employer discriminate or interfere with employee rights
by failing to maintain the status quo while a representation
petition was pending when it terminated Mayfield's employment
and when it transferred the work he had performed to the
glazier job classification?
The employer did not discriminate or interfere with employee rights
when it terminated Mayfield's employment or when it temporarily
transferred the work he had performed to the glazier job
classification. The union failed to establish a causal connection
between Mayfield's union activities and his termination from
employment.
ISSUE 1 - DISCRIMINATION - TERMINATION
APPLICABLE LEGAL STANDARDS
An employer unlawfully discriminates when it takes action against an
employee 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 union maintains the burden of proof in
employer discrimination cases. To prove discrimination, the union
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.
To prove an employer's motivation for an adverse employment action
was discriminatory, the union must establish that the employer had
knowledge of the employee's union activities. Metropolitan Park
District of Tacoma, Decision 2272, aff'd, Decision 2272-A (PECB,
1986). Ordinarily, the union may use circumstantial evidence to
establish its prima facie case because an employer does not
typically announce a discriminatory motive for its actions. Clark
County, Decision 9127-A (PECB, 2007).
Where the union establishes a prima facie case, it creates a
rebuttable presumption of discrimination. In response to a union's
prima facie case of discrimination, the employer need only
articulate non-discriminatory reasons for its actions. 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 union 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
union 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.
ANALYSIS
Roger Mayfield worked in the employer's shade shop for over 20
years. He made and repaired window shades and projection screens
and re-upholstered cots for school health rooms. He served as the
shade shop's only employee. No labor organization represents the
shade shop position.
On October 7, Mark Pflueger, Maintenance Manager, and Marc Walsh,
Maintenance Services Supervisor, conducted visual inspections of
several employee work vehicles and shops to assess cleanliness.(fn:3)
Looking through the windows, they inspected Mayfield's work vehicle
and found it to be in disarray. They retrieved the keys to the
locked vehicle and looked inside. They found garbage, old work
orders, shop materials, and tools on the floor of the vehicle. Upon
inspecting Mayfield's shop, they found it in a similar state of
disarray and also found what appeared to be a sleeping area with a
cot behind screens that hid it from view of the shop entrance.
Pflueger, concerned about the completion of Mayfield's work orders,
instructed Walsh to inventory the shop prior to Mayfield's return
from leave.(fn:4)
____________________
fn:3 Mayfield reports to Walsh; Walsh reports to Pflueger.
fn:4 Mayfield was on leave for a non-work related matter on October
7 and October 10 through October 31, returning to work on November 3.
On October 27, Pflueger learned that Walsh had not inventoried
Mayfield's shop and insisted that Walsh do so that day. Walsh,
along with the supervisor for the electronics shop,(fn:5) went to the
shade shop to fulfill Pflueger's direction. While in the shop,
Walsh found sexually explicit magazines and two wooden dowels carved
in the shape of penises; he contacted Pflueger. Pflueger contacted
Jeannette Bliss, Human Resources Manager, and Pflueger and Bliss
worked with security personnel to conduct an investigation. When
security personnel saw that some of the magazines appeared to depict
underage females, they contacted the Seattle Police Department,
concerned that the magazines could constitute child pornography. A
police officer inspected the magazines and determined that the
material was not child pornography. Pursuant to Pflueger's request,
the officer inspected Mayfield's work vehicle; the officer found a
sexually explicit magazine in the vehicle.(fn:6)
____________________
fn:5 The electronics shop supervisor came to assess the feasibility
of installing a surveillance camera for the "sleeping area."
fn:6 The parties do not dispute that the magazines found in the
shop and vehicle were sexually explicit.
After finding the sexually explicit materials, the employer
investigated Mayfield's internet usage. During a two-week period
from September 25 through October 9, Mayfield spent 15.5 hours on
the internet for non-business purposes. He accessed sites relating
to mind control, knives, and guns.
The employer directed Mayfield to a meeting when he returned to work
on November 3. At the meeting, Mayfield denied knowing anything
about the sexually explicit materials. He stated that someone must
have planted the magazines. In addition to the sexually explicit
magazines, the employer found two other magazines in the shop with
Mayfield's home address, a Maxim and a Seventeen.(fn:7) Mayfield
admitted that he brought those two magazines to work. Mayfield also
admitted that he used the internet on work time; he said that he did
not have enough work.
____________________
fn:7 The Maxim was addressed to Mayfield; the Seventeen was
addressed to Mayfield's daughter. These magazines did not contain
sexually explicit materials and the employer did not produce
evidence that possession of them violated employer policies.
By letter to Mayfield dated November 6, Bliss confirmed the date and
time for his pre-disciplinary meeting. The letter advised Mayfield
that the employer was considering terminating his employment due to
the sexually explicit materials and his use of work time and
resources for non-business purposes.
Doug Strand, representative for Laborers Union, Local 242 (laborers
union), one of the union's affiliate labor organizations, came to
the November 10 pre-disciplinary meeting and participated as
Mayfield's advocate. Mayfield again denied knowledge of the
sexually explicit materials. He expressed his belief that Walsh,
his supervisor, planted the magazines in the shop.
At the November 10 meeting, Strand provided the employer with a copy
of its Petition for Investigation of Question Concerning
Representation. The petition seeks a self-determination election
under WAC 391-25-440 to ascertain Mayfield's desire to be included
in the union's existing bargaining unit. The union filed the
petition with the Commission on November 7.
By letter dated November 25, the employer terminated Mayfield's
employment for possession of sexually explicit material at work and
excessive use of work time and resources for non-business purposes.
Union's Prima Facie Case
Employee's Protected Union Activity
On October 30, Mayfield met with Strand and signed a laborers union
authorization card. On November 7, Strand filed the petition with
the Commission; Strand provided the employer a copy of the petition
on November 10. In seeking to join the union, Mayfield engaged in
protected union activity, satisfying the first element of a prima
facie case.
Adverse Employment Action
Mayfield's employment was terminated, satisfying the second element
of a prima facie case.
Causal Connection
Determining whether the union established a causal connection
between Mayfield's protected activity and his termination from
employment requires a more detailed analysis. As part of this
analysis, I review the evidence the union relies on to demonstrate
union animus, assess witness credibility, and discuss the employer's
knowledge of Mayfield's union activities.
Mayfield's version of events and credibility During the course of
the hearing, testimony and exhibits revealed significant
inconsistencies in Mayfield's version of events. The following
provide examples:
* In the November 3 meeting, Mayfield said that he had no
knowledge of the sexually explicit magazines in his shop and
vehicle. He said someone must have planted them.(fn:8)
____________________
fn:8 The parties introduced evidence of the employer's
investigation through testimony and exhibits, including the November
6 and 25 letters to Mayfield as well as Bliss' notes from the
November 3 and 10 meetings with Mayfield.
* In the November 10 meeting, Mayfield again disavowed knowledge
of the sexually explicit magazines and said that Walsh must
have planted them.
* The morning of the hearing Mayfield testified that in April he
found the magazines in a white bag left on his chair. A yellow
sticky note on the bag bore the message "thought you might want
to look at these." When counsel asked Mayfield why he had not
told Bliss about the bag, he responded that he had, that he
thought he told her about it during the first meeting.
* The afternoon of the hearing Mayfield testified again and
revealed that he thought he knew who left the bag of sexually
explicit magazines and testified that he told Walsh who it was
and thought he shared that information with Bliss in the
November 10 meeting. Mayfield testified:
I definitely mentioned the white bag to Marc Walsh. He
and I talked, and he was - he was doing this thing where
he was switching sides, acting like he was my friend and
then playing as if he was management. So I told him, I
said, you know it's not mine. I said, you know exactly
where it came from. I told him who I thought it was and
everything.
* In response to a question why he would take his daughter's
Seventeen magazine to work with him, Mayfield testified,
"There's good reading in the magazine."
* When the employer confronted Mayfield with his internet use at
the meetings on November 3 and 10, he responded that he did not
have enough work to do and that was why he was spending time on
the internet. Yet, in the context of describing his interest
in joining the union, Mayfield testified at hearing about being
overwhelmed with work and how his workload was too much for one
person.
What I find the most concerning is the inconsistency between
Mayfield initially telling the employer that he knew nothing about
the sexually explicit magazines and his testimony at hearing that he
found the magazines in a white bag on his chair many months before
the employer found the magazines in his work shop and vehicle.(9)
After fully considering the totality of the evidence, including
witness testimony and demeanor, I find that Mayfield's testimony
lacked credibility.
____________________
fn:9 Bliss and Pflueger unequivocally and credibly testified that
the first time they heard anything about Mayfield finding the
magazines in a white bag was when he testified the morning of the
hearing. During the November 3 and 10 meetings, Mayfield reported
that he knew nothing about the magazines. This is documented in
Bliss' notes and in the letters to Mayfield from Bliss dated
November 6 and 25.
Employer knowledge of union activity, Walsh's alleged animus
Mayfield testified that he first started talking with other
employees about possibly joining the union in the spring of 2008.
He said that he was overwhelmed with work and did not think one
person could do all of the shade shop work. A bargaining unit
employee agreed with him and told him that joining the union would
help.
Mayfield testified that on October 9, he told Walsh he was thinking
of joining the union; he said that he shared this at his evaluation
meeting.(fn:10) Mayfield testified that Walsh said he did not need to
join the union, that he was covered and had nothing to worry about.
Mayfield said that when he specified to Walsh that it was the
laborers union he was thinking about joining, Walsh "kind of snarled
about that and said that I didn't want to join the laborers, I
didn't want to have to deal with that fucking Doug Strand."
Mayfield testified to a subsequent telephone conversation with Walsh
where Walsh allegedly said that Mayfield did not want to be a part
of the laborers union, that all they wanted to do was to take over
the shop.
____________________
fn:10 The evidence reflects that the evaluation/expectations
meeting took place on September 26.
Walsh denied these conversations. He testified that he learned of
Mayfield's interest in joining the union from Pflueger the second or
third week of November. He denied advising Mayfield against joining
a union or talking about Strand. In fact, Walsh testified he helped
Mayfield gain representation for his November 10 pre-disciplinary
meeting with the employer. Walsh explained that he offered to sit
in with Mayfield and, after talking with Robert Chiovarie, another
employee, he contacted Mayfield and told him that Lee Newgent, the
union's assistant to the executive secretary, may be able to sit in
with him. Chiovarie, who serves as the maintenance foreman for the
asbestos shop and union representative for one of the union's
affiliate labor organizations, corroborated Walsh's testimony about
a conversation they had concerning representation for Mayfield's
meeting. In response to counsel's question whether Walsh at any time
seemed hostile to the idea of suggesting Mayfield contact the union,
Chiovarie responded "No, he [Walsh] felt that he [Mayfield] needed
representation."
I credit Walsh's testimony. I do not find that Mayfield told Walsh
of his interest in joining the union or that Walsh made the alleged
statements about the laborers union or Strand.
Even if I found that Walsh knew of Mayfield's interest in joining
the union and that he made the alleged statements about the laborers
union and Strand, the result would not change. As the Commission
stated in Grant County Public Hospital District 1, Decision 8378-A
(PECB, 2004): "Activities, statements, and knowledge of a
supervisor are properly attributable to employers when the
respondent does not establish a basis for negating the imputation of
knowledge."
In this case, the employer established a basis for negating any
imputation of knowledge. Bliss, Pflueger, and Lynn Good, Senior
Facilities Manager and Pflueger's supervisor, made the decision to
terminate Mayfield's employment. When Bliss issued the
pre-disciplinary meeting notice on November 6 advising Mayfield that
the employer was considering terminating his employment, neither
she, Pflueger, nor Good knew that Mayfield had engaged in protected
activity. Bliss and Pflueger learned of Mayfield's protected
activity at the November 10 pre-disciplinary meeting; Good learned
of it from Bliss or Pflueger after the meeting. Bliss, Pflueger,
and Good testified clearly and convincingly on this point. Even if
Walsh harbored union animus, the evidence does not support that any
such animus impacted the decision-makers.
At the point the employer ultimately decided to terminate Mayfield's
employment and issued the November 25 termination notice, the
decision-makers knew that Mayfield had engaged in protected union
activity.
Additional allegation of Walsh's animus Although the union
acknowledges Walsh did not play a role in the employer's
decision-making process, the union asserts that Walsh was biased
against the laborers union and the bias infected the employer's
investigatory process. The record contains insufficient evidence to
support the union's argument.
As discussed above, I do not find that Walsh made negative
statements about the laborers union or Strand. The union also seeks
to establish union animus through a comment Walsh allegedly made to
an employee. Strand is the only person who testified about the
alleged statement and he did not hear it directly. Instead, Strand
testified that he heard about the statement from Newgent who heard
about it from an employee. Walsh allegedly said words to the effect
that the employees better enjoy what they have now because during
the next negotiations there aren't going to be any unions down
there.(fn:11)
____________________
fn:11 This alleged statement is the basis of another unfair labor
practice complaint filed by the union in a separate case.
Alone, this hearsay carries little, if any, evidentiary weight.
Strand also testified that he heard Walsh talk about the statement
at a labor-management meeting when Newgent raised the statement as
an issue. Strand testified that Walsh first denied making the
statement in the manner alleged, he then acknowledged making the
statement but asserted freedom of speech, and then, ultimately, he
apologized. According to Strand, when Walsh asserted freedom of
speech, management representatives rolled their eyes.
Although Strand's testimony concerning what he personally heard
enhances the reliability of the evidence concerning the alleged
statement, it still falls short of establishing animus. In response
to questioning, Walsh testified that he had not made any statements
that he considered anti-union in the past year. Neither party
directly asked Walsh about the alleged statement or about the
discussion of the statement at the labor-management meeting.
Neither the employee who heard the alleged statement nor Newgent
testified at hearing. As a result, with the limited evidence
presented on this point, the union did not establish that Walsh was
biased or made a statement demonstrating union animus.
Good's alleged animus and credibility The union specifically
attributes union animus to statements made by Lynn Good. The
union's brief asserts: "Good did not believe laborers were
sufficiently skilled to perform the work."
Good's statements relate to the assignment of the shade shop work
after Mayfield's termination from employment. In a meeting between
Good and Strand after Mayfield's termination, Good shared his
perspective that the shade shop work was "skilled work" that bore
the closest relationship to glazier or carpenter work. Good
testified similarly at hearing. He testified that glaziers do
window work and are involved in the need for shades. The glaziers
previously rebuilt shades and helped to install them. Good
testified that there is a certain amount of skill required in
fabricating shades and he did not believe the laborers were the
right group to do the work.
Although I agree with the union's characterization that Good did not
believe that the laborer job classification was sufficiently skilled
to perform the shade shop work, I do not find Good's belief or
statements evidence union animus or bias against the laborers union.
Good engaged in discussion concerning which job classification to
assign the historically unrepresented shade shop work. He drew
distinctions between the types of work several of the different job
classifications perform. In such discussions, it makes sense for an
employer and/or union to talk about the skills required to perform
the work and the skills held by employees in different job
classifications.(fn:12) Good demonstrated no union animus or bias
toward the laborers or toward the union.
____________________
fn:12 Pursuant to RCW 41.56.060, when the Commission determines the
appropriateness of a bargaining unit, it considers the duties,
skills and working conditions of the employees, in addition to other
factors.
No causal connection The union failed to establish that Mayfield's
union activities played any role in the employer's decision to
terminate his employment. Having found no merit to the union's
allegations that Walsh or Good demonstrated union animus, the union
is left with the timing of the termination.
Although the timing of adverse actions in relation to protected
union activity can create an inference of a causal connection, in
this case, the timing creates no such inference. The employer began
the investigation into Mayfield's conduct prior to learning of his
union activity. The bulk of the employer's investigation took place
on October 27; Mayfield signed the authorization card on October 30.
The evidence establishes that it was not until the pre-disciplinary
meeting that the employer learned of the union's petition. By that
time, the employer had already informed Mayfield in writing that it
was considering terminating his employment. Having given Mayfield
an opportunity to formally respond to the allegations, the employer
followed through with the termination action it was already
considering.
"Proximity between a union activity and a discipline issued by an
employer does not alone establish a prima facie case of
discrimination, however." Port of Seattle, Decision 10097-A (PECB,
2009). In this case, the union established nothing more than
proximity.
Although I find that the union failed to establish a prima facie
case of discrimination, I complete the full analysis below.
Employer's Non-Discriminatory Reason for Action
In discrimination cases, the employer need not prove just cause for
its action. Instead, the employer need only produce legitimate,
non-discriminatory reasons for its action. In this case, the
employer terminated Mayfield's employment because he possessed
sexually explicit materials in his work area and vehicle and because
he spent excessive amounts of work time using the internet for
non-business purposes. The employer articulated legitimate,
non-discriminatory reasons for its termination decision.
Union's Ultimate Burden of Proof
The union bears the ultimate burden of establishing that the
employer's reason for termination was pretext or that union animus
was a substantial motivating factor in the employer's decision. The
union argues both, that the employer's stated reason was pretext and
that Mayfield's union activity was a substantial factor in the
employer's termination decision. The union fails to establish either.
No Pretext
The union argues that because other employees have been less
severely disciplined for similar conduct, the employer's reason for
terminating Mayfield's employment must be pretext, particularly
given Mayfield's long employment history with a spotless
disciplinary record.
The parties produced evidence of the employer's disciplinary actions
for employees possessing sexually explicit material and for
employees using the internet for non-business purposes, including
accessing pornography. The union focused on the discipline of
several employees, including October 2006 letters of direction
issued to four employees and a 2004 employee demotion and last
chance agreement. The evidence also demonstrated the employer
discharged employees for internet pornography in January 2006,
September 2006, and July of 2007.
The employer credibly addressed the issue of inconsistent
disciplinary actions. Lynn Good testified that when he began
working for the employer in 2006, he found inconsistencies in how
the employer addressed discipline issues involving sexually explicit
materials. As a result, he helped to develop Bulletin 2006-01, a
policy prohibiting the intentional possession, storage, access, or
display of sexually explicit material on the employer's property.
The bulletin, which was sent to all employees with e-mail access in
November of 2006, includes the statement: "The possession of
material that is sexually explicit or depicts sexually explicit
conduct is serious misconduct and is cause to terminate an
employee's employment." Since implementation of this policy in
November of 2006, one employee besides Mayfield faced discipline for
sexually explicit material; that employee was discharged in 2007.
The union accurately points out that the employer's policy does not
mandate termination; the employer maintains discretion under the
policy to take less severe disciplinary action. In this case, the
employer decided that Mayfield's conduct warranted termination from
employment. The union failed to establish that the employer's
stated reasons constitute pretext.
Animus Not Substantial Motivating Factor
As stated earlier, the union failed to establish union animus on the
part of either Walsh or Good. The union did not specifically allege
bias or union animus on the part of Bliss or Pflueger and nothing in
the record even hints at bias or union animus. Union animus played
no role in the employer's decision to terminate Mayfield's
employment.
CONCLUSION
I conclude that the employer terminated Mayfield's employment
because he possessed sexually explicit material at his work site in
violation of the employer's policies and because he used work time
and resources for non-business purposes. The union failed to prove
that Mayfield's protected union activities were a substantial
motivating factor or that the employer's reasons for termination
were pretextual.
Because I dismiss the discrimination allegations of the complaint, I
also dismiss the interference allegations. The Commission does not
find an independent interference violation based upon the same facts
where a discrimination allegation is dismissed. Reardan-Edwall
School District, Decision 6205-A (PECB, 1998).
ISSUE 2 - DISCRIMINATION - STATUS QUO
As stated in the preliminary ruling which frames the issues in this
case, the union alleges that the employer discriminated or
interfered with employee rights by failing to maintain the status
quo when it terminated Mayfield's employment and when it transferred
the work he had performed to the glaziers. The union does not
allege the employer refused to bargain changes to the status quo or
that it skimmed bargaining unit work. Instead, this issue focuses
on whether alleged changes to the status quo constitute
discrimination or interference.
APPLICABLE LEGAL STANDARDS
Once a union files a representation petition, the employer must
maintain the status quo and cannot take unilateral action regarding
wages, hours, or working conditions. Snohomish County Fire District
3, Decision 4336-A (PECB, 1994). WAC 391-25-140(2) specifies:
"Changes of the status quo concerning wages, hours or other terms
and conditions of employment of employees in the bargaining unit are
prohibited during the period that a petition is pending before the
commission under this chapter." This rule applies from the date the
petition is filed up to the point that the petition fails or the
bargaining unit is certified. Val Vue Sewer District, Decision 8963
(PECB, 2005). An individual's employment status is not part of the
status quo that employers must maintain. City of Seattle, Decision
9938-A (PECB, 2009).
ANALYSIS
To prevail on this issue, the union must first establish that the
employer failed to maintain the status quo as required by WAC
391-25-140(2). If the union establishes the employer failed to
maintain the status quo, the union bears the burden of proving that
the employer's failure to maintain the status quo was
discriminatory.
Status Quo - Mayfield's Employment
Effective November 10, when the union served its petition on the
employer, the employer was obligated to make no unilateral change
concerning wages, hours, or other terms and conditions of Mayfield's
employment. Consistent with City of Seattle, Decision 9938-A, this
status quo obligation did not include maintaining Mayfield's
employment while the representation petition was pending. As a
result, the union's argument fails.
Status Quo - Assignment of Shade Shop Work
The evidence demonstrates that the shade shop has been unrepresented
for over 20 years. Although testimony revealed that glaziers have
previously rebuilt shades and helped to install them, the evidence
does not clearly establish the time frame, frequency, or duration of
glaziers performing this work.
After terminating Mayfield's employment, the employer did not take
unilateral action to permanently assign the shade shop work to
glaziers. The undisputed testimony revealed that during a meeting
on December 1 attended by Bliss, Good, and Newgent, Good brought up
the idea of assigning the shade shop work to the glaziers.(fn:13)
Although Newgent did not specifically agree to the assignment, he
did not object. Based upon that discussion, Good assigned the
previously unrepresented shade shop work to the glaziers. As soon
as Good learned that the union had concerns with the assignment, the
employer ceased assigning the work to the glaziers. The evidence
established that the glaziers performed the shade shop work from
December 8 through December 10.
____________________
fn:13 The bargaining unit includes the glazier job classification.
Under the specific facts of this case, I do not find that the
employer violated its obligation under WAC 391-25-140.
Discrimination
Even if the union established that the employer unilaterally changed
the status quo by assigning the previously unrepresented work to the
glaziers, the union has not established that the employer's actions
were discriminatory. The crux of the union's complaint appears to
be that the employer assigned the work to "a union other than the
one that filed the petition."
The union lists "Sea Bldg Trades/Laborers Local 242" on the
petition. The Commission's Notice to employees that the employer
was required to post consistent with WAC 391-25-140 identifies
"Seattle/King County Building and Constructions Trades Council" as
the union seeking to represent Mayfield. The employer temporarily
assigned previously unrepresented work to bargaining unit employees.
As discussed earlier in this decision, the employer demonstrated a
reasoned approach to its assignment of the work to the glaziers.
The union failed to establish any type of bias or animus behind the
employer's decision to assign the shade shop work to a group other
than the laborers. Furthermore, once the union raised objection to
the assignment, the employer ceased the assignment.
FINDINGS OF FACT
1. The Seattle School District is a public employer within the
meaning of RCW 41.56.030(1).
2. The Seattle-King County Building and Construction Trades
Council is a bargaining representative within the meaning of
RCW 41.56.030(3) comprising 12 affiliate labor organizations,
including the Laborers Union, Local 242. The bargaining unit
includes the following job classifications: asbestos worker,
bricklayer, carpenter, carpet layer, electrician, electronic
tech, glazier, laborer, painter, plasterer,
plumber/steamfitter, rigger, roofer, and sheet metal.
3. Roger Mayfield was a public employee within the meaning of RCW
41.56.030(2) whose position was not represented by a union.
4. Mayfield worked as the only employee in the employer's shade
shop for over 20 years. Until his employment was terminated,
the employer had never disciplined him.
5. Mayfield signed a laborers union authorization card on October
30, 2008. The union filed a Petition for Investigation of
Question Concerning Representation with the Commission on
November 7. The petition seeks a self-determination election
under WAC 391-25-440 to ascertain Mayfield's desire to be
included in the union's existing bargaining unit.
6. In seeking to join the union, Mayfield engaged in protected
union activity.
7. Mark Pflueger serves as the employer's Maintenance Manager, and
Marc Walsh serves as the employer's Maintenance Services
Supervisor. Walsh supervises Mayfield and Pflueger supervises
Walsh.
8. On October 7, after discovering Mayfield's work shop and work
vehicle were in disarray, Pflueger instructed Walsh to
inventory the work shop. When that had not been done by
October 27, Pflueger insisted that Walsh complete the work on
that day.
9. On October 27 when Walsh went to inventory Mayfield's work
shop, Walsh discovered sexually explicit magazines and two
wooden dowels carved in the shape of penises. He informed his
supervisor, Pflueger.
10. Pflueger contacted Jeannette Bliss, the employer's Human
Resources Manager, and Pflueger and Bliss worked with security
personnel to conduct an investigation.
11. The employer's investigation also revealed that during a
two-week period from September 25 through October 9, Mayfield
spent 15.5 hours on the internet for non-business purposes.
12. The employer met with Mayfield on November 3. At the meeting,
Mayfield denied knowing anything about the sexually explicit
materials and stated that someone must have planted the
magazines. He admitted that he used the internet on work time,
stating that he did not have enough work.
13. By letter to Mayfield dated November 6, Bliss confirmed the
date and time for his pre-disciplinary meeting and advised
Mayfield that the employer was considering terminating his
employment due to the sexually explicit materials and his use
of work time and resources for non-business purposes. At this
time, Bliss had no knowledge of Mayfield's interest in joining
the union.
14. Doug Strand, representative for Laborers Union, Local 242, one
of the union's affiliate labor organizations, came to the
November 10 pre-disciplinary meeting and participated as
Mayfield's advocate.
15. At the November 10 pre-disciplinary meeting, Mayfield again
denied knowledge of the sexually explicit materials. He
expressed his belief that Walsh planted the magazines in the
shop.
16. At the November 10 pre-disciplinary meeting, Strand provided
the employer with a copy of its Petition for Investigation of
Question Concerning Representation. The petition seeks a
self-determination election to ascertain Mayfield's desire to
be included in the union's existing bargaining unit.
17. By letter dated November 25, the employer terminated Mayfield's
employment for possession of sexually explicit material at work
and excessive use of work time and resources for non-business
purposes.
18. During the course of the hearing, testimony and exhibits
revealed significant inconsistencies in Mayfield's version of
events. Mayfield's testimony lacked credibility.
19. Mayfield did not inform Walsh of his interest in joining the
union.
20. Walsh did not make the statements about the laborers union or
Strand that Mayfield attributed to him.
21. The union did not establish that Walsh was biased or made a
statement demonstrating union animus toward the laborers or
toward the union.
22. The union did not establish that Good was biased or made
statements demonstrating union animus or bias toward the
laborers or toward the union.
23. Bliss, Pflueger, and Lynn Good, Senior Facilities Manager, made
the decision to terminate Mayfield's employment. Until
receiving the petition on November 10, Bliss and Pflueger had
no knowledge of Mayfield's interest in joining the union; Good
learned of Mayfield's interest at some point after the November
10 meeting.
24. When the employer made the ultimate decision to terminate
Mayfield's employment and issued the November 25 termination
notice, Bliss, Pflueger, and Good knew that Mayfield had
engaged in protected union activity.
25. Mayfield's union activity played no role in the employer's
decision to terminate his employment. No causal connection
exists between Mayfield's union activities described in Finding
of Fact 5 and the employer's termination of his employment
described in Finding of Fact 17.
26. Lee Newgent serves as the union's assistant to the executive
secretary.
27. On December 1, 2008, during a meeting between Newgent, Bliss,
and Good, Good brought up the idea of assigning the shade shop
work to the glaziers. Newgent did not object.
28. Based upon the conversation on December 1, 2008, Good assigned
the shade shop work to the glaziers who are part of the
bargaining unit. He ceased the assignment when the union
objected.
29. The employer did not take unilateral action to permanently
assign the shade shop work to glaziers and its action did not
amount to a change in the status quo.
30. The union failed to establish any type of bias or animus behind
the employer's decision to assign the shade shop work to a
group other than the laborers.
31. The employer articulated legitimate, nondiscriminatory reasons
for its termination decision and the union failed to establish
that they were pretext for discrimination.
32. The union failed to establish that Mayfield's protected union
activities were a substantial motivating factor for his
termination.
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. By terminating Roger Mayfield's employment as described in
Finding of Fact 17, the Seattle School District did not
discriminate against Mayfield or interfere with employee rights
in violation RCW 41.56.040 or RCW 41.56.140(1).
3. By terminating Roger Mayfield's employment and temporarily
transferring the work Mayfield had previously performed to the
glaziers as described in Findings of Fact 17 and 28, the
Seattle School District did not fail to maintain the status quo
as required by WAC 391-25-140(2) and did not discriminate
against Mayfield or interfere with employee rights in violation
of RCW 41.56.040 or 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 9th day of March, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
JAMIE L. SIEGEL, 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.