Seattle School District, Decision 10410 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL UNION OF OPERATING )
ENGINEERS LOCAL 609, )
)
Complainant, ) CASE 21876-U-08-5571
)
vs. ) DECISION 10410 - PECB
)
SEATTLE SCHOOL DISTRICT, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Schwerin, Campbell Barnard Iglitzin & Lavitt, LLP byKathleen
Phair Barnard, Attorney at Law, for the union.
Freimund, Jackson & Tardif, LLP by Gregory E. Jackson, for the
employer.
On July 18, 2008, the International Union of Operating Engineers,
Local 609 (union), filed a complaint charging unfair labor practices
with the Public Employment Relations Commission naming the Seattle
School District (employer) as respondent. The union alleges that
the employer interfered with employee rights and refused to bargain
in good faith when it failed to respond to a request for information
concerning the termination of a bargaining unit member. A
preliminary ruling was issued that the union's complaint stated a
cause of action under RCW 41.56.140(1) and (4). The employer filed
an answer and Examiner Robin A. Romeo conducted hearings in the
matter on November 17, 2008, and December 11, 2008. The parties
filed post-hearing briefs.
ISSUE PRESENTED
1. Did the employer interfere with employee rights and refuse to
bargain in violation of RCW 41.56.140(1) and (4) when it failed
to provide information requested by the union during an
investigation into allegations of misconduct and in processing
the grievance following the termination of a bargaining unit
member?
2. If the above violations are found, is an award of attorney fees
to the union appropriate?
Based upon the record as a whole, the Examiner finds that the
employer violated RCW 41.56.140(1) and (4) when it failed to provide
information requested by the union during the investigation of
allegations of misconduct and in processing the grievance concerning
the termination of a bargaining unit member. The failure to provide
information is found to be a continuing course of conduct by the
employer and therefore, an award of attorney's fees is appropriate.
ANALYSIS
The Failure to Provide Information
The Public Employees' Collective Bargaining Act, Chapter 41.56 RCW,
governs the bargaining relationship between the union and the
employer. RCW 41.56.030(4) defines "collective bargaining" and
requires the parties to "to meet at reasonable times, to confer and
negotiate in good faith."
Information Request Standards
The Commission has repeatedly held that the parties' duty to bargain
in good faith:
includes a duty to provide relevant, necessary information
requested by the opposite party to a collective bargaining
relationship for the proper performance of its duties in the
collective bargaining process. . . . The duty to provide
information turns on the circumstances of a particular case.
King County, Decision 6994-B (PECB, 2002) (numerous citations omitted).
The Commission has also held that the good faith bargaining
obligation requires each party to negotiate and attempt to find a
resolution when disagreements arise over the production of information:
The party receiving an information request has a duty to
explain any confusion about, or objection to, the request and
then negotiate with the other party toward a resolution
satisfactory to both. . . . This is consistent with viewing
the duty to provide information as part of an ongoing and
continuous obligation to bargain.
King County, Decision 6994-B.
In other words, an employer can't simply deny or refuse to provide
the requested information but must request clarification and
negotiate over it's objection to produce documents. City of
Bremerton, Decision 5079 (PECB, 1995); City of Tacoma, Decision 5284
(PECB, 1995).
Good Faith Standards
In analyzing a claim that a party committed an unfair labor
practice, "[t]he Examiner's task . . . is to determine whether the
employer's conduct fell below the standard of 'good faith' that is
imposed on both sides of the bargaining table. The Commission looks
to the 'totality of the circumstances' in determining whether a
party has engaged in unlawful bargaining tactics." City of
Wenatchee, Decision 8028 (PECB, 2003) (citing City of Mercer Island,
Decision 1457 (PECB, 1982); Walla Walla County, Decision 2932-A
(PECB, 1988)).
Interference Standards
Interference violations will be found when an employee could
reasonably perceive the employer's actions as a threat of reprisal
or force or as a promise of benefit associated with the union
activity of that employee or other employees. City of Seattle,
Decision 3066-A (PECB, 1989). A "derivative" or automatic
interference violation will be found where an employer has been
found guilty of an unfair labor practice by domineering or assisting
a union, discriminating against an employee for engaging in union
activity or where an employer fails to bargain. Washington State
Patrol, Decision 4757-A, (PECB, 1995).
The complaining party carries the burden of proof by a preponderance
of the evidence that an unfair labor practice was committed.
Whatcom County, Decision 7244-B (PECB, 2004); City of Tacoma,
Decision 6793-A (PECB, 2000); WAC 391-45-270(1)(a).
ANALYSIS
In applying the legal standard to the facts here, a chronology of
the union's information requests is relevant:
In April 2008, Mike McBee, the union's Recording and Correspondence
Secretary, represented an employee, Vercell Jones, during an
investigatory interview concerning allegations of misconduct of
theft through the improper use of an employer gas card.
A second investigatory meeting occurred on May 20, 2008 wherein
McBee requested copies of the policy that Jones was accused of
violating. Three days later, McBee sent an e-mail to Gary Ikeda,
the employer's Chief Legal Officer and Acting Human Resource
Director, requesting the names of all employees accused of theft in
the previous ten years.
On May 30, 2008, Mary Lou Webster, the employer's Labor Relations
Analyst, responded to McBee's request by providing a list of names
of individuals who had been investigated for theft or fraud and the
disposition of those investigations. McBee responded to the
information by stating that the list was incomplete and that he knew
of other individuals who had been investigated for theft or fraud
who were not on the list provided, including Tracey Lott, and
reiterated his original request.
On June 5, 2008, Webster responded by providing McBee with an
expanded list of names. Again, McBee's response was that the list
was incomplete. He informed her that the list did not contain the
names of teachers who were investigated for misuse of sick leave,
thus expanding the request somewhat. On June 13, 2008, McBee
repeated his request in an e-mail to Ikeda, included copies of
previous requests and added the name of another employee, Bob
Griffin, about whom no information had been provided.
On June 18, 2008, the employer terminated Jones. On that same day,
McBee expanded his information request to include any and all data
used by the employer in making the decision to terminate Jones,
including handwritten notes taken at the investigatory interviews.
This request was made to Jeanette Bliss, the employer's Human
Resource Manager.
On June 27, 2008, the informal grievance meeting occurred. During
that meeting Dave Westberg, the union's Business Manager, reiterated
the request for the gas card policy which had been originally
requested, but still had not been received by the union. McBee also
reiterated his request for data concerning teachers accused of
misuse of sick leave. The employer responded to McBee that no such
documents existed. The request was reiterated in a subsequent
e-mail sent by the union.
On July 2, 2008, the employer provided the union with a copy of a
draft gas card policy.
On July 9, 2008, the union grieved the Jones termination and two
days later, on July 11, Westberg e-mailed Ikeda reiterating the
union's request for information.
On July 18, 2008, the instant complaint was filed. Subsequently, in
August 2008, the employer provided the union with data concerning
the teachers alleged misuse of sick leave, the drafts and final
version of the gas card policy, and the information relating to sick
leave on Tracey Lott.
CONCLUSION
The employer has committed an unfair labor practice. It failed to
provide information to the union that it had requested during the
course of the investigation and the subsequent processing of the
grievance concerning the termination of Jones. Between the period
of May 23, 2008, to July 18, 2009, the union, by two of its
representatives, requested in writing and orally, information
concerning the policy alleged to have been violated as well as
information concerning treatment of other employees, namely
teachers, a total of six times with limited responses from the
employer. That was a long enough of a period of time, to determine
that no reasonable response was received. Silence is not an
acceptable method to respond to an information request.
The argument by the employer that it eventually provided the
information and that the delay was reasonable is not persuasive. The
employer was under a duty to notify the union that it had questions
about the information request or that it was in the process of
complying with the request. A delay may have been justified if the
employer had updated the union. Instead, the employer did not
respond at all to the multiple requests to numerous individuals for
a period of over five weeks.
The employer's additional argument was that the union possessed an
Internal Control Audit from 2003, that proved that the information
requested was not relevant, is also without merit. Testimony at the
hearing reinforced the fact that the union was unaware of the
results of the 2003 audit. The employer never communicated this
position to the union and thus never gave the union the opportunity
to respond. Again, the employer had a duty to communicate with the
union and inform them if its position was that the information was
not relevant and allow the union a chance to reply.
The employer's failure to respond was a violation of the employer's
duty to bargain in good faith. The failure to bargain automatically
results in a finding that there has been unlawful interference by
the employer. Skagit County, Decision 8746-A (PECB, 2006).
Attorney's Fees
The union has requested that it be awarded attorney's fees.
Attorney's fees are appropriate when there is a continuing course of
conduct that shows an intentional disregard of the union's
collective bargaining rights. Lewis County, Decision 644-A (PECB,
1979), aff'd, 31 Wn. App. 853 (1982), review denied, 97 Wn.2d 1034
(1982).
From a search of the Commission's records it is apparent that the
instant case is the fourth in a series of complaints filed by this
union concerning the employers' failure to provide information and
that has resulted in the employer having been found to have
committed unfair labor practices.
The first complaint resulted in Seattle School District, Decision
5542-C,(PECB, 1997) wherein the Commission found that the employer
had unlawfully failed to provide information requested by the union
concerning allegations of misconduct against two bargaining unit
members.
The second complaint resulted in Seattle School District, Decision
8976, (PECB, 2005) wherein the employer was found to have failed to
provide the union with documents requested concerning allegations of
misconduct against a bargaining unit member. Attorney's fees were
awarded in that case based on previous decisions where the
Commission had found that the employer had committed a failure to
bargain.
The third complaint resulted in Seattle School District, Decision
9628-A, (PECB, 2008) wherein the Commission again found that the
employer had failed and refused to provide the requested
information.
Those prior cases are evidence of this employer's continuing course
of conduct of failing to provide the union with requested
information necessary to process grievances. The employer was
clearly on notice of the legal requirement to provide information to
the union upon request but disregarded that requirement. The
extraordinary remedy of attorney's fees is therefore appropriate.
FINDINGS OF FACT
1. The Seattle School District is a public employer within the
meaning of RCW Chapter 41.56.030(1).
2. The International Union of Operating Engineers, Local 609, is a
bargaining representative within the meaning of RCW 41.56(3)(3)
and represents a bargaining unit of classified employees at the
Seattle School District.
3. In April 2008 Mike McBee, the union's Recording and
Correspondence Secretary, represented an employee, Vercell
Jones, during an investigatory interview concerning allegations
of misconduct of improper use of a gas card.
4. A second investigatory meeting occurred on May 20, 2008,
wherein McBee requested copies of the policy and procedures
that the employee was accused of violating.
5. Three days later, McBee sent an e-mail to Gary Ikeda, the Chief
Legal Officer and Acting Human Resource Director, requesting
the names of all employees accused of theft in the previous ten
years.
6. One week later, on May 30, 2008, Mary Lou Webster, Labor
Relations Analyst, responded to McBee's request for names by
providing him a list of names of individuals who had been
investigated for theft or fraud and the disposition.
7. McBee responded to the request by stating that he knew of other
individuals who had been investigated for theft or fraud who
were not on the list provided and reiterated his request.
8. On June 5, 2008, Webster responded by providing McBee with an
expanded list of names. Again, McBee's response was that the
list was incomplete. He informed her that the list did not
contain the names of teachers who were investigated for misuse
of sick leave.
9. On June 13, 2008, McBee repeated his request in an e-mail to
Ikeda, included copies of previous requests and added the name
of another employee about whom no information had been provided.
10. On June 18, 2008, the employer terminated Vercell Jones. On
that same day, McBee expanded his information request to
include any and all data used by the employer in making the
decision to terminate, including handwritten notes taken at the
investigatory interviews. The request was made to Jeanette
Bliss, Human Resource Manager.
11. On June 27, 2008, the informal grievance meeting occurred.
During that meeting, Dave Westberg, the union's Business
Manager, reiterated the request for the gas card policy which
still had not been received by the union. McBee also
reiterated his request for data concerning teachers accused of
misuse of sick leave. The employer responded to McBee that no
such documents existed. The request was reiterated in a
subsequent e-mail.
12. On July 2, 2008, the employer provided the union with a copy of
a draft gas card policy.
13. On July 9, 2008, the union grieved the termination and two days
later, On July 11, Westberg e-mailed Ikeda reiterating the
union's request for information. On July 18, 2008, the instant
complaint was filed.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter pursuant to Chapter 41.56 RCW and Chapter 391-45
WAC.
2. By failing and refusing to provide the union with information
requested concerning the investigation and processing of the
grievance of Vercell Jones, Seattle School District committed
unfair labor practices in violation of RCW 41.56.140(1) and (4).
3. By the actions described in the foregoing Findings of Fact, the
Seattle School District acted in a manner warranting an award
of attorney fees consistent with the Commission's remedial
authority granted by RCW 41.56.160.
ORDER
Seattle School District, its officers and agents, shall immediately
take the following actions to remedy its unfair labor practices:
1. CEASE AND DESIST from:
a. Refusing to provide the International Union of Operating
Engineers, Local 609, information requested to process the
grievance of Vercell Jones.
b. In any other way manner interfering with, restraining, or
coercing its employees in the exercise of their collective
bargaining rights secured by the laws of the State of
Washington.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the
purposes and policies of Chapter 41.56 RCW:
a. Reimburse the International Union of Operating Engineers,
Local 609, for all attorney fees and expenses related to
this complaint.
b. Respond to future requests for information from the union
in a timely manner.
c. Post copies of the notice attached to this order in
conspicuous places on the employer's premises where
notices to all bargaining unit members are usually posted.
These notices shall be signed by an authorized
representative of the union, and shall remain posted for
60 consecutive days from the date of initial posting. The
union shall take reasonable steps to ensure that such
notices are not removed, altered, defaced, or covered by
other material.
d. Read the notice attached to this order into the record at
a regular public meeting of the Seattle School Board, and
permanently append a copy of the notice to the official
minutes of the meeting where the notice is read as
required by this paragraph.
e. Notify the complainant, in writing, within 20 days
following the date of this order, as to what steps have
been taken to comply with this order, and at the same time
provide the complainant with a signed copy of the notice
attached to this order.
f. Notify the Compliance Officer of the Public Employment
Relations Commission, in writing, within 20 days following
the date of this order, as to what steps have been taken
to comply with this order, and at the same time provide
the Compliance Officer with a signed copy of the notice
attached to this order.
ISSUED Olympia, Washington, on the 14th day of May, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
ROBIN A. ROMEO, Examiner
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.
CASE 21876-U-08-5571
DECISION 10410 - PECB
PUBLIC EMPLOYMENT RELATIONS COMMISSION
NOTICE
TO EMPLOYEES
THE WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION CONDUCTED A LEGAL
PROCEEDING IN WHICH ALL PARTIES HAD THE OPPORTUNITY TO PRESENT EVIDENCE AND
ARGUMENT. THE COMMISSION RULED THAT THE SEATTLE SCHOOL DISTRICT COMMITTED
UNFAIR LABOR PRACTICES IN VIOLATION OF STATE COLLECTIVE BARGAINING LAWS:
WE UNLAWFULLY refused to provide the International Union of Operating
Engineers, Local 609, information requested to process the grievance of
Vercell Jones.
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL respond to future requests for information from the
union in a timely manner.
WE WILL reimburse the International Union of Operating
Engineers, Local 609, for all attorney fees and expenses related
to this complaint.
WE WILL NOT, in any other manner, interfere with, restrain, or
coerce our employees in the exercise of their collective
bargaining rights under the laws of the State of Washington.
DO NOT POST OR PUBLICLY READ THIS NOTICE.
AN OFFICIAL NOTICE FOR POSTING AND READING
WILL BE PROVIDED BY THE COMPLIANCE OFFICER.
The full decision is published on PERC's website, www.perc.wa.gov.