Seattle School District, Decision 10435 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
SEATTLE/KING COUNTY BUILDING )
AND CONSTRUCTION TRADES COUNCIL, )
)
Complainant, ) CASE 22116-U-08-05636
)
vs. ) DECISION 10435 - PECB
)
SEATTLE SCHOOL DISTRICT, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Robblee Brennan & Detwiler, by Daniel Hutzenbiler, Attorney at
Law, for the union.
John Cerqui, Senior Assistant General Counsel, for the employer.
On November 19, 2008, Seattle/King County Building and Construction
Trades Council (union) filed an unfair labor practice complaint
against (the) Seattle School District (employer). On December 3,
2008, the unfair labor practice manager issued a deficiency notice.
On December 23, 2008, the union filed an amended complaint. On
January 2, 2009, a preliminary ruling was issued finding a cause of
action for employer interference with employee rights in violation
of RCW 41.56.140(1), by employer official Marc Walsh making threats
of reprisal or force or promises of benefit to bargaining unit
member Brian Zadorozny concerning the union's status. Examiner
Charity Atchison conducted a hearing on March 18, 2009. The parties
filed post-hearing briefs on April 29, 2009.
ISSUE
Whether the employer interfered with employee rights in violation of
RCW 41.56.140(1) by statements made by supervisor Marc Walsh to
union member Brian Zadorozny?
The Examiner finds the alleged statement Walsh made to Zadorozny
that "the carpenter shop was going away, so this will be good for
you to be over here in BEX," does not rise to the level of
interference.
APPLICABLE LEGAL STANDARDS
Chapter 41.56 RCW prohibits employer interference with employees'
exercise of their collective bargaining rights. RCW 41.56.040. An
employer commits an interference violation if statements by employer
officials are reasonably perceived as a threat of reprisal or force
or a promise of benefit associated with the exercise of rights
protected by Chapter 41.56 RCW. Pasco Housing Authority, Decision
5927-A (PECB, 1997). Employer intent or motivation to interfere are
not relevant, nor is it necessary to demonstrate that the employee
involved actually felt threatened or coerced. King County, Decision
8630-A (PECB, 2005). Rather, the determination of whether an
interference violation has been committed is based on whether a
typical employee could reasonably perceive the employer's actions as
discouraging the employee's union activity. Snohomish County,
Decision 9834-B (PECB, 2008). A claim of interference must be
supported by a preponderance of the evidence; the standard is not
particularly high. Pasco Housing Authority, Decision 5927-A.
ANALYSIS
In August 2008 Brian Zadorozny was a general foreman working as a
liaison between maintenance and BEX (the building excellence
project). The BEX projects were winding down, and Zadorozny's
position was being eliminated. Zadorozny was frustrated that his
position was being eliminated. There was no testimony about why
Zadorozny's position was eliminated or whether other positions were
also being eliminated. Maintenance supervisor Marc Walsh met with
some higher level supervisors and discussed the possibility of
creating a position for Zadorozny in BEX. The position would have
allowed Zadorozny to work full-time in BEX. As a result of this
conversation, in early September 2008, Walsh spoke with Zadorozny
about accepting a position with BEX. Zadorozny recalled Walsh
saying, "the carpenter shop is going away anyway, so this will be
good for you to be over here in BEX." Walsh denied making the
statement. There is no evidence about whether the BEX position came
into existence and, if did, who filled the position.
Lee Newgent, Executive Secretary of the union, holds a regular
stewards meeting on the Friday prior to the labor-management
meetings. At the stewards meeting prior to the September 16, 2008
labor management meeting, Newgent became aware of the statement
Walsh allegedly made to Zadorozny. At the September 16, 2008 labor
management meeting, Newgent confronted Walsh by stating, "Marc, I
heard a statement that you said that the unions would not be around
next contract cycle," and asking whether Walsh made the statement.
There is discrepancy as to what happened next. According to
Newgent, Walsh admitted to making the statement and the meeting blew
up. According to Walsh, he told Newgent that he had discussions
with Dan Bryant, a union member, during which the two discussed
"this sort of stuff." Senior facilities manager Lynn Good also
attended the labor management meeting. Good recalled Walsh
admitting there was a discussion with Bryant and attempting to
explain the conversation. The Examiner credits Good's testimony
because Good was straightforward and to the point. In addition,
while others were in attendance at the labor management meeting, no
other witnesses were called to testify about the meeting. Here, the
evidence that Walsh clarified with whom he engaged in conversation
with is credible and supported by Good's testimony.
Bryant confirmed that he and Walsh had conversations about "how we
did business." According to Bryant, the information he discussed
with Walsh was speculation and not based on fact. Union members
Bryant and Anton Gustin testified that around the time the contract
is being negotiated, union members regularly discuss whether the
union will survive the bargaining cycle and sign a contract.
According to Gustin, "the rumors would fly around there like we're
old women and we talk."
Walsh's testimony that he did not tell employees that the union
would not be around in 2010 is supported by Gustin. The Examiner
finds Gustin to be a credible witness. Gustin answered the
questions asked of him in a straightforward way and did not censor
his reactions and responses to questions. According to Gustin,
Walsh was present for a conversation in which the employees were
speculating about whether they would have a job in the future.
Gustin never heard Walsh say the union would not be around when the
contract expired. Gustin clearly articulated that he was not close
with Walsh and did not see Walsh socially. While he liked Walsh, he
said that he would favor the union over management.
Walsh is a first line supervisor. Walsh reports to Mark Pfleuger,
Maintenance Manager. Pflueger reports to Good, Senior Facilities
Manager. Good reports to Fred Stevens, Executive Director of
Facilities. Decisions to approve the collective bargaining
agreement are made by Superintendent Maria Goodloe-Johnson and the
school board.
In order to determine whether the alleged statement is interference,
a typical employee must be able to reasonably perceive the statement
as a threat of reprisal or force or a promise of benefit associated
with the exercise of rights protected by Chapter 41.56 RCW.
Zadorozny testified that Walsh told him the carpenter shop was going
away, but Walsh denied making the statement. Even if the Examiner
credits Zadorozny's version, a reasonable employee would not believe
Walsh because he is a first line supervisor, the employees
frequently speculate about whether they will continue to have union
jobs, and the statement had no supporting facts.
There is nothing in the statement "the carpenter shop is going away,
so this will be good for you to be over here in BEX" to imply a
threat of reprisal or force or a promise of benefit. Walsh
allegedly made the statement during a conversation in which Walsh
offered Zadorozny a new position. The possibility exists that the
statement could have been intended to entice Zadorozny to take the
BEX position because BEX was winding down and the employer may have
wanted to keep Zadorozny in BEX, but there is not enough evidence
for the Examiner to conclude that the alleged statement was meant to
entice Zadorozny to take the position in BEX or to conclude that the
statement is a threat of reprisal or force or a promise of benefit.
The belief that the alleged statement was a threat of reprisal or
force or a promise of benefit is not reasonable because Walsh was
not in a position to make a decision about whether the union would
be around and the statement was not supported. Bryant would not
believe Walsh because Walsh is not in a position to determine
whether the unions are eliminated. Walsh is a first line supervisor
without the authority to make a decision about the collective
bargaining agreement. Employees are, or should be aware, of Walsh's
position and lack of authority to make determinations about
collective bargaining matters. Bryant believed a communication that
there would not be a union would come from the union, not from the
employer.
More facts would be needed before a typical employee could
reasonably believe that a first-line supervisor would be telling him
or her that a shop or the union would be eliminated. Gustin would
have briefly considered a statement about the union not existing at
the end of the contract, but then he would let the statement go
because rumors are rampant. Additionally, Gustin said the union had
been around a long time. Gustin differentiated between an
unsupported statement and one supported by facts. Gustin would call
the union to substantiate any sort of claim if the employer provided
facts. While the typical employee may not choose to call the union,
the typical employee would differentiate between a statement
supported by facts and a factually unsupported statement.
If the conversation between Walsh and Zadorozny involved more facts
or statements, those statements are not before the Examiner. The
evidence is limited to the fact that there was a conversation, Walsh
discussed the possibility of a new position for Zadorozny, and Walsh
allegedly said the carpenter shop was going away. It is not clear
how the phrase "the carpenter shop is going away, so this will be
good for you to be over here in BEX" translates to the union will
not be around at the end of the next contract. If there was
information that could have helped the Examiner bridge that gap,
that information was not put into evidence. It is not possible for
the Examiner to make an attribution or a finding, if there is no
evidence to support such a finding.
CONCLUSION
Walsh's statements did not rise to the level of unlawful
interference. A typical employee could not reasonably perceive the
alleged statement as a threat of reprisal or force or a promise of
benefit associated with rights protected by Chapter 41.56 RCW. Such
a belief would be unreasonable because Walsh lacks the authority to
make decisions about the status of the union and collective
bargaining agreements. The belief would further be unreasonable
because the alleged statement was not supported by facts.
FINDINGS OF FACT
1. Seattle School District is an employer within the meaning of
RCW 41.56.030(1).
2. Seattle/King County Building and Construction Trades Council is
a bargaining representative within the meaning of RCW
41.56.030(3).
3. In early September 2008, maintenance supervisor Marc Walsh met
with Brian Zadorozny to discuss the possibility of Zadorozny
taking a new position.
4. During their conversation, Zadorozny heard Walsh say "the
carpenter shop is going away, so this will be good for you to
be over here in BEX." Walsh denied making the statement.
5. Zadorozny was frustrated about the elimination of his position.
6. Union Executive Secretary Lee Newgent confronted Walsh at the
September 18, 2008 labor management meeting. Newgent said,
"Marc, I heard a statement that you said that the unions would
not be around next contract cycle."
7. In response to Newgent, Walsh told Newgent he'd had
conversations with Dan Bryant about "this sort of stuff."
Senior facilities Manager Lynn Good attended the meeting and
credibly testified to Walsh admitting having a discussion with
Bryant and attempting to explain the conversation.
8. Walsh and bargaining unit member Dan Bryant had conversations
about how business was conducted. Walsh was present, but did
not participate in, a conversation during which Anton Gustin
and two co-workers discussed whether they would have jobs in
the future. Gustin never heard Walsh say the union would not
be around when the contract expired.
9. Walsh is a first line supervisor without the authority to make
a decision about the collective bargaining agreement. More
facts would be needed before a typical employee could
reasonably believe that a first-line supervisor would be
telling him or her a shop or the union would be eliminated.
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 its actions described in the above findings of fact, the
employer did not violate 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 11th day of June, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CHARITY ATCHISON, 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.