Omak School District, Decision 10761 (PECB, 2010)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

PUBLIC SCHOOL EMPLOYEES OF WASHINGTON,

 

Complainant,

 

vs.

 

OMAK SCHOOL DISTRICT,

 

Respondent.

 

 

 

 

CASE 22614-U-09-5783

 

DECISION 10761  - PECB

 

 

FINDINGS OF FACT,
CONCLUSIONS OF LAW,
AND ORDER

 

 

 

Eric T. Nordlof, Attorney at Law, for the union.

 

Vandeberg Johnson & Gandara, LLP, by William A. Coats, Attorney at Law, joined on the brief by Daniel C. Montopoli, Attorney at Law, for the employer.

 

 

On July 29, 2009, Public School Employees of Washington (union) filed an unfair labor practice complaint against the Omak School District (employer). The Commission issued a preliminary ruling finding a cause of action to exist for allegations of employer interference with employee rights.  Examiner J. Martin Smith conducted a hearing on December 8, 2009.  Briefs and memoranda were filed to complete the record.

 

ISSUE PRESENTED

 

Did the employer interfere with employee rights under RCW 41.56.140(1) by denying Ronald Joe Rhodes (Rhodes) a right to union representation (Weingarten right) in connection with an investigatory interview?[1]

On the basis of the evidence presented at the hearing, the Examiner holds that the employer did not violate Chapter 41.56 RCW in connection with Rhodes’ investigatory interview. Therefore, the complaint is dismissed on its merits.

 

APPLICABLE LAW

 

Employer Interference

Chapter 41.56 RCW prohibits employers from interfering with public employees who exercise collective bargaining rights secured by statute:

 

RCW 41.56.040 RIGHT OF EMPLOYEES TO ORGANIZE AND DESIGNATE REPRESEN­TATIVES WITHOUT INTERFERENCE.  No public employer, or other person, shall directly or indirectly, inter­fere with, restrain, coerce, or discrimi­nate against any public employee or group of public employees in the free exercise of their right to organize and designate representa­tives of their own choosing for the purpose of collec­tive bargaining, or in the free exercise of any other right under this chapter.

 

RCW 41.56.140 UNFAIR LABOR PRACTICES FOR PUBLIC EMPLOYER ENUMERAT­ED.  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;

 

Enforcement of these statutory collective bargaining rights runs through the unfair labor practice provisions of the statute.  The Commission has jurisdiction to determine and remedy unfair labor practice complaints under RCW 41.56.160.

 

Weingarten Violations

In National Labor Relations Board v. Weingarten, Inc., 420 U.S. 251 (1975), the United States Supreme Court ruled that an employer commits an interference violation under the National Labor Relations Act if it denies an employee's request for union representation at an investigatory interview.  The principles enunciated in Weingarten have been embraced by the Commission in its administration of the fundamentally similar provisions of Chapter 41.56 RCW.  Okanogan County, Decision 2252-A (PECB, 1986).

 

The elements of proof that a complainant must establish for Weingarten allegations are: (1) the employer compelled an employee to attend an interview; (2) a significant purpose of the interview was (or became) investigatory, to obtain facts which might support disciplinary action; (3) the employee reasonably believed that discipline might result from the interview; (4) the employee requested the presence of a union representative; and (5) the employer rejected the employee’s request and went ahead with the investigatory interview without a union representative present, or the employer required the union representative to remain a passive or silent observer, so as to prevent the representative from assisting the employee.

 

The burden of proving an allegation of unlawful interference with the exercise of rights protected by Chapter 41.56 RCW rests with the complaining party, and must be established by a preponderance of the evidence.  WAC 391-45-270(1)(a).  To establish an interference violation under RCW 41.56.140(1), a complainant must establish that an employer engaged in conduct which employees could reasonably perceive as a threat of reprisal or force or promise of benefit associated with their union activity.  City of Seattle, Decision 3066 (PECB, 1988), aff’d, Decision 3066-A (PECB, 1989).  A showing that the employer acted with intent or motivation to interfere is not required.  Nor is it necessary to show that the employees concerned were actually interfered with or coerced.  City of Seattle, Decision 2773 (PECB, 1987).  

                                   

ANALYSIS

 

The union is the exclusive bargaining representative of a unit of para-educator, transportation, food service, custodial and maintenance/grounds keeping employees.  The employer and union were parties to a collective bargaining agreement effective from September 1, 2006, through August 31, 2009.

 

Rhodes worked for more than 19 years with the Omak School District; his latest assignment was at Omak High School as a custodial employee.  At all times pertinent to this case, Melissa Lickfold also worked for the Omak School District as a classified employee.  She is the union president and was Rhodes’ “building representative” pursuant to the union labor contract.  Both were supervised by the high school principal, John Belcher.  Rhodes was terminated in May of 2009.

On April 9, 2009, Belcher wrote a memo to Rhodes and provided a copy for Lickfold. The memo read:

 

Joe, I have scheduled a meeting for you and I tomorrow at 4pm in my office april 10th, Friday.  I have also informed your union president that I will be discussing a potential disciplinary action.  I encourage you to have a union representative present during this conversation.

 

 

Rhodes spoke to Lickfold later on April 9 after receiving the memo.  Rhodes testified that Lickfold told him she did not know the details concerning the meeting.  Lickfold testified later that she had not been truthful with Rhodes; she had discussed a potential theft at the student store with Assistant Principal David Kirk.  Kirk asked her to keep that conversation confidential, with the exception of Lickfold being able to discuss the matter with PSE field representative Karen Luton.

 

Rhodes testified that on the morning of April 10, 2009, he had a phone conversation with Luton, during which he requested that Luton accompany him to the meeting with Belcher later in the day.  Luton told Rhodes she was unavailable for two weeks, and advised him that Lickfold would be an adequate representative for him at the meeting.  Because he discovered that Lickfold knew the subject matter of the meeting and had not been honest with him, Rhodes was not interested in being represented by Lickfold at the meeting and preferred to wait for Luton to be available.

 

Rhodes had two conversations with Belcher on April 10 prior to the meeting.  In the first, he told Belcher that Luton would be unavailable for two weeks.  Belcher told Rhodes to find out if there were some alternatives to a two-week delay or to pick a different representative. In the second, Rhodes told Belcher again that Luton would be unavailable for two weeks.  Belcher responded by saying that he would not delay the meeting and asked Rhodes to identify another representative.  After hearing that Belcher would not delay the meeting, Rhodes testified that he called a Wenatchee law firm and was told that it would be best if he didn’t answer any of the employer’s questions without a representative present.

 

At no time did Rhodes or the union ask the employer for a postponement of the meeting, other than to request that it be delayed two weeks so Luton could attend.  Despite his preference otherwise, Rhodes was accompanied by Lickfold when the meeting with Belcher and Human Resources Director LeAnne Olson began at 4:00 P.M. on April 10.

 

The meeting took on a rancorous tone shortly after it began, with Rhodes refusing to answer investigatory questions asked by Belcher, who told Rhodes that his failure to answer questions would lead to him being placed on administrative leave while Belcher finished the investigation.  Rhodes then embarked upon a profanity-laced tirade while turning in his keys and subsequently storming out of Belcher’s office.

 

The union argues that the right to request a union representative was personal to Rhodes, and that Lickfold had no independent right to attend the investigatory meeting, unless Rhodes had requested her presence as his representative.  The employer counters that it committed no unfair labor practice when it refused to postpone Rhodes’ investigatory interview because his requested representative was not available.

 

At issue in this case is Rhodes’ request for a union representative, specifically his desire to delay the meeting in order to have Luton represent him instead of Lickfold.  The union bases its argument on Methow Valley School District, Decision 8400-A (PECB, 2004), which held that unions have no independent right to representation at investigatory meetings and that employees must initiate their rights of representation under Weingarten.  The union’s position is that Lickfold had no independent right to attend the meeting because Rhodes did not request her presence.

 

National Labor Relations Board (NLRB) precedent set forth in Coca-Cola Bottling Co. of Los Angeles, 227 NLRB 1276 (1977), and relied upon in Roadway Express, 246 NLRB 1127 (1979) and Pacific Gas & Electric Co., 253 NLRB 1143 (1981), runs counter to the union’s contention by establishing that an employee’s exercise of Weingarten rights is not without limitation.

 

The Board held in Coca-Cola that, where another union representative was available but the employee did not request him, the employer did not interfere with employee rights when it proceeded with the investigatory interview.  The Board also wrote that Weingarten doesn’t state that employee interests can only be safeguarded by the presence of a specific representative; the focus of Weingarten is an employee’s right to the presence of a representative designated by the union to represent all employees.  Furthermore, the Board stated that the right to hold interviews of this type without delay is a legitimate employer prerogative.  A Commission examiner went down a similar path in Cowlitz County, Decision 7037 (PECB, 2000), stating that an employee cannot make unreasonable demands for the presence of a particular union representative.

 

CONCLUSION

 

From the time that Rhodes received a memo informing him of a meeting with John Belcher to the moment of Rhodes’ expletive-laced exit from that meeting, the employer met its responsibility for heeding Rhodes’ Weingarten rights.  Belcher’s memo stated that the meeting would include discussion of a potential disciplinary action, and it encouraged Rhodes to have a union representative at the meeting.  On the day of the meeting, after Rhodes indicated that his desired union representative, Karen Luton, was unavailable for two weeks, Belcher gave Rhodes the opportunity to provide alternatives to a two-week delay or find another representative.

 

Rhodes did not provide alternatives, and was told by Luton that the union president, Melissa Lickfold, would be an adequate representative for the meeting.  Instead of answering questions as he and Lickfold had discussed before the meeting, Rhodes began a tirade against his union and employer and eventually left the meeting without answering the questions posed to him.  Rhodes was placed on administrative leave.  The employer did not violate Rhodes’ Weingarten rights in connection with his investigatory interview.

 

FINDINGS OF FACT

 

1.                  Omak School District is a public employer within the meaning of RCW 41.56.030(1).

 

2.                  Public School Employees of Washington is the exclusive bargaining representative of a unit of para-educators, transportation, food service, custodial and maintenance/grounds keeping employees of the Omak School District.  The employer and union were parties to a collective bargaining agreement effective from September 1, 2006, through August 31, 2009.

 

3.                  Ronald Joe Rhodes was a custodial employee in the Omak School District for 19 years.  He was terminated in May 2009.

 

4.                  On April 9, 2009, Rhodes received a memo from Omak High School Principal John Belcher requesting his presence for a meeting at 4:00 P.M. on April 10, 2009.  The memo indicated that the meeting would include discussion of a potential disciplinary action.

 

5.                  In the time between receipt of the memo and the meeting, Rhodes consulted with PSE field representative Karen Luton and a Wenatchee law firm.

 

6.                  During a phone conversation with Luton, Rhodes was told that she would be unavailable to represent him for two weeks.

 

7.                  When informed that Luton would be unavailable to represent Rhodes for two weeks, Belcher told Rhodes that he would not delay the meeting and asked Rhodes to identify another representative.

 

8.                  The meeting began at 4:00 P.M., on April 10, 2009, with Rhodes and Belcher in attendance, along with Human Resources Director LeAnne Olson and Melissa Lickfold, the union president.

 

9.                  Without answering any questions from Belcher regarding theft at the Omak High School student store, Rhodes embarked upon a profanity-laced tirade and stormed out of Belcher’s office.

 

10.              Rhodes was placed on administrative leave.

 

 

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.                  On the basis of the foregoing Findings of Fact, Public School Employees of Washington failed to sustain its burden of proof to establish that the Omak School District interfered with Ronald Joe Rhodes’ right to union representation during an investigatory interview. The employer did not violate RCW 41.56.140(1).

 

ORDER

 

The complaint charging unfair labor practices filed in the above-captioned matters is dismissed.

 

ISSUED at Olympia, Washington, this  14th  day of May, 2010.

 

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

J. MARTIN SMITH, 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.

 



[1]               At hearing and in its post-hearing brief, the union did not pursue its complaint that the employer interfered with employee rights by threats of reprisal or force or promises of benefit by inquiring into a conversation between Rhodes and a union representative.