Seattle School District, Decision 9355-B (PECB, 2007)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
SEATTLE SCHOOL DISTRICT, )
)
Employer. )
-----------------------------------)
ROBERT FEMIANO, )
)
Complainant, ) CASE 19944-U-05-5062
vs. )
) DECISION 9355-B - EDUC
SEATTLE EDUCATION ASSOCIATION, )
)
Respondent. ) ORDER OF DISMISSAL
)
___________________________________)
ROBERT FEMIANO, )
)
Complainant, ) CASE 19945-U-05-5063
vs. )
) DECISION 9356-A - EDUC
SEATTLE SCHOOL DISTRICT, )
)
Respondent. ) ORDER OF DISMISSAL
)
___________________________________)
Robert Femiano appeared on his own behalf.
Michael Gawley, Attorney at Law, for the Seattle Education
Association.
Faye Chess-Prentice, Attorney at Law, for the Seattle School
District.
On November 18, 2005, Robert Femiano filed complaints against the
Seattle School District (employer) and the Seattle Education
Association (union). Femiano is a teacher and the controversy
concerns his transfer from one school to another within the district
in May of 2005. He alleged that the union revealed to the employer
that he had requested information regarding the school budget for
substitute employees and that the employer had transferred him to
another position in retaliation for requesting such information.
Examiner Carlos R. Carrion-Crespo held a hearing on the matter on
June 26-28, 2007. The parties filed post-hearing briefs.
ISSUES PRESENTED
1. Was the complaint against the union filed in a timely fashion?
2. Did the union induce the employer to commit an unfair labor
practice when it allegedly revealed to the employer that
Femiano had requested budget information?
3. Did the employer discriminate against Femiano by transferring
him to another school?
4. Did the employer interfere with Femiano's collective bargaining
rights by transferring him to another school?
The Examiner rules that the union did not induce the employer to
commit an unfair labor practice in violation of RCW 41.56.150(2),
that the employer did not transfer Femiano as a result of his
protected activities, and that neither the union or the employer
interfered with his protected employee rights in violation of RCW
41.56.150(1). The charges against the union and the employer are
dismissed.
DISCUSSION
Issue 1: Timeliness
The union argues that the complaint was filed fifteen months after
the event that gives rise to this charge. That is, after the union
had allegedly informed the employer that Femiano had initiated a
request for information regarding the school budget.
Applicable Legal Principle
The Commission does not have jurisdiction over complaints filed more
than six months after the alleged unfair labor practice occurred.
RCW 41.59.150(1). This period begins to run when the complainant
knows, or should know, of the violation, or when the complainant
received constructive notice of the action. Seattle School District
(Washington Education Association), Decision 9355-A (EDUC, January
31, 2007).
Application
On or around August 25, 2005, an investigator from the Washington
Safety and Health Administration (WISHA) provided Femiano with a
copy of a summary of a statement that the school's principal, Carol
Coram, had provided on July 12, 2005. As Coram confirmed in the
hearing, the statement included Coram's assertion that she felt
harassed because Femiano had accused her of misuse of funds. Upon
reviewing the statement, Femiano inferred that the union had told
Coram that he had made the request for the budget information, and
therefore the union had induced the employer to transfer him to
another school. Femiano filed the present complaint against the
union based on such inference on the above-mentioned date, less than
six months after receiving the document, which constituted
constructive notice of the alleged violation by the union. The
Examiner rejects the union's contention on timeliness.
Issue 2: Union Inducing Employer to Discriminate Against and
Interfere with Femiano
Applicable Legal Principles
The Commission determines and remedies unfair labor practice
complaints involving certificated employees under RCW 41.59.140.
RCW 41.59.140(2)(a) and (b) prohibit unions from restraining or
coercing employees, or from inducing a public employer to
discriminate against an employee. If a union requests an employer
to take an action that is an unfair labor practice, the union would
be in violation of RCW 41.59.140(2).
RCW 41.59.140(2)(a) prohibits a union from making threats of
reprisal or force or promises of benefit in connection with the
exercise by employees of their rights protected by the collective
bargaining statute. The Commission has been guided by the more
numerous precedents developed under Chapter 41.56 RCW, which covers
local governments, in deciding unfair labor practice complaints
filed under Chapter 41.59 RCW.
An interference violation occurs when an employee could reasonably
perceive the disputed actions as being associated with their
protected union activity. Tacoma School District (Tacoma Education
Association), Decision 5465-E (EDUC, 1997). The employee is not
required to show an intention or motivation to interfere on the part
of the respondent. City of Tacoma, Decision 6793-A (PECB, 2000).
Nor is it necessary to show that the employee involved was actually
coerced. King County, Decision 6994-B (PECB, 2002). The
complainant bears the burden of demonstrating that the complained-of
conduct resulted in harm to protected employee rights. King County,
Decision 8630-A (PECB, 2005).
ANALYSIS
Request for budget information
Femiano worked at Arbor Heights Elementary School during the 2003-04
school year, as a multi-age teacher. The principal of Arbor Heights
Elementary School, Carol Coram, also worked during the 2003-04
school year as a sports official the National Collegiate Athletic
Alliance (NCAA) on scheduled school days. On June 16, 2004, Femiano
expressed concerns at a meeting of the Seattle School Board that a
school principal, whom he did not name, had irregularly employed
substitute employees for her absences. To substantiate these
allegations Femiano asked the union on June 28, 2004, to request
information regarding the budget of the school. Union
representative Ben Ibale requested the information from the
employer, both through the budget office and through the public
information office. On July 1, 2004, Coram called Ibale and
inquired about the request, which had upset her. Ibale responded
that the union had made the request and that it was a normal
request. Femiano did not present evidence to contradict Ibale's
testimony that he did not mention Femiano's name in his conversation
with Coram.
Harassment and Retaliation Complaints
On July 8, 2004, Coram filed a complaint with the employer, alleging
that Femiano was harassing her. In turn, Femiano filed a complaint
under the employer's "whistle-blowing" policy on September 10, 2004,
charging that Coram's complaint was filed to retaliate against him
for questioning her conduct. As a result of these charges and
counter-charges, the employer contracted with an independent
investigator to look into the matter. The investigator issued a
report on October 21, 2004, in which she agreed with Coram's complaint.
On November 16, 2004, the employer decided to transfer Femiano to
another school at the end of the school year in order to stop the
harassment. The employer's human resources director discussed the
possible transfer with the union president, who attempted to
safeguard Femiano's rights. On November 22, 2004, the employer
notified Femiano of its conclusions regarding the harassment
complaint, and that it was contemplating disciplinary action
against him.
On May 20, 2005, the employer notified Femiano that it would
transfer him to another school in the Fall of 2005 because of the
harassment. As a result of the transfer, Femiano now teaches only
one age level. The union grieved the employer's decision and took
it to arbitration. The arbitrator ruled that the employer had not
followed the proper procedure, but did not reverse the transfer
because he concluded that Femiano had in fact harassed Coram.
Conclusions
Femiano did not provide any direct or circumstantial evidence
supporting his claim that the union had provided his name to Coram
as the source of the request for information regarding the budget.
Ibale credibly testified that he had told Coram that the union had
made the request in the normal course of business. He also
testified that he later told Femiano that Coram would be able to
"connect the dots" regarding the ultimate source of the information
request because Femiano had addressed the issue at the School Board
meeting, which was open to the public.
Femiano attempted to prove through circumstantial evidence his
allegation that there was collusion between the union and the
employer to protect Coram, which included disclosing his name so
that the employer would retaliate against him and silence him. In
order to find that an employer and union unlawfully conspired or
colluded, the representatives of those parties must have
communicated regarding the subject. Tacoma School District (Tacoma
Education Association), Decision 5465-E. Although Ibale and Coram
spoke about the request for information, Femiano did not prove that
they had spoken about his participation. The evidence shows that
the union asserted Femiano's rights through the request for
information and utilized the grievance procedure to reverse the
transfer. There is no indication that the union made any effort to
undermine Femiano's rights throughout the process.
Dismissal of Charges Against the Union
Femiano did not meet his burden of proof regarding this allegation.
Therefore, the Examiner dismisses the allegations related to the
union contained in the complaint.
Issue 2: Discriminatory Transfer
Femiano alleges that his transfer from one school to another was
motivated by discrimination for requesting information concerning
the school budget.
Applicable Legal Principles
Commission precedent regarding RCW 41.59.140(1) indicates that in
order to prevail in a complaint charging discrimination, Femiano
must meet a "substantial motivating factor" standard. Educational
Service District 114, Decision 4361-A (PECB, 1994). The first step
in this test is to establish the following:
* That he exercised a right protected by the collective
bargaining statute, or communicated an intent to do so;
* That he was deprived of some ascertainable right, benefit or
status; and
* That there was a causal connection between the exercise of his
legal right and the deprivation.
Port of Tacoma, Decision 4626-A (PECB, 1995).
Femiano must establish this causal connection by showing that the
adverse action followed his known exercise of a protected right
under circumstances from which the Examiner can reasonably infer
causality. Port of Tacoma; City of Tacoma, Decision 8031-B (PECB,
2004). The evidence supporting the existence of a prima facie case
is often circumstantial in nature:
[I]n establishing the prima facie case, the employee need not
attempt to prove the employer's sole motivation was retaliation
or discrimination based on the worker's exercise of [protected
rights]. Instead, the employee must produce evidence that
pursuit of a [protected right] was a cause of the firing [or
other deprivation of a right, benefit or status], and may do so
by circumstantial evidence . . . . (Citation omitted)
Educational Service District 114, Decision 4361-A.
Circumstantial evidence is "[t]he proof of certain facts and
circumstances in a given case, from which [the Examiner] may infer
other connected facts which usually and reasonably follow according
to the common experience of mankind." Black's Law Dictionary 243
(Sixth Ed. 1990). The Administrative Procedures Act directs the
Examiner to issue findings of fact based on "the kind of evidence on
which reasonably prudent persons are accustomed to rely in the
conduct of their affairs." RCW 34.05.461(4). This Examiner will
consider any circumstantial evidence that meets this criterion.
Once a prima facie case has been established, it creates a
rebuttable presumption that the employer has acted unlawfully. The
employer then has an opportunity to articulate legitimate,
non-discriminatory reasons for its actions. It does not have to
prove them; it is a burden of production. If the employer is able
to articulate such reasons, Femiano must then show, by a
preponderance of the evidence, that the employer's reasons are mere
pretexts or that the protected activity substantially motivated the
employer's actions. Educational Service District 114, Decision 4631-A.
Application
Femiano alleges that the employer transferred him out of Arbor
Heights for engaging in protected activity, namely addressing the
School Board during the meeting held on July 16, 2004, and
requesting documents related to the budget. Femiano bases his
allegation on the alleged lack of foundation for the arbitrator's
award as a result of the union's negligent representation. Femiano
further argues that the union's negligence was part of its
aforementioned collusion with the employer to keep him from
accessing the budget information that he had requested.
School Transfer
Femiano fails to establish a prima facie case in his challenge of
his transfer. His presentation before the school board did not
constitute protected activity under Chapter 41.59 RCW as he
participated individually, not in a concerted fashion, and he did
not utilize labor relations channels. The Commission does not hold
individual activities in defense of co-workers to rise to the level
of union activity, unless it is undertaken as a union representative
or as part of a concerted activity like a grievance. Dieringer
School District, Decision 8956-A (PECB, April 11, 2007). Further,
Femiano initially sought protection under the employer's
whistle-blower policy, which protects only individual employees.
Collective bargaining statutes do not confer to the Commission
jurisdiction over whistle-blowing activities. City of Lynnwood,
Decision 6986 (PECB, 2000).
Request for Budget Information
On the other hand, Femiano met his burden of proof when he requested
the budget information through the union, which was a concerted and
protected activity as explained above. Femiano also established
that he had been subject to adverse action, since the transfer
deprived him of his status as a teacher for several grades.
Femiano, however, failed to show that there is a causal relationship
between the protected activity and the adverse action. He did not
prove that the union communicated to the employer that he was the
source of the request for financial information. He also did not
prove that the employer knew about his request to the union through
any other means, and therefore he could not prove that the employer
transferred him based upon such knowledge.
Evidentiary Standards
Femiano attempted repeatedly to introduce evidence obtained from the
employer through public disclosure requests, alleging that his
lawful possession of the documents amounted to authentication.
While is it thus clear that Femiano knew that the employer possessed
the documents, such knowledge does not equate to authentication.
Femiano neither asserted an ability to answer questions himself
about the authenticity of the documents nor did he subpoena persons
who could do so, and so did not provide testimony regarding their
reliability.
Parties must introduce evidence in Commission hearings through
normal evidentiary standards of authentication. Brewster School
District, Decision 3047-A (EDUC, 1989). "Authentication of a
writing means (a) the introduction of evidence sufficient to sustain
a finding that it is the writing that the proponent of the evidence
claims it is or (b) the establishment of such facts by any other
means provided by law." Black's Law Dictionary 132 (Sixth Ed. 1990).
Conclusion Regarding Employer Retaliation
Femiano did not meet his burden of proof that the employer
transferred him in retaliation for participating in a school board
meeting or for requesting budget information. Therefore, the
Examiner dismisses the allegations of discrimination contained in
the complaint.
Issue 3: Interference by the Employer
The legal principles that guide interference complaints have already
been explained. Femiano claims that besides the previously
discussed discriminatory intent, he had reasonably perceived his
transfer as a threat to keep him from speaking out against employer
activities.
However, he did not establish the consequences that a reasonable
employee would fear as a result of the exercise of requesting the
budget information. The employer did not advise Femiano that it
would take any adverse action for violating the harassment policy
other than the transfer. Further, Femiano testified that the
transfer could not have precluded him from requesting the
information regarding the budget, or from otherwise pursuing avenues
of redress. Under these circumstances, the Examiner rules that a
reasonable employee could not have interpreted the transfer as a
threat to deprive him or her of ascertainable rights, benefits or
status.
Conclusion Regarding Employer Interference
Femiano did not meet his burden of proof regarding the allegation
that the employer interfered with his exercise of collective
bargaining rights. The allegation concerning employer interference
is dismissed.
Final Conclusion
Femiano did not prove that the union had induced the employer to
transfer him or to establish that the employer transferred him in
retaliation for engaging in protected activities, or that his
transfer interfered with the continued exercise of protected rights.
Therefore, the Examiner dismisses the charges of unfair labor
practices against both the union and the employer.
FINDINGS OF FACT
1. The Seattle School District is an "employer" within the meaning
of RCW 41.59.020(5).
2. The Seattle Education Association is an "employee organization"
within the meaning of RCW 41.59.020(1), and is the "exclusive
bargaining representative" within the meaning of RCW
41.59.020(6), of an appropriate bargaining unit of certificated
employees.
3. At all pertinent times, Robert Femiano was a member of the
bargaining unit described in Finding of Fact 2 above.
4. Femiano worked at Arbor Heights Elementary School during the
2003-04 school year, as a multi-age teacher.
5. On June 16, 2004, Femiano expressed concerns at a meeting of
the School Board about an unnamed school principal who had
irregularly employed substitute employees to fill in during her
absences.
6. On June 28, 2004, Femiano asked the union to request
information regarding the budget of the school.
7. Union representative Ben Ibale requested the information from
the employer, both through the budget office and through the
public information office.
8. On July 1, 2004, Coram called Ibale and inquired about the
request, which had upset her. Ibale responded that the union
had made the request and it was a normal request.
9. On July 8, 2004, Coram filed a complaint with the employer,
alleging that Femiano had engaged in harassment against her.
10. The employer contracted with an independent investigator to
look into the matter. Coram told the investigator that she
felt harassed by Femiano for many reasons, among them that
Femiano had accused her of misuse of funds. The investigator
issued a report on October 21, 2004, in which she agreed with
Coram's complaint.
11. In November 16, 2004, the employer decided to transfer Femiano
to another school. The employer's human resources director
discussed the possible transfer with the union president, who
attempted to safeguard Femiano's rights.
12. In May 20, 2005, the employer notified Femiano that it would
transfer him to another school where he would teach only one
age level.
13. The union grieved the decision described in paragraph 12 of
these findings of fact and took it to arbitration. The
arbitrator ruled that the employer had not followed the proper
procedure, but did not reverse the transfer because he
concluded that Femiano had in fact harassed Coram.
14. On or around August 25, 2005, a WISHA investigator provided
Femiano a copy of a summary of the statement that Coram made on
July 12, 2005. Upon reviewing the statement, Femiano inferred
that the union had told Coram that he had made the request for
the budget information, and therefore the union had induced the
employer to transfer him to another school.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.59 RCW and Chapter 391-45 WAC.
2. The complaint in the above-captioned matter was filed in a
timely manner.
3. Femiano failed to meet his burden of proof to establish that
the Seattle Education Association caused the Seattle School
District to discriminate against him in violation of RCW
41.59.140(2)(b).
4. Femiano failed to meet his burden of proof to establish that
the Seattle School District discriminated against him in
violation of RCW 41.59.140(1)(d).
5. Femiano failed to meet his burden of proof to establish that
the Seattle School District interfered with his protected
rights in violation of RCW 41.59.140(1)(a).
ORDER
The complaints charging unfair labor practices filed in the
above-captioned matter are dismissed.
ISSUED at Olympia, Washington, this 12th day of December, 2007.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CARLOS R. CARRI N-CRESPO, 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.