City of Seattle, Decision 9439-A (PECB, 2007)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
VICKI LYNN JOY, )
)
Complainant, ) CASE 20344-U-06-5182
)
vs. ) DECISION 9439-A - PECB
)
CITY OF SEATTLE, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Action Employment Law, by John Scannell, Attorney at Law, for
the employee.
Seattle City Attorney Tom Carr, by Amy Lowen, Assistant City
Attorney, for the employer.
On April 18, 2006, Vicki Lynn Joy filed an unfair labor practice
complaint with the Public Employment Relations Commission against
the City of Seattle (employer), charging employer interference with
employee rights in violation of RCW 41.56.140(1). On June 1, 2006,
an amended complaint was filed charging employer interference and
discrimination in violation of RCW 41.56.140(1). A preliminary
ruling issued was on June 2, 2006, stating a cause of action to
exist. Subsequently, the employer filed a motion for summary
judgement on August 11, 2006. The motion for summary judgement was
denied and the hearing proceeded on December 6, 2006.
Based on the evidence provided, the Examiner finds that the employee
was not engaged in protected activity, a threshold issue for an
interference and discrimination violation under RCW 41.46.140(1).
Therefore, the complaint is dismissed.
ISSUE PRESENTED
Did the employer interfere or discriminate against Joy in violation
of RCW 41.56.140(1) by terminating her in reprisal for protected
union activity?
Interference
An interference violation is committed where an employee could
reasonably perceive employer actions as a threat of reprisal or
force or promise of benefit associated with the pursuit of rights
under Chapter 41.56 RCW. It is not necessary for a complainant to
show that the employer intended to interfere, or even that the
employees involved actually felt threatened. City of Omak, Decision
5579-B (PECB, 1997); City of Tacoma, Decision 8031-A (PECB, 2004).
The Commission noted in its decision in King County, Decision 6994-B
and 6995- B (PECB, 2002), that "the legal determination of
interference is based not upon the reaction of the particular
employee involved, but rather on whether a typical employee in a
similar circumstance reasonably could perceive the actions as
attempts to discourage protected activity." See also Grant County
Public Hospital District 1, Decision 8378-A (PECB, 2004).
The complainant has the burden of proof in unfair labor practice
claims. WAC 395-45-270(1)(a). A complainant is not required to
show intent or motive for interference or that the employee involved
was actually coerced, or that the respondent acted with union
animus. King County, Decision 8630-A (PECB, 2005). The complainant
bears the burden of demonstrating that the employer's conduct
resulted in harm to protected employee rights. See City of
Wenatchee, Decision 8802-A (PECB, 2006).
Discrimination
The Commission decides discrimination allegations under standards
drawn from decisions of the Supreme Court of the State of Washington
in Wilmot v. Kaiser Aluminum, 118 Wn.2d 46 (1991) and Allison v.
Seattle Housing Authority, 118 Wn.2d 79 (1991). In those cases the
Court said that the injured party must make a prima facie case
showing retaliation. To do this, a complainant must show:
1. The exercise of a statutorily protected right, or
communicating to the employer an intent to do so;
2. The employee has been deprived of some ascertainable
right, benefit, or status; and
3. That there was a causal connection between the exercise of
the legal right and the discriminatory action.
Discrimination and interference claims are interrelated in that both
require evidence of protected activities. If a discrimination claim
and an interference claim are based on the same set of facts, and a
discrimination claim is dismissed for failing to meet the test of
protected activities, an independent interference claim will not be
found. Seattle School District, Decision 5237-B (EDUC, 1996);
Brinnon School District, Decision 7210-A (PECB, 2001).
The "mere assertion that one is engaged in a protected activity does
not extend statutory permission to that specific act. Unless the
underlying activity is a protected activity, actions arising from
the disputed activity cannot be defined as protected activities . .
. " City of Tacoma, Decision 6793 (PECB, 1999). The exercise of
protected activity has been found to include the filing of a
grievance or unfair labor practice complaint, Mukilteo School
District, Decision 5899-A (PECB, 1997). However, as stated in
Community College District 5, Decision 8850-A (PECB, 2006) "the
employee must actually put the employer on notice that the employee
considers the issue to concern collective bargaining rights and/or
that they would be seeking union assistance on the issue" unless the
context of the meeting is sufficient to understand the employees'
intent of filing a grievance. Therefore, the employer must
recognize the filing of a grievance in order for it to be protected
activity. Community College District 5, Decision 8850-A (PECB, 2006).
The "Protected Activity"
Joy was employed by the employer and worked as a janitor at the
Seattle Center. In this position, Joy was included in a bargaining
unit represented by the Joint Crafts Council. On July 20, 2005, Joy
was placed on leave without pay until the employer could find a work
shift to accommodate her medical needs.(fn:1) Between September 19 and
21, 2005, Joy's doctor faxed a note to her employer which allowed
her to return to work. Joy then contacted the union to find out
when she was scheduled for a shift, but was told to contact the
employer. After leaving a message and not hearing a response from
the employer by September 26, 2005, as to when she should return to
work, Joy left two messages for human resource manager, John
Cunningham. The first message was left at 5:36 P.M. in which she
stated the following:
____________________
fn:1 This accommodation and leave without pay was conditioned upon
Joy returning certain medical forms.
Yeah, John, this is Vicki [Joy]. You know, I don't respect you
at all, you haven't called me like you said you were going to
do. You promised me work, like you haven't done. You ruined
my whole life. I'm down to four dollars. I'm on the street.
We're going to - - we're taking care of it. Thanks to you, but
no thanks. I just - - I have no respect for you ever and I
wish the worst for you forever and ever.
The second message was left at 5:39 P.M. and stated the following:
Yeah, John, it's Vicki again. You know I believe in karma and
it's going to come back, you know. You've ruined my life
totally. I can't get unemployment, I can't get anything. I'm
living on the street. You know I hope it comes back to you, I
mean, ten-fold at least, because, you know, you are a big piece
of shit.
On November 8, 2005, Joy was terminated in part for the above voice
mail messages.(fn:2) Joy argues that the above messages were
considered "informal grievances" and the employer discriminated and
interfered with her rights to engage in protected activity when she
was terminated, in part, for the above messages.
____________________
fn:2 Joy was also terminated for failing to return to work and
receiving unemployment benefits while employed with the employer.
No Protected Activity Found
There is no evidence presented that Joy's messages were in fact
grievances as they were not submitted in a collective bargaining
context and she did not file a written grievance in accordance with
her collective bargaining agreement. The Joint Crafts Council has
been engaged in a contract with the employer effective through
December 2007, and was engaged in a contract at the time in which
Joy left messages to the human resources manager and was then
terminated as a result. This contract contains three steps in the
grievance procedure. The first step of the grievance requires the
grievance to be reduced to writing and submitted to one's supervisor
within twenty days of the alleged violation. This written grievance
is required to contain the section of the collective bargaining
agreement that had been violated and an explanation of the grievance
in detail. According to testimony, there has been no other
practice where grievances have been accepted informally or in a
verbal format.
In addition to Joy not using the correct format to file a grievance,
the messages she left were to the human resources manager and not to
her supervisor. The collective bargaining agreement clearly states
the first step in the grievance procedure is for the employee is to
inform one's supervisor of any alleged violation. There was no
indication in her messages as to how the human resource's manager
could be aware that these phone messages were intended to be a
grievance. Notification of a grievance to the human resources
manger is not a step identified in the grievance procedure.
Additionally, he would not have any way of knowing the message was
intended to be a grievance since she did not make any indication
that the messages concerned her collective bargaining rights or that
she would be seeking union assistance.
Furthermore, the timing and tone of the messages do not establish
them to be in a collective bargaining context. Again, the messages
contained no indication that Joy was grieving a violation of the
contract nor did the messages have any tone of a collective
bargaining context to put the employer on notice that she was
intending to file a grievance. The tone of the messages were that
of an employee airing frustration and does not rise to the level of
filing a grievance.
There is no indication that the messages left by Joy were in fact
grievances or intended to be such. In her messages, Joy did not
indicate to the employer that she was raising the issue in relation
to her collective bargaining rights, nor did she give the indication
that she intended to file a grievance over the issue. Furthermore,
a written grievance was never filed in accordance with the
collective bargaining contract.
Based on the above analysis, it is found that Joy was not engaged in
protected activity when leaving the messages for the human resource
manager on September 26, 2005. Because the activity for which Joy
was terminated is not "protected activity," the employer cannot be
found to have interfered with Joy's rights or discriminated against
her for engaging in protected union activity. Therefore, the
complaint is dismissed.
FINDINGS OF FACT
1. City of Seattle is a public employer within the meaning of
41.56.030(1).
2. Joint Crafts Council, a bargaining representative within the
meaning of RCW 41.56.030(3), is the exclusive bargaining
representative of certain employees at the City of Seattle. Its
bargaining unit included the position held by Vicki Lynn Joy.
3. The City of Seattle and Joint Crafts Council are parties to a
collective bargaining agreement in effect through December 31,
2007. This agreement contains specific procedures for
employees to file grievances.
4. On September 26, 2005, Vicki Lynn Joy left voice mail messages
for the employer's human resource manager expressing her
frustration to the employer. These messages did not state that
she intended to file a grievance over her frustration, that the
messages were concerning her collective bargaining rights or
that she would be seeking union assistance on the issue. Joy's
messages left for the human resource manager on September 26,
2005, were not protected activity.
5. Joy did not file a grievance through the appropriate steps in
the grievance procedure outlined in the collective bargaining
agreement regarding her frustration.
6. Joy was terminated on November 8, 2005, in part, for the
messages stated in Finding of Fact four above.
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. The City of Seattle did not discriminate or interfere with
employee rights violating RCW 41.56.140(1) or (4) by
terminating Joy for messages she left for the human resource
manager on September 26, 2005.
ORDER
The complaint charging unfair labor practices filed in the
above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 18th day of May, 2007.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CHRISTY YOSHITOMI, 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.