City of Seattle, Decision 9439-B (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
CITY OF SEATTLE, )
)
Employer. )
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VICKI LYNN JOY, ) CASE 20344-U-06-5182
)
Complainant, ) DECISION 9439-B - PECB
)
vs. )
)
CITY OF SEATTLE, ) DECISION OF COMMISSION
)
Respondent. )
)
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Action Employment Law, by John Scannell, Attorney at Law, for
the complainant.
Seattle City Attorney Thomas Carr, by Amy Lowen, Assistant City
Attorney, for the employer.
This case comes before the Commission on a timely appeal filed by
Vicki Lynn Joy (Joy) seeking review and reversal of certain findings
of fact, conclusions of law, and the order dismissing her complaint
issued by Examiner Christy Yoshitomi.(fn:1) The City of Seattle
(employer) supports the Examiner's decision.
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fn:1 City of Seattle, Decision 9439-A (PECB, 2007).
Joy filed an amended unfair labor practice complaint with this
agency alleging that the employer discriminated against her in
violation of RCW 41.56.140(1) when it terminated her for presenting
a grievance regarding her termination. Joy worked as a janitor for
the Seattle Center and was included in a bargaining unit represented
by the Joint Crafts Council (union).(fn:2) Due to Joy's medical needs,
the employer placed her on leave until it could find a work schedule
to accommodate those needs. Although Joy's doctor faxed certain
documents to the employer between September 19 and 21, 2005, that
would allow her to work, Joy was not scheduled for any shifts. The
union advised Joy to contact the employer directly, which she did,
but she did not receive a response. On September 26, 2005, Joy
called Human Resources Manager John Cunningham and left two
messages. The first message stated:
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fn:2 The Joint Crafts Council was not a party to and did not
represent Joy in this matter.
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 stated:
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, Robert Nellams, Acting Director of the Seattle
Center, decided to terminate Joy based upon not only the messages,
but also Joy's history of discipline.(fn:3) Following a hearing, the
Examiner dismissed Joy's complaint, finding that Joy failed to
demonstrate that she engaged in protected activity that resulted in
her discipline.
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fn:3 The employer presented evidence demonstrating that Joy had
been disciplined multiple times for attendance and interpersonal
problems with her co-workers, including a multi-day suspension from work.
Applicable Legal Standard
A discrimination violation occurs when an employer takes action
which is substantially motivated as a reprisal against the exercise
of rights protected by Chapter 41.56 RCW. See Educational Service
District 114, Decision 4361-A (PECB, 1994), where the Commission
embraced the standard established by the Supreme Court of the State
of Washington in Wilmot v. Kaiser Aluminum, 118 Wn.2d 46 (1991);
Allison v. Seattle Housing Authority, 118 Wn.2d 79 (1991). A prima
facie case of discrimination can be found when:
1. An employee exercises a right protected by the collective
bargaining statute, or communicates to the employer an intent
to do so;
2. The employee is discriminatorily deprived of some ascertainable
right, benefit, or status; and
3. There is a causal connection between the exercise of the legal
right and the discriminatory action.
Where a complainant establishes a prima facie case of
discrimination, the employer need only articulate non-discriminatory
reasons for its actions. It does not have the burden of proof to
establish those matters. Port of Tacoma, Decision 4626-A (PECB,
1995). The burden remains on the complainant to prove, by a
preponderance of the evidence, that the disputed action was in
retaliation for the employee's exercise of statutory rights. That
may be done by showing that the reasons given by the employer were
pretextual, or by showing that union animus was nevertheless a
substantial motivating factor behind the employer's actions. Port
of Tacoma, Decision 4626-A.
Application of Standard
We agree with the Examiner that Joy failed to establish a prima
facie case of discrimination, and her complaint was properly
dismissed, based upon the fact that this record demonstrates no
connection between Joy's termination and an exercise of protected
activity. Although Joy demonstrated that she was deprived of a
right, even viewed in a light most favorable to Joy, nothing in
either of her phone calls establishes that she was exercising a
protected right, such as requesting that the employer meet with her
union to resolve the situation. The tenor and tone of Joy's
messages demonstrate that she was venting frustration over her
situation, but that frustration does not equate to protected
activity. For example, in City of Yakima, Decision 9451-B (PECB,
2007), a union established its prima facie case by claiming that the
employer exercised the provisions of a last-chance employment
agreement to terminate a bargaining unit member in retaliation for
the union's filing of an unfair labor practice. The union
established its prima facie case by demonstrating through the
evidence and testimony of its case in chief a causal connection
between the two events, the employee's termination and the protected
right of filing an unfair labor practice complaint.(fn:4)
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fn:4 Although the union in City of Yakima established its prima
facie case, the employer demonstrated non-discriminatory motives for
exercising the last-chance employment agreement, and the union
failed to carry its ultimate burden that the employer's motive was
discriminatory.
Here, Joy failed to establish the exercise of a collective
bargaining right. Accordingly, the Examiner correctly dismissed her
complaint.
Other Arguments on Appeal
On appeal, Joy asserts that the Examiner erred by ruling that Joy's
phone calls were not protected concerted activity, and urges this
Commission to overturn City of Seattle, Decision 489-A (PECB, 1978)
and its progeny. In City of Seattle, this Commission affirmed an
Examiner's decision finding that Chapter 41.56 RCW did not contain a
"concerted activities" clause similar to the National Labor
Relations Act (NLRA), and therefore this agency has no statutory
jurisdiction over certain claims.
Section 7 of the NLRA is typically referred to as the "concerted
activities" clause, and provides in part:
Employees shall have the right to self-organization, to form,
join or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection. . . .
(emphasis added). The "concerted activities" clause of Section 7
has been interpreted to provide that even in a wholly unorganized
shop, a work stoppage for the purpose of protesting working
conditions is activity protected by Section 7. City of Seattle,
Decision 489 (PECB, 1978), aff'd, City of Seattle, Decision 489-A
(PECB, 1978)(citations omitted). However, although Chapter 41.56
RCW was modeled after the NLRA, and many of the provisions of our
act are based upon the NLRA, no equivalent to Section 7 exists in
Chapter 41.56 RCW. Based upon this omission, this Commission has
consistently declined to interpret Chapter 41.56 RCW to provide for
the protection of employee concerted activities similar to the NLRA.
Washington's Private Sector Labor Laws
To support her contention that City of Seattle should be overruled,
Joy points to a decision of the Washington State Supreme Court
recognizing that Chapter 49.32 RCW protects concerted activity.
Chapter 49.32 RCW, enacted in 1933, sets forth a policy that
strictly limits state court involvement in private sector labor
disputes while at the same time providing certain protections to the
private sector employees involved in such disputes. With respect to
the protections provided to private sector employees, RCW 49.32.020
provides:
"[T]he individual unorganized worker is commonly helpless to
exercise actual liberty of contract and to protect his freedom
of labor, and thereby to obtain acceptable terms and conditions
of employment, wherefore, though he should be free to decline
to associate with his fellows, it is necessary that he have
full freedom of association, self-organization, and designation
of representatives of his own choosing, to negotiate the terms
and conditions of his employment, and that he shall be free
from interference, restraint, or coercion of employers of
labor, or their agents, in the designation of such
representatives or in self-organization or in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protections. . . ."
In Bravo v. Dolsen Companies, 125 Wn.2d 745 (1995), the Court
recognized that under Chapter 49.32 RCW, all private sector
employees, not just unionized employees, who went on strike and
picketed their employer were engaged in protected concerted
activities. Accordingly, when the employer terminated non-unionized
employees for going on strike and picketing the employer's
workplace, the employer interfered with their protected rights under
RCW 49.32.020.
Joy's reliance on the Bravo case is misplaced on several accounts.
First, the statutory framework on which the Bravo court based its
decision applies exclusively to private sector employees who may or
may not be asserting their collective bargaining rights. Chapter
49.32 RCW is inapplicable to public sector employees, who
collectively bargain under the provisions of Chapter 41.56 RCW.(fn:5)
Thus, unlike Chapter 41.56 RCW, which is silent regarding the
protection of concerted activities, RCW 49.32.020 specifically
provides protection for people engaged in concerted activities.(fn:6)
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fn:5 We can presume that the Legislature was aware of Section 7 of
the NLRA and RCW 49.32.020 when it passed Chapter 41.56 RCW.
fn:6 We note that in addition to Chapter 41.56 RCW, none of the
other public sector collective bargaining laws administered by this
Commission, including Chapter 28B.52 RCW, Chapter 41.59 RCW, Chapter
41.76 RCW, and Chapter 41.80 RCW, contain a "concerted activities"
clause similar to Section 7 of the NLRA.
We find no intent in the Bravo decision to extend protection of
concerted activities to public sector employees. Until the
Legislature or a court of competent jurisdiction directs this
Commission to rule otherwise, the interpretation of Chapter 41.56
RCW declining to extend protection to concerted activities as
outlined in City of Seattle shall continue as the proper
interpretation of law.
NOW, THEREFORE, it is
ORDERED
The Findings of Fact, Conclusions of Law, and Order of Dismissal
issued by Examiner Christy Yoshitomi are AFFIRMED and ADOPTED as the
Findings of Fact, Conclusions of Law, and Order of the Commission.
Issued at Olympia, Washington, the 21st day of January, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
THOMAS W. McLANE, Commissioner