City of Seattle, Decision 9526 (PECB, 2006)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL ASSOCIATION OF )
FIREFIGHTERS, Local 2898, )
)
Complainant, ) CASE 19522-U-05-4955
)
vs. ) DECISION 9526 - PECB
)
CITY OF SEATTLE, )
)
Respondent. ) ORDER OF DISMISSAL
___________________________________)
Webster, Mrak, Blumberg, by James Webster, Attorney at Law, for
the union.
City Attorney Thomas Carr, by Fritz Wollett, Assistant City
Attorney, for the employer.
On June 1, 2005, the International Association of Firefighters,
Local 2898 (union) filed an unfair labor practice complaint against
the City of Seattle (employer) charging employer interference with
employee rights and refusal to bargain. A preliminary ruling issued
July 5, 2005, and a timely answer was received July 26, 2005. A
hearing was held before Examiner Christy Yoshitomi on May 9, 2006.
ISSUES PRESENTED
1. Did the employer interfere with employee rights by interviewing
bargaining unit members in preparation for a grievance
arbitration proceeding?
2. Did the employer refuse to bargain with the union by not
providing requested information from the contested interviews
to the union?
Based on the arguments and evidence submitted by the parties, the
Examiner rules that the employer did not interfere with employee
rights or refuse to bargain in violation of RCW 41.56.140(1)&(4).
ISSUE 1: Did the employer unlawfully interview bargaining unit
members in preparation for an arbitration proceeding?
Interference: Legal standards
To establish an interference violation under RCW 41.56.140(1), a
complainant must establish that a party has engaged in conduct which
employees could reasonably perceive as a threat of reprisal or
promise of benefit associated with the pursuit of rights under
Chapter 41.56 RCW. City of Pasco, Decision 3804-A (1992). 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."
The complainant bears the burden of demonstrating that another
employee, in the same circumstances, could reasonably perceive the
employer's action as discouraging his or her union activities. Grant
County Public Hospital District 1, Decision 8378-A (PECB, 2004).
ANALYSIS
In October, 2004, the union filed a grievance on behalf of a
bargaining unit member who was an employee of the employer. The
grievance asserted that the employer imposed discipline without just
cause. The parties agreed to skip the first three steps of the
grievance procedure and proceed directly to arbitration. In
preparation for arbitration, the employer retained attorney Reba
Weiss for its representation. Weiss subsequently interviewed three
other bargaining unit members about their knowledge of the facts
regarding the case. The information gathered from the interviewees
was to be used for witness examination and to prepare the employer's
defense in preparation for arbitration.
The union alleges that the above act of interviewing employees, who
are members of the same bargaining unit, in preparation for a
grievance arbitration is interfering with statutory rights under RCW
41.56. However, the union presented no facts showing that the
bargaining unit members were engaging in any protected activity or
pursuing their rights under RCW 41.56. The only protected activity
claimed by the union was that the employees were members of a
bargaining unit.
The union claims that City of Omak, Decision 5579-A (PECB, 1997)
protects employees who associate with and support a grievant in the
grievance procedure. However, City of Omak had very distinguishing
facts from those here. In Omak, the employees who supported the
grievant were told that they would be disciplined if they filed a
grievance. Filing a grievance is a right that employees are
provided and protection by 41.56 RCW. As shown through City of
Omak, disciplining or threatening to discipline employees for
engaging in that right is a clear violation of the statute. In this
case, the employer did not threaten to discipline the employees for
engaging in any protected activity. Therefore, City of Omak,
Decision 5579-A (PECB, 1997) does not apply.
The union also cites Seattle School District, Decision 7349-A (PECB,
2001), as relevant to this case. Again, the facts there are
drastically different. In Seattle School District, the employer
prevented union witnesses from appearing at a hearing. In this
case, the employer did not interfere with the union presenting its
case at arbitration nor was it shown that the employer prevented the
union from interviewing employees in preparation for arbitration.
Board Precedent
As there are no Commission cases directly relevant to this case, the
union cites PERC v. City of Vancouver, 107 Wn. App. 694, 33 P.3d 74
(2001), which discusses the National Labor Relations Board's
adoption of Johnnie's Poultry, 146 NLRB 770, (1965). The union
argues that under the Johnnie's Poultry standard, the employer in
the present case unlawfully interviewed employees in preparation for
an arbitration. However, there are many distinguishing factors
which prevent the Johnnie's Poultry standards from being adopted
here.
In Johnnie's Poultry, the employer did not believe that the union held a
majority status and therefore would not recognize the union. To determine
if the union held a majority status, the employer interviewed employees as
to their union adherence and activities. After learning of this action, the
union filed a charge with the National Labor Relations Board (NLRB) alleging
employer interference, discrimination and refusal to bargain. The Board
found "that by interrogating the employees concerning their union adherence
and activities Respondent engaged in interference, restraint, and coercion .
. ." The type of questioning in Johnnie's Poultry, in content and in a
representation context, was held to be in violation of the National Labor
Relations Act. For this reason, the NLRB continues to hold that when an
employer interviews an employee in preparation for hearing, it must
communicate:
* The purpose of the questioning must be communicated to the employee.
* An assurance of no reprisal must be given to the employee.
* Participation is on a voluntary basis.
Johnnie's Poultry, 146 NLRB 770, (1965). Additionally, the decision states
that:
The questioning must occur in a context free from employer hostility to
union organization and must not be itself coercive in nature, and the
questions must not exceed the necessities of the legitimate purpose by
prying into other union matters, eliciting information concerning an
employee's subjective state of mind, or otherwise interfering with the
statutory rights of employees.
In the present case, the union did not allege the employer's questions
interfered with employee rights, but rather that the act of the interviewing
without the first three safeguards of Johnnie's Poultry was interference.
In Johnnie's Poultry, statutory rights were being violated by the questions
asked. In the present, case, no statutory rights were violated by the
interviews.
The union claims that Cook Paint, 246 NLRB 646 (1979), established a per se
rule that an employer may never use a threat of discipline to compel
employees to respond to questions relating to a grievance proceeding that
has been scheduled for arbitration. However, on review, the District of
Columbia Circuit Court overturned the Board's ruling. See Cook Paint v.
NLRB, 648 F.2d 712 (1981). Therefore, even if the interviewees in this case
were ordered to submit to an interview by the employer, this demand in and
of itself, is not coercive. As stated in Johnnie's Poultry, 146 NLRB 770
(1965), an investigation of facts concerning issues raised in a complaint
where such interrogation is necessary in preparing the employer's defense
for trial of a case is legitimate.
Potential for Interference
Under the following headings, there could be a potential for the employer to
interfere with employees' statutory rights. However, even under these
further analysis, no interference violation is found here.
The Interviewees
In Cook Paint, 648 F.2d 712 (1981), it was further noted that fundamental
differences may arise between the interview of an employee and a union
steward. The Circuit Court then remanded Cook Paint, for further
proceedings on that issue. In its supplemental decision, Cook Paint, 258
NLRB No. 166 (1981), held that because of the union steward's
representational status, the scope of respondent's questioning, and the
impingement on protected union activities, the interview did violate
employee rights under the National labor Relations Act.
There could be a potential of interference if the employees interviewed in
this case were helping to represent the grievant at arbitration. However,
in the present case, there was no such indication, testimony or evidence
that the interviewed employees had a rank in the union or were involved in
any union business so that the interview might infringe on protected activity.
Content of the interview
In Johnnie's Poultry, 146 NLRB 770 (1965), the employer did not believe that
the union held a majority status and therefore would not recognize the
union. To determine if the union held a majority status, the employer
interviewed employees as to their union adherence and activities. This type
of questioning is drastically different from the case at hand and obviously
in violation of the National Labor Relations Act.
Here, the employer interviewed employees about their knowledge of facts in
an arbitration case to prepare for witnesses and the employer's defense. As
stated above, this arbitration involved an individual's discipline and how
the discipline was imposed upon that individual. The arbitration did not
touch on factors related to the employee's statutory rights under 41.56 RCW,
which clearly was the violation in Johnnie's Poultry. In this case, the
union did not allege that the questions asked by the employer in the
interview interfered with the employee's statutory rights.
Conclusion
The union did not prove that any statutory rights were exercised by the
interviewees. There was no showing that the questions asked interfered with
statutory rights nor was there any indication that the interviewees
represented the grievant, as a steward or union president, for the
arbitration. The employer, as well as the union, has the right to interview
potential witnesses for examination and cross-examination in preparation of
an arbitration. Membership in a union alone does not preclude members from
being interviewed by the employer when the interview is performed in
preparation for arbitration and where the interviewees are not a
representative of the union. The mere fact that the arbitration involves a
bargaining unit member does not show an exercise of statutory rights. This
membership does not immunize employees from being questioned in preparation
of the employer's defense without "Johnnie's Poultry" safeguards. The
interviewees did not exercise rights solely by being a member of the same
bargaining unit as a grievant in an arbitration matter. Therefore, no
violation of exercised rights under 41.56.140(1) occurred and the complaint
is dismissed.
ISSUE 2: Did the employer refuse to bargain in violation of RCW
41.56.140(4) by not providing the union with information about the
interviews upon request by the union?
Duty to Bargain
It is an unfair labor practice for a public employer to refuse to engage in
collective bargaining. RCW 41.56.140(4). The Commission has stated that the
duty to bargain includes a duty to provide relevant, necessary information
requested by the opposite party for the proper performance of its duties in
the collective bargaining process. Port of Seattle, Decision 7000-A (PECB,
2000). This duty extends to requests for information required for the
processing of grievances and the sifting out of unmeritorious claims. Port
of Seattle, Decision 7000-A (PECB, 2000). The duty to provide information
turns on the circumstances of a particular case. Pasco School District,
Decision 5384-A (PECB, 1996). The union must have a genuine need for the
requested information. City of Bremerton, Decision 6006-A (PECB, 1998). The
party receiving an information request has a duty to explain any confusion
about, or objection to, the request and then negotiate with the other party
toward a resolution satisfactory to both. Port of Seattle, 7000-A (PECB,
2000; Seattle School District, Decision 5542-B (PECB, 1997).
Request for information
After the union had learned employees were being interviewed about the
pending arbitration, it requested in an e-mail to the employer "full
disclosure of all interviewees, questions asked and information provided,
and copies of all notes and statements." The complaint filed by the union
on June 1, 2005, alleged the employer refused to:
Share with the union the substance of the information obtained as a
result of the interviews that may be relevant to the strength or
weakness of the city's position with respect to issues in the
arbitration proceeding.
The employer responded by asserting privilege exists and therefore refused
to share information gathered in the pre-arbitration interviews with the union.
Privilege
A privilege exists to documents prepared by attorneys, when they are
prepared in anticipation of litigation. The work product doctrine directs
that a party may not obtain documents or other tangible items prepared in
anticipation of litigation by or for another party by or for that other
party's representative (including the other party's attorney, consultant,
surety, insurer, or agent), unless it proves that it has substantial need of
the materials in the preparation of its case and is unable, without undue
hardship, to obtain the substantial equivalent of the materials by other
means. The work product doctrine also directs that those documents
reflecting the mental impressions, opinions, or strategy of an attorney
enjoy absolute immunity from discovery. Hickman v. Taylor, 329 US 495,
510-511 (1947). Thus, all documents prepared in anticipation of litigation
are protected by, at the very least, a qulaified privilege under discovery
rules and need to be produced only upon a substantial showing of need. See
Snohomish County, Decision 9291 (PECB, 2006).
In the situation here, the employer's attorney gathered information and
took notes in the interviews when preparing for a grievance arbitration.
This is clearly distinct from City of Bellevue, Decision 3085-A (PECB,
1989), which was argued by the union. In Bellevue, the employer was ordered
to disclose its list of comparable employers to the union in preparation for
interest arbitration where the employer argued it was privileged
information. In Bellevue, the Commission found that the list of employers
considered for comparables in wages, hours and conditions is not the "the
mental impressions, conclusion, opinions, and legal theories of the
employer's attorneys," but rather data which is basic evidence in interest
arbitration. Therefore, the list of comparable employers used by the
employer in the arbitration was not privileged information. On the other
hand, the information obtained in the present case was gathered specifically
for the employer in preparing its case for arbitration and is the mental
impressions, conclusions, and opinions of the employer in preparing its
case. Therefore, this information is protected under attorney-work product
privilege.
Additionally, the union in this case had other means to obtain the
information it requested. The union knew who was interviewed by the
employer and had full opportunity to interview those employees in
preparation for the arbitration. By seeking the specific information
gathered by the employer in its interviews with the employees, the union is
seeking to learn the employer's presentation for hearing. The union's
request went far beyond a need for the information to properly perform its
duties in the grievance process. The employer was not obligated to provided
the information to the union and thus, the complaint is dismissed.
FINDINGS OF FACT
1. The City of Seattle is a public employer within the meaning of 41.56 RCW.
2. The Seattle Fire Chiefs Association Local 2898, International
Association of Firefighters, a bargaining representative within the
meaning of 41.56 RCW, is the exclusive bargaining representative of all
supervisory uniformed personnel employed by the Seattle Fire
Department.
3. The employer and union were parties to a collective bargaining
agreement in effect through December 31, 2004, and have continued in
this relationship.
4. In October, 2004, the union filed a grievance on behalf of a bargaining
unit member. The grievance asserted the employer imposed discipline
without just cause. The grievance proceeded to arbitration.
5. In preparation for the grievance arbitration, the employer's attorney
interviewed three members of the same bargaining unit about the facts
of the case.
6. In May 2005, the union requested the employer to provide the substance
of information obtained from the interviews. The employer denied the
request for information on grounds of privilege and refused to provide
information obtained in the interviews to the union.
7. The union had the ability to obtain equivalent information to that
requested from the employer.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in the
matter pursuant to Chapter 41.56 RCW.
2. The employer did not interfere with employee rights in violation of RCW
41.56.140(1) by interviewing employees bargaining unit members in
preparation for a grievance arbitration.
3. The employer did not refuse to bargain in violation of 41.56.140(4) by
refusing to provide privileged information that the union had the
ability to obtain through other sources.
ORDER
The complaints charging unfair labor practices filed in the above-captioned
matter are dismissed.
Issued at Olympia, Washington, on the 29th day of December, 2006.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CHRISTY L. YOSHITOMI, Hearing 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.