Seattle School District, Decision 9858-A (EDUC, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
ROBERT FEMIANO, )
)
Complainant, ) CASE 20689-U-06-5272
)
vs. ) DECISION 9858-A - EDUC
)
SEATTLE SCHOOL DISTRICT, ) DECISION OF COMMISSION
)
Respondent. )
___________________________________)
Robert Femiano appeared pro se.
Faye Chess-Prentice, Deputy General Counsel, for the employer.
This case comes before the Commission on a timely appeal filed by
Robert Femiano (Femiano) seeking review and reversal of certain
Findings of Fact, Conclusions of Law, and Order issued by Examiner
J. Martin Smith.(fn:1) The Seattle School District (employer) supports
the Examiner's decision.(fn:2)
____________________
fn:1 Seattle School District, Decision 9858 (EDUC, 2007).
fn:2 The employer did not appeal the Examiner's findings and
conclusions that it interfered with protected union rights when it
suggested to Femiano that he resign as building representative for
the union.
ISSUE PRESENTED
The only issue before this Commission is whether the Examiner erred
in finding that the employer did not interfere with Femiano's
Chapter 41.59 RCW protected rights when Principal Eric Nelson
insisted on having a discussion regarding a grievance that Femiano
filed.
We affirm the Examiner's decision that the employer did not
interfere with Femiano's protected rights when Nelson insisted on
having a conversation with him regarding a contractual grievance.
It is not reasonable for an employee in Femiano's position to
perceive Nelson's insistence on following the contractual grievance
procedure as interfering with his collective bargaining rights.
Factual Situation
The Examiner's decision states the complete facts of this case, but
we provide a brief summary for context. Femiano works as a teacher
at Sanislo Elementary School in the Seattle School District. During
the time relevant to this proceeding, he served as the Seattle
Education Association's building representative. The Seattle
Education Association is the exclusive bargaining representative of
the teachers in the school district, but is not a party to these
proceedings. During the time relevant to this proceeding, Eric
Nelson was the principal at Sanislo Elementary.
In 2004, the Seattle School District began implementing the "Flight
Program" to help teachers improve student learning and assessment in
targeted school populations. Plans to implement the program at
schools in the West Seattle area, including Sanislo, started in
December 2005. Shortly thereafter, teachers at Sanislo began
voicing opposition to the Flight Program. On April 1, 2006, several
teachers, including Femiano, filed a grievance under the collective
bargaining agreement requesting that participation in the Flight
Program be optional.
In April 2006, Femiano and Nelson engaged in a series of
conversations that are the source of this complaint. On April 7,
Nelson asked Femiano if he were available to discuss the grievance.
Femiano responded that his situation was unresolved and that he had
been advised not to meet with the principal. On April 13, Nelson
once again asked Femiano to meet with him regarding the grievance,
and informed Femiano that Femiano could bring his attorney. Femiano
responded on April 18 by stating that he felt it was unethical and
inappropriate for him to meet with any district official while the
grievance was pending. Nelson responded later that evening by
informing Femiano that Nelson was following the grievance procedure.
The next day, April 19, Nelson approached Femiano in his classroom
and attempted to discuss the grievance. Leslie Day, another teacher
at Sanislo who had joined in the Flight Program grievance, testified
that the discussion was very heated, and recalled "emphatic yelling"
from Nelson, and that Femiano did not want to discuss the grievance
at that time.
DISCUSSION
Applicable Legal Standard
Chapter 41.59 RCW prohibits employer interference with or
discrimination against the exercise of collective bargaining rights.
RCW 41.59.060(1) provides in part:
Employees shall have the right to self-organization, to form,
join, or assist employee organizations, to bargain collectively
through representatives of their own choosing, and shall also
have the right to refrain from any or all of such activities .
. . .
RCW 41.59.140(1) enforces those statutory rights, by establishing
that an employer who interferes with, restrains, or coerces public
employees in the exercise of their collective bargaining rights
commits an unfair labor practice.
The burden of proving unlawful interference with the exercise of
rights protected by Chapter 41.59 RCW rests with the complaining
party or individual. An interference violation exists when an
employee could reasonably perceive the employer's actions as a
threat of reprisal or force or promise of benefit associated with
the union activity of that employee or of other employees.
Kennewick School District, Decision 5632-A (PECB, 1996). The
employee is not required to show an intention or motivation to
interfere on the part of the employer to demonstrate an interference
with collective bargaining rights. See City of Tacoma, Decision
6793-A (PECB, 2000). Nor is it necessary to show that the employee
involved was actually coerced or that the employer had an anti-union
animus for an interference charge to prevail. City of Tacoma,
Decision 6793-A.
Application of Standard
Nelson's Insistence on Discussing Femiano's Grievance
Femiano argues that the Examiner erred in not finding that the
employer interfered with him as an employee when Nelson continued to
demand that he and Femiano discuss the grievance. Specifically,
Femiano asserts that the Examiner erred by finding that, as a
building representative, he had an obligation to communicate with
Nelson regarding the grievance that he filed. Femiano also notes
that nowhere in the grievance procedure does the building
representative have a role in the process.
With respect to that grievance process, the parties' collective
bargaining states, in part:
Section C: The adjustment of grievances shall be accomplished
as rapidly as possible in order to resolve the grievance promptly.
. . .
Section D: Grievance Procedure
1. Required Informal Discussion: An employee shall first take
up a complaint or problem with his/her immediate
administrative supervisor in private informal
discussion(s) and every effort shall be made to adjust
that complaint or deal with the problem in an informal
manner. The informal conference shall occur within ten
(10) working days of the employee's request for the
conference.
This Commission does not assert jurisdiction through the unfair
labor practice provisions of Chapter 41.56 RCW to enforce provisions
of a collective bargaining agreement. City of Walla Walla, Decision
104 (PECB, 1976). However, this is not that kind of case. Rather,
this case concerns an employer's insistence upon following the
contractual grievance procedure to engage in informal discussions
about a grievance, and whether or not that insistence can constitute
an interference violation when the employee refuses to engage in
discussions.
We agree with Femiano that, under the specific terms of the
collective bargaining agreement, he may not have had an obligation
to discuss his grievance with Nelson as a building representative.
To that end we disagree with the Examiner that Femiano was bound to
discuss the grievance with Nelson as a building representative.(fn:3)
However, as the grievant, Femiano did have a contractual obligation
under the grievance procedure to informally discuss the matter with
Nelson, and it is readily apparent from the record that Nelson was
trying to engage in that process. Where, in cases such as this, the
parties' grievance procedure calls for informal discussions of the
matter, we will not infer a party's reasonable attempt to engage in
that process as interfering with protected collective bargaining
rights.
____________________
fn:3 As a building representative, Femiano may have been an agent
of the union, and based upon the parties' historical practices, he
could have been responsible for acting as a liaison between the
employer and other bargaining unit employees. Furthermore, had the
employer asked Femiano for his assistance in scheduling informal
discussions with the other grievants, he could have been obligated
to assist the employer. This record contains no evidence of any
authority granted to the building representatives by the union.
Accordingly, we must now determine if Nelson's actions to
communicate with Femiano could reasonably be perceived by an
employee in the same circumstance as a threat of reprisal or force
or promise of benefit associated with the union activity of that
employee or of other employees. We find that a reasonable employee
in the same situation would not feel threatened by Nelson's actions.
Nelson's first attempt at scheduling an informal conference was made
by his April 7, 2006 e-mail. That e-mail simply asked Femiano for a
meeting to talk "as a colleague and member of the Sanislo staff
about Flight Schools" and to "chat about what has happened so far."
Femiano responded by e-mail declining to meet with Nelson. Nothing
in Nelson's e-mail speaks to any sort of punishment or penalty if
Femiano failed to meet with Nelson, and nothing in this e-mail could
reasonably be perceived as interfering with protected rights.
Nelson's April 13 e-mail again asked Femiano to meet to discuss the
grievance, and stated that "as [the school's union] rep, I need to
be able to speak with you about any issue, especially in the case of
a grievance like the one about Flight Schools currently submitted at
Sanislo. . . . [I]t is our job to first informally talk and try to
resolve issues together." Nelson offered to allow Femiano to bring
his attorney, once again asked to meet to discuss the matter, and
offered two possible days to meet. Following Nelson's April 13
e-mail, Femiano responded by stating that it would be
"inappropriate, if not unethical for [him] to meet with any district
official to privately discuss this matter." Nothing in Nelson's
April 13 e-mail mentioned any sort of punishment or penalty if
Femiano failed to meet with Nelson, and nothing in this e-mail could
be reasonably perceived by an employee in the same circumstances as
interfering with protected rights.
Nelson responded on April 18 by e-mail, asking to meet with Femiano
as the union representative and quoting the contractual informal
grievance procedure. Nelson stated that Femiano "asked to be [the
union representative] so take a leadership role so we can follow the
contract. If no resolution is made when we meet, then we can go to
formal step 1." Nelson then quoted the formal grievance procedure,
and informed Femiano that he intended on meeting with Femiano to
"create a climate which will lead to a solution." Nothing in
Nelson's April 18 e-mail mentioned any sort of punishment or penalty
if Femiano failed to meet with Nelson, and nothing in this e-mail
could be reasonably perceived by an employee in the same
circumstances as interfering with protected rights.
The next day, Nelson approached Femiano in his classroom while the
students were absent, intending on having informal discussions about
the grievance. The evidence demonstrates that Nelson wanted to know
why Femiano filed the grievance, and what problems needed to be
addressed. Femiano continued to decline to engage Nelson in
discussions about the grievance. Leslie Day testified that she
could hear Nelson yelling at Femiano, and also stated that Nelson
told Femiano "he did not care about the kids. . . ." While Nelson
may not have exercised the best labor/management practices by
engaging in a shouting match with Femiano, nothing in this record
suggests that Nelson threatened or punished Femiano for filing the
grievance. Rather, Nelson was emphatically trying to satisfy the
informal grievance procedure, a process that Femiano refused to
engage in. Accordingly, the Examiner correctly concluded that the
employer did not interfere with Femiano's protected rights when
Nelson sought to engage him in informal discussions regarding the
grievance.
Nelson's E-mail Statements Regarding "Rebel-Rousing"
Additionally, Femiano argues that Nelson's written statements
interfered with his protected rights. Relying upon Kennewick School
District, Decision 5632-A (PECB, 1996), he claims that an e-mail
written by Nelson and addressed to Patricia Sanders, and copied to
Jane Westergaard-Nimocks, Ben Ibale, and Steve Pulkkinen, interfered
with his protected rights because it characterized his activities as
iconoclastic or argumentative. We disagree.
Nelson's e-mail, obtained by Femiano through a public records
request, discusses concerns regarding the Flight School Programs.
That e-mail does not to mention Femiano specifically by name, but
speaks of "a certain staff member" who insists that the Flight
School program violates the parties' collective bargaining
agreement, and that the issues at "Sanislo are not about the Flight
School as much about one person rebel-rousing . . . ." At hearing,
Nelson admitted that Femiano was the "certain staff member" whom he
was talking about.
Unlike Kennewick School District, where the statements were made
directly to that employee, Nelson's statements were made in private
to other non-bargaining unit employees. Our collective bargaining
law must recognize that public employers have the right to discuss
collective bargaining matters in private. Unless it can be
demonstrated that the employee suffered some sort of loss of right
associated with such a statement, the private statement by itself
does not form the basis for an interference violation.
NOW, THEREFORE, it is
ORDERED
The Findings of Fact, Conclusions of Law, and Order issued by
Examiner J. Martin Smith are AFFIRMED and Adopted as the Findings of
Fact, Conclusions of Law, and Order of the Commission.
Issued at Olympia, Washington, the 27th day of February, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
THOMAS W. McLANE, Commissioner