City of Seattle, Decision 9945 (PECB, 2007)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
SEATTLE POLICE OFFICERS GUILD, )
)
Complainant, ) CASE 20235-U-06-5159
)
vs. ) DECISION 9945 - PECB
)
CITY OF SEATTLE, ) ORDER OF DISMISSAL
)
Respondent. )
)
___________________________________)
Aitchison & Vick, Inc., by Hillary McClure and Derrick
Isackson, Attorneys at Law, for the union.
City Attorney Thomas A. Carr, by Fritz E. Wollett, Assistant
City Attorney, for the employer.
The Seattle Police Officers Guild (union) filed a complaint on March
3, 2006, with the Public Employment Relations Commission charging
the City of Seattle (employer) with unfair labor practices. A
preliminary ruling was issued on April 27, 2006, identifying the
allegations of the complaint as follows:
Employer interference with employee rights in violation of RCW
41.56.140(1), by surveillance of union through questioning
former Seattle Police Officers Guild president Mike Edwards
concerning the protected union activities of former Guild vice
president Stuart Colman, and through issuance of a subpoena
seeking internal union records concerning Coleman's union
activities.
A hearing was held on March 13, 2007, before Examiner Sally B.
Carpenter. The parties filed post-hearing briefs.
ISSUES PRESENTED
1. Did the employer's interview of union president Mike Edwards
interfere with protected union activities?
2. Did the employer's subpoena of internal union documents
interfere with protected employee rights?
The Examiner finds there was no interference violation by the employer.
FACTS
In October 2005, police officer Stuart Colman filed a lawsuit
against the employer in United States District Court, Western
District of Washington, alleging violation of his civil rights. The
union was not a party to Colman's private civil litigation.
In preparing its defense to the federal court lawsuit, the employer
interviewed union president Mike Edwards about union events relevant
to the lawsuit. The employer also issued a subpoena for union
documents.
The Lawsuit Allegations
Colman's claims in his lawsuit against the employer were:
1. Violation of Chapter 41.56 RCW and RCW 49.32.020 "by
interfering with, restraining and coercing Officer Colman in
retaliation for exercising his right to organize and designate
representatives of his own choosing for the purpose of
collective bargaining" through Colman:
a. Becoming vice president of the Seattle Police Officers Guild.
b. Using extensive union leave time to take care of union
business.
c. Zealously representing police officers in internal
investigations performed by the police department.
d. Publicly representing police officers' interests in the
press and elsewhere, and
e. Filing grievances against the police department.
2. Violation of Colman's free speech rights guaranteed by the
First and Fourteenth Amendments of the U.S. Constitution.
Facts asserted in Colman's lawsuit were:
1. Colman was elected vice president of the Seattle Police
Officers Guild in early 2001.
2. His union duties often took him away from his bike squad street
assignment.
3. Colman used local and national print and electronic media to
criticize the police chief's refusal to allow police
intervention during Mardi Gras violence in Pioneer Square in
February, 2001. During the unrestrained violence, a citizen
was murdered and several people were beaten. Colman's
criticism made the news for several months.
4. During the summer of 2001, Colman continued his outspoken
public criticisms. He took issue with the membership
composition of the civilian review board. Later he wrote an
article in the union's newsletter vigorously opposing
Nordtrom's video and audio taping on downtown streets.
5. In January 2002, Colman publicly criticized discipline imposed
by the police chief on a fellow union member.
6. In early February 2002, Colman ran for the office of president
of the Seattle Police Officers Guild. He lost the election but
remained briefly as vice president.
7. "On or about February 28, 2002, Colman resigned from his
position with the Union. He resigned because he was concerned
that he would not be able to keep his job in the bike squad and
maintain his high profile responsibilities to the Guild."
8. A long series of additional factual allegations detailed
Colman's view that the employer was treating him unfairly in
work assignments, training requests, use of leave, and the like
through September, 2004.
Employer's Reliance on Previous Court Order
The employer responded to Colman's lawsuit by seeking information
from the union regarding the union's knowledge of factual
allegations made in the lawsuit. The employer relied in part on a
June 2000, order by Chief Judge Coughenour in United States District
Court, Western District of Washington, Simmons v. City of Seattle,
Case No. C99-1511-C. The plaintiff in Simmons was a paramedic suing
the employer for discrimination and other law violations. Simmons'
union, Seattle Fire Fighters' Union, Local 27, was not a party to
the case, just as in the Colman case. The employer had issued a
subpoena to Simmons' union for documents. The union moved to quash
the subpoena, arguing the subpoena interfered with members'
associational rights and violated Chapter 41.56 RCW. The court ruled
that a union has no absolute protection from discovery of relevant
information in private civil litigation.
Interview with Union President Mike Edwards
In February 2006, the employer interviewed witnesses who had been
listed by Colman as having evidence relevant to his lawsuit.
Assistant City Attorney Amy Lowen requested an interview with Mike
Edwards, who was president of Seattle Police Officers Guild from
March 1996, through February 2002. Edwards had also been on the
union board, and had served as a shop steward and union vice
president. After Edwards was promoted to the position of lieutenant
in November 2005, he was no longer eligible to be a member of the
police officers' union.
On February 27, 2006, Lowen interviewed Edwards. There were several
items about which Lowen wished to question Edwards. One was a
meeting with Colman and his supervisor in February 2002. Edwards
was present at that meeting as union representative for Colman.
Colman told the employer in a deposition that this meeting regarding
his work attendance issues on the bike patrol, was the beginning of
the employer's retaliation against Colman for his union activities.
Lowen also had questions about why Colman resigned from the union
vice presidency later in February 2002. The lawsuit asserts the
resignation was caused by the employer's actions, but the union
newsletter carried a resignation article written by Colman giving a
quite different reason for his resignation.
Another item of inquiry by Lowen was whether there had been any
employer retaliation against any police officer, including Colman,
who spoke out publicly against several decisions made by the police
chief.
Edwards answered Lowen's questions where he had personal knowledge
but declined to respond where he believed the question dealt with
the internal workings of the union or with individual members other
than Colman. Edwards testified in this hearing that he did not feel
pressured to answer any question he declined to answer. Edwards
agreed that Lowen could draft a declaration containing his statement
of facts for him to sign, subject to review by the union and
approval by the union attorney.
Lowen prepared a proposed declaration summarizing Edwards'
statements and submitted it to the union attorney. There was an
exchange of e-mails and proposed changes. The changes offered by
the union attorney were all adopted by Lowen. Edwards signed the
declaration, which was filed in support of the employer's motion for
summary judgment to dismiss Colman's lawsuit.
Subpoena of Union Documents
On March 3, 2006, the employer issued a subpoena to the union
records custodian. The subpoena requested copies of (1) Mike
Edwards' notes, if any, concerning meetings he attended between
Colman and his supervisors; (2) Colman's written reasons for
resignation from his position as union vice president; (3) any
documents by Colman concerning his dissatisfaction with the union;
and (4) timekeeping documents, if any, indicating Colman's hours as
a union representative during his vice presidency. All of these
requests were limited to the time frames and issues identified by
Colman in his lawsuit.
The union attorney responded by stating the union would refuse the
subpoena and file an unfair labor practice charge. On March 10,
2006, the union attorney sent a letter to the employer concerning
the subpoena, asserting "Objection. Privileged." to each of the
four requests. The letter explained the union had diligently
searched its records and was attaching the few documents it found
which responded to the subpoena. The union records custodian signed
a declaration that there were no records responsive to the subpoena
other than those attached to the letter. Neither the union nor the
employer asked the court for protection from or enforcement of the
subpoena.
APPLICABLE LAW
The Public Employees' Collective Bargaining Act, Chapter 41.56 RCW,
protects employees' free exercise of their collective bargaining
rights:
RCW 41.56.040 RIGHT OF EMPLOYEES TO ORGANIZE AND DESIGNATE
REPRESENTATIVES WITHOUT INTERFERENCE.
No public employer, or other person, shall directly or
indirectly, interfere with, restrain, coerce, or discriminate
against any public employee or group of public employees in the
free exercise of their right to organize and designate
representatives of their own choosing for the purpose of
collective bargaining, or in the free exercise of any other
right under this chapter.
Employees' collective bargaining rights are enforced through the
provisions of RCW 41.56.140:
UNFAIR LABOR PRACTICES FOR PUBLIC EMPLOYER ENUMERATED.
It shall be an unfair labor practice for a public employer:
(1) To interfere with, restrain, or coerce public
employees in the exercise of their rights guaranteed by this
chapter;
To sustain an interference violation, the complainant bears the
burden of demonstrating that a typical 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).
The Commission's City of Vancouver, Decision 6732-A (PECB, 1999) was
reversed in PERC v. City of Vancouver, 107 Wn.App. 694 (2001),
review denied, 145 Wn.2d 1021 (2002). In the court of appeals, the
union and police amicus unions argued that any employer questioning
regarding conduct or discussions within a union is prohibited. The
court rejected that argument, holding there is no per se rule
regarding employer questioning. Rather, "the evidence must
demonstrate that, taken from the point of view of the employees, the
reasonable tendency of an employer's conduct or statements is
coercive in effect." City of Vancouver at 705, citations omitted.
The court in City of Vancouver reaches its decision after a thorough
analysis of federal court cases and National Labor Relations Board
(NLRB) precedent. City of Vancouver recites the eight tests
typically used by federal courts and the NLRB as:
(1)the history of the employer's attitude toward its employees;
(2)the type of information sought; (3)the company rank of the
questioner; (4)the place and manner of the conversation; (5)the
truthfulness of the employee's responses; (6)whether the
employer had a valid purpose for obtaining the information; and
(7)if so, whether the employer communicated it to the
employees; and (8)whether the employer assured the employee
that no reprisals would be forthcoming should he or she support
the union.
City of Vancouver at 706, citations omitted.
"In sum, the basic test used by the NLRB for evaluating the legality
of an interrogation is 'whether under all of the circumstances the
interrogation reasonably tends to restrain, coerce, or interfere
with rights guaranteed by the Act.'" City of Vancouver at 707,
citations omitted.
The court also analyzed Commission precedent and summarized that
precedent as "an employer commits a violation of RCW 41.56.140(1)
'if it creates the impression that it is engaged in surveillance of
employees engaged in protected activities, even if there was no
actual surveillance.'" City of Vancouver at 708 citing City of
Longview, Decision 4702 (PECB, 1994).
ANALYSIS
Issue 1 - Interview of Union President Edwards The employer
explained the reason for its questions. An employer e-mail sent to
Edwards on February 23, 2006, states, "you have been identified by
the Plaintiff (Colman) in Colman v. City of Seattle . . . as an
individual likely to have discoverable information that the
disclosing party may use to support its claims or defenses . . . ."
The e-mail continues that counsel for the employer "would like to
have an informal meeting with you about such information." Colman's
lawsuit was shown to Edwards during the questioning.
There is no testimony suggesting the employer's questions indicated
any potential for reprisal if questions were not answered. Edwards
felt free to decline to answer some questions; there was no pressure
to answer questions when he declined to answer. Edwards signed a
declaration in support of the employer's motion to dismiss the
lawsuit, after the contents of the declaration were negotiated
between the employer and union attorneys.
The employer had a valid purpose for questioning Edwards. He had
been named as a potential witness by Colman. Questions were focused
on the events identified by Colman as relevant to his lawsuit.
Issue 2 - Subpoenaed Union Documents The employer's subpoena was
tailored to seek only documents relating to specific allegations in
Colman's lawsuit, not a general investigation into union activity,
policy or strategy. When the union objected to the requests, the
employer responded that information not directly relevant to
Colman's claims could be redacted by the union prior to production
of documents. The union attorney, Christopher Vick, testified that
the few documents produced by the union were not confidential
documents because they were documents that had passed between the
employer and the union and could hardly be expected to be an
expression of internal union security. There were no other
documents found in response to the subpoena.
Defense of Colman's lawsuit is justification for the employer's
actions. The documents sought, had they existed, may have provided
information relevant to Colman's claims. The manner in which the
employer sought information was appropriate. The employer had a
valid purpose for seeking information, it had a narrow focus in the
type of information sought, and it responded to the union's initial
concerns with offers and suggestions to narrow the information
requested for production.
CONCLUSION
The Commission decides interference cases by asking the question: Is
there substantial evidence that a typical employee would reasonably
perceive that the employer was interfering with his or her
collective bargaining rights?
There is no evidence the employer created an impression of
surveillance of employees engaged in protected union activities.
Nor is there any evidence demonstrating that employees could
reasonably perceive that their union activity was threatened. The
complaint is dismissed.
FINDINGS OF FACT
1. The City of Seattle is a public employer within the meaning of
RCW 41.56.030(1).
2. The Seattle Police Officers Guild, a bargaining representative
within the meaning of RCW 41.56.030(3), is the exclusive
representative of a bargaining unit of police officers of the
employer.
3. Police officer Stuart Colman filed a private civil rights
lawsuit against the employer in October 2005. Claims asserted
in the lawsuit arose from the employment relationship, from
Colman's activities as vice president of the union in
2001-2002, and from claimed retaliation by the employer
beginning in February 2002.
4. The employer interviewed former union president Mike Edwards on
February 27, 2006, asking him questions about the union, police
officers represented by the union, and events referenced in
Colman's lawsuit. Edwards declined to answer many questions.
Edwards did not feel pressure when he refused to answer some
questions.
5. The employer prepared a draft declaration for Edwards'
signature. The union and employer negotiated some changes in
the contents of the declaration, which was filed in support of
the employer's motion for summary judgment to dismiss Colman's
lawsuit. Edwards voluntarily signed the declaration.
6. The employer subpoenaed union documents on March 3, 2006. The
union objected to the requests made, but responded with the few
documents which it had in its possession.
7. By interviewing union president Mike Edwards, as described in
Finding of Fact 4, the employer did not create an impression of
surveillance of employees engaged in protected union activities.
8. By issuing a subpoena for union documents, as described in
Finding of Fact 6, the employer did not demonstrate that
employees could reasonably perceived that their union activity
was threatened.
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. By interviewing union president Mike Edwards, as described in
Finding of Fact 4, the City of Seattle did not interfere with
employee rights or violate RCW 41.56.140(1).
3. By issuing a subpoena for union documents, as described in
Finding of Fact 6, the City of Seattle did not interfere with
employee rights or violate RCW 41.56.140(1).
ORDER
The complaint charging unfair labor practices filed in the
above-captioned matter is DISMISSED.
ISSUED at Olympia Washington this 28th day of December, 2007.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
SALLY B. CARPENTER, 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.