King County, Decision 9979 (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
TEAMSTERS LOCAL 174, )
)
Complainant, ) CASE 21078-U-07-5381
)
vs. ) DECISION 9979 - PECB
)
KING COUNTY, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
___________________________________)
Henrik Sortun, Staff Attorney, for the union.
Gretchen Herbison, Labor Negotiator, for the employer.
On May 21, 2007, Teamsters Local 174 (union) filed a complaint
charging unfair labor practices with the Public Employment Relations
Commission under Chapter 391-45 WAC, which named King County
(employer) as respondent. The employer operates a Department of
Transportation and the union is the exclusive bargaining
representative of the employees who work in the Maintenance Section
of the Roads Services Division of that department. The employees in
the bargaining unit are covered under a collective bargaining
agreement that expires on August 31, 2009. The controversies
concern alleged unilateral changes in working conditions without
affording the union an opportunity to bargain, and employer
circumvention of the union when dealing with an employee.
Agency staff reviewed the complaint under WAC 391-45-110 and issued
a preliminary ruling, finding that a cause of action existed under
RCW 41.56.140(1). Examiner Carlos R. Carrion-Crespo held a hearing
on the case on October 24, 2007. The parties submitted post-
hearing briefs.(fn:1)
____________________
fn:1 In its brief, the union withdrew its charge that the employer
had changed a working condition unilaterally.
After the hearing, the union moved to admit into evidence the
complaint, the employer's answer, and the notice of hearing. The
aforementioned documents are part of the procedural record(fn:2) and
the Examiner can take note of them if one or both of the parties
bases any of their arguments on them. Therefore, it is not
necessary to consider the union's motion.
____________________
fn:2 See WAC 391-45-050(2); WAC 391-45-170; WAC 391-45-210(4).
ISSUES PRESENTED
1. Did the employer interfere with protected rights when it
requested Evan Bagley and the union's shop steward to agree to
extend Bagley's probationary period as Truck Driver II?
2. Did the employer circumvent the union when it requested that
Bagley and the union's shop steward agree to extend Bagley's
probationary period, and when it negotiated with Evan Bagley to
transfer him to his previous position in another bargaining
unit within King County?
The Examiner rules that the employer did not commit either of the
unfair labor practices charged.
DISCUSSION
Issue 1: Interference with Protected Rights
The union alleges that the employer intervened with protected rights
by promising Bagley and the union's shop steward some benefits in
exchange for their agreement to extend Bagley's probationary period,
and by imposing a deadline on the acceptance of its proposal.
Applicable Legal Standard
An interference violation will be found when an employee could
reasonably perceive the employer's actions as a threat of reprisal
or force or a promise of benefit associated with the union activity
of that employee or other employees. The burden of proof to
establish an interference violation is not particularly high, but
the complainant must still establish its claim by a preponderance of
the evidence. Dieringer School District, Decision 8956-A (PECB,
April 11, 2007).
Application of the Standard
On May 22, 2006, Evan Bagley began working in the Maintenance
Section of the Roads Services Division of the King County Department
of Transportation as a Truck Driver II, with an initial six-month
probationary period. He had transferred from another bargaining
unit within King County represented by a different local, Teamsters
Local 114. The Local 114 collective bargaining agreement that
covered that bargaining unit guaranteed Bagley the right to revert
to his previous position within one year of transferring to his new
position.
Bagley did not work as a Truck Driver II for the first two months
after his probationary period began; he worked instead in his
previous position, which effectively shortened his evaluation as a
Truck Driver to four months. However, the employer and the union
agreed to extend his probationary status for three more months,
which would end on February 21, 2007, because his conduct during
this period had fallen short of expectations. The employer warned
Bagley that "any further 'insufficient' ratings will result in
termination."
Subsequently, on February 6, 2007, a citizen complained that Bagley
had smoked in one of the employer's trucks and had thrown the
cigarette out one of its windows, which is both against employer
rules and county regulations. Bagley admitted the violations and
agreed to undergo counseling. On February 14, human resources
official Jim Devereux sent an electronic message to the union's
business agent, Larry Boyd, requesting a new extension of Bagley's
probationary period to avoid terminating him. Devereux stated that
the citizen's complaint had affected Bagley's evaluation regarding
safety and personal conduct. Devereux asked Boyd to reply by
February 16, 2007, to avoid terminating Bagley when the extended
probationary period ended. Devereux included an excerpt of Bagley's
latest evaluation.
On February 14, 2007, Boyd responded, asking Devereux whether his
proposal entailed extending the probationary period to a full year.
On February 16, 2007, Boyd emailed Devereux and proposed to extend
Bagley's probationary period until March 12, 2007, when the parties
would meet to discuss the situation further. Devereux forwarded a
copy of the message to Labor Negotiator Trish Murphy. Murphy
replied the same day that the union should accept the employer's
proposal, and to communicate their response to Senior Human
Resources Consultant Melinda Dickie. Later that day, Boyd told
Dickie over the telephone that he could not speak for the union's
previous leadership, but the present leadership would not agree to
extend probationary periods because the contract did not provide for
it.
On February 20, 2007, Bagley's supervisor, Ross Pettit, asked shop
steward Tim Speck to agree to the employer's proposal on the union's
behalf. Speck asked for a copy of the citizen's complaint and his
evaluations, which Pettit said he did not have. Speck responded
that he did not have the authority to agree to extend the
probationary period.
Later that day, Speck met with Roads Maintenance Manager Deborah
Arima and Pettit's supervisor, Steve Wilson. Arima said that the
union should agree to extend Bagley's probationary period because it
could not grieve an employer decision to terminate Bagley. Speck
asked whether the employer would protect Bagley's right to return to
his previous position, and if it would consider changing Bagley's
lead worker or work unit. Arima said the employer could consider
those options, but requested that the union respond by 2:30 PM of
the same day, at which time the offer to extend the probationary
period would expire. Bagley would be terminated if the union did
not agree to the employer's proposal. Arima repeatedly asked Bagley
and Speck why the union would not do so and save his job.
After several attempts, Speck contacted the chief executive officer
of the local union, Rick Hicks, and Boyd. Hicks advised Speck that
he "absolutely" would not agree to extend Bagley's probationary
period. Arima repeatedly asked Bagley and Speck for the union to
reconsider, alleging she would save his job. After Hicks refused to
extend the probationary period, the employer offered to reinstate
Bagley to his previous position in Local 114. Bagley accepted and
signed a request to that effect.
Conclusion
The union did not prove that Bagley or the union reasonably
perceived the employer's actions as a threat related to protected
activity. When the parties agreed to extend Bagley's probationary
period in November 2006, the employer warned Bagley that any
violations could result in his termination. The employer's offers
in February 2007 to help Bagley constituted a "promise of benefit"
in the sense that the employer would allay Bagley's concerns
regarding the employer's proposal. Contrary to the union's
assertion, Speck suggested these protections, not the employer.
Arima's agreement to consider them was not intended to dissuade
Bagley or the union from engaging in protected activity and was
communicated to the union's designated representative in the
workshop. Further, the employer communicated its proposal to the
union's business representative on February 14. The employer's
demand that the union respond by 2:30 PM of the day of the meetings
was an attempt to press the union that a decision had to be made
before the probationary period was over, and followed a protracted
attempt to negotiate the issue with the union.
In light of the foregoing, the Examiner finds that the employer did
not interfere with protected rights in this case.
Issue 2: Circumvention
The union argues that the employer negotiated directly with Bagley
and Speck, the shop steward, to attempt to obtain an extension of
Bagley's probationary period. The union also argues that the
employer negotiated directly with Bagley in order to transfer him to
another bargaining unit.
Applicable Legal Principle
Where employees have exercised their right to organize for the
purposes of collective bargaining, their employer is obligated to
deal only with the designated exclusive bargaining representative on
matters of wages, hours, and working conditions. Under such
circumstances, an employer may not circumvent the exclusive
bargaining representative through direct communications with
bargaining unit employees. A "circumvention" violation arises
under RCW 41.56.140(4) only when the subject matter of a direct
communication is a mandatory subject of collective bargaining. Pasco
Police Officers' Association, Decision 4197-B (PECB, 1999).
Probationary periods are a mandatory subject of bargaining. King
County, Decision 6957 (PECB, 1999). The employer has all defenses
available, including waiver by contract. Waiver by contract has to
be clear and unmistakable: the contract language must be specific,
or it must be shown that parties fully discussed the matter and that
the party alleged to have waived its rights consciously yielded its
interest in the matter. Skagit County, Decision 8746-A (PECB, 2006).
Application
As mentioned above, the current contract contains a clause regarding
probationary periods, which states that the union would not grieve
any discipline that the employer took during that period.
Therefore, the parties had already bargained regarding this subject.
Under the terms of the contract, the employer was free to terminate
Bagley without further bargaining. The employer advised him of this
possibility in the November 2006 letter. Nevertheless, the employer
contacted the union on February 14, 2007, and offered to extend
Bagley's probationary period. The employer and the union exchanged
proposals and arguments during the following week. The employer
made no attempt to speak to Bagley or Speck until the day of
Bagley's termination.
Concerning the second instance of alleged circumvention, the
employer did not have to contact the union when it offered to
transfer Bagley to his previous position, because that was a right
afforded under a different contract. If the employer was to contact
a bargaining representative, it would have been Teamsters Local 117,
the bargaining agent for his original position with this employer,
which is not a party to these proceedings.
Therefore, the employer did not commit a circumvention violation.
FINDINGS OF FACT
1. King County is a public employer within the meaning of RCW
41.56.030(1).
2. Teamsters Local 174 is a labor organization and exclusive
bargaining representative within the meaning of RCW
41.56.030(3), representing certain employees of the Maintenance
Section of the Roads Services Division of the King County
Department of Transportation.
3. At all relevant times, Evan Bagley was a public employee within
the meaning of RCW 41.56.030(2) at the Maintenance Section.
4. On May 22, 2006, Bagley had transferred from another bargaining
unit represented by Teamsters Local 114 as a Truck Driver II,
with an initial six-month probationary period. Bagley did not
begin for two months after this probationary period began; he
worked in his previous position instead, which shortened his
evaluation period as a Truck Driver II to four months.
5. At the end of Bagley's six-month probationary period, the
employer and the union agreed to extend his probationary status
until February 21, 2007. The employer warned Bagley that "any
further 'insufficient' ratings will result in termination."
6. On February 6, 2007, a citizen complained that Bagley had
smoked in one of the trucks and thrown the cigarette out one of
its windows, which violated employer rules. Bagley admitted
the fact and agreed to undergo counseling.
7. On February 14, 2007, an employer human resources official
requested that the union's business agent agree to a new
extension of Bagley's probationary period to avoid terminating
him, because the citizen's complaint had affected Bagley's
evaluation regarding safety and personal conduct.
8. On February 16, 2007, the union's business agent proposed to
extend Bagley's probationary period until March 12, 2007, and
to discuss the situation in the meantime. The employer's labor
negotiator rejected the union's proposal. Later that day, the
union's business agent rejected extending the probationary
period because the contract did not provide for it.
9. On February 20, 2007, Bagley's supervisor asked the union's
shop steward to agree on the union's behalf to extend Bagley's
probationary period. The shop steward responded that he did
not have the authority to agree.
10. Later that day, Shop Steward Speck met with the roads
maintenance manager, who agreed to consider the shop steward's
concerns about Bagley's right to return to his previous
position, as well as changing Bagley's lead worker or work
unit. The roads maintenance manager requested that the union
respond by 2:30 PM of the same day, at which time the offer to
extend the probationary period would expire.
11. Later on February 20, 2007, the shop steward contacted the
chief executive officer of the local union, who rejected the
employer's proposal. The employer offered Bagley reinstatement
to his previous position in the bargaining unit represented by
Teamsters Local 114. Bagley accepted and signed a request to
that effect.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
these cases under Chapter 41.56 RCW and Chapter 391-45 WAC.
2. King County did not interfere with Evan Bagley's or Teamsters
Local 174's collective bargaining rights under RCW
41.56.140(1), when it requested Bagley and a shop steward from
Teamsters Local 174 to agree to extend Bagley's probationary
period as Truck Driver II.
3. King County did not circumvent its bargaining obligations
towards Teamsters Local 174 under RCW 41.56.140(4), when it
requested Bagley and the union's shop steward to agree to
extend Bagley's probationary period, or when it negotiated with
Evan Bagley to transfer him to his previous position in another
bargaining unit within King County.
ORDER
The complaint charging unfair labor practices filed in the
above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 15th day of February, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CARLOS R. CARRION-CRESPO, 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.