Okanogan County, Decision 9980 (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
OKANOGAN COUNTY SHERIFF'S )
EMPLOYEES ASSOCIATION, ) CASE 21359-U-07-5448
)
Complainant, ) DECISION 9980 - PECB
)
vs. )
)
OKANOGAN COUNTY, ) AMENDED PRELIMINARY
) RULING AND ORDER OF
Respondent. ) PARTIAL DISMISSAL
)
___________________________________)
On November 14, 2007, the Okanogan County Sheriff's Employees
Association (union) filed an unfair labor practice complaint against
Okanogan County (employer). Unfair Labor Practice Manager David
Gedrose reviewed the complaint under WAC 391-45-110 and issued a
preliminary ruling on November 26, 2007.
On November 27, 2007, I was assigned to conduct further proceedings
under Chapter 391-45 WAC. The employer submitted a timely answer to
the complaint and filed a motion to bifurcate the proceedings. I
denied the motion during a pre-hearing telephone conference held on
December 27, 2007.
On December 21, 2007, the union filed an amended complaint. On
January 10, 2008, I granted the motion to amend the complaint and
issued an amended preliminary ruling. The employer submitted a
timely answer to the amended complaint.
On January 23, 2008, the union filed a second amended complaint and
a motion to clarify the preliminary rulings. On January 31, 2008, I
denied the motion and issued a deficiency notice indicating that it
was not possible to conclude that a cause of action existed at that
time for some of the allegations included in the second amended
complaint. I provided the union seven days to file and serve an
amended complaint or face dismissal of the defective allegations.
On February 7, 2008, the union filed a third amended complaint,
including an amended statement of facts.
DISCUSSION
The January 31, 2008 deficiency notice identified the following
deficiencies in the union's second amended complaint:
Pre-disciplinary (Loudermill) hearing allegations, including
unilateral change in employee access to representation
The union alleges that the employer violated employee rights to
union representation during pre-disciplinary (Loudermill) hearings.
The union also alleges that the employer unilaterally changed a
practice that allowed employees access to union representation at
pre-disciplinary (Loudermill) hearings. The Commission has declined
to extend the collective bargaining process and its unfair labor
practice procedures to enforce the constitutional "due process"
rights on which Loudermill is based. City of Bellevue, Decision
4324-A (PECB, 1994); City of Puyallup, Decision 7490 (PECB, 2001).
Interference by asking about authorship of a union document
The union alleges employer interference concerning the authorship of
a union-created document. RCW 41.56.140(1) prohibits employer
interference with employee rights by threats of reprisal, force, or
promises of benefit associated with an employee's exercise of
protected union activity. The allegations of the complaint
concerning the employer's questions about the authorship of a
document do not state a cause of action for employer threats of
reprisal, force, or promises of benefit in violation of RCW
41.56.140(1).
Third Amended Complaint
When reviewing the union's third amended complaint at this stage in
the proceedings, the Commission assumes that the alleged facts are
true and provable. With that assumption, I evaluate whether the
third amended complaint states a claim for relief available through
unfair labor practice proceedings before the Commission.
Through its third amended complaint, the union alleges that both
Sergeant Kim Scott and Sergeant Tracy Harrison reasonably believed
that they may be subject to discipline based upon their responses or
refusal to respond to the questions posed during their
pre-disciplinary hearing. These allegations raise the inference that
the pre-disciplinary hearings were in whole or in part investigatory
in nature. The allegations that Scott and Harrison were denied
union representation state a cause of action for interference with
their Weingarten rights.
The union has raised questions of fact regarding the employer's use
of pre-disciplinary hearings as they relate to investigatory
hearings. Thus, the amended complaint raises the question of
whether the pre-disciplinary hearings were in fact Loudermill
hearings. In view of the allegations raised in the third amended
complaint, the union's allegation that the employer unilaterally
changed a practice that allowed employees access to union
representation at pre-disciplinary hearings also states a cause of
action.
The January 31, 2008 deficiency notice also identified concerns with
the union's allegation that the employer interfered with employee
rights by interrogating employees about the authorship of a
union-created document. The union's third amended complaint does
not address this issue beyond what was alleged in the second amended
complaint. RCW 41.56.140(1) prohibits employer interference with
employee rights by threats of reprisal, force, or promises of
benefit associated with an employee's exercise of protected union
activity. The union's allegation that the employer interrogated
employees about the authorship of a document may be relevant to the
employer interference and discrimination causes of action which are
included in the original preliminary ruling but it does not state a
cause of action for an independent interference violation.
NOW, THEREFORE, it is
ORDERED
1. Assuming all of the facts alleged to be true and provable, the
allegations of the third amended complaint in Case
21359-U-07-5448 state a cause of action, summarized as follows:
Employer interference with employee rights in violation of
RCW 41.56.140(1) by denial of Tracy Harrison's and Kim
Scott's right to union representation (Weingarten right)
in connection with an investigatory interview on May 31,
2007 and June 14, 2007, respectively; employer
interference and discrimination in violation of RCW
41.56.140(1), by its written reprimand and evaluation of
Bill Miller in reprisal for union activities protected by
Chapter 41.56 RCW; employer refusal to bargain in
violation of RCW 41.56.140(4), by (1) its unilateral
change in work shifts for dispatchers and employee access
to union representation at pre-disciplinary hearings,
without providing an opportunity for bargaining; and (2)
circumventing the union through direct dealing with
employees represented by the union, in meeting with and
e-mailing dispatchers regarding their work shifts and
e-mailing all Association members and encouraging them to
discuss union business with Sheriff Rogers.
These allegations will be the subject of further proceedings
under Chapter 391-45 WAC.
2. Okanogan County shall:
File and serve its answer to the additional factual
allegations contained in the third amended complaint
within seven (7) days following the date of this Order.
An answer shall:
a. Specifically admit, deny or explain each new fact alleged
in the third amended complaint, except if a respondent
states it is without knowledge of the fact, that statement
will operate as a denial; and
b. Assert any new affirmative defenses that are claimed to
exist in the matter.
The answer shall be filed with the Commission at its Olympia
office. A copy of the answer shall be served on the attorney
or principal representative of the person or organization that
filed the amended complaint. Service shall be completed no
later than the day of filing. Except for good cause shown, a
failure to file an answer within the time specified, or the
failure to file an answer to specifically deny or explain a
fact alleged in the amended complaint, will be deemed to be an
admission that the fact is true as alleged in the amended
complaint, and as a waiver of a hearing as to the facts so
admitted.
3. The allegation of the third amended complaint in Case
21359-U-07-5448 concerning the employer interrogating employees
about the authorship of a union document in violation of RCW
41.56.140(1) is DISMISSED for failure to state a cause of action.
ISSUED at Olympia, Washington, this 13th day of February, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
JAMIE SIEGEL, Examiner
Paragraph 3 of this order will be
the final order of the agency on
any defective allegations, unless
a notice of appeal is filed with
the Commission under WAC 391-45-350.