Seattle School District, Decision 9982 (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL UNION OF OPERATING )
ENGINEERS, LOCAL 609, )
)
Complainant, ) CASE 20973-U-07-5351
)
vs. ) DECISION 9982 - PECB
)
SEATTLE SCHOOL DISTRICT, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW,
Respondent. ) AND ORDER
)
___________________________________)
Schwerin Campbell Barnard, LLP, by Kathleen Phair Barnard,
Attorney at Law, for the union.
John M. Cerqui, Senior Assistant General Counsel, for the
employer.
On March 13, 2007, the International Union of Operating Engineers,
Local 609 (union), filed an unfair labor practice complaint with the
Public Employment Relations Commission alleging that the Seattle
School District (employer) interfered with and dominated the union
in violation of RCW 41.56.140(1) and (2). The Commission issued a
preliminary ruling finding a cause of action existed and hearings
were held before Examiner Robin A. Romeo on July 11, 2007, July 16,
2007, September 19, 2007, and September 28, 2007. The parties
submitted post-hearing briefs.
ISSUES
1. Did the employer interfere with and/or dominate the union when
management officials conducted an investigation in response to
a complaint filed by an employee?
2. Did the employer interfere with and/or dominate the union when
management officials issued a report in response to a complaint
filed by an employee?
Based upon the record presented, the Examiner finds that the
employer did not commit violations of RCW 41.56.140 when management
officials conducted an investigation of an employee complaint and
issued a report in response to the investigation.
APPLICABLE LEGAL STANDARDS
This unfair labor practice complaint was filed by the union on March
13, 2007. It alleged interference and domination by actions of
management officials in conducting an investigation and issuing a
report in response to Zappler's complaint including:
1. The employer's use of union internal affairs information;
2. The employer's discouraging of an employee's right to union
representation in connection with investigatory interviews; and
3. The employer's surveillance of union officials in relation to
provision of representation in interviews.
Applicable provisions of Chapter 41.56 provide:
RCW 41.56.140 Unfair Labor Practices for public employer
enumerated. It shall be an unfair labor practice for an employer:
(1) To intefere with, restrain, or coerce public employees in
the exercise of their rights guaranteed by this chapter;
(2) To control, dominate or interfere with a bargaining
representative. . . .
INTERFERENCE
An interference violation will be found when an employee could
reasonably perceive the employer's actions as a threat of reprisal
or force of benefit or as a promise of benefit associated with the
union activity of that employee or other employees. The burden of
proof rests with the complaining party who must demonstrate that the
employer's conduct resulted in harm to protected employee rights.
Community College District 13 (Lower Columbia), Decision 9171-A
(PSRA, 2007); King County, Decision 8630-A (PECB, 2005).
Substantial evidence as shown by the totality of the circumstances
must demonstrate that the perception is reasonable. PERC v. City of
Vancouver, 107 Wn. App. 694 (2001), review denied 145 Wn.2d 1021
(2002).
DOMINATION
An employer controls, dominates, or interferes with a union when it
involves itself in the internal affairs or finances of the union or
attempts to create, fund, or control a "company union." City of
Yakima, Decision 9451-A (PECB, 2006), rev'd on other grounds; City
of Yakima, Decision 9451-B (PECB, 2007). A domination violation
requires proof of intent. Snohomish County, Decision 9834 (PECB,
2007). In City of Yakima, Decision 9451-A (PECB, 2007), an
employer's statements indicated anti-union animus but did not rise
to the level of attempting to dominate the union because the union's
independence of action was not threatened.
APPLICATION OF STANDARDS
In February 2006, employee Liesl Zappler filed a complaint with the
employer's Office of Equity and Compliance. She alleged gender
discrimination and retaliation by certain actions taken by union
officials which she believed were in retaliation for her filing of
an unfair labor practice complaint against the union.
In response to Zappler's complaint, the employer hired an outside
investigator, attorney Elizabeth Reeve, to conduct an investigation.
In conducting the investigation, Reeve interviewed employees and
union officials and then issued a report of her findings and
conclusions. Her report was forwarded to Mark Green, the employer's
chief operating officer. Green returned the report to Reeve and
asked her to remove her conclusions from the report. After she
deleted her conclusions, she resent her report to Green who then
forwarded a copy of her report to Zappler and to union officials.
In Green's cover letter to the union's business agent, David
Westberg, he stated that, based upon Reeve's report, he found
Westberg made an inappropriate statement to an employee on the
employer's property and asked him to comply with the employer's
Anti-Harassment Policy. In Green's cover letter to the union's shop
steward, Jeff Wasson, Green stated that based upon Reeve's report he
did not find Wasson guilty of any inappropriate conduct, but he
stated that the employees would benefit from training on the
employer's Anti-Harassment Policy.
Green's finding that Westberg made an inappropriate statement refers
to a statement made during a meeting that occurred between union
officials and Fred Stephens, Director of Facilities, to discuss
dissatisfaction with a supervisor's performance. During the
meeting, Westberg alluded to a possible sexual relationship between
the supervisor and Zappler. Green said that that comment was
inappropriate.
Issue 1 - The Investigation
Evidence and argument were offered by the union alleging that the
methods used by the independent investigator violated RCW
41.56-.140(1) and (2) when she conducted her investigation of the
complaint filed by an employee. The employer particularly raises
the issue of the timeliness of the complaint and that will be
determined first.
The statute of limitations for filing an unfair labor practice
complaint under the Public Employees' Collective Bargaining law
(PECB) is six months from the date of occurrence:
RCW 41.56.160(1) The commission is empowered and directed to
prevent any unfair labor practice and to issue appropriate
remedial orders; PROVIDED, That a complaint shall not be
processed for any unfair labor practice occurring more that six
months before the filing of the complaint with the commission.
The six-month statute of limitations begins to run when the
complainant knows or should know of the violation. City of
Bremerton, Decision 7739-A (PECB, 2003). The only exception to the
strict enforcement of the six-month statute of limitations is where
the complainant had no actual or constructive notice of the acts or
events which are the basis of the charges. City of Pasco, Decision
4197-A (PECB, 1994).
The evidence reveals that Reeve's investigation into this matter
occurred more than six months prior to the time that the union filed
its complaint. Reeve conducted an investigation from May 2006 until
July 19, 2006, when she conducted the final interview.
The complaint was filed on March 13, 2007, approximately eight
months after the time that the investigation process was concluded.
Thus, the time period for filing an allegation concerning that
process expired two months prior to the time that the petition was
filed. There has been no argument that the union was not aware of
the events in question, so no exception applies. Therefore, the
allegations concerning the investigation are untimely and are
dismissed.
Issue 2 - Issuance of the Report
The union argues, meticulously, that many parts of Reeve's
investigatory report interfere with and dominate the union. The
employer defended by asserting that the investigator was acting
independently when she issued the report and not as its agent.
An employer is bound by the acts of individuals reasonably perceived
to be its agent. Seattle School District, Decision 7349-A (PECB,
2001). The Commission, citing common law principles, recently
examined the definition of an agent where an interference violation
was alleged:
An agent's authority to bind his principle may be of two types,
either actual or apparent. Deers, Inc. v. DeRuyter, 9 Wn. App.
240, 242 (1973) (citing 3 Am.Jur.2d Agency sec. 71 (1962).
With actual authority, the principal's objective manifestations
are made to the agent; with apparent authority, they are made
to a third person or party. . . Washington courts have held
that the "authority to perform particular services for a
principal carries with it the implied authority to perform the
usual and necessary acts essential to carry out the essential
services." Walker v. Pacific Mobile Homes, Inc. 68 Wn.2d 357,
351 (1966).
Community College District 13 (Lower Columbia), Decision 8117-B
(PECB, 2005).
The investigator testified that she was given broad latitude to
conduct the employer's investigation. She was given information and
documents by the employer and she determined the course of the
investigation. She determined who to interview and when the
interviews would occur. She determined what questions to ask during
the interview.
Therefore, the statements in the report are Reeve's alone and cannot
be imputed to the employer. The employer did not author, control,
or direct the contents of report. Although the employer directed
Reeve to delete certain conclusions, she was not an agent of the
employer when she issued the report. The report itself cannot form
the basis of a violation of RCW 41.56.140.
THE EMPLOYER'S RESPONSE
Green's letters to Westberg and Wasson do not interfere with any
employee's right to union representation. There has been no threat
of reprisal or force of benefit or promise of benefit associated
with the union activity of Zappler or any other employee. In fact,
the employer did not send copies of the letters to any other members
of the union's bargaining unit. There has been no harm shown. There
has been no showing that the totality of the circumstances would
lead to a reasonable employee perceiving interference.
Although the employer sent a copy of its internal report responding
to an employee's complaint directly to the union, and commented on
the union's conduct, there was no allegation that Green's statement
interfered with any employee's right to representation. The union
did not allege that Green's statement resulted in harm. While he
was commenting on a union employee's conduct, the conduct occurred
on the employer's property with both union and non-union employees.
Nor do Green's letters dominate or control the union. He did not
interfere with or comment on the internal affairs of the union.
There was no evidence presented that he intended to dominate the
union. The independence of the union has not been compromised.
More specifically, Green's statement to Westberg did not serve to
dominate the union. While he commented on the appropriateness of
the statement made by a union representative, his comment itself
does not concern any union business nor was there evidence presented
that the employer circulated the letter to any member of the
bargaining unit. Prohibiting that type of statement does not direct
the union how to conduct its business and there has been no proof
presented that Green intended to dominate or control the union.
CONCLUSION
The union's allegation that the investigation of a complaint was
improper is dismissed as untimely.
The union's allegation that the investigator's report was improper
is dismissed as the investigator was not acting as an agent of the
employer.
The union's allegation that the employer interfered with or
dominated the union is not supported by substantial evidence and,
therefore, it is also dismissed.
FINDINGS OF FACT
1. Seattle School District is a public employer within the meaning
of RCW 41.56.030(1).
2. International Union of Operating Engineers, Local 609, is a
bargaining representative within the meaning of RCW 41.56.030(3).
3. In February 2006, employee Liesl Zappler filed an internal
complaint alleging gender discrimination and retaliation. The
employer hired an outside consultant to conduct an
investigation of the complaint.
4. The investigation started in April 2006 and continued until
July 2006. A report of the findings was issued in November 2006.
5. The employer forwarded a copy of the investigator's report to
the union with a cover letter finding that the union business
agent had made an inappropriate statement in reference to
Zappler in a meeting with employer officials. The
investigator's report was also forwarded to the complaining
employee and another employee who is the union's shop steward.
The employer did not forward the report or its comments on the
report to any other members of the bargaining unit.
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. The employer did not interfere with and/or dominate the union
in violation of RCW 41.56.140(1) and (2) when it conducted an
investigation in response to a complaint filed by an employee.
3. The employer did not interfere with and/or dominate the union
in violation of RCW 41.56.140(1) and (2) when it issued a
report in response to a complaint filed by an employee.
ORDER
The complaint charging unfair labor practices is hereby DISMISSED in
its entirety.
Issued at Olympia, Washington, this 19th day of February, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
ROBIN A. ROMEO, Examiner
This order will be the final order of the
agency unless a notice of appeal is filed
with the agency under WAC 391-45-350.