STATE OF WASHINGTON
                                   
          BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
                                   
                                   
INTERNATIONAL UNION OF OPERATING   )
ENGINEERS, LOCAL 609,              )
                                   )   CASE 17183-U-03-4446
          Complainant,             )     
                                   )   DECISION 8976 - PECB
     vs.                           )
                                   )
SEATTLE SCHOOL DISTRICT,           )   FINDINGS OF FACT, 
                                   )   CONCLUSIONS OF LAW, 
          Respondent.              )   AND ORDER
                                   )
___________________________________)


    Schwerin Campbell Barnard, by Kathleen Phair Barnard, Attorney
    at Law, for the union.

    John M. Cerqui, Assistant General Counsel, for the employer.


On February 5, 2003, International Union of Operating Engineers,
Local 609 (union), filed a complaint with the Public Employment
Relations Commission under Chapter 391-45 WAC, alleging that the
Seattle School District (employer) had committed unfair labor
practices in violation of RCW 41.56.140.  The agency issued a
preliminary ruling under WAC 391-45-110, finding the complaint
stated a cause of action.  Examiner Paul T. Schwendiman held a
hearing on April 12, 13, and 14, 2004.  The parties filed
post-hearing briefs.

Pat Larson worked for 13 years as a custodian at Lawton Elementary
School in the Seattle School District.  The employer assigned a new
principal, Sylvia Hayden, to the school.  Hayden soon became
concerned about the quality of Larson's work.  She sought to have
him transferred to another school, but both the employer's and
union's representatives informed her that the bid system in the
collective bargaining agreement prohibited the district from
involuntarily transferring him.  She subsequently formed a belief
that Larson may have stolen district computer equipment.  At an
investigatory meeting, when Larson asked for union representation,
Hayden suspended the meeting and had Larson escorted from the
school.  The district continued with the meeting the next morning at
the district office with a union representative present.  After the
meeting, Larson returned to his duties at the school.  The
investigation later deemed the theft allegations to be unfounded. 
Following Larson's return to work, Hayden began keeping track of her
concerns about his work performance.

The union filed several requests for information about matters
involving Larson.  While the union expressed concern about the
employer's general lack of responsiveness, it focused on two
requests for information.  The first requested the time sheet of an
office assistant at that school whom the union contended performed
custodial work at Hayden's direction.  The employer eventually
produced the time sheet, but not until 50 days after the request. 
The union did file a grievance over the issue prior to the
production and the parties resolved the grievance by paying Larson
for the four hours the office assistant did bargaining unit work. 
The other request for information asked for witness statements in
connection with the computer theft allegations against Larson.  The
employer did not produce the written statement of Larson's co-worker
Gary Jablinske, in fact, the principal subsequently destroyed the 
statement.

The Examiner concludes the employer:

1.  independently interfered with employee rights and refused to
    bargain when Principal Hayden intentionally destroyed a written
    witness statement requested by the union; 
2.  discriminated against Larson when the employer removed Larson
    from the workplace because he requested union representation at
    an investigatory meeting;
3.  refused to bargain with the union by delaying production of a
    union-requested document until 50 days after the union's request.

ISSUES

1.  Did the employer interfere with a public employee in the
    exercise of a right under RCW 41.56? 
2.  Did the employer discriminate against a public employee in the 
    exercise of a right under RCW 41.56?
3.  Did the employer refuse to bargain with the union by failing to
    properly provide documents requested by the union?
4.  If so, what is the appropriate remedy?


ANALYSIS

The Legal Standards Applicable to All Issues
RCW 41.56.040 provides: "No public employer . . . shall . . .
interfere with, restrain, coerce, or discriminate against any public
employee . . . in the free exercise of any other right under this 
chapter."

Enforcement of those statutory rights is through the unfair labor
practice provisions of RCW 41.56.140:

    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;
    . . . .
    (3)  To discriminate against a public employee who has filed an
    unfair labor practice charge;
    (4)  To refuse to engage in collective bargaining.


1.  Did the employer interfere with a public employee in the
    exercise of a right under RCW 41.56?


The Legal Standard
The Commission has succinctly stated the legal standard for an
independent interference violation of RCW 41.56.140(1) in King
County, Decision 6994-B (PECB, 2002):

    An independent violation of RCW 41.56.140(1) will be found
    whenever a complainant establishes that a party engaged in
    separate conduct that an employee could reasonably perceive as a
    threat of reprisal or force or promise of benefit associated
    with their union activity.  Reardan-Edwall School District,
    supra (citing City of Seattle, Decision 3066-A (PECB, 1989)). 
    The burden of proving unlawful interference rests with the
    complaining party and must be established by a preponderance of
    the evidence, but the test for deciding such cases is relatively
    simple.  WAC 391-45-270; King County, Decision 7104-A (PECB,
    2001) (citing City of Tacoma, Decision 6793-A (PECB, 2000); City
    of Omak, Decision 5579-B (PECB, 1997)).  Thus: 
         The reasonable perceptions of employees are critical when
         evaluating independent interference allegations under RCW
         41.56.140(1).  City of Seattle, Decision 3066 (PECB, 1989),
         aff'd, Decision 3066-A (PECB, 1989).  See also City of
         Tacoma, supra; Cowlitz County, Decision 7037 (PECB, 2000);
         City of Pasco, Decision 3804-A (PECB, 1992).  The legal
         determination of interference is based not upon the
         reaction of the particular employee involved, but rather on
         whether a typical employee in a similar circumstance
         reasonably could perceive the actions as attempts to
         discourage protected activity.  City of Tacoma, supra.
         An intent or motivation to interfere is not required to
         show interference with collective bargaining rights.  City
         of Tacoma, supra; Cowlitz County, supra.  Nor is it
         necessary to show that the employee involved was actually
         coerced.  City of Tacoma, supra; Cowlitz County, supra. It
         is not even necessary to show anti-union animus for an
         interference charge to prevail.  City of Tacoma, supra;
         Cowlitz County, supra.
         The timing of adverse actions in relation to protected
         union activity can support an inference of an interference
         violation under RCW 41.56.140(1).  City of Omak, supra;
         Mansfield School District, Decision 5238-A (EDUC, 1996);
         and Kennewick School District, Decision 5632-A (PECB, 1996).
     
     (Citations in original).


Application of the Standard
Destruction of the Jablinske witness statement.

Factual background - On October 28, 2002, Hayden asked Assistant
Custodian Gary Jablinske if he knew what happened to some computers
with missing parts she had seen in Room 113.  Jablinske explained
that he and Larson moved the computers to the custodial shop.  He
told her that he had seen Larson taking parts out of a computer.  On
October 29, 2002, Jablinske dictated a witness statement to Hayden
that she typed on her computer. 

Upon arriving at work on October 30, 2002, Hayden found a note from
Jablinske on her desk asking her to not use the statement he had
provided her and expressing concern that Larson might retaliate
against him.  Later that day, Hayden met with Larson and after he
requested union representation, she continued the meeting and had
him removed from the building.  

By the close of the workday of October 30, 2002, Shop Steward Mark
DeMonbrun met with Employee Relations Manager Gloria Morris seeking
information, and presented her with a written request for any and
all witness statements and any and all supervisors' notes or records
in connection with Hayden's theft allegation.  Morris was surprised
by the request, initially responding that she need not provide the
requested information. 

On November 1, 2002, the employer's Assistant General Counsel John
Cerqui advised the union that the employer would respond to its
October 30, 2002, information request for all witness statements and
supervisor notes.

On November 4, 2002, Shop Steward Mark DeMonbrun and Larson met with
Hayden and Custodial Services Manager Mike DeMonbrun seeking
information regarding Hayden's allegations and Larson's removal from
the workplace.

On November 6, 2002, Labor Relations Analyst Misa Garmoe nee
Shimitzu e-mailed the union information request for all witness
statements to Hayden.  Hayden never provided the Jablinske witness
statement to Garmoe nee Shimitzu and Jablinske's witness statement
was never provided to the union.

On December 6, 2002, Garmoe nee Shimitzu mailed the union Morris's
notes from October 2002 telephone conversations with Hayden that
referenced the fact Jablinske had given a statement about the
computer issue. 

On December 9, 2002, the union requested a copy of the Jablinske
statement.  On January 7, 2003, Garmoe nee Shimitzu e-mailed a
request for information to Hayden: "Do you have a 'written
statement' made by Mr. Gary Jablinske?  Westberg has requested it. 
Please advise."  

On January 8, 2003, Hayden responded to Garmoe nee Shimitzu's
January 7, 2003, e-mail: "I have it [the Jablinske witness
statement] but he told me not to release it.  I have both letters. 
The statement and the request for release that gives the reason why
he doesn't want it released." 

On January 10, 2003, union Business Manager Westberg met with Hayden
seeking information regarding the Jablinske witness statement and a
union-requested time sheet.  Hayden informed him that she had the
Jablinske witness statement but would provide it only if directed by
employer General Counsel Mark Green.  

Hayden subsequently stated she looked for the statement after the
meeting but could not find it.  She asserted that she had destroyed
it when she had cleaned out some files to make room in her desk over
the 2002 December holidays.

Analysis - A typical employee could reasonably perceive Hayden's
intentional destruction of the witness statement as coercive or
threatening.  The contents of the  witness statement can never be
accurately ascertained.  Whether the destroyed evidence would have
been helpful or harmful to Larson's case will never be known.

Whenever a management official intentionally destroys relevant
evidence that was requested by a union on behalf of an employee, a
typical employee could reasonably believe that the evidence was
destroyed because it favored the employee's defense.  A typical
employee also obviously could perceive that the intentional
destruction was occasioned by the union information request itself. 
These typical employee perceptions are even more reasonable when the
management official intentionally destroying the evidence has a
personal interest in justifying her action to protect herself.(fn:1)
The Examiner finds there is a sufficient showing of an independent 
interference violation.
____________________
fn:1     In its arbitration request relating to placing Larson on
administrative leave, the union's suggested remedies were that
Hayden be reprimanded for her actions and the employer provide her
additional training.


Totality of conduct - The union also argues that Hayden's actions as
a whole constitute evidence of unlawful interference.  Some of the
specific factual allegations are dealt with below in the context of
the discrimination violation contentions, but there is no need to
address them further here as an interference violation has been found.

2.  Did the employer discriminate against a public employee in the
    exercise of a right under RCW 41.56?


The Legal Standard 
A violation of RCW 41.56.140(1) or 41.56.140(3) "occurs when an
employer takes action which is substantially motivated as a reprisal
against the exercise of rights protected by Chapter 41.56 RCW." 
Grant County Public Hospital District 1, Decision 6673-A (PECB,
1999).  In order to demonstrate discrimination, the complainant must:

1.  Establish a prima facie case of discrimination, showing:
    a.   The exercise of rights protected by an applicable
         collective bargaining statute, or communicating an intent
         to do so;
    b.   That one or more employees was/were deprived of some
         ascertainable right, status or benefit; and
    c.   A causal connection between the exercise of protected
         rights and the discriminatory action.      
2.  If the complainant makes out a prima facie case, the respondent
    must set forth lawful reasons for its actions.
3.  If the respondent does cite lawful reasons, the complainant must
    show that the reasons set forth were pretextual and/or that
    protected activity was nonetheless a substantial motivating
    factor underlying the disputed action(s).

Educational Service District 114, Decision 4361-A (PECB, 1994)
(citing Wilmot v. Kaiser Aluminum, 118 Wn.2d 46 (1991) and Allison
v. Seattle Housing Authority, 118 Wn.2d 79 (1991)).

Application of the Standard

                  Prima Facie Case of Discrimination

a.  The exercise of rights protected by an applicable collective
    bargaining statute, or communicating an intent to do so;

Assertion of contractual transfer provision.  Assertion of a
contractual right is protected activity.  Valley General Hospital,
Decision 1195 (PECB, 1981), aff'd, Decision 1195-A (PECB, 1981). 
During September and October of 2002, several supervisors told
Hayden that the collective bargaining agreement prohibited the
transfer of custodial engineers except by seniority-based bidding.
Sometime in September 2002, Hayden's first supervisor, Education
Director Walter Trotter, discussed the transfer process with her. 
After that, Custodial Supervisor Stewart informed her of the process
when he discussed Hayden's complaints about Larson in a meeting with
both Hayden and Larson.  During a meeting with Hayden concerning her
concerns about Larson, Manager of Custodial Services Mike DeMonbrun
also explained the contractual transfer rights under the agreement
to Hayden.

There is no dispute between the union and employer as to Larson's
transfer right under the contract as explained by testimony of
Stewart and Mike Demonbrun.

The Examiner finds the explanation of the undisputed employee
contractual transfer right to Hayden by management officials
appropriate, and a substitute for a union official or Larson
asserting the undisputed contractual right to Hayden.  With such
management communication, neither the union nor Larson would have
occasion to assert the contractual right.  The management
explanation to Hayden satisfies the exercise of an employee right
protected by Chapter 41.56 RCW because the explanation of an
undisputed contractual right is effectively communicated on behalf
of both parties to the collective bargaining agreement.  Thus, the
management communication to Hayden substitutes for the employee or
the union asserting the undisputed contractual right, and, like the
filing of the Hayden-related grievances, similarly satisfies the
proof necessary of the exercise of a protected right for purposes of
establishing a prima facie case.

Assertion of the right to union representation.  An employee
asserting a right to union representation in a possible disciplinary
interview is clearly the exercise of a protected right.  Larson did
so and as a result, he was escorted from the school grounds.  

Assertion of a contractual grievance.  The filing or communication
of the intent to file a grievance is also an exercise of a right. 
See King County, Decision 7104 (PECB, 2000); Mukilteo School
District, Decision 5899-A (PECB, 1997); Kennewick School District,
Decision 5632-A (PECB, 1996).

The union filed grievances concerning Hayden's actions.  Grievances
were filed concerning Hayden placing Larson on administrative leave
after the investigatory interview and over Hayden assigning cleaning
duties to Office Assistant Maria Perez.  

Assertion of the right to request information.  The right to seek
information when an employee is removed from the workplace during an
investigation is a right protected by Chapter 41.56 RCW.  Seattle
School District, Decision 5542-C (PECB, 1997).  On October 31, 2002,
the union began seeking information when union representative Mark
DeMonbrun and Larson met with Morris and hand-delivered its first
written information request to her.  On November 4, Mark DeMonbrun
and Larson met with Hayden and Mike DeMonbrun again seeking
information regarding Hayden's allegations and Larson's removal from
the workplace.  The union continued to file information requests for
documents concerning the handling of Larson's case and the potential
contracting out of bargaining unit work.

Assertion of the intent to file a ULP complaint.  Discrimination for
filing an unfair labor practice complaint is directly prohibited by
RCW 41.56.140(3).  Both state and federal precedent support a
finding of discrimination where a party did not actually file a
complaint, but did communicate the intent to do so to the other
party.  Educational Service District 114, Decision 4361-A; Grand
Rapids Die Casting Corp. v. N.L.R.B., 831 F.2d 112, 116 (6th Cir.
1987).  On November 13, 2002, the union told the employer its intent
to file an unfair labor practice complaint.  Union Business Manager
Westberg informed Labor Relations Director Rosmith that "Hayden's
actions constitute a blatant ULP which we still have time to
initiate" and that further delay in responding to a request would
not be favorable to the employer "when that time comes."  The union
had also previously filed unfair labor practice complaints.(fn:2)
____________________
fn:2     The record references a prior unfair labor practice complaint
filed with the Commission, the "Brian Cassin" ULP.  Transcript 507. 
The Commission found the employer violated RCW 41.56.140(1) and (4)
when it withheld information from the union concerning an employee
placed on administrative leave.  Seattle School District, Decision
5542-C (PECB, 1997).  The union also requested judicial notice be
taken of the "Dixon" unfair labor practice.  Union brief at 21. 
Commission records indicate this complaint, case number
16076-U-01-04102, was filed on October 24, 2001, a partial order of
dismissal was issued (Seattle School District, Decision 7607 (PECB,
2001)), and the case closed when the complaint was withdrawn.
Seattle School District, Decision 7607-A (PECB, 2002). 


Conclusion.  Protected rights were exercised.

b.  That one or more employees was/were deprived of some
    ascertainable right, status or benefit;

Removal from the workplace.  Hayden caused Larson's removal from
workplace.  Larson was not deprived of an economic benefit because
he continued to receive his normal pay and other benefits.  However,
as the Commission noted in Seattle School District, Decision 5542-C
(PECB, 1997) "the fact that [employees] were paid has little bearing
on the effect of the event itself [being placed on leave without pay
during an investigation]. The employees were prohibited from going
to work [and] could not depend on returning to work in the future."  

Like those employees, Larson faced the same effect by the
deprivation of his status as a trusted employee, also being
investigated during his absence for wrong-doing and not able to
depend on returning to work in the future.  Placing Larson on paid
leave during an investigation was a deprivation sufficient to
satisfy the second element of the union's prima facie case.(fn:3) 
____________________
fn:3     There may well be good reason to remove an employee from the
workplace.  In this analysis those reasons are reviewed later as
being a pretext or otherwise substantially motivated by the exercise
of a right. 


Performance complaints and theft allegation.  Hayden's complaints to
Larson's supervisors and her allegation to Employee Relations
Manager Morris that Larson may have committed a theft would
similarly be considered by the employer in making judgments
concerning Larson's job security, and are sufficient to establish
deprivation of a right, status or benefit.(fn:4)  In Oroville School
District, Decision 6209-A (PECB, 1998), the Commission found a
negative job evaluation sufficient to establish deprivation of a
right, noting that "Job evaluations are often considered by
employers and arbitrators in making judgments about matters
affecting job security, such as layoffs, discipline, and discharge,
and so affect employee working conditions."  
____________________
fn:4     The union argues that Morris' decision to investigate the
theft allegation likewise constitutes a deprivation.  The Examiner
disagrees.  Morris had cause to further investigate because Hayden
alleged serious employee misconduct.  Unlike an allegation of
misconduct, an investigation of the allegation might be considered
positively in making a judgment concerning an employee's job
security, depending upon the outcome of the investigation.  Here,
the outcome of the investigation exonerated Larson. 

c.  A causal connection between the exercise of protected rights and
    the discriminatory action.

A causal connection is evidence that "the respondent's motivation
was the employee's exercise of or intent to exercise statutory
rights."  King County, Decision 6994-B (PECB, 2002).  "Ordinarily
the prima facie case must, in the nature of things, be shown by
circumstantial evidence, since the employer is not apt to announce
retaliation as its motive."  Wilmot, 118 Wn.2d 70.  "The timing of
adverse actions in relation to protected union activity can serve as
circumstantial evidence of a causal connection between protected
activity and adverse action."  Oroville School District, Decision
6209-A (PECB, 1998).

Theft allegations.  Management officials communicated a custodial
engineer's undisputed contractual transfer right to Hayden in
September and October, and as late as October 29, 2002.  Hayden
alleged theft the evening of October 29.  The timing infers causation.

Removal from the workplace.  When Larson requested union
representation on October 30, Hayden immediately asked for Larson's
keys and had Farrar escort him from the workplace.  The immediacy of
Larson's removal from the workplace infers a casual connection.

That connection is confirmed by the meeting between Farrar and
Hayden immediately prior to meeting with Larson.  There Hayden
determined to remove Larson from the school if he asked for union 
representation.

Performance complaints. Larson asked for union representation on
October 30.  At meetings on October 31 and November 4, the union
officials met with Morris and Hayden, respectively, seeking
information relevant to Hayden's allegations and removing Larson
from the workplace.  On November 6, Hayden received a union
information request via the labor relations office.  On the next
day, Hayden began handwritten documentation of his faults.  The
timing infers causation. 

There does not appear to be a causal connection between any of these
deprivations and the union's notice to the labor relations office on
November 13, 2002, to file either a grievance or an unfair labor
practice complaint.  There was no evidence that Hayden knew of the
filing of any prior unfair labor practice complaint or the expressed
intention to file either a grievance or an unfair labor practice
complaint prior to depriving Larson of a benefit.  Thus, causation
cannot be inferred in regard to these protected rights as any
deprivation occurred before the exercise of those rights.

Conclusion as to the Prima Facie Case
The Examiner finds sufficient evidence to infer all elements of a
prima facie case, requiring the employer to advance legitimate
reasons for removing Larson from the workplace, the theft
allegation, and Hayden's complaints about Larson's performance.  

                    Lawful Reasons or Pretextual?

Once a prima facie case is made, the employer must set forth lawful
reasons for its actions.  The employer's reasons gleaned from the
record(fn:5) are:
____________________
fn:5     The employer's argument does not clearly set out its
legitimate reasons.

*   Hayden removed Larson from the workplace because of Hayden's
    concern for safety and a need to preserve evidence,
*   Hayden alleged theft because she suspected theft of computer
    parts, and
*   Hayden complained about Larson's performance because she was
    concerned about his job performance.  

The Examiner finds these to be lawful reasons.

Are the reasons pretextual?

*   Removal from the workplace due to safety concerns and need to
    preserve evidence.  

The union argues that a deviation from the employer's administrative
leave policy infers animus and pretext for the reasons offered.  The
policy relied upon by the union states only the director of human
resources may place an employee on administrative leave except that
"In an emergency, principals have the authority to send an employee
home for the remainder of the day."(fn:6) 
____________________
fn:6     The policy entitled "Revised Guidelines on Administrative
Leave" (Exhibit 20) was addressed to, and was the result of,
negotiations between the employer and the Seattle Education
Association, a different union that represents the certified
employees supervised by Hayden.  While the policy does not appear on
its face to apply to Larson or other employees represented by the
union here, Education Director Sander testified that the policy
applies to Larson and other employees represented by the union here.

Hayden sought advice from her supervisor and Employee Relations
Manager Morris.  Morris advised her that a principal could send an
employee home before completion of the normal work day without
approval from the director of human resources.  

Although it is not clear that an emergency existed and Larson was
sent home for more than the remainder of his workday, the Examiner
finds that Hayden acted in conformity with the advice she received
and her understanding of the policy based on that advice.  Hayden
believed she was not violating the employer policy by sending Larson
home.  The Examiner attaches little weight to a technical violation
of the employer's written policy as opposed to a knowing violation. 
The action does not imply either animus or pretext because Hayden
acted in conformity with the policy as she understood it.

Hayden was concerned about preserving evidence. Before the October
30 meeting began, Hayden knew Larson had removed parts from
computers and believed the parts may have been stolen.  At the
outset of the October 30 meeting, Hayden told Larson she had some
concerns about computers and those concerns involved him. Larson
appreciated the seriousness of the situation as he requested
representation. 

The Examiner infers this exchange made Larson aware he was being
investigated about computers from which he had removed parts, and
the consequences might be serious. Given Hayden's belief that
computer parts may have been stolen, the desirability of preserving
the status quo of the computers and any computer parts at, or not
at, the school is a reasonable precaution.  His explanation the
following day proved sufficient to allow him immediate access to the
building, however, Hayden had neither his explanation nor the
results of the later investigation when she sent him home.   

Hayden also had a concern about safety.  Before the October 30
meeting, Jablinske left Hayden a note expressing concern about how
angry Larson would be with him for giving a statement.  After
reading Jablinske's note, Hayden e-mailed her supervisor explaining
that she was glad Farrar was attending the meeting with Larson, and 
voicing a concern for her own safety.  Her later actions were
consistent with her stated concern, and that infers her concern for
safety was genuine, rather than pretextual. 

*   Suspected theft of computer parts. 
 
Hayden noticed some computers on a cart with missing parts had
disappeared.  When she later asked Jablinske if he knew where those
computers had been moved, he told her that he and Larson had moved
the computers, and that Larson had removed parts from the computers.
Hayden communicated to Sander and Morris that she might have a theft
problem.  Hayden's theft concern was warranted by the facts as she
understood them and justifies bringing her concern to Morris and
Sander.  The fact Larson was later cleared of the theft allegation
is not evidence of pretext because he was cleared only after
Hayden's decision to allege theft.  

*   Hayden's concern about performance.  

Hayden was clearly concerned about Larson's performance,
particularly relating to his cleaning duties.  She has high
standards and expectations as to the cleanliness of her school.  As
she testified, "a school should be . . . as clean as a home. . . . I
expect the building to sparkle . . ."  Hayden had high expectations
and  desired to correct Larson's cleaning deficiencies. 

Hayden complained about Larson's performance to his supervisor, her
supervisor, his supervisor's manager, and even the employee
relations manager.  She also complained of the supervisor's lack of
responsiveness to those complaints. 

The union suggests that Hayden's performance complaints are 
inconsistent with Stewart's good performance evaluations and that
infers pretext.  But on closer examination, Stewart's performance
reports contain narrative references to concerns similar to those
expressed by Hayden, such as responsiveness, cleaning, and
tardiness.  

Conclusion.  The Examiner finds the union has not proved any of the
reasons offered for Hayden's disputed actions were pretextual.

Was the exercise of protected activity nonetheless a substantial
motivating factor?

Even if the reasons set forth were not pretextual, a discrimination
violation occurs if protected activity was nonetheless a substantial
motivating factor underlying the disputed action. 

Performance complaints. Given Hayden's expressed cleanliness
concerns and the reasoning cited above, the Examiner does not find
that the exercise of protected rights was a substantial motivating
factor in her actions to log Larson's perceived performance 
deficiencies.

Removal from the workplace.  Immediately prior the October 30, 2002,
interview, Hayden decided to remove Larson if she could not question
him because he requested union representation.  When Larson
requested representation, Hayden immediately removed him from the
workplace.  Here, the causation is obvious and the Examiner
concludes that Larson's removal was substantially motivated by his
exercise of his right to union representation, a right protected by
Chapter 41.56 RCW.  Thus, the employer violated RCW 41.56.140(1) by
discriminating against Larson.  

3.  Did the employer refuse to bargain with the union by failing to
    properly provide documents requested by the union?


The Legal Standard
It is an unfair labor practice for a public employer to refuse to
engage in collective bargaining.  RCW 41.56.140(4).  The Commission
has stated that the duty to bargain includes a duty to provide
relevant, necessary information requested by the opposite party for
the proper performance of its duties in the collective bargaining
process.  Port of Seattle, Decision 7000-A (PECB, 2000); City of
Pullman, Decision 7126 (PECB, 2000); Seattle School District,
Decision 5542-B (PECB, 1997); Pasco School District, Decision 5384-A
(PECB, 1996).  Union requests for information pertaining to
employees in the bargaining unit represented by that union are
presumptively relevant. Port of Seattle; City of Bremerton, Decision
6006-A (PECB, 1998)); Seattle School District; Pasco School District.

This duty extends to requests for information required for the
processing of grievances and the sifting out of unmeritorious
claims.  Port of Seattle, Decision 7000-A; Pasco School District,
Decision 5384-A.  The duty to provide information turns on the
circumstances of a particular case.  Pasco School District. The
party receiving an information request has a duty to explain any
confusion about, or objection to, the request and then negotiate
with the other party toward a resolution satisfactory to both. Port
of Seattle; Seattle School District, Decision 5542-B. 

This is consistent with viewing the duty to provide information as
part of an ongoing and continuous obligation to bargain.  Port of
Seattle, Decision 7000-A.  An employer must make a good faith effort
to reach a resolution that will satisfy its concerns and yet provide
maximum information to the union.  Port of Seattle; City of Pullman,
Decision 7126.

In Seattle School District, Decision 5542-B, the Commission found
the employer had a duty to provide information regarding employees
who were removed from the workplace with pay during an employer
investigation of alleged employee misconduct.

Analysis
While the union complains of the employer's general lack of
responsiveness to its information requests,(fn:7) the union's concern
centers on two requests for documents.
____________________
fn:7     The employer eventually supplied all the documents requested
by the union except Jablinske's statement and several documents that
never existed.


Request for a time sheet. On November 26, 2002, Hayden assigned
Assistant Secretary Maria Perez four extra hours work that included
washing walls and windows at Lawton Elementary School.  On November
27, 2002, the union requested of the employer's labor relations
office, a "complete and accurate record of the time sheet for the
office assistant at Lawton Elementary, who performed the bargaining
unit work."

On December 2, 2002, Hayden signed a "Extra Time Reporting Form"
authorizing payment to Perez for an additional four hours worked on
November 26, 2002. 

On December 9, 2002, Garmoe nee Shimitzu e-mailed the verbatim
November 27 union request for the time sheet to Hayden.  Hayden
responded 18 minutes later, "My office assistant did not perform
bargaining unit work, so I do not have a time sheet that reflects
that." 

Almost a month later, on January 6, 2003, Garmoe nee Shimitzu sent
the union a letter informing it, "According to Ms. Hayden, the
office assistant did not fill out any time sheets regarding this
situation. . . . According to Ms. Hayden, no such document exists." 
                       
Hayden informed union Business Manager Westberg on January 10, 2003,
that she had filled out a time sheet for Perez, authorizing payment
for the four extra hours worked by Perez on November 26, 2002.

On January 15, 2003, the union requested "A complete and accurate
record of the time sheet for Ms. Maria Perez, office assistant at
Lawton Elementary, for the period covering November and December 2002."

On January 16, 2003, 50 days after the union's initial request, the
employer finally provided the time sheet. 

The parties' contractual grievance procedure provides that a
grievance shall be initiated within 45 days after the events upon
which it is based.(fn:8) Those 45 days allow the union to evaluate a
potential grievance and "sift" the unmeritorious from the
meritorious before filing the grievance.
____________________
fn:8     These are 45 calendar days, because the parties have elsewhere
in the grievance procedure specified "working days" where "working
days" was intended.


On November 27, 2002, the employer was put on notice that the union
had a potential grievance concerning someone performing bargaining
unit work at Lawton Elementary School, and the 45 day time limit on
filing a grievance began to run.  Forty-six days later, the union,
would not be allowed to file a grievance under the terms of the
collective bargaining agreement.  Thus, the grievance sifting
process realistically must be completed sometime before January 11,
2003.  The employer was obligated to provide the information
requested in time for the union to evaluate the merits of the
grievance prior to the filing deadline.  The employer did not
provide the information until January 16, 2003. 

The employer defends its response time because Hayden misunderstood
the union's request.  The issue is not whether Hayden's response was
reasonable,(fn:9) but whether the information was provided in a timely
manner.  The reason for requiring grievance-related information
requested before the filing of a grievance is to allow the union to
sort out the valid from the invalid.  While the union filed a timely
grievance before it received the requested time sheet, it should
have been provided the time sheet not less than 45 days from the
time it was requested. 
____________________
fn:9     Given the employer's need to obtain accurate and timely
information from Hayden to fulfill its good faith bargaining
obligation, her misunderstandings of her responsibility and her lack
of forthright responses to internal inquiries seeking the
information she possessed leading to the employer's violations of
the law are not reasonable.  Hayden's misunderstanding of her
responsibility to preserve and produce legitimately requested
information led her to deliberately destroy a document requested by
the union and her lack of understanding the term "bargaining unit
work" in relation to cleaning walls and windows led her to assign
such work to an office assistant Perez and sufficiently hamper the
employer's internal system of obtaining the information requested by
the union to create the multiple unfair labor practices here.

The employer's system of obtaining information from a reluctant
principal to forward to the union was not up to the task of
providing a sufficiently timely response to the legitimate union
information request.  The failure of the employer's internal system
to provide timely information caused the employer to violate RCW
41.56.140(4).   

Request for witness statements.  As discussed above, on October 30,
2002, the union requested all witness statements concerning the
theft allegations and Jablinske's statement was never provided to
the union.  A couple of months later, sometime during winter break,
Hayden destroyed the statement. 

Hayden's testimony implies she removed and destroyed Jablinske's
witness statement to make space in her desk, and selected the
witness statement for destruction because she believed it was no
longer relevant as Larson already had been exonerated of her theft
allegation.  However, the Examiner notes that as Hayden made space
in her desk, she retained Jablinske's later note expressing fear of
Larson.  That note occupied space in the same file and was as
equally relevant as the destroyed witness statement.  The Examiner
finds that Hayden removed and destroyed the statement because she
did not want the witness statement to be provided to the union.

The requested witness statement concerned a potential grievance
concerning an employee represented by the union, and is clearly the
type of information that the employer is required to provide the
union on request.  The employer did not provide the witness
statement because Hayden intentionally withheld it and then
deliberately destroyed it.  

The employer is responsible for an employee's acts constituting a
refusal to bargain.  See Seattle School District, Decision 5733-B
(PECB, 1998).  The employer must accept responsibility for Hayden's
alleged confusion concerning her responsibility to produce the
witness statement to the labor relations department for timely
transmission to the union.  The employer also must accept
responsibility for its internal communications process which allowed
Hayden to destroy the witness statement. 

The employer's internal system for responding to union information
requests relies almost entirely on the 98 school principals, other
supervisors and employer officials who possess the relevant
information being requested.  Those officials are supposed to
correctly understand the employer's responsibility to provide
information, and are supposed to understand their own responsibility
to respond timely and accurately.  The employer's system failed to
provide the requested witness statement, and delays and internal
communication difficulties allowed Hayden to destroy it.  As a
result, the employer refused to bargain in good faith in violation
of RCW 41.56.140(4).

4.  If so, what is the remedy?

The customary remedies in discrimination cases include making the
employee whole for lost wages and benefits, posting of notices to
employees, and public reading of the notice to inform the general
public of the unlawful conduct.  In this case, employee status and
rights were temporarily lost, but have been restored. No wages or
other economic benefits were lost.

The customary remedies in refusal to provide information cases
include an order to provide the information requested.  In this case
one document was provided too late for the union to use it to assess
the merits of a grievance, but the grievance was filed and the union
was able to negotiate a settlement of that grievance.  Hayden
destroyed the other document, the requested Jablinske witness
statement.  Thus, that document can never be provided to the union.  

Other customary remedies include a cease and desist order and the
posting of a notice.  The employer here should be ordered to cease
and desist its unlawful conduct and inform its employees and the
public of its unlawful actions by posting the attached notice,
reading the attached notice at the next public meeting of its school
board, and appending the attached notice to the minutes of that
meeting. 

An extraordinary remedy that may be ordered is attorney fees.  The
union has requested that they be awarded.

The Legal Standard
The Commission may award attorney fees when it is necessary to make
its order effective.  See Municipality of Metropolitan Seattle v.
PERC, 118 Wn.2d 621 (1992).  The Commission uses this extraordinary
remedy sparingly.  Public Utility District 1 of Clark County,
Decision 2045-B (PECB, 1989).   Attorney fees will be awarded if the
defense to the unfair labor practice is frivolous or meritless. 
Seattle School District, Decision 5733-B (PECB 1998). The term
"meritless" has been defined as meaning groundless or without
foundation.  See State ex rel. Washington Federation of State
Employees v. Board of Trustees, 82 Wn.2d 60 (1980); Lewis County v.
PERC, 31 Wn. App. 853 (1982), review denied, 97 Wn.2d 1034 (1982);
King County, Decision 3178-B (PECB, 1990).

Commission orders awarding attorney fees have also been based upon
repetitive illegal conduct or on egregious or willful bad acts by a
respondent that has been found guilty of unfair labor practices.
Chehalis School District, Decision 7878 (PECB, 2002); City of
Bremerton, Decision 6006-A (PECB, 1998); Mansfield School District,
Decision 5238-A (EDUC, 1996); PUD 1 of Clark County, Decision 3815
(PECB, 1991); City of Kelso, Decisions 2633 (PECB, 1988).  The
Commission also awards attorney fees when the respondent has engaged
in a pattern of repetitive conduct showing a patent disregard of its
statutory obligations.  City of Vancouver, Decision 6732-A (PECB,
1999). 

Analysis
The Examiner finds the employer's defenses are not clearly frivolous
or meritless.(fn:10)  Hayden's deliberate destruction of the Jablinske
witness statement, however, was egregious and willful.  The employer
has also engaged in repetitive illegal conduct.
____________________
fn:10     In its brief, the employer argued that the Commission did not
have jurisdiction because the union should have filed a grievance
over the employer's compliance with its own procedures, not an
unfair labor practice case over the failure to provide information. 
Employer brief, fn 5 at page 5. The particular procedure referred to
by the employer provided for the release of information when
employees are placed on administrative leave.  That procedure was
negotiated following the Commission's decision in Seattle School
District, Decision 5542-C (PECB, 1997).  In that case, the employer
made the same argument about lack of jurisdiction and arbitration
being the appropriate forum.  The Commission disagreed, clearly
finding that the issue fits squarely within the Commission's
precedent as an unfair labor practice case.  Given the Commission's
prior conclusion and explanation to this same employer, its similar
argument is perilously close to being frivolous.
 
Egregious and willful conduct.  Hayden willfully destroyed the
Jablinske statement, purposefully denying it forever to Larson and
the union.  The Examiner finds the deliberate destruction of the
document egregious because remedying an employee's reasonable
perception that the document was helpful to defense of the employee
can only be complete with production of the document, and Hayden
destroyed the document after repeated internal and external requests
for the document.

Repetitive illegal conduct.  The Commission has previously found the
employer has committed related unfair labor practices.  The employer
argues these cases are sufficiently dissimilar to this case that
attorney fees should not be awarded.  The Examiner disagrees:

*   In Seattle School District, Decision 7349-A (PECB, 2001), an
    assistant general counsel for the employer likewise effectively
    denied the union evidence relevant to defending an employee in a
    grievance arbitration. 
*   In Seattle School District, Decision 5733-B (PECB, 1998), a
    principal unilaterally changed the lunch hours at his school. 
    The Examiner would normally agree with the employer that this
    refusal to bargain case was unrelated to case here.  However,
    both involved principals that evidenced a "complete disregard
    for the obligations of the collective bargaining process." Given
    the employer's determination in both cases to fulfill much of
    its bargaining obligation by resting it on its 98 principals,
    the Examiner finds Decision 5722-B similar.
*   In Seattle School District, Decision 5542-C (PECB, 1997), the
    Commission clearly appraised the employer of its obligation to
    provide information required by the union to assess the merits
    of a grievance when a represented employee was similarly sent
    home during an investigation.  The Commission also specifically
    ordered the employer to cease and desist from "[r]efusing to
    provide relevant information which the International Union of
    Operating Engineers, Local 609, needs to fulfill its collective
    bargaining duties and responsibilities."  While that order was
    issued more than four years prior to the violations here, the
    record fails to show compliance with that order.

The Examiner concludes attorney fees are necessary here to make the
order effective.

                           FINDINGS OF FACT

1.  The Seattle School District (employer) is a public employer
    within the meaning of RCW 41.56.030(1). 

2.  International Union of Operating Engineers, Local 609 (union), a
    bargaining representative within the meaning of RCW
    41.56.030(3), is the exclusive bargaining representative of an
    appropriate bargaining unit of custodians and gardeners employed
    by the Seattle School District.  The employer also recognizes
    the union as exclusive bargaining representative of other
    bargaining units composed of food service workers and security
    personnel.  

3.  The employer and union negotiated a collective bargaining
    agreement covering the bargaining unit of custodial engineers
    and gardeners for the school years beginning in December 7,
    2001, and ending August 31, 2004.

4.  Pat Larson was custodial engineer at Lawton Elementary School
    from 1990 until April 2004. 

5.  In August of 2002, Sylvia Hayden became principal of Lawton
    Elementary School.  

6.  By  September of 2002, Hayden began complaining about Larson's
    performance to Larson's supervisors, Custodial Supervisor Mike
    Stewart and Custodial Services Department Manager Mike
    DeMonbrun.  

7.  Prior to October 30, 2004, Mike DeMonbrun had met with Hayden
    and Stewart concerning Hayden's complaints.  Mike DeMonbrun
    explained to Hayden that custodial engineers are transferred to
    another school only pursuant to the undisputed seniority-based
    bid system contained in the collective bargaining agreement
    between the employer and the union.

8.  On October 28, 2002, Hayden asked Assistant Custodian Gary
    Jablinske if he knew what happened to some computers with
    missing parts she had seen in Room 113.  Jablinske explained
    that he and Larson moved the computers to the custodial shop. 
    He told her that he had seen Larson taking parts out of a
    computer.  

9.  On October 29, 2002, Jablinske dictated a witness statement that
    Hayden typed on her computer.  After returning home, Hayden
    called her supervisor, Education Director Patricia Sander and
    reported a potential theft of computer parts.  They sought
    advice from Security Manager Larry Farrar and Employee Relations
    Manager Gloria Morris.  

10.      Based on advice provided by Sanders and Morris, Hayden
         understood the employer's policy relating to administrative
         leave allowed her to remove Larson from the workplace 
         without obtaining approval from the executive director of
         the employer's human relations department.
11.      Upon arriving at work on October 30, 2002, Hayden found a
         note from Jablinske on her desk asking her to not use the
         statement he had provided her and expressing concern that
         Larson might retaliate against him.  

12.      At 1:00 P.M. on October 30, 2002, Security Manager Farrar
         met with Hayden.  During the meeting, Farrar told Hayden
         that Larson had the right to have an attorney or union
         member present before answering any questions.  During that
         meeting,  Hayden decided to have Larson removed from the
         workplace if he asked for union representation prior to
         answering questions.

13.      At 1:30 P.M. on October 30, 2002, Hayden paged Larson and
         he reported to her office.  Hayden told Larson that she had
         some questions about missing computer parts.  Before Hayden
         asked any questions, Farrar told Larson that Larson might
         want a union representative at the meeting before answering
         Hayden's questions.  Larson then told Hayden and Farrar
         that he wanted a union representative.  Hayden responded by
         telling Larson that Farrar would take his keys and escort
         him from the building.  Hayden caused Larson's removal from
         the workplace with pay at 2:00 P.M. on October 30, 2002,
         until the meeting was to be reconvened at 11:00 A.M. on
         October 31, 2002.

14.      The October 30, 2002, meeting was an investigatory
         interview at which Larson reasonably perceived that
         discipline might result.

15.      Removal from the workplace with pay constitutes a
         depravation of an employee benefit, status, or right.

16.      Hayden removed Larson from the workplace because he
         requested union representation.

17.      After leaving the building, Larson contacted Shop Steward
         Mark DeMonbrun.  Mark DeMonbrun called Larson's immediate
         supervisor, Mike Stewart, and also called Larson's second
         level supervisor, Mike DeMonbrun, seeking information about
         what had transpired at Lawton Elementary School.  Mark
         DeMonbrun's calls were the first information to Larson's
         supervisors of what happened.  

18.      By the close of the workday of October 30, 2002, Shop
         Steward Mark DeMonbrun met with Employee Relations Manager
         Morris seeking information, and presented her with a
         written request for any and all witness statements and any
         and all supervisors' notes or records in connection with
         Hayden's theft allegation.  Morris was surprised by the
         request, initially responding that she need not provide the
         requested information. 

19.      By 3:59 A.M. on October 31, Custodial Services Manager Mike
         DeMonbrun had interjected himself in place of Hayden into
         the scheduled 11:00 A.M. meeting with Shop Steward Mark
         DeMonbrun, Larson, and Morris.

20.      At the 11:00 A.M. meeting, Morris asked Larson a series of
         prepared questions.  After the meeting, Larson regained
         immediate access to the workplace.    

21.      After the meeting, Morris assigned Eddie Hill to
         investigate the allegation of theft of computer parts. 
         Hill interviewed Hayden, Larson, Jablinske, a computer
         technician, and several teachers.  Hill reported to Morris
         on November 9, 2002, that  "there was no evidence to
         indicate that Mr. Larson had removed said computer
         equipment from school property or converted it to his
         personal use."  Morris informed Larson of his exoneration
         of Hayden's theft allegation on December 6, 2002.

22.      On November 1, 2002, the employer's Assistant General
         Counsel John Cerqui advised the union that the employer
         would respond to its October 30, 2002, information request
         for all witness statements and supervisor notes.

23.      On November 4, 2002, Shop Steward Mark DeMonbrun and Larson
         met with Hayden and Custodial Services Manager Mike
         DeMonbrun seeking information regarding Hayden's
         allegations and Larson's removal from the workplace.

24.      On November 6, 2002, Labor Relations Analyst Misa Garmoe
         nee Shimitzu e-mailed the union information request for all
         witness statements to Hayden.  Hayden  never  provided the
         Jablinske witness statement to Garmoe nee Shimitzu and
         Jablinske's witness statement was never provided to the union.

25.      On November 7, 2002, Hayden began handwritten documentation
         of Larson's performance-related shortcomings.  After
         November 7, 2002,  Hayden continued complaining about
         Larson's performance, primarily in the areas of Larson's
         tardiness, lack of responsiveness and not meeting her
         expectations in regard to keeping her building clean.  She
         directed her complaints to Larson's supervisors, her own
         supervisor, and Employee Relations Manager Morris.  These
         complaints concerned a lack of responsiveness of Larson's
         supervisors to Hayden's complaints as well as complaints
         about Larson's performance.

26.      Larson was sometimes late to work, sometimes nonresponsive
         to requests made by Hayden and other Lawton Elementary
         School staff, and somewhat deficient in his cleaning of
         Lawton Elementary School.

27.      Hayden's performance complaints are consistent with
         Larson's supervisor's performance evaluations.  

28.      On November 13, 2002, union Business Manager Westberg
         informed Labor Relations Director Rosmith "Hayden's actions
         constitute a blatant ULP which we still have time to
         initiate.  Any needless delay in responding to this request
         . . . may not prove to be favorable to your interest when
         that time comes."  The union has also filed prior unfair
         labor practice complaints against the employer. 

29.      On November 26, 2002, Hayden assigned Assistant Secretary
         Maria Perez four extra hours work that included washing
         walls and windows at Lawton Elementary School.

30.      On November 27, 2002, the union requested a "complete and
         accurate record of the time sheet for the office assistant
         at Lawton Elementary, who performed the bargaining unit work."

31.      On December 2, 2002, Hayden signed a an "Extra Time
         Reporting Form" authorizing payment to Perez for an
         additional four hours worked on November 26, 2002.

32.      On December 6, 2002, Garmoe nee Shimitzu mailed the union
         Morris' notes from October 2002 telephone conversations
         with Hayden that referenced the fact Jablinske had given a
         statement about the computer issue. 

33.      On December 9, 2002, Garmoe nee Shimitzu e-mailed the
         verbatim union request for the time sheet to Hayden. 
         Hayden responded 18 minutes later, "My office assistant did
         not perform bargaining unit work, so I do not have a time
         sheet that reflects that." 

34.      On December 9, 2002, the union requested a copy of the
         Jablinske statement.  

35.      Sometime between December 23, 2002, and January 5, 2003,
         Hayden removed the Jablinske witness statement from her
         file that also contained Jablinske's request that his
         statement not be used and other documents in the same file
         relating to custodians employed at Lawton Elementary
         School.  She then destroyed the Jablinske statement.  

36.      Hayden intentionally destroyed the Jablinske witness
         statement so that it could not be provided to the union. 
         That intentional destruction of the Jablinske witness
         statement was willful and egregious.

37.      On January 6, 2003, Garmoe nee Shimitzu sent the union a
         letter regarding the requested time sheet, "According to
         Ms.  Hayden, the office assistant did not fill out any time
         sheets regarding this situation.  . . .  According to Ms.
         Hayden, no such document exists."  

38.      On January 7, 2003, Garmoe nee Shimitzu e-mailed a request
         for information to Hayden:  "Do you have a 'written
         statement' made by Mr. Gary Jablinske?  Westberg has
         requested it.  Please advise."  

39.      On January 8, 2003, Hayden responded to Garmoe nee
         Shimitzu's January 7, 2003, e-mail: "I have it [the
         Jablinske witness statement] but he told me not to release
         it.  I have both letters.  The statement and the request
         for release that gives the reason why he doesn't want it
         released." 

40.      On January 10, 2003, union Business Manager Westberg met
         with Hayden seeking information regarding the Jablinske
         witness statement and the union-requested time sheet. 
         Hayden informed him that she had the Jablinske witness
         statement but would provide it only if directed by employer
         General Counsel Mark Green.  

41.      Hayden subsequently stated she looked for the statement
         after the meeting but could not find it.  She asserted that
         she had destroyed it when she had cleaned out some files to
         make room in her desk over the 2002 December holidays.  

42.      Hayden also informed Westberg on January 10, 2003, that she
         had filled out a time sheet for Perez.  The time sheet
         authorized payment for the four extra hours worked by Perez
         on November 26, 2002.

43.      On January 15, 2003, the union requested "A complete and
         accurate record of the time sheet for Ms. Maria Perez,
         office assistant at Lawton Elementary, for the period
         covering November and December 2002."

44.      On January 16, 2003, the employer provided the time sheet. 

45.      The collective bargaining agreement requires that "In order
         to expedite resolution, the grievance shall be initiated
         within forty-five (45) [calendar] days time following the
         events or knowledge of the events or occurrences upon which
         it is based."  The union-requested time sheet was not
         provided in a timely manner, thereby not allowing the union
         to fully evaluate the a grievance before filing it.

46.      The employer has engaged in a pattern of repetitive conduct
         showing a patent disregard of its statutory obligations.

47.      The union did not prove Hayden had personal knowledge of
         the union's intent to file an unfair labor practice
         complaint or the filing of a complaint prior to taking any
         adverse action against Larson.  Grievances were filed only
         after Larson was deprived of a benefit, status or right.

                          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 the actions described in the foregoing Findings of Fact, the
    Seattle School District interfered with, restrained and coerced
    employees in the bargaining unit represented by International
    Union of Operating Engineers, Local 609, and committed unfair
    labor practices in violation of RCW 41.56.140(1).

3.  By the actions described in the foregoing Findings of Fact, the
    Seattle School District discriminated against Pat Larson because
    he exercised rights protected by Chapter 41.56 RCW and committed
    unfair labor practices in violation of RCW 41.56.140(1).

4.  By the actions described in the foregoing Findings of Fact, the
    Seattle School District refused to engage in collective
    bargaining with International Union of Operating Engineers,
    Local 609, and committed unfair labor practices in violation of
    RCW 41.56.140(4).

5.  By the actions described in the foregoing Findings of Fact, the
    Seattle School District acted in a manner warranting an award of
    attorney fees consistent with the Commission's remedial
    authority granted by RCW 41.56.160.

                                ORDER

The Seattle School District, its officers and agents, shall 
immediately:

1.  CEASE and DESIST from:

    a.   Interfering, restraining, or coercing public employees in
         the exercise of their rights under Chapter 41.56 RCW by:

         i.   Discriminating against a public employee by removing
              that employee from the workplace because he requested
              union representation at an investigatory interview.

         ii.  Refusing to bargain with the International Union of
              Operating Engineers, Local 609, by delaying or
              refusing to produce relevant requested information and
              by destroying relevant requested written witness 
              statements.

         iii.      In any other manner, interfering with,
                   restraining, or coercing our employees in the
                   exercise of their collective bargaining rights
                   under the laws of the state of Washington.
2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes
    and policies of Chapter 41.56 RCW:

    a.   Reimburse International Union of Operating Engineers, Local
         609, for all attorney fees and expenses,

    b.   Post, in conspicuous places on the employer's premises
         where notices to all employees are usually posted, and in
         all places where members of International Union of
         Operating Engineers, Local 609, bargaining units work,
         copies of the notice attached hereto and marked "Appendix."
          Such notices shall be duly signed by an authorized
         representative of the Seattle School District. Such notices
         shall remain posted for 60 days.  Reasonable steps shall be
         taken by the respondent to ensure that such notices are not
         removed, altered, defaced, or covered by other material.

    c.   Read the notice attached to this order into the record of
         the next public meeting of the school board, and append a
         copy thereof to the minutes of such meeting.

    d.   Take steps to ensure that requests for relevant information
         are responded to in an appropriate and timely manner,
         including informing school principals and other supervisors
         of the obligation to comply with the good faith bargaining
         requirement of Chapter 41.56 RCW by timely providing
         relevant information requested by a collective bargaining
         representative. 

    e.   Notify the International Union of Operating Engineers,
         Local 609, in writing, within 20 days following the date of
         this order, as to what steps have been taken to comply with
         this order, and at the same time provide the complainant
         with a signed copy of the notice attached to this order.

    f.   Notify the Executive Director of the Public Employment
         Relations Commission, in writing, within 20 days following
         the date of this order, as to what steps have been taken to
         comply with this order, and at the same time provide the
         Executive Director with a signed copy of the notice
         attached to this order.

Issued at Olympia, Washington, on the  21st  day of June, 2005.


          PUBLIC EMPLOYMENT RELATIONS COMMISSION



          PAUL T. SCHWENDIMAN, 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.
Decision 897
          
                                                                   6Appendix
                    PUBLIC EMPLOYMENT RELATIONS COMMISSION
                                    NOTICE
THE PUBLIC EMPLOYMENT RELATIONS COMMISSION, A STATE AGENCY, HAS HELD A LEGAL
PROCEEDING IN WHICH ALL PARTIES WERE ALLOWED TO PRESENT EVIDENCE AND
ARGUMENT.  THE COMMISSION HAS FOUND THAT WE HAVE COMMITTED UNFAIR LABOR
PRACTICES IN VIOLATION OF A STATE COLLECTIVE BARGAINING LAW, AND HAS ORDERED
US TO POST THIS NOTICE TO OUR EMPLOYEES:
WE WILL NOT discriminate against a public employee by removing that employee
from the workplace because that employee requests union representation at an
investigatory interview.
WE WILL NOT refuse to bargain with International Union of Operating
Engineers, Local 609, by delaying or refusing to timely produce relevant
requested information or by destroying relevant requested written witness 
statements.
WE WILL NOT in any other manner, interfere with, restrain, or coerce our
employees in the exercise of their collective bargaining rights under the
laws of the State of Washington.
WE WILL take steps to ensure that requests for relevant information are
responded to in an appropriate and timely manner, including informing school
principals and other supervisors of the obligation to comply with the good
faith bargaining requirement of Chapter 41.56 RCW by timely providing
relevant information requested by a collective bargaining representative. 
WE WILL reimburse International Union of Operating Engineers, Local 609, for
all attorney fees and expenses.
WE WILL post, in conspicuous places on the employer's premises where notices
to all employees are usually posted, and in all places where members of
International Union of Operating Engineers, Local 609, bargaining units
work, copies of this notice. 
WE WILL read the Notice into the record of the next public meeting of our
school board, and append copy thereof to the minutes of such meeting.


                            SEATTLE SCHOOL DISTRICT


DATED:  ________________         BY:  ______________________________
                   Authorized Representative


        THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE.
This notice must remain posted for 60 consecutive days from the date of
posting, and must not be altered, defaced, or covered by any other material.
 Questions concerning this notice or compliance with the order issued by the
Commission may be directed to the Public Employment Relations Commission,
112 Henry Street NE, P. O. Box 40919, Olympia, Washington  98504-0919. 
Telephone:  (360) 570-7300.  (A copy of the order, Seattle School District,
Decision 8976 (PECB, 2005), is available at www.perc.wa.gov)