Community College District 14 - Clark, Decision 10221 (CCOL, 2008)
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STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION |
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Complainant, |
CASE 21610-U-08-5513
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vs. |
DECISION 10221 - CCOL |
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COMMUNITY COLLEGE DISTRICT 14 (CLARK COLLEGE), |
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FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER |
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Respondent. |
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Eric R. Hansen, Attorney at Law, for the union.
On March 25, 2008, the Clark College Association of Higher Education (union) filed an unfair labor practice complaint against Community College District 14 – Clark College (employer). A preliminary ruling was issued on March 31, 2008, finding a cause of action for employer interference with employee rights and refusal to bargain by its failing to provide relevant information requested by the union. The employer filed a timely answer on April 24, 2008. The union filed a motion for summary judgment on June 27, 2008, and the employer followed with a cross-motion for summary judgment on July 14, 2008. The union sent a reply to the employer’s motion on July 25, 2008. The parties waived the right to a hearing, and stipulated to the facts.[1] Examiner J. Martin Smith was appointed as the Examiner.
ISSUE PRESENTED
Did the employer commit an unfair labor practice when it failed to provide information requested by the union concerning a disciplinary investigation?
BACKGROUND
On November 21, 2007, an adjunct faculty member filed a complaint against Jim Craven, an economics professor and chair of the business division, stating that his behavior toward her had created a hostile work environment based on her gender. In a letter dated December 3, 2007, the dean of business and technologies, Ted Kotsakis, informed Craven that he had received the complaint and that it would be investigated. The college hired an outside investigator, Helle Rode, to look into the charges.
On February 12, 2008, Craven, along with the union president, and union representative, met with Rode to discuss the complaint. During the meeting, Rode referred to a document authored by Julie Lemmond, a co-worker of the complainant. Lemmond had submitted the letter directly to Rode by e-mail as part of Rode’s investigation. Rode also interviewed Lemmond, as well as several other witnesses.
After the meeting, the union made two written requests for a copy of the Lemmond document. The employer, represented by Katrina Golder,[2] responded that it did not have the document, but would ask Rode if it would be part of her investigation report. The employer further replied:
Certainly if it is something that is used in a disciplinary matter we would want to get a copy and provide it to Jim. At this point we are in an investigation and are not in a disciplinary mode.
Golder also spoke to Rode about the union’s request for the document, and asked if Rode could turn over the letter to the employer. Rode felt she could not provide the document because she considered it part of her investigation notes.
Golder again informed the union that it did not have the Lemmond document, but assured the union it would be provided if the letter was included in Rode’s final investigation report.
Golder also asked Lemmond for the document on three different occasions. Lemmond declined to provide the document because she feared retaliation by Craven.
Rode’s final report found that Craven’s actions were not sufficient to create a hostile work environment based on gender. Craven was not disciplined.[3]
LEGAL STANDARDS
Chapter 28B.52 RCW governs the collective bargaining relationship between academic personnel in community colleges and the employer. Under this chapter, it is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their collective bargaining rights. RCW 28B.52.073(1)(a).
The Commission has soundly established that there is a duty to provide relevant information to an opposing party for the purpose of fulfilling its collective bargaining obligations. City of Bellevue, Decision 3085-A (PECB, 1989), aff’d, 119 Wn.2d 373 (1992); City of Wenatchee, Decision 8898-A (PECB, 2006). Failure to provide important and relevant information upon request constitutes an unfair labor practice. This is especially true when the information is solely in the control of the party holding the information. Seattle School District, Decision 9628-A (PECB, 2008).
In order to prove a violation for failure to provide information, the complaining party must prove: (1) that it requested information relevant to the performance of its functions in collective bargaining or contract administration; and (2) that the employer failed or refused to provide that information. City of Bremerton, Decision 6006-A (PECB, 1998).
Once an act or event occurs which gives rise to a potential grievance, a union representing the affected employee(s) has a right to request information, and the employer has an obligation to provide the information as long as the union has demonstrated its actual relevance and purpose. Washington State Patrol, Decision 8785 (PSRA, 2004).
When responding to an information request, an employer has an obligation to make a reasonable, good faith effort to locate the information. Seattle School District, Decision 9628-A, (PECB, 2008).
When the information sought by the union is not solely in the control of the employer, but is reasonably available to the requesting party, the employer may direct the union to a third party holding the information. If the union does not have the legal ability to get the information from the third party, or is rebuffed in its efforts to procure the information, the employer may have a duty to assist the union in the procurement of the information. City of Wenatchee, Decision 8898-A.
ANALYSIS
Is the information relevant?
The employer does not dispute the relevance or necessity of the information requested by the union. Lemmond’s document was admittedly used during the course of Rode’s investigation of Craven. However, the employer does assert that it is not required to provide the union with “witness statements” obtained during an investigation.
Is the document protected as a “witness statement”?
The employer argues that it is not required to provide the union with witness statements obtained during the course of an investigation of misconduct. The employer is concerned that a witness may be fearful of coercion or intimidation if her statement and identity are revealed to the union.
In Snohomish County PUD, Decision 7656-A (PECB, 2003), the Commission adopted federal case law in order to determine whether a statement can be properly excluded as a “witness statement.”[4] Generally, an employer has a duty to supply names of witnesses to an incident for which an employee is disciplined. However, the names of witnesses need not be released if the employer offers convincing evidence that there is imminent danger of harassment and intimidation. Snohomish County PUD, Decision 7656-A, citing Conoco Chemicals Company, 275 NLRB 39 (1985).
In addition, if a witness gave a statement under the assurance of confidentiality, it may be excludable. In order to determine whether the statement can be produced, the employer’s claim of confidentiality must be weighed against the union’s need for relevant information.
The facts in this case do not reflect any evidence that assurances were made by Rode to maintain Lemmond’s confidentiality. However, even if there had been such assurances, Rode revealed Lemmon’s identity in the February 12, 2008 meeting with Craven and the union representatives. At that point, Lemmond’s confidentiality was compromised.
There is evidence that Lemmond feared retaliation by Craven, and her concerns were acknowledged by the employer. In fact, there was merit to her concerns. On April 23, 2008, Craven authored an “official complaint” against Lemmond for making “false accusations” in her letter to Rode. Craven also spoke to Kotsakis, stating that he would see to it that Lemmond would no longer work or be employed by the college. In an April 29, 2008 letter, Kotsakis advised Craven that his statements and actions “could be perceived as retaliation by you [Craven] against them [Lemmond and other co-workers] for filing a complaint or participating in a complaint process.”
These events took place after the union filed its complaint, and were not the grounds the employer used to explain its failure to provide the Lemmond document to the union. However, if the employer had shown that Lemmond was in imminent danger of retaliation for her witness statements against Craven, an allowable exclusion for her document may have applied.
Did the employer control the document?
The employer argues that the information requested by the union is in the possession of a third party, and therefore the employer need only make a good faith reasonable effort to obtain the information from that party.
The employer argues that it could not fulfill the union’s document request because the document was not in its possession, and maintains that it would have been unreasonable to demand that either Lemmond or Rode produce the document.
The union argues that the personal services contract between the employer and Rode allowed the employer to easily obtain the document. In fact, the contract explicitly gives ownership of all work products to the employer. The contract states:
VIII. OWNERSHIP OF WORK PRODUCTS AND RESTRICTION AGAINST DISSEMINATION – All work products, including, but not limited to, all correspondence, papers, documents, reports, files, films, and intellectual concepts and properties, and all copies thereof, which the CONTRACTOR’S employees and agents are required to provide the COLLEGE in the course of performing, or as incident to the CONTRACTOR’S duties pursuant to this contract shall, immediately upon receipt, preparation, or development, become the exclusive property of the COLLEGE in perpetuity for any and all purposes. All work products, and all copies thereof, described above shall be provided to and left with the COLLEGE upon termination of this contract by the COLLEGE or upon the CONTRACTOR’S performance of this contract, whichever shall occur first.
This contract language is plainly broad enough to give the employer the authority to obtain any document it wants from the contractor.[5]
Did the employer make a reasonable, good faith effort to locate the information?
The employer argues that it fulfilled its obligation to make a good faith and reasonable effort to obtain the information requested by the union. The employer requested the document from both Rode and Lemmond on several occasions, but neither one was willing to produce the document.
The Examiner acknowledges that the employer did recognize its duty to at least attempt to acquire Lemmond’s letter. However, as discussed above, the employer absolutely had the ability to get the letter from Rode. If an employer could circumvent its duty to provide information by putting disciplinary investigations in the hands of outside agents, theoretically the employer could apply discipline without giving the union an opportunity to confront the evidence against its members.
CONCLUSION
The Examiner grants the union’s motion for summary judgment and dismisses the employer’s cross-motion. By its failure to provide information requested by the union, the employer committed an unfair labor practice.
FINDINGS OF FACT
1. Community College District 14 (Clark College) is a public employer within the meaning of Chapter 28B.52 RCW.
2. Clark College Association of Higher Education (CCAHE) is the exclusive bargaining representative within the meaning of Chapter 28B.52.020 RCW for all academic employees of Clark College.
3. In December 2007, the Dean of Business and Technologies, Ted Kotsakis, informed Professor Jim Craven, Chair of the Business Division, that a hostile work environment complaint was filed against Craven. The Dean informed Craven that an investigation would be conducted, which could result in discipline.
4. The college retained an outside contractor, Helle Rode, to investigate the complaint.
5. On February 12, 2008, the union president, a union staff member, and Craven met with Rode to discuss the complaint.
6. During the meeting, Rode referenced a document in her possession while asking Craven questions. The union asked Rode to identify the document. Rode identified it as a document authored by Julie Lemmond, an adjunct faculty member in the Business Department.
7. After the meeting, the union made two written requests for the employer to provide a copy of the document to the union. The employer responded that it had not received a copy of Lemmond’s document.
8. The employer attempted to obtain a copy of the Lemmond document from Rode, but Rode advised that she could not provide the document because she considered it to be part of her confidential notes.
9. The employer also tried to get a copy of the document from Lemmond. Lemmond refused to provide the document for fear of retaliation.
10. The record indicates that Lemmond’s document was relevant to the performance of the union’s functions in collective bargaining and contract administration.
11. No discipline was issued against Craven as a result of Rode’s investigation.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter under Chapter 28B.52 RCW and Chapter 391-45 WAC.
2. By failing to provide information requested by the union in connection with potential discipline of an employee Clark College interfered with employee rights and refused to bargain in violation of RCW 28B.52.
ORDER
COMMUNITY COLLEGE DISTRICT 14 (CLARK), its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:
1. CEASE AND DESIST from:
a. Failing and refusing to provide information requested by the Clark College Association of Higher Education (CCAHE) in connection with potential discipline of an employee.
b. In any other manner, interfering with, restraining or coercing its employees in the exercise of their collective bargaining rights under by the laws of the state of Washington.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter 28B.52 RCW:
a. Clark College shall identify and request any and all letters written by employee Julie Lemmond, with regard to the investigation of employee James Craven in 2007 and 2008, and retain those documents in their human resources department, and
b. Upon request by the exclusive bargaining representative, CCAHE, Clark College will supply those documents in 2 (a) above to CCAHE as soon as is practicable thereafter.
c. Post copies of the notice provided by the Compliance Officer of the Public Employment Relations Commission in conspicuous places on the employer’s premises where notices to all bargaining unit members are usually posted. These notices shall be duly signed by an authorized representative of the respondent, and shall remain posted for 60 consecutive days from the date of initial posting. The respondent shall take reasonable steps to ensure that such notices are not removed, altered, defaced, or covered by other material.
d. Read the notice provided by the Compliance Officer into the record at a regular public meeting of the Board of Directors of Clark College, and permanently append a copy of the notice to the official minutes of the meeting where the notice is read as required by this paragraph.
e. Notify the complainant, 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 provided by the Compliance Officer.
f. Notify the Compliance Officer 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 Compliance Officer with a signed copy of the notice provided by the Compliance Officer.
ISSUED at Olympia, Washington, this 5th day of November, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
[SIGNED]
J. MARTIN SMITH, 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.
[1] A motion for summary judgment may be granted and an order issued if the written record shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. WAC 10-08-135. The Examiner has reviewed the pleadings in this case and has determined that summary judgment is appropriate. As such, the Findings of Fact reflect the pleadings.
[2] Associate Vice President of Human Resources.
[3] Neither the resolution of the situation which gave rise to the unfair labor practice allegation, or the fact that the employer later furnished the information, renders a case moot. Seattle School District, Decision 5542-C (PECB, 1997); King County, Decision 7819 (PECB, 2002).
[4] See Anheuser-Busch, Inc., 237 NLRB 982 (1978); New Jersey Bell Telephone Co., 300 NLRB 42 (1990), aff’d, 936 F.2d 144 (1991).
[5] In similar cases, the Commission has ruled that certain evidentiary and testimonial privileges may prevent a union from unrestricted access to documents that the employer may have seen and relied upon. For example, in Port of Tacoma, Decision 4626-A (1995), the Commission refused to compel the Port attorney’s work product document, citing the attorney-client privilege. However, there is no “consultant-interviewee” privilege to protect the Lemmond document in this case.