Seattle School District, Decision 10435 (PECB, 2009)

Robblee Brennan & Detwiler, by Daniel Hutzenbiler, Attorney at Law, for the union.

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

On November 19, 2008, Seattle/King County Building and Construction Trades Council (union) filed an unfair labor practice complaint against (the) Seattle School District (employer). On December 3, 2008, the unfair labor practice manager issued a deficiency notice. On December 23, 2008, the union filed an amended complaint. On January 2, 2009, a preliminary ruling was issued finding a cause of action for employer interference with employee rights in violation of RCW 41.56.140(1), by employer official Marc Walsh making threats of reprisal or force or promises of benefit to bargaining unit member Brian Zadorozny concerning the union’s status. Examiner Charity Atchison conducted a hearing on March 18, 2009. The parties filed post-hearing briefs on April 29, 2009.

ISSUE

Whether the employer interfered with employee rights in violation of RCW 41.56.140(1) by statements made by supervisor Marc Walsh to union member Brian Zadorozny?

The Examiner finds the alleged statement Walsh made to Zadorozny that “the carpenter shop was going away, so this will be good for you to be over here in BEX,” does not rise to the level of interference.

APPLICABLE LEGAL STANDARDS

Chapter 41.56 RCW prohibits employer interference with employees’ exercise of their collective bargaining rights. RCW 41.56.040. An employer commits an interference violation if statements by employer officials are reasonably perceived as a threat of reprisal or force or a promise of benefit associated with the exercise of rights protected by Chapter 41.56 RCW. Pasco Housing Authority, Decision 5927-A (PECB, 1997). Employer intent or motivation to interfere are not relevant, nor is it necessary to demonstrate that the employee involved actually felt threatened or coerced. King County, Decision 8630-A (PECB, 2005). Rather, the determination of whether an interference violation has been committed is based on whether a typical employee could reasonably perceive the employer’s actions as discouraging the employee’s union activity. Snohomish County, Decision 9834-B (PECB, 2008). A claim of interference must be supported by a preponderance of the evidence; the standard is not particularly high. Pasco Housing Authority, Decision 5927-A.

ANALYSIS

In August 2008 Brian Zadorozny was a general foreman working as a liaison between maintenance and BEX (the building excellence project). The BEX projects were winding down, and Zadorozny’s position was being eliminated. Zadorozny was frustrated that his position was being eliminated. There was no testimony about why Zadorozny’s position was eliminated or whether other positions were also being eliminated. Maintenance supervisor Marc Walsh met with some higher level supervisors and discussed the possibility of creating a position for Zadorozny in BEX. The position would have allowed Zadorozny to work full-time in BEX. As a result of this conversation, in early September 2008, Walsh spoke with Zadorozny about accepting a position with BEX. Zadorozny recalled Walsh saying, “the carpenter shop is going away anyway, so this will be good for you to be over here in BEX.” Walsh denied making the statement. There is no evidence about whether the BEX position came into existence and, if did, who filled the position.

Lee Newgent, Executive Secretary of the union, holds a regular stewards meeting on the Friday prior to the labor-management meetings. At the stewards meeting prior to the September 16, 2008 labor management meeting, Newgent became aware of the statement Walsh allegedly made to Zadorozny. At the September 16, 2008 labor management meeting, Newgent confronted Walsh by stating, “Marc, I heard a statement that you said that the unions would not be around next contract cycle,” and asking whether Walsh made the statement.

There is discrepancy as to what happened next. According to Newgent, Walsh admitted to making the statement and the meeting blew up. According to Walsh, he told Newgent that he had discus­sions with Dan Bryant, a union member, during which the two discussed “this sort of stuff.” Senior facilities manager Lynn Good also attended the labor management meeting. Good recalled Walsh admitting there was a discussion with Bryant and attempting to explain the conversation. The Examiner credits Good’s testimony because Good was straightforward and to the point. In addition, while others were in attendance at the labor management meeting, no other witnesses were called to testify about the meeting. Here, the evidence that Walsh clarified with whom he engaged in conversa­tion with is credible and supported by Good’s testimony.

Bryant confirmed that he and Walsh had conversations about “how we did business.” According to Bryant, the information he discussed with Walsh was speculation and not based on fact. Union members Bryant and Anton Gustin testified that around the time the contract is being negotiated, union members regularly discuss whether the union will survive the bargaining cycle and sign a contract. According to Gustin, “the rumors would fly around there like we’re old women and we talk.”

Walsh’s testimony that he did not tell employees that the union would not be around in 2010 is supported by Gustin. The Examiner finds Gustin to be a credible witness. Gustin answered the questions asked of him in a straightforward way and did not censor his reactions and responses to questions. According to Gustin, Walsh was present for a conversation in which the employees were speculating about whether they would have a job in the future. Gustin never heard Walsh say the union would not be around when the contract expired. Gustin clearly articulated that he was not close with Walsh and did not see Walsh socially. While he liked Walsh, he said that he would favor the union over management.

Walsh is a first line supervisor. Walsh reports to Mark Pfleuger, Maintenance Manager. Pflueger reports to Good, Senior Facilities Manager. Good reports to Fred Stevens, Executive Director of Facilities. Decisions to approve the collective bargaining agreement are made by Superintendent Maria Goodloe-Johnson and the school board.

In order to determine whether the alleged statement is interfer­ence, a typical employee must be able to reasonably perceive the statement as a threat of reprisal or force or a promise of benefit associated with the exercise of rights protected by Chapter 41.56 RCW. Zadorozny testified that Walsh told him the carpenter shop was going away, but Walsh denied making the statement. Even if the Examiner credits Zadorozny’s version, a reasonable employee would not believe Walsh because he is a first line supervisor, the employees frequently speculate about whether they will continue to have union jobs, and the statement had no supporting facts.

There is nothing in the statement “the carpenter shop is going away, so this will be good for you to be over here in BEX” to imply a threat of reprisal or force or a promise of benefit. Walsh allegedly made the statement during a conversation in which Walsh offered Zadorozny a new position. The possibility exists that the statement could have been intended to entice Zadorozny to take the BEX position because BEX was winding down and the employer may have wanted to keep Zadorozny in BEX, but there is not enough evidence for the Examiner to conclude that the alleged statement was meant to entice Zadorozny to take the position in BEX or to conclude that the statement is a threat of reprisal or force or a promise of benefit.

The belief that the alleged statement was a threat of reprisal or force or a promise of benefit is not reasonable because Walsh was not in a position to make a decision about whether the union would be around and the statement was not supported. Bryant would not believe Walsh because Walsh is not in a position to determine whether the unions are eliminated. Walsh is a first line supervi­sor without the authority to make a decision about the collective bargaining agreement. Employees are, or should be aware, of Walsh’s position and lack of authority to make determinations about collective bargaining matters. Bryant believed a communication that there would not be a union would come from the union, not from the employer.

More facts would be needed before a typical employee could reasonably believe that a first-line supervisor would be telling him or her that a shop or the union would be eliminated. Gustin would have briefly considered a statement about the union not existing at the end of the contract, but then he would let the statement go because rumors are rampant. Additionally, Gustin said the union had been around a long time. Gustin differentiated between an unsupported statement and one supported by facts. Gustin would call the union to substantiate any sort of claim if the employer provided facts. While the typical employee may not choose to call the union, the typical employee would differentiate between a statement supported by facts and a factually unsupported statement.

If the conversation between Walsh and Zadorozny involved more facts or statements, those statements are not before the Examiner. The evidence is limited to the fact that there was a conversation, Walsh discussed the possibility of a new position for Zadorozny, and Walsh allegedly said the carpenter shop was going away. It is not clear how the phrase “the carpenter shop is going away, so this will be good for you to be over here in BEX” translates to the union will not be around at the end of the next contract. If there was information that could have helped the Examiner bridge that gap, that information was not put into evidence. It is not possible for the Examiner to make an attribution or a finding, if there is no evidence to support such a finding.

CONCLUSION

Walsh’s statements did not rise to the level of unlawful interfer­ence. A typical employee could not reasonably perceive the alleged statement as a threat of reprisal or force or a promise of benefit associated with rights protected by Chapter 41.56 RCW. Such a belief would be unreasonable because Walsh lacks the authority to make decisions about the status of the union and collective bargaining agreements. The belief would further be unreasonable because the alleged statement was not supported by facts.

FINDINGS OF FACT

1.                  Seattle School District is an employer within the meaning of RCW 41.56.030(1).

2.                  Seattle/King County Building and Construction Trades Council is a bargaining representative within the meaning of RCW 41.56.030(3).

3.                  In early September 2008, maintenance supervisor Marc Walsh met with Brian Zadorozny to discuss the possibility of Zadorozny taking a new position.

4.                  During their conversation, Zadorozny heard Walsh say “the carpenter shop is going away, so this will be good for you to be over here in BEX.” Walsh denied making the statement.

5.                  Zadorozny was frustrated about the elimination of his posi­tion.

6.                  Union Executive Secretary Lee Newgent confronted Walsh at the September 18, 2008 labor management meeting. Newgent said, “Marc, I heard a statement that you said that the unions would not be around next contract cycle.”

7.                  In response to Newgent, Walsh told Newgent he’d had conversa­tions with Dan Bryant about “this sort of stuff.” Senior facilities Manager Lynn Good attended the meeting and credibly testified to Walsh admitting having a discussion with Bryant and attempting to explain the conversation.

8.                  Walsh and bargaining unit member Dan Bryant had conversations about how business was conducted. Walsh was present, but did not participate in, a conversation during which Anton Gustin and two co-workers discussed whether they would have jobs in the future. Gustin never heard Walsh say the union would not be around when the contract expired.

9.                  Walsh is a first line supervisor without the authority to make a decision about the collective bargaining agreement. More facts would be needed before a typical employee could reason­ably believe that a first-line supervisor would be telling him or her a shop or the union would be eliminated.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and Chapter 391-45 WAC.

2.                  By its actions described in the above findings of fact, the employer did not violate RCW 41.56.140(1).

ORDER

The complaint charging unfair labor practices filed in the above-captioned matter is dismissed.

ISSUED at Olympia, Washington, this 11^th day of June, 2009.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

CHARITY ATCHISON, 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.