King County, Decision 6994-B (PECB, 2002)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, LOCAL 17	CASE 14042-U-98-3471 DECISION 6994-B - PECB
Complainant,
vs.	CASE 14454-U-99-3581 DECISION 6995-B - PECB
KING COUNTY,	DECISION OF COMMISSION
Respondent.

Ray Goforth, Business Representative, for the union.

Robert Railton, Labor Negotiator, and Prosecuting Attorney Norm Mailing, by Diane Hess Taylor, Assistant Prosecuting Attorney, for the employer.

This case comes before the Commission on an appeal filed by International Federation of Professional and Technical Engineers, Local 17 (union), seeking to overturn findings of fact and conclusions of law issued by Examiner J. Martin Smith.[1] The Commission remands the case to the Examiner for findings of fact and conclusions of law on the specific causes of action that the Executive Director found to exist in the preliminary rulings.

BACKGROUND

On July 21, 1998, International Federation of Professional and Technical Engineers, Local 17 (union) filed an unfair labor practice complaint with the Commission under Chapter 391-45 WAC, naming King County (employer) as the respondent. Case 14042-U-98-3471 was docketed. The complaint involved employee Sherilyn McKee. The union alleged employer interference with employee rights, discrimination, and refusal to bargain. The Executive Director issued a preliminary ruling on August 14, 1998, finding causes of action to exist on allegations summarized as follows:

1.                  Failure or refusal of employer officials to supply information requested by the union in connection with its representa­tion of a disabled employee seeking re­turn to work;

2.                  Interference with employee rights, by a July 9, 1998 communication by supervisory employee Baugh, which disparaged the union by reference to intervention of "third parties"; and

3.                  Failure or refusal of employer officials to respond to union telephone messages and/or requests for meetings concerning the status and rights of the disabled employee.

Examiner J. Martin Smith was assigned to conduct further proceed­ings under Chapter 391-45 WAC. The employer filed its answer, accompanied by affirmative defenses, on September 14, 1998.

The employer filed a motion for summary judgment on March 25, 1999. Examiner Smith denied that motion on April 20, 1999, stating that he was bound by the Executive Director’s preliminary ruling finding causes of action to exist.

On March 16, 1999, the union filed an additional unfair labor practice complaint, containing allegations that involved King County employee Terry Hammond as well as further allegations involving McKee. The union alleged employer interference with employee rights, discrimination, and discrimination for filing charges.[2] Case 14454-U-99-3581 was docketed. The Executive Director issued a preliminary ruling in that case on June 18, 1999, finding a cause of action to exist on allegations summarized as:

Employer reprisals against union officials and union shop stewards for their protected activ­ities under Chapter 41.56 RCW, by means of its discriminatory administration of the federal Family Medical Leave Act (FMLA).

This complaint was thus limited to comparing the certification/ recertification requests sent to union members/shop stewards and nonunion members.[3] The two cases were consolidated before Examiner Smith, on July 2, 1999.

On August 18, 1999, the union filed a motion for summary judgment in Case 14454-U-99-3581, citing the failure of the employer to file a timely answer under WAC 391-45-210. The employer filed a proposed answer on August 31, 1999, along with a motion for acceptance of its answer after the deadline prescribed by rule.

The Examiner conducted a hearing on October 7, 1999, March 30 and 31, 2000, and May 25, 2000. On October 7, 1999, the Examiner granted the employer’s motion to file its answer late, thereby denying the union’s motion for summary judgment.

In his decision issued on January 10, 2001, the Examiner addressed issues different from the causes of action specified in the preliminary rulings. He concluded that the employer had not committed any unfair labor practices and dismissed the complaints. The union filed a timely appeal bringing this case before the Commission.

Because of our disposition of this case, we only set forth such facts as are necessary to this decision.

POSITIONS OF THE PARTIES

The union argues that the Examiner erred in granting the employer’s motion to file a late answer and in denying the union’s motion for summary judgment. The union contends the Examiner erred in many of his findings of fact and conclusions of law. The union asserts that the employer: (1) refused to bargain by failing to timely respond to its information requests; (2) interfered with employee rights by disparaging the union and referencing the intervention of “third parties” in a letter to McKee; (3) discriminated against McKee by implicitly conditioning the granting of a disability accommodation upon her refraining from having the union advocate for her; (4) interfered with employee rights by discriminatory administration of the FMLA; and (5) discriminated against employees who were shop stewards in its administration of the FMLA.

The employer supports the Examiner’s ruling on the union’s summary judgment motion. The employer argues that the union failed to meet its burden of proof to establish any errors in the finding of facts and conclusions of law.

DISCUSSION

The Employer’s Late Answer

On appeal, the union challenges the Examiner’s denial of its motion for summary judgment under WAC 391-45-210(4), based on the employer’s failure to file a timely answer. Because the union did not raise a timely objection to the Examiner’s ruling, we will not now consider such a challenge.

On the first day of the hearing in this matter, October 7, 1999, the Examiner denied the union’s motion and, conversely, granted the employer’s motion to file a late answer. The Examiner issued an interlocutory order on March 16, 2000,[4] wherein he stated that the union’s motion for summary judgment had been denied at the hearing in October 1999. The union did not pursue the “default” question at either of those times, and it neither provided testimony about prejudice nor made an offer of proof concerning prejudice during the days of hearing subsequently held in this matter. The union then failed to mention the issue in its post-hearing brief.

Because the union did not preserve the issue while the case was before the Examiner, the Examiner was not obligated to consider or address the issue in his decision on the merits. See King County, Decision 6994-A, supra. The Commission has previously stated that it generally will not consider issues raised for the first time on appeal. City of Bremerton, Decision 2733-A (PECB, 1987). We see no reason to deviate from that policy in Case 14454-U-99-3581.

Preliminary Rulings

Consistent with the admonition of the legislature that this agency is to be the “impartial” resolver of labor-management disputes, in RCW 41.58.005, our procedures for the processing of unfair labor practice cases differ substantially from those of labor relations agencies that investigate the alleged facts, draft unfair labor practice complaints, and/or prosecute charges on behalf of parties. Our procedures call for parties to file complaints that are sufficient to constitute a basis for further proceedings, and our preliminary ruling process operates on an assumption that all of the facts alleged in a complaint are true and provable. WAC 391-45-110(2) reads, as follows:

If one or more allegations state a cause of action for unfair labor practice proceedings before the commission, a preliminary ruling summarizing the allegation(s) shall be issued and served on all parties. . . .

(emphasis added).

Thus, our examiners are confined to processing the causes of action found to exist in the preliminary ruling. See Lake Washington Technical College, Decision 4721-A (PECB, 1995).[5]

In these cases, the Executive Director issued preliminary rulings stating the causes of action that were found to exist. In Case 14042-U-98-3471, the Executive Director did not list a cause of action for discrimination; in Case 14454-U-99-35-81, the Executive Director did not list a cause of action for discrimination for filing charges or for an independent interference violation. There was no occasion for the union to file an appeal in these cases, because none of its theories were explicitly dismissed. If the union desired to pursue some theory not addressed by the Executive Director in the preliminary ruling, it needed to file an amended complaint explicitly setting forth those claims or should have requested reconsideration of the preliminary rulings.

The Examiner nevertheless discussed and made findings regarding a discrimination violation involving McKee in the first complaint, he discussed and made findings regarding an independent interference violation involving Hammond, and he did not rule on a cause of action for discrimination against Hammond and McKee in the second complaint. Consistent with the Executive Director’s preliminary rulings, the Examiner should have addressed: (1) an independent interference violation involving McKee, based upon a letter dated July 9, 1998; (2) refusal to bargain violations, based on the duty to provide information; and (3) discrimination violations involving McKee and Hammond, as detailed in the second complaint.

We choose to address the legal standards behind the causes of action found in the preliminary rulings.

Interface with the Federal Family Medical Leave Act

At the beginning of the discussion section of his decision, the Examiner stated that two issues in the second complaint went “beyond the preliminary ruling issued” by the Executive Director: (1) interference with employee rights by means of discriminatory administration of the FMLA; and (2) discrimination by means of discriminatory administration of the FMLA. In stating that the “Commission has no jurisdiction whatever over the federal FMLA,” the Examiner seemed to summarily disregard both of those claims because they merely touched on the FMLA. However, the Examiner later addressed other allegations that touched on the FMLA, including both an independent interference allegation involving Hammond and a discrimination allegation involving McKee. Thus, the Examiner appears to have addressed issues involving the FMLA in an inconsistent manner.

We agree that this Commission has no jurisdiction whatever to interpret or enforce the FMLA. However, we hold that this Commission has jurisdiction over allegations of discrimination for union activities, even if the allegations involve discriminatory administration of the FMLA. Indeed, although the Executive Director found a cause of action to exist in the second complaint for discriminatory administration of the FMLA, he explicitly stated that it should be clear to all that the Commission does not assert jurisdiction over violations of employee rights under the FMLA. In the second complaint, the Examiner should have addressed the discrimination allegation against McKee and Hammond.

Interference and Discrimination Prohibited

Chapter 41.56 RCW prohibits public employers from discriminating against or interfering with any public employee who exercises collective bargaining rights:

RCW 41.56.040 RIGHT OF EMPLOYEES TO ORGANIZE AND DESIGNATE REPRESENTATIVES WITHOUT INTERFERENCE. No public employer, or other person, shall directly or indirectly, inter­fere with, restrain, coerce, or discriminate against any public employee or group of public employees in the free exercise of their right to organize and designate representative of their own choosing for the purpose of collec­tive bargaining, or in the free exercise of any other right under this chapter.

RCW 41.56.140 UNFAIR LABOR PRACTICES FOR PUBLIC EMPLOYER ENUMERATED. 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;

. . . .

The Commission has adopted Chapter 391-45 WAC to regulate the processing of unfair labor practice cases.

“Derivative” Interference -

A violation of RCW 41.56.140(1) will be found automatically whenever there is any finding of a domination, discrimination or refusal to bargain violation under RCW 41.56.140. Reardan‑Edwall School District, Decision 6205‑A (PECB, 1998).

“Independent” Interference -

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).

In that light, we are troubled by the Examiner’s discussion of the discrimination allegation, where the Examiner briefly addressed the interference violation in the first complaint involving McKee and the letter of July 9, 1998. The Examiner wrote:

Baugh’s mention of “third party dissemination” of wrong information [in the July 9 letter] is not, on the whole, subject to an anti-union animus interpretation. Rather, it sounds like her genuine opinion that people other than Sheri McKee and the union were adding to the confusion and miscommunications. The union fails to state a “disparagement” violation on this comment, at least in isolation. At any rate, McKee’s eventual conversations with Mr. Derrick seemed to resolve things fairly well.

(emphasis added).

It was not necessary for the union to show anti-union animus for it to prevail on an interference allegation. See City of Tacoma, supra; Cowlitz County, supra.

The Examiner wrote that, under the substantially easier test for interference claims, a claimant must be able to present objective evidence that they reasonably suspected that their “discipline” was “impending,” and he cited Okanogan County, Decision 2252-A (PECB, 1986) for that proposition. We find his decision mis-states the law, as the Okanogan County decision does not even use the word “impending” or imply such a requirement. For that matter, no Commission decisions require an employee to present objective evidence that they reasonably suspected that their “discipline” was “impending” to prevail on an interference violation. Additionally, the operative words in the test for an independent interference violation are “reasonably perceived as a threat of reprisal or force or promise of benefit,” not the more narrow term “discipline” used by the Examiner. See Rearden-Edwall School District, supra.

While the Examiner focused on letters dated June 9 and June 30, 1998, the preliminary ruling only explicitly cited the letter dated July 9, 1998. That letter from Lynette Baugh, a manager in the Building Services Division, to McKee stated in relevant part:

 . . . We are concerned that third parties are disseminating misinformation as it relates to our interaction with you. Such conduct is unproductive and does not serve to further the interactive process of reasonable accommoda­tion in which we wish to engage. . . .

Those are the words the Examiner should have focused on when ruling on an independent interference violation involving McKee.

Discrimination -

In Educational Service District 114, Decision 4631-A (PECB, 1994) and numerous subsequent decisions, the Commission has called upon its examiners to utilize the three-prong burden-shifting scheme endorsed by the Supreme Court of the State of Washington in Wilmot v. Kaiser Aluminum, 118 Wn.2d 46 (1991) and Allison v. Seattle Housing Authority, 118 Wn.2d 79 (1991).[6] When discrimination is claimed, the complainant must first establish a prima facie case of discrimination. Wilmot, supra; Educational Service District 114, supra. This is done by showing that: (1) the employee has participated in protected activity or communicated to the respon­dent an intent to do so; (2) the employee has been deprived of some ascertainable right, benefit, or status; and (3) there is a causal connection between those events, i.e. that the respondent’s motivation was the employee’s exercise of or intent to exercise statutory rights. Wilmont, supra; Educational Service District 114, supra. The burden-shifting scheme then requires the respon­dent to articulate a legitimate, nonpretextual, nondiscriminatory reason for its actions. Wilmot, supra; Educational Service District 114, supra. The third prong of the burden-shifting scheme allows the complainant to satisfy the ultimate burden of persuasion by showing that the reasons articulated by the respondent are a mere pretext for what, in fact, is a discriminatory purpose, or that protected activity was nevertheless a substantial motivating factor behind the discriminatory action. Wilmot, supra; Educa­tional Service District 114, supra.[7]

We are troubled that the Examiner confused application of the test for discrimination, in addition to applying facts concerning the first complaint to the test for discrimination when facts concern­ing allegations in the second complaint should have been applied to that legal standard.

The Examiner did not find that the employer discriminated against Hammond and McKee, as detailed in the second complaint. The second complaint compares letters sent to Hammond and McKee with letters sent to other employees asking for similar information. The specific concern is about the employer asking the union members to produce medical certifications/recertifications under the FMLA in a shorter time period than that required of non-union members or allowed by the FMLA.

The Examiner addressed facts articulated in the second complaint out of context, discussing them in connection with an allegation of interference against Hammond. In restating the union’s arguments,[8] the Examiner stated that the union characterized these facts as “abusive” and that the union argued this was a “pattern of misapplication” towards union activists. The Examiner then adds that “a finding of an abusive misapplication of the 15-day rule would seem to require evidence of some attempt by the employer to mislead or entrap both McKee and Hammond into forfeiture of their rights under the federal law.” However, this is not part of the test for a finding of discrimination.[9]

Refusal to Provide Information

Chapter 41.56 RCW also defines and enforces a duty of employers and unions to bargain in good faith:

RCW 41.56.030 DEFINITIONS. As used in this chapter:

. . . .

(4) "Collective bargaining" means the performance of the mutual obligations of the public employer and the exclusive bargaining representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to grievance procedures and collective negotia­tions on personnel matters, including wages, hours and working conditions, which may be peculiar to an appropriate bargaining unit of such public employer, except that by such obligation neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this chapter.

. . . .

RCW 41.56.140 UNFAIR LABOR PRACTICES FOR PUBLIC EMPLOYER ENUMERATED. It shall be an unfair labor practice for a public employer:

. . . .

(4) To refuse to engage in collective bargaining.

The duty to bargain includes a duty to provide relevant, necessary information requested by the opposite party to a collective bargaining relationship 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). The obligation extends to both information that is useful and relevant for the purpose of contract negotiations and information necessary to the administra­tion of the collective bargaining agreement. Port of Seattle, supra. Thus, this duty extends to requests for information required for the sifting out of unmeritorious claims in the grievance process as well as the processing of grievances. Port of Seattle, supra; Pasco School District, supra. The duty to provide information turns on the circumstances of a particular case. Pasco School District, supra. 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, supra; Seattle School District, supra. This is consistent with viewing the duty to provide information as part of an ongoing and continuous obligation to bargain. Port of Seattle, supra. 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, supra; City of Pullman, supra.

We are troubled that the Examiner may have taken too narrow a view of the scope of information available for purposes of contract administration, in stating as follows:

To prevail on its claims under RCW 41.56.140(4), the union must prove that it identified a potential contract violation, that it made an appropriate request for docu­ments related to its processing of a griev­ance, and that the employer failed to provide the requested information.

(emphasis added).

We find the test for a refusal to bargain violation to be much broader, as stated above. Contrary to what the Examiner stated in his decision, the Commission has held that information pertaining to employees in the bargaining unit represented by a union is presumptively relevant. Port of Seattle, supra; City of Bremerton, Decision 6006-A (PECB, 1998)); Seattle School District, supra; Pasco School District, supra.

The Examiner found that the employer did not refuse to bargain, but explained his decision by stating that:

Neither the request for leave under the FMLA nor the imposition of an improper deadline formed the basis for a grievance, because those issues concerned McKee’s rights under the federal law rather than any rights secured by the collective bargaining agreement. . . . Because there is no evidence that McKee or any other applicant for leave under the FMLA was disciplined or otherwise deprived of their rights under the parties’ collective bargain­ing agreement, the union has failed to estab­lish the occurrence of any event(s) for which a grievance could have been filed under the contract.

(emphasis added).

This reasoning is faulty on multiple levels. First, as we stated above, a statement that the Commission has no jurisdiction to interpret or enforce the FMLA is much different from saying that the Commission has jurisdiction over discrimination violations arising from the discriminatory administration of the FMLA. Here, the Examiner appears to have decided the duty to provide informa­tion by simply noting that the FMLA was involved, without consider­ing the union’s arguments. Additionally, in the second part of the quote above, the Examiner added requirements to the test he initially articulated, requiring that only a meritorious grievance can lead to a request for information. There is no requirement that the request for information arise from the filing of a valid grievance. A request for information can be valid even when the underlying grievance is later found to be lacking in merit.

The Examiner concluded his discussion of this subject by stating as follows:

Documents were, in fact, provided to the union in this case. From the record made, Goforth received multiple copies of relevant documents from the employer even before he filed the complaint to initiate this proceeding.

Here, the Examiner appears to have shifted from discussing the refusal to provide information in the context of grievances to the context of the complaint. Although true, we believe that this analysis overlooks the spirit of communication inherent in our collective bargaining laws by lengthening the reasonable time period for a response.

Error Assigned to Dicta

The union assigns error to 14 separate statements in the Examiner’s decision that it identifies as dicta. WAC 391-45-350 requires that a notice of appeal identify the specific rulings, findings of fact, conclusions of law, or orders claimed to be in error; it is silent regarding dicta. Dicta is material that is not necessary to a decision and has no precedential value. See Pac. N.W. Transp. Utils. & Transp., 91 Wn. App. 589 (1998). Thus, while the Commission can choose to address various arguments made by parties on an appeal, the Commission need not consider error assigned to portions of the Examiner’s decision that have no precedential value.

Error Assigned to Findings and Conclusions

Although the union assigned error to nine findings of fact, we choose not to make the customary “substantial evidence” inquiry in light of our decision to remand the case to the Examiner. Similarly, although the union assigned error to four conclusions of law, we withhold the customary analysis of whether those conclu­sions are based upon sustainable findings of fact.

Conclusion

The Examiner in this case did not apply the facts to the causes of action specified in the preliminary rulings; did not state the correct legal standards for the interference or refusal to bargain claims; and applied the facts concerning allegations in the first complaint to the test for discrimination when the facts concerning allegations in the second complaint should have been applied to that legal standard. If the Examiner had simply not applied the correct legal standard, our role on appeal would be to apply the correct law to the facts relevant to the issues or causes of action presented, and then simply determine if substantial evidence supports the findings of fact, as is our usual practice when the correct legal standard has been applied. C-TRAN (Amalgamated Transit Union, Local 757), supra; Brinnon School District, supra; Renton Technical College, supra. We remand the case to the Examiner with direction that he apply the facts to the causes of action at issue. In the event of an appeal by either party from the Examiner’s decision on remand, we will be in a position to defer to the Examiner’s credibility determinations on the facts relevant to the issues in these cases.

NOW THEREFORE, it is

ORDERED

The above-referenced cases are REMANDED to Examiner Smith for issuance of a decision consistent with this order.

Issued at Olympia, Washington, on the 14th day of May, 2002.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARILYN GLENN SAYAN, Chairperson

[SIGNED]

SAM KINVILLE, Commissioner

[SIGNED]

JOSEPH W. DUFFY, Commissioner