Dieringer School District, Decision 8956 (PECB, 2005)
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STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION |
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INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 286, |
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CASE 18720-U-04-4757 |
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Complainant, |
DECISION 8956 – PECB |
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vs. |
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DIERINGER SCHOOL DISTRICT, |
FINDINGS OF FACT,CONCLUSIONS OF LAW AND ORDER |
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Respondent. |
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Diana Rollins, Director of Organizing, for the union.
Dionne & Rorick, by Jeffrey Ganson, Attorney at Law, for the employer.
On July 26, 2004, the International Union of Operating Engineers (IUOE), Local 286 (union), filed an unfair labor practice complaint with the Public Employment Relations Commission. The complaint alleged that the Dieringer School District (employer) discriminated against and interfered with the collective bargaining rights of two classified employees, Laurie Garman and Kathi Wambach, in violation of RCW 41.56.140(1). The employer filed a timely answer. Examiner David I. Gedrose held a hearing on December 8, 2004. The parties submitted post-hearing briefs.
Based upon the record, statutes, and relevant Commission precedents, the Examiner rules that the union failed to meet the burden of proof necessary to establish discrimination or interference claims against Laurie Garman under Chapter 41.56 RCW. The discrimination and interference claims related to Garman are DISMISSED on the merits. The union did sustain its burden of proof for discrimination and interference claims against Kathi Wambach. The Examiner rules that the Dieringer School District committed unfair labor practices by discriminating against and interfering with Kathi Wambach’s collective bargaining rights when it issued an unfavorable evaluation, a letter of warning, and placed her on a performance plan in May and June, 2004.
ISSUES
Did the employer discriminate against Laurie Garman and interfere with her collective bargaining rights under Chapter 41.56 RCW?
Did the employer discriminate against Kathi Wambach and interfere with her collective bargaining rights under Chapter 41.56 RCW?
ANALYSIS
Applicable Standards
The Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, gives the Commission jurisdiction over unfair labor practice complaints.
RCW 41.56.140(1) states:
It shall be an unfair labor practice for a public employer to interfere with, restrain, or coerce public employees in the exercise of their rights guaranteed by this chapter.
Discrimination -
The Commission decides discrimination allegations under standards drawn from decisions of the Supreme Court of the State of Washington. That formula is:
The injured party must make a prima facie case showing retaliation. To do this, a complainant must show:
1. The exercise of a statutorily protected right, or communicating to the employer an intent to do so;
2. The employee has been deprived of some ascertainable right, benefit, or status; and
3. That there was a causal connection between the exercise of the legal right and the discriminatory action.
If a plaintiff provides evidence of a causal connection, a rebuttable presumption is created in favor of the employee. The complainant carries the burden of proof throughout the entire matter, but there is a shifting of the burden of production to the employer. Once the employee establishes his/her prima facie case, the employer has the opportunity to articulate legitimate, non-retaliatory reasons for its actions.
The employee may respond to an employer’s defense in one of two ways: (1) by showing that the employer’s reason is pretextual; or (2) by showing that, although some or all of the employer’s stated reason is legitimate, the employee’s pursuit of the protected right was nevertheless a substantial factor motivating the employer to act in a discriminatory manner.
Wilmot v. Kaiser Aluminum, 118 Wn.2d 46 (1991) and Allison v. Seattle Housing Authority, 118 Wn.2d 79 (1991). See Educational Service District 114, Decision 4631-A (PECB, 1994); Brinnon School District, Decision 7210-A (PECB, 2001).
Interference -
Interference claims involve a less complex analysis than discrimination charges. The Commission’s test for an interference violation is:
Whether one or more employees could reasonably perceive employer actions as a threat of reprisal or force or promise of benefit associated with the pursuit of rights under Chapter 41.56 RCW. It is not necessary for a complainant to show that the employer intended to interfere, or even that the employees involved actually felt threatened.
City of Omak, Decision 5579-B (PECB, 1997); City of Tacoma, Decision 8031-A (PECB, 2004).
The complainant has the burden of proof in discrimination and interference claims. WAC 395-45-270(1)(a). Discrimination and interference claims are interrelated in that both require evidence of protected activities. If a discrimination claim and an interference claim are based on the same set of facts, and a discrimination claim is dismissed for failing to meet the test of protected activities, an independent interference claim will not be found. Seattle School District, Decision 5237-B (EDUC, 1996); Brinnon School District, Decision 7210-A (PECB, 2001).
Did the employer discriminate against Garman in retaliation for union activities by placing a letter in her personnel file?
The employer operates a fleet of school buses as part of its business. The transportation supervisor is Frederick Streeck. At the time of hearing he supervised 18 bus drivers. Laurie Garman is a bus driver with ten years of service. The union claims that Streeck retaliated against Garman for questioning an offer by Streeck to provide a district school bus as a “personal bus limo service for the day.” This offer took place as part of a school auction. Garman states that she challenged Streeck about this during a meeting with the drivers. She states that Streeck became irritated with her over her questions.
Streeck issued an interoffice memorandum to Garman, dated March 24, 2004, that includes a reference to the bus limo auction item and her questioning of it. The memorandum contains Streeck’s comments on his view of Garman’s conduct during a March 23, 2004, staff meeting:
I am concerned about your conduct during yesterday’s driver staff meeting. You were unnecessarily confrontational and challenging during that time and the purpose of this memo is to point those concerns out to you.
Streeck addresses several areas of concern about Garman’s comments over: (1) drivers’ insurance coverage; (2) radio “chit chat;” (3) the bus limo auction item; and (4) the chain of command in reference to expressing concerns on the job. Streeck ends the memo as follows:
I value you as a driver and feel you have much to offer and contribute to the transportation department. Please refer to this memo as an opportunity for self reflection regarding your attitude and verbal approach yesterday. I am available to speak to you personally about this concern if you wish.
The union cites this memorandum as proof of Streeck’s retaliation against Garman for her bus limo auction comments. However, the reference to the bus limo auction item is only one of several items listed in the memorandum. At the time of the meeting, the employer had not instructed Garman, nor any other driver, to participate in the auction as part of their job duties. Garman admitted she was confrontational with Streeck. Questioning a supervisor, by itself, does not constitute union activism. Based on the record, the Examiner is not persuaded that Garman was engaged in protected activities.
Streeck’s wording of the March 24 memorandum indicates that he intended it as a counseling letter, not an the initial step in progressive discipline. The collective bargaining agreement has a specific reference to disciplinary warning letters:
Article XV - Discharge
15.1 The Employer may discharge or suspend any employee for just cause, but no employee shall be discharged or suspended unless a written warning notice shall have been given previously to such employee of a complaint against him concerning his work or conduct, except that no such prior warning notice shall be necessary if the cause for discharge or suspension is dishonesty, drug abuse or drinking related to his employment, recklessness, or carrying unauthorized passengers.
As more fully explained below, Streeck issued a letter of warning to Wambach citing this contract provision. He also included in Wambach’s file memoranda from previous supervisors specifically noting that Wambach had been given verbal warnings. Based on the absence of these indicia of corrective action in the March 24 memorandum to Garman, the Examiner concludes that the memorandum was not disciplinary.
In addition, Streeck took no action against Garman after issuing the memorandum. In June 2004, he gave her an overall “satisfactory” evaluation. The record does not support Garman’s claim of protected activity, nor one of adverse action against her. The union failed to make a prima facie case for discrimination against Garman.
Interference -
Garman’s interference claim is based upon the same facts as her discrimination claim. The union failed to show evidence of protected activity in Garman’s discrimination claim. The union further failed to produce evidence of adverse employer action against her. Garman had no reasonable basis for asserting employer interference with her collective bargaining rights. For this reason, this aspect of the union’s claim also fails.
Did the employer give Kathi Wambach an unsatisfactory evaluation, a letter of warning, and place her on a performance plan because of her union activities?
Kathi Wambach is a bus driver. She is a twenty-five year school district employee. She served as shop steward during the relevant period, between January 26 and July 26, 2004. In its complaint, the union stated that, in addition to her position as shop steward, Wambach engaged in protected activities in the previous six months: she attended labor management meetings with the district superintendent; in her role as shop steward she confronted Streeck with other bus drivers’ concerns.
Wambach also assisted in a union initiated survey concerning an alleged hostile work environment under Streeck. The results of that survey were included in a May 7, 2004, letter from a union business agent to the superintendent. The letter states, in part, that the union had taken a survey of its members in the transportation department regarding its members’ working conditions under Streeck. The union states that it found the results “disturbing,” and adds, “[o]verwhelmingly, the Transportation Department complains that they are being forced to work in a hostile environment and that Supervisor Frederick Streeck is the cause of it.” The letter also references informal labor management meetings between the superintendent and bargaining unit employees where the parties discussed the union’s concerns. Wambach testified that the superintendent did not respond to the letter and did not address the letter’s concerns at a subsequent labor management meeting.
On May 28, 2004, Streeck gave Wambach an overall “unsatisfactory” annual evaluation, based on “unsatisfactory” ratings in two out of eight categories. He cited her as generally performing well in “job skills,” but “unsatisfactory” in that category for not keeping her bus clean. Despite acknowledging her abilities, Streeck nevertheless gave her an overall “unsatisfactory” under “job skills.” He also gave her an “unsatisfactory” rating for tardiness.
Under the comments and summary section for “Performance Evaluation-School Bus Driver” Streeck stated:
A. General supporting comments/summary-
Kathi has been driving school bus for Dieringer since 1979. During this time she has grown and matured as a seasoned bus driver. She is very competent and skillful in the handling of her bus, students and relationships with parents. I have ridden with Kathi and found that she operated her vehicle in a safe and prudent manner. She relates comfortably to students and parents.
Two issues of long standing concern are lateness and keeping her bus clean. These concerns have been addressed repeatedly over the years and unfortunately they have not been resolved. As a result of comparing this year with past evaluations and letters of correction, this evaluation is rated Unsatisfactory. Kathi will be on a one year plan of improvement to include weekly bus inspections and close attention will be paid to her arrival time at work. During the next school year, I will provide regular feedback to Kathi on her progress.
Background:
1990 Letter regarding verbal warning for lateness
1991 Letter regarding verbal warning for lateness
1992 Letter of warning regarding lateness
1999 Bus inspection form, Bus Cleaning needed
1999 Evaluation: Needs Improvement, Bus Cleaning
2000 Evaluation: Needs Improvement, Bus Cleaning
2001 Evaluation: Needs Improvement, Bus Cleaning
2003 Evaluation: Needs Improvement, Cleaning staff room
2004 Observation; multiple spot inspections, bus not swept; late to work 20 out of 20 days 4/22-5/26 (range 4-17 minutes)
Kathi has acknowledged that she had not swept her bus and acknowledged that she was late to work.
On June 17, 2004 he issued her a letter of warning over her job performance. The letter stated:
As per Article XV, 15.1 & 15.2 of the current negotiated agreement, IUOE and Kathi Wambach are hereby given this written notice of warning. Mrs. Wambach received an unsatisfactory evaluation this school year and is being placed on a plan of improvement. Specific concerns are lateness to work and bus cleanliness.
Under the collective bargaining agreement, this letter was the precursor to possible suspension and discharge proceedings. The performance plan was outlined in section A of her evaluation.
Wambach engaged in protected activities -
Wambach’s status as a shop steward does not, by itself, prove protected activity. The fact that an employee is a shop steward does not automatically imply union activism. If that were the case, shop stewards, by definition, would be immune to employer discipline without actually engaging in protected activity. No statute or Commission precedent supports such a position. However, the union produced three witnesses who testified that in her role as shop steward, Wambach regularly intervenes with the employer on other employees’ behalf. Steve Young stated that Wambach “sticks up for people” and fights for “[us] when we feel we’re wronged.” Laurie Garman and Jill Tyree echoed Young’s testimony.
The union presented sufficient evidence to sustain the first element of its prima facie case and proved that Wambach engaged in activities protected under Chapter 41.56 RCW.
Disparate and Adverse Treatment -
The testimony by union witnesses and Streeck provided substantial evidence that Streeck singled out Wambach for disparate treatment in relation to other bus drivers. Although Wambach had overall “satisfactory” evaluations prior to 2004, her evaluation that year was an overall “unsatisfactory.” Streeck gave Wambach “unsatisfactory” marks for bus cleanliness and tardiness, although he rated her “satisfactory” in six other areas, and mostly “satisfactory” in a seventh (“job skills”), out of eight total. Streeck pulled out years-old evaluations for Wambach, detailing problems with tardiness and not sufficiently cleaning her bus. In citing Wambach for a “longstanding issue of lateness,” Streeck reached back to 1990 and 1991 evaluations noting “lateness,” and a 1992 letter of warning for “lateness.” Regarding bus cleaning, Wambach had never received an “unsatisfactory” rating in this area, but rather, “needs improvement,” with the most recent incidence in 2001. Streeck gave Wambach “satisfactory” evaluations in 2002 and 2003, including for timeliness and bus cleanliness (in 2003 he noted she had not kept the driver’s restroom clean). Prior to the May 28, 2004, evaluation, Streeck did not counsel Wambach regarding issues over her alleged tardiness and bus cleanliness.
Streeck’s evidence for Wambach’s failure to keep a clean bus was solely his own testimony. Several union witnesses, on the other hand, testified that Wambach did keep her bus clean, stating they had personally observed this. Streeck’s documentation for Wambach’s alleged tardiness was a handwritten note listing her late arrival times, along with Garman’s. He listed the other drivers, but did not record their arrival times. Two drivers stated they had been late many times. Streeck simply dismissed their testimony. Two other employees’ 2004 evaluations were in evidence. One had a “needs improvement” and an “unsatisfactory”; the other two had “needs improvement” marks. Neither were threatened with termination nor placed on improvement plans.
The contrast between Streeck’s actions toward Garman and his actions toward Wambach is additional evidence of the disparate treatment accorded Wambach. Streeck showed great restraint toward Garman. Garman’s 2004 evaluation cited problems with “lateness,” but also with “attitude.” Streeck gave Garman an overall evaluation of “satisfactory,” although she had a history of “attitude” issues. His 2003 evaluation of Garman cited her confrontational manner that year as a concern. His March 24, 2004, counseling letter dealt entirely with her “attitude.” Yet, Streeck did not issue Garman a letter of warning, nor place her on a performance plan.
In fact, Streeck did not explain his formula for issuing employees a termination warning letter or placing them on performance plans. A three year old issue over bus cleanliness and a twelve year old issue over tardiness resulted in discipline for Wambach. In addition, it is unclear why two “unsatisfactory” ratings, out of eight possible, should result in an overall “unsatisfactory” evaluation. Finally, Streeck did not persuasively explain how Wambach’s evaluation, the first in 25 years with two “unsatisfactory” findings, could lead to placement on a performance plan and the threat of termination. In May 2004 Wambach had 25 years of service and a stable employment status. By June, based on unknown and unstated standards, she was on the verge of losing her job.
Pretext and Substantial Motivation -
Streeck could have provided Wambach a counseling letter similar to Garman’s prior to giving her an “unsatisfactory” evaluation. Wambach’s 2004 evaluation came as a surprise to her and reversed a career’s worth of overall “satisfactory” evaluations. All this came in May and June 2004, after the union delivered the May 7 letter critical of Streeck. The union believes the employer singled out Wambach for retaliation because she was shop steward. Although the employer denied knowing that Wambach was the shop steward, the record shows the employer knew Wambach was a leader in the bargaining unit.
The timing of the May 7 letter and Wambach’s poor evaluation on May 28 is a critical aspect in evaluating the causal connection between protected activities and the employer’s action. The timing of adverse actions in relation to protected union activity can serve as circumstantial evidence of a causal connection between the protected activity and the adverse action. Seattle School District, Decision 5237; King County, Decision 7104-A (PECB, 2001). Prior to May 28, Streeck had given Wambach no indication that her employment status was in jeopardy. Three weeks after the date of the letter, based on Streeck’s clearly arbitrary decision, it was. This leads to the reasonable conclusion that Streeck singled out Wambach for retaliation for the May 7 letter, as well as her union advocacy.
The employer’s reliance on the issue of bus cleanliness is unpersuasive. Streeck gave Wambach “satisfactory” ratings on this issue in 2002 and 2003. Over a 25 year career, Wambach had three years, from 1999-2001, in which she was rated as “needs improvement” in bus cleaning, not as “unsatisfactory.” These evaluations indicate a minor aberration, not a pattern of behavior warranting possible suspension or termination three years later. The re-emergence of this issue in 2004 does not overcome the testimony of other bus drivers who testified that Wambach keeps her bus clean, or Streeck’s failure to provide evidence other than his own after-the-fact observations, or the timing between the May 7 letter and Streeck’s actions on May 28.
The same analysis applies to the issue of tardiness. A twelve year gap between warnings for tardiness does not constitute a “longstanding issue.” It is, though, along with the record on bus cleanliness, evidence supporting a finding of pretextual reasons for anti-union retaliation.
While the employer has a reasonable expectation that employees come to work on time and keep their buses clean, it did not apply these expectations consistently to all employees. Streeck singled out Wambach for discipline almost immediately after the union complained to the superintendent about Streeck’s supervisory style. Wambach was the logical target for this retaliation because of her leadership in advocating for union members with management. The employer’s reasons for its actions were pretextual. Its actions against Wambach were substantially motivated by animus against her union activities.
The employer interfered with Wambach’s collective bargaining rights.
Wambach engaged in protected activities. To show interference, the union need only prove that she reasonably believed the employer’s threat against her was because of her union activities. The weight of the evidence noted above leads to the conclusion that Wambach had a reasonable belief that Streeck was retaliating against her: (1) her unforseen poor evaluation and disciplinary letter shortly following the May 7 letter; (2) the sudden reappearance of the unclean bus issue in her evaluation; (3) the invocation of lateness as a pattern of behavior; (4) the failure to apply the same standards to other employees; and (5) the application of the letter of warning and performance plan to her alone. Whether the employer intended to create this belief is inapplicable to this issue. However, considering the ruling of discrimination under the same facts, the Examiner finds that Streeck meant to send a message to Wambach: her union activities had, and would continue to have, negative consequences.
Remedy
The employer shall return Wambach’s employment record and status to that existing prior to the May 28, 2004, evaluation. The employer shall remove the June 17, 2004, warning letter from Wambach’s personnel file, along with the record of her performance plan. The implementation of the performance plan, if still in effect, shall cease. The employer shall change Wambach’s overall evaluation for 2004 to “satisfactory.” The “comment and summary” sections, under “Performance Evaluation – School Bus Driver,” shall be modified to exclude all material other than the first paragraph, under section A. Finally, the employer shall remove from Wambach’s personnel file the 1990 and 1991 letters regarding verbal warnings, and the 1992 letter of warning.
FINDINGS OF FACT
1. The Dieringer School District is a public employer within the meaning of RCW 41.56.030(1).
2. The International Union of Operating Engineers (IUOE), Local 286, a bargaining representative within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of classified employees within the transportation and maintenance departments of the Dieringer School District.
3. Kathi Wambach and Laurie Garman are classified employees of the Dieringer School District and are represented for collective bargaining purposes by IUOE, Local 286.
4. The union failed to sustain its burden of proof for its claim that Laurie Garman engaged in activities protected by Chapter 41.56 RCW, between January 26, 2004, and July 26, 2004.
5. The union sustained its burden of proof for its claim that Kathi Wambach engaged in activities protected by Chapter 41.56 RCW, between January 26, 2004, and July 26, 2004.
6. The union sustained its burden of proof for its claim that because of the employer’s actions, Kathi Wambach suffered an ascertainable loss of a right, benefit, or status for her activities protected by Chapter 41.56 RCW, between January 26, 2004, and July 26, 2004.
7. The union sustained its burden of proof for its claim that a causal connection existed between Kathi Wambach’s protected activity and the employer’s actions, between January 26, 2004, and July 26, 2004.
8. The union sustained its burden of proof by demonstrating that the employer’s reasons for its actions were pretextual, and that those actions were substantially motived by union animus.
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. On the basis of Finding of Fact 4, the Dieringer School District did not discriminate against Laurie Garman or interfere with her collective bargaining rights in violation of RCW 41.56.140(1).
3. On the basis of Finding of Fact 5 through 8, the Dieringer School District discriminated against Kathi Wambach and interfered with her collective bargaining rights in violation of RCW 41.56.140(1).
ORDER
The complaint charging unfair labor practices by the Dieringer School District against Laurie Garman, filed in case 18720-U-04-4757, is DISMISSED on the merits.
The complaint charging unfair labor practices by the Dieringer School District against Kathi Wambach, filed in case 18720-U-04-4757, is SUSTAINED on the merits.
Dieringer School District, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:
1. CEASE AND DESIST from:
a. Interfering with or discriminating against Kathi Wambach for her exercise of collective bargaining rights under state law.
b. In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their collective bargaining rights secured by the laws of the state of Washington.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and polices of Chapter 41.56 RCW:
a. Remove the letter of warning, issued June 17, 2004, from Kathi Wambach’s personnel file.
b. Remove the performance plan and all related documents from Kathi Wambach’s personnel file and immediately halt any continuing implementation of said plan.
c. Change Kathi Wambach’s overall evaluation in 2004 from “unsatisfactory” to “satisfactory.”
d. Redact Kathi Wambach’s 2004 evaluation by removing all comments and summary on page 2 of the evaluation, other than the first paragraph of section A, under Performance Evaluation-School Bus Driver.
e. Remove the 1990 and 1991 letters regarding verbal warnings for lateness, and the 1992 letter of warning regarding lateness, from Kathi Wambach’s personnel file.
f. Post, in conspicuous places on the employer’s premises where notices to all employees are usually posted, copies of the notice attached hereto and marked “Appendix.” Such notices shall be duly signed by an authorized representative of the above-named respondent, and shall remain posted for 60 days. Reasonable steps shall be taken by the above-named respondent to ensure that such notices are not removed, altered, defaced, or covered by other material.
g. Read the notice attached and marked “Appendix” aloud at the next public meeting of the school board of Dieringer School District and append a copy thereof to the official minutes of said meeting.
h. Notify the union, 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 above-named complainant with a signed copy of the notice required by the preceding paragraph.
i. 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 required by this order.
Issued at Olympia, Washington, on the 27th day of May, 2005.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
[SIGNED]
David I. Gedrose, 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.