Appearances:

David B. Condon, Griffin & Enslow, P.S. for the Complainant

Stanley J. Burkey, Burkey & Marsico, for the Respondent.

The above-named Complainant filed a complaint with the Public Employment Relations Commission on February 14, 1977, wherein it alleged that the above-named Respondent had committed unfair labor practices within the meaning of RCW 41.56. The Executive Director designated Rex L. Lacy, a member of the PERC staff, to act as Examiner and to make and issue Findings of Fact, Conclusions of Law and Order. Pursuant to notice issued by the Examiner on March 15, 1977, hearing on the complaint was held at Tacoma, Washington on March 23, 1977 before the Examiner. The Examiner having considered the evidence and arguments makes the following Finds of Fact, Conclusions of Law and Order.

FINDINGS OF FACT

1.                  The Town of Fircrest, hereinafter called the Respondent, is a municipality of the State of Washington. Among other municipal services, the Respondent maintains and operates a Parks and Recreation Department. Robert Mills is the Mayor of the Town of Fircrest, Stanley Burkey is the Attorney for the Respondent, Roy Murphy is the Town Administrator and Clerk Treasurer, and James Valentine is the Parks and Recreation Department Supervisor.

2.                  International Brotherhood of Electrical Workers, Local Union No. 483, hereinafter referred to as the Complainant, is a labor organization and James Diggs is Business Manager and Financial Secretary of Local #483.

3.                  Pete Abbott was hired in October 1974 and was an employee of the Respondent at all times material herein until his discharge in February 1977. Abbott was normally assigned to perform duties involved in the maintenance of Parks and Recreation Department facilities and buildings.

Abbott was originally hired as a Comprehensive Employment Training Act (CETA) employee, and his salary and benefits were derived from CETA funds from October 1974 to December 1975. After the CETA funds were discontinued, the Respondent paid Abbott's salary and benefits from the "part-time funds" portion of the Town of Fircrest budget. The Respondent granted Abbott at least one salary increase during the December 1975 to February 1977 period.

4.                  Respondent notified Abbott to seek other employment in December 1975, but Respondent retained Abbott in its employment at that time, after considering factors such as the Christmas season and Abbott's impending marriage.

In the Spring of 1976, on an unspecified date, Valentine again notified Abbott to seek other employment and discussed with him the method of paying his salary and benefits. However, because of the busy season Abbott was again retained in his position.

No other discussions were held with Abbott regarding his status as an employee until the date of his discharge.

5.                  Complainant began organizing employees in November 1976 and so notified Respondent. James Diggs, IBEW Local 483, met with the only two employees, Abbott and John Hetlage and received authorization cards from both employees of Respondent.

As a result of the meeting Diggs requested recognition for Complainant as the representative of Parks Maintenance employees and further requested that those negotiations be combined with negotiations for Utility Department employees. Respondent expressed a desire to have separate contracts, and Complainant agreed. Negotiations proceeded in that manner.

6.                  Abbott was discharged by Valentine on or about February 9, 1977. He was advised to discuss his termination with Murphy and did so on February 9, 1977. Murphy informed Abbott the reason for his termination was "the Town of Fircrest could not continue to pay him out of part-time funds." Abbott also raised questions regarding his dental benefits and was informed to return the following day for the answers to his status and dental inquiries.

Abbott returned on February 10, 1977 and was told there was no change in his status in reference to his discharge. He also received the answer to his questions on dental coverage.

7.                  Abbott testified that Murphy told him that the Union played a big part in his discharge. Murphy denied that he indicated the Union had anything to do with Abbott's discharge. However, the record indicates that Murphy did question Abbott about signing an authorization card and about other matters relating to the Complainant's organization program. Also, Murphy testified he contacted Respondent's attorney about Abbott's discharge when he was seeking an answer to a question regarding dental benefits. The series of event lends credence to the statement that the Union did have a part in the discharge.

Several factors are prevalent in Abbott's discharge which have been considered by the Examiner:

a.                   Classification - Although never classified as a permanent employee, Abbott met the criteria of one. He worked forty (40) hours per week; received salary increases; participated in all fringe benefits; and participated in the pension fund.

b.                  Duration of Employment - Abbott was employed for a period of two years and four months. One year and four months of his employment was totally paid by Respondent. No other employee has been so employed.

c.                   Season - Respondent's busiest facility use season was about to start. Valentine testified that the work load was the same as experienced in the past two years. When confronted with the same situation in 1976, Abbott was retained because of his experience.

d.                  Financial need - No testimony was presented that Respondent could not continue Abbott's position because of an undue financial burden. Murphy stated only that Respondent could not continue using "part time" funds to meet the financial demands.

e.                   Union resentment - Both Murphy and Mills testified that Complainant's attempt to negotiate a new position was resented. The resentment appears to be a determining factor in Respondent's action.

f.                   Timing - Respondent could have terminated Abbot on numerous occasions and elected not to do so for varied reasons. The refusal to create a new position was then used to justify termination.

g.                  Part-time funds - Respondent maintains funds beyond budgeted positions in Ordinance No. 693 to hire additional help according to seasonal demands. Those funds were used to provide employment for Abbott for approximately sixteen (16) months. The funds existed at the time of his discharge and no testimony was offered to establish lack of funds to continue employing seasonal help.

Respondent has used only the criteria of "part-time" funds and ignored the rest is evident. Previously when confronted with situations involving the same employee Respondent found rationalization to retain the employee on a full time basis. However, when Local #483 became involved all rationalizing of the situation ceased.

8.                  Murphy stated that after the CETA funds were discontinued, "It was only a matter of time until Abbott was discharged." Had that been the case, Respondent would have used any of the legitimate times and reasons to have achieved the prophesy. Sixteen months is beyond any normal probation period for employees and the Examiner can only conclude that, absent the Union element, reasons would have been given to continue Abbott as was done in the past.

On the basis of the foregoing, the Examiner finds that the reasons given for the discharge of Abbott were pretexts designed to conceal a true motivation of anti-union animus and descrimination against Abbott for his membership in and activity on behalf of the Complainant.

CONCLUSIONS OF LAW

The Respondent, Town of Fircrest, has interferred with, restrained, and coerced employees in the exercise of their rights guaranteed by RCW 41.56.040 and has engaged in unfair labor practices within the meaning of RCW 41.56.140(1)

Upon the basis of the above and foregoing Findings of Fact and Conclusions of Law makes the following:

ORDER

IT IS ORDERED that the Respondent, Town of Fircrest, its officers and agents, shall immediately:

1.                  Cease and desist from:

                   a.                        Interferring with the exercise of the rights of employees to engage in protected and concerted activities as detailed in RCW 41.56.040.

2.                  Take the following affirmative action:

                   a.                        Offer Pete Abbott immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority rights and other privileges.

                  b.                        Make Pete Abbott whole for any loss in pay and benefits he may have suffered by reason of his discharge, by payment to him of the sum of money equal to that which he would normally have earned or received as an employee, from the date of his termination to the date of the unconditional offer of reinstatement made pursuant to this Order, less any earnings he may have received during said period, and less the amount of unemployment compensation, if any, received by him during said period, and, in the event that he received unemployment compensation benefits, reimburse the Employment Security Department of the State of Washington in such amount.

                   c.                        Post the accompanying notice for a period of sixty (60) days on bulletin boards where notices to employees of the Respondent are usually posted.

                  d.                        Inform the Public Employment Relations Commission, in writing, within thirty (30) days from the date of this Order, as to the steps taken to comply herewith.

DATED at Olympia, Washington this 27th day of June, 1977.

[SIGNED]

REX L. LACY, Examiner

RLL:11m

APPENDIX A

NOTICE TO ALL EMPLOYEES

Pursuant to an Order of the Public Employment Relations Commission, and in order to effectuate the policies of RCW 41.56., we hereby notify our employees that:

1.                  We will offer to PETE ABBOTT immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority, rights or privileges previously enjoyed by him, and make him whole for any loss of pay and benefits which he may have suffered by reason of his discharge.

2.                  We will not discharge, or threaten employees with discharge in an effort to discourage membership in International Brotherhood of Electrical Workers Local Union 483 or any other labor organization.

3.                  We will not in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Brotherhood of Electrical Workers Local Union 483, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection.

All our employees are free to become, remain, or refrain from becoming members of International Brotherhood of Electrical Workers, Local Union 483, or any other labor organization.

TOWN OF FIRCREST

By_____

ROBERT MILLS, Mayor

By_____

ROY MURPHY, Town Administrator

DATED this _____ day of _____, 1977

This Notice must be posted for sixty (60) days from the date hereof and must not be altered, defaced or covered by any material.