James F. Imperiale, Attorney at Law, appeared on behalf of the complainants.

Daniel O. Glenn. Attorney at Law, appeared on behalf of the respondent.

A formal hearing was held at City Hall of the City of Montesano on September 10, 1980 before Ronald L. Meeker, Examiner.

BACKGROUND

Mrs. Judy Fox was first employed by the City of Montesano from October through November, 1977. She was rehired as a Clerk/Dispatcher in the Police Department, on March 1, 1978, and continued working for the department until terminated on April 1, 1980.

Teamsters Union, Local No. 252, hereinafter the "union", first attempted to organize the employees of the Police Department in March of 1979, and was certified as the exclusive bargaining representative June 1, 1979. Negotiations for a labor agreement began immediately and were concluded on May 8, 1980, with a signed agreement made retro-active to January 1, 1980.

POSITION OF PARTIES

The union contends the employer committed an unfair labor practice in violation of RCW 41.56.140(1) and (3) by the following actions:

1. A taped interview and interrogation of Judy Fox by Police Chief, Terrel Goble, on February 27, 1980 concerning a possible disciplinary action without the presence of her exclusive bargaining representative from Teamsters Union, Local No. 252.

2. Termination of Fox, a member of a bargaining group, during negotiations without cause.

3. Termination of Fox without any statement of cause, contrary to established departmental procedural rules.

During the hearing, counsel for the complainant withdrew the charge of an unfair labor practice based on RCW 41.56.140(3).

The City of Montesano admits there was an interview of Fox, and that she was advised of the possibility of disciplinary action. It denies knowledge of whether the complainant was a member of the local, but admits that she was a member of the recognized bargaining unit. While it denies that the termination was without cause and contrary to established rules, it defends in this proceeding that there was no violation of the cited statutes.

DISCUSSION

The union citing NLRB v Weingarten, Inc., 420 U.S.251 (1975) attempts to answer the question:

"Does a public employee have a guaranteed right to have a representative present at an interview which could potentially result in disciplinary action?"

RCW 41.56.140(1) defines an unfair labor practice as follows:

"It shall be an unfair labor practice for a public employer:

(1) To interfere with, restrain, or coerce public employees in the excercise of their rights guaranteed by this chapter."

In Weingarten, supra, the court found it is the goal of national labor policy under the similar provision of Section 8(a)1 of the National Labor Relations Act to protect:

"The exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing for the purpose of mutual aid or protection."

The court found that requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the Act was designed to eliminate, and bars recourse to the safequards which the Act provided:

"To redress the perceived imbalance of economic power between labor and management."

It is undisputed that Chief Goble did not ask Fox if she wished to have her union representative present. It is also undisputed that Fox did not request to have her representative present before continuing the interview. In affirming the National Labor Relations Board, the Weinngarten Court stated:

"... the right arises only in situations where the employee requests representation. In other words, the employee may forego his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative." 88 LRRM at 2693.

The union contends that the issue before the Commission is whether Fox voluntarily waived her right to have her representative present at the interview. The union further contends Fox was frightened by Chief Goble yelling at her during a previous interview approximately one month prior to the taped interview. The union further argues that at the time of the taped interview, Fox was intimidated by Chief Goble and therefore did not forego her guaranteed right to have a union representative present.

Testimony of Ed Jacobson, Executive Officer of the Union, and Steven Fretts, Shop Steward of the Union, shows the Union had made the employees, including Fox, aware that they had the right to ask for a union representative to be present at interviews where discipline may result.

The Examiner concludes, after listening to the tape of the interview and reading the transcript of the tape, that Fox did not appear as one intimidated by Chief Goble. She comes across as an employee who could very well know her rights and how to stand up for them. To quote from the transcript:

"Fox: Then I find no alternative than to go by other routes that I have already checked into.

Goble: What route is that?

Fox: The Department of Labor and Industries, Civil Liberties Commission and N.O.W.

Goble: Okay, then you do that.

Fox: I have every intention to.

Goble: Okay."

Since she was quite ready to initiate other types of responses, there can be little doubt that she could have asked for union representation if she had wanted it. Fox did not make the request for representation as required by the Weingarten case.

The Public Employment Relations Commission does not determine "violation of contract" allegations as unfair labor practices, City of Walla Walla, Decision 104 (PECB 1976), and will not assume the role of arbitrator in determining possible contract violations which are not necessary to the decision of a case before it. Clallam County, Decision 607-A (PECB 1979). The "without cause" and "contrary to departmental procedures" allegations made by the union are not before the Examiner in this case.

FINDINGS OF FACT

1. The City of Montesano is a public employer within the meaning of RCW 41.56.030(1). Terrell Goble is Chief of Montesano Police Department.

2. Teamsters Union, Local No. 252 is a collective bargaining representative within the meaning of RCW 41.56.030(3). On June 1, 1979, Local No. 252 was certified as the exclusive collective bargaining representative for a unit of "all communication employees (dispatchers) of the City of Montesano".

3. Judy Fox was employed by the City of Montesano under the CETA program in October and November of 1977. Fox was rehired in March of 1978 as a clerk/dispatcher in the police department and continued as an employee until terminated April 1, 1980. Fox was a public employee within the meaning of RCW 41.56.030(2), employed in the bargaining unit represented by the Teamsters, Local 252, as of February 27, 1980.

4. Chief Goble conducted a disciplinary interview with Fox on February 27, 1980. Fox made no request to have a union representative present. Fox indicated readiness to invoke rights at that time other than her right to representation by the union.

5. Fox was discharged on April 1, 1980. There is no evidence the discharge was directly or indirectly in reprisal for activity by Fox in or on behalf of the union.

CONCLUSIONS OF LAW

1. Public Employment Relations Commission has jurisdiction in this matter under RCW 41.56.

2. Chief of Police Goble was a representative of the City at all times material herein.

3. The City of Montesano has not refused a timely request by Fox for union representation and did not commit an unfair labor practice by conducting the interview of Fox on February 27, 1980.

ORDER

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

DATED at Olympia, Washington this 3rd day of March, 1981.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

RONALD L. MEEKER, Examiner