STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
LONNELL BENNETT,
Complainant,	CASE 8995-U-91-1984
vs.	DECISION 4040 - PECB
WASHINGTON STATE PATROL,	FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Respondent.

Richard J. Milham, Attorney at Law, appeared on behalf of the complainant.

Kenneth O. Eikenberry, Attorney General, by Chip Holcomb, Senior Counsel, appeared on behalf of the respondent.

On January 24, 1991, Lonnell Bennett filed a complaint charging unfair labor practices with the Public Employment Relations Commission, asserting that the Washington State Patrol had violated RCW 41.56.140(1). At issue are an alleged refusal to honor Bennett’s request for union representation in an interview from which he believed discipline might result, and the issuance of disciplinary action based on that interview. A hearing was held at Olympia, Washington, on December 11, 1991, before Examiner Katrina I. Boedecker. Both parties filed post-hearing briefs, completing the record in February, 1992.

BACKGROUND

Lonnell Bennett was hired by the Washington State Patrol (WSP) on December 15, 1986. Prior to his employment with the WSP, Bennett had spent over 20 years in the military. Among his various postings, he worked as a military police officer and he spent 10 years assigned to the legal office of the staff judge advocate. He received the good conduct ribbon every three years throughout his military career.

Bennett worked as a cadet in the WSP’s Tacoma radio division for about 50 days. He was then sent to the Washington State Patrol Academy, graduating in July, 1987. Bennett has been stationed with the Tacoma District 1, Freeway Detachment, from the time he graduated from the WSP Academy until the present.

At or near the beginning of his posting to the Tacoma Freeway Detachment, Bennett was assigned to report to Sergeant Grant Sherman. At its outset, the relationship between Bennett and Sherman was friendly; they played volleyball together, talked over management techniques and supervisory experiences.

Six to eight months after Bennett was assigned to Sherman’s detachment, Communications Supervisor Debbie Grejeda asked Sherman to check how often Bennett’s wife was phoning the office while Bennett was on duty. Sherman sent a message to Bennett, stating that Bennett’s wife was phoning four to five times a day, and that Bennett should direct her not to call that often. Bennett was surprised, and asked his wife about the situation. She denied that she was trying to contact Bennett so frequently.

Shortly thereafter, Bennett’s wife telephoned Sherman directly. Sherman hung up on her. She called back, and Sherman again hung up without completing a conversation with her. Sherman then went into the Squad Room where Bennett was seated, and told him what had just transpired. Bennett commented that his wife would probably telephone the lieutenant. Bennett testified that Sherman became very angry, that Sherman stuck his finger in Bennett’s face, and that Sherman told Bennett that if his wife did call the lieutenant, Sherman would give Bennett “a letter of reprimand or some sort of punishment” for not controlling his wife. Sherman then “stormed out”, “slamming doors” down to his office.

Bennett contacted his Washington State Patrol Trooper Association representative, Gary Gasling, who advised Bennett that he had the right to file a complaint against Sherman. Gasling cautioned Bennett, however, that Sherman would become vindictive and make life miserable for as long as Bennett worked for him, and he recommended that Bennett “let the situation die.” Bennett took Gasling’s advice, and tried to avoid Sherman as much as possible for the next two months.

Sherman did write up a disciplinary “Form 95” to Bennett about his wife’s telephone calls.[1] Unrefuted testimony establishes that this Form 95 was false and misleading. Thereafter, Sherman began to follow Bennett during the work shift. Sherman would station himself across the freeway or on an overpass, and would observe Bennett making stops and “violator contacts”. Sherman did not do this with anyone else on the shift.

After some period of time, Sherman summoned Bennett into his office. Sherman related that “things were back to normal” between the two men. Sherman told Bennett that as long as he did what Sherman told him, “this” is what happens and he gave Bennett the Form 95 regarding the telephone calls. Sherman’s action implied removal of the Form 95 from the employer’s files.

On January 30, 1990, Trooper Michelle King requested that Bennett come to the district office. She was not on active duty at the time. At the office, Bennett met with King, Lieutenant Robbins and Darrel Farwell. King asked Bennett to verify to the Lieutenant that Sherman was known to make false accusations and misinterpret the truth. Bennett agreed with King’s allegations.

Thereafter, an Office of Professional Standards (OPS) investigation was started against Sherman.[2] The day Sherman was told that an OPS number had been drawn against him, he summoned the detachment, minus one trooper, to a meeting at a nearby restaurant. There Sherman told the troopers that an OPS investigation had begun to investigate him for being untruthful. He stated to the troopers that he did not tell lies.

The OPS investigator, Sergeant Liggins, spoke with each trooper individually. Bennett related his experiences with Sherman, including the telephone incident.

On or about February 11, 1990, after Bennett had spoken with Liggins, Sherman asked Bennett what had happened during the OPS interview. Bennett declined to answer. Sherman then “told” Bennett to answer. Bennett complied. Sherman thereupon advised Bennett that it would be best for Bennett to leave the detachment; their relationship was deteriorating; he did not want a trooper working for him who thought he was a liar; and that Bennett’s career would be better served working for someone else.

Bennett did not apply to transfer out of the detachment. During the next one and one-half years, over 100 pages of disciplinary Form 95 notices and responses were generated between Sherman and Bennett.

During the summer of 1990, the City of Seattle hosted the International Goodwill Games. The WSP was called upon to provide extra security for those events. On or about July 22, 1990, a dispute developed between Sherman and Bennett regarding Bennett’s work schedule for the Goodwill Games. Bennett believed that Sherman had scheduled him to work Monday through Friday, and had changed his days off to be Saturday and Sunday. On Saturday, Sherman telephoned Bennett at home. Bennett testified that an answering machine downstairs in his home intercepted the call at the same time he picked up the upstairs telephone. He asked Sherman to hold while he went downstairs to turn off the answering machine. Sherman informed Bennett that was not necessary, because the conversation would not last long. Sherman went on to say that he had just been notified by Lieutenant King that Bennett was supposed to be at the Goodwill Games that day. Bennett called Lieutenant King to explain the situation. King advised Bennett that he had already been substituted for that day, but that he should report to the Goodwill Games on Sunday. King told Bennett to advise Sherman of this scheduling.

On July 28, 1990, Bennett reported to duty at his usual detachment office. Sherman notified Bennett that a letter of reprimand was to be issued concerning Bennett’s failure to report to the Goodwill Games as Sherman had ordered. Bennett disputed that Sherman had “ordered” him to report, and told Sherman that he still had the conversation on tape from the answering machine. Sherman told Bennett that he could take away his patrol car, and that Bennett would no longer be working for the WSP.[3]

Sherman ordered Bennett to turn over the tape. Bennett refused. Sherman left the room and returned with Sergeant Annette Sandberg. At the time, Sandberg was vice-president of the Washington State Patrol Trooper’s Association. Sherman explained that Sandberg was present as Sherman’s witness, and Sherman told Bennett to repeat his refusal to bring him the tape.

At that point, Bennett asked if he was being ordered to answer. Sherman replied in the affirmative. Bennett asked for union representation. Sherman glanced at Sandberg and continued to ask Bennett questions. Bennett testified that he was nervous and afraid so he began answering the questions out of fear of loosing his job.[4] Never in any of their other meetings had Sherman brought in another sergeant as his witness.

Sergeant Sandberg confirmed that she was brought into the interview by Sherman. She witnessed Bennett ask Sherman if he was being ordered to answer the questions, and Sherman’s affirmative reply. She verified that Bennett requested a union representative.

She recalled, however, that after Bennett requested a union representative, and Sherman glanced at her, in his “next breath” Bennett began answering Sherman’s questions.

Immediately after Bennett asked for a union representative, Sandberg was prepared to request to see Sherman out in the hall and advise him that he needed to provide Bennett his representative, if Sherman continued to ask questions. However, she did not do so because Bennett initiated his answers “right back up.”

Sandberg did not believe that Bennett was intimidated during the interview. She characterized Bennett’s request for union representation as something that he threw out “in the heat of battle”, but that he had another agenda.

As a result of the July meeting, Bennett received a letter of reprimand on November 15, 1990, for untruthfulness and failure to conform to laws regarding tape recording another person’s conversation. That Interoffice Communication was dated October 17, 1990. It detailed that it was from Sandberg, and she in fact handed it to Bennett, but she did not write it. Sandberg could not specify who wrote the reprimand, other than to say “the district”.

Bennett grieved the letter of reprimand and it was reduced to a verbal reprimand. The reduction from written to verbal was made by Sergeant Sandberg. At the time she did it, she informed Bennett that a verbal reprimand is not grievable.

On unidentified prior occasions, when Sherman was questioning Bennett about unidentified prior situations, Bennett had asked for a union representative. When that happened, the conversation immediately stopped and he was allowed to make a phone call. In one incident, Bennett phoned from Sherman’s office and Darrel Farwell came in within approximately 15 minutes.

Sergeant Sherman was not called as a witness during the hearing on this unfair labor practice case.

POSITION OF THE PARTIES

The complainant argues that Bennett believed, at the time he was being interrogated and he asked for representation, that if he did not answer the questions, he would be subject to punishment and/or that his career would be subject to potential termination. Thus, he claims the WSP violated his right to union representation.

The WSP contends that the complainant did not seriously ask for union representation. It notes that the discussion had evolved for several minutes before Bennett’s request, and that the request was not repeated. The employer asserts that the documents in the record show that Bennett was not intimidated by Sherman, since he had no difficulty in presenting his views in confrontational terms whenever he believed Sherman acted inappropriately. The WSP concludes that, since Bennett does not indicate how a union representative could have assisted him, he does not meet the Commission’s test for union representation.

DISCUSSION

The WSP acknowledges that its employees are entitled to union representation when it has been requested.[5]

The Weingarten Standards

In Weingarten the United States Supreme Court detailed elements of the employee’s right to union representation. See, also, Okanogan County, Decision 2252 (PECB, 1986).

First, the right to representation attaches only where the employer compels the employee to attend an investigatory meeting. There is no dispute that the July 28, 1990 meeting between Sherman and Bennett was initiated by Sherman. Further, there is no contention that Bennett had an option not to attend.

Second, a significant purpose of the interview must be to obtain facts which might support disciplinary action.[6] The meeting of July 28th changed in its nature during the discussion between Bennett and Sherman. It went from being notification of a letter of reprimand for failure to report to the Goodwill Games, to being investigatory as to whether Bennett had illegally tape recorded phone conversations and whether Bennett was being insubordinate in his refusal to provide any such tape recording to Sherman.

Third, the employee must reasonably believe that potential discipline might result from the interview.[7] Bennett’s strong and clear testimony showed that he believed that discipline was a possibility.[8] Given the hostile relationship between Sherman and Bennett, that was a reasonable state of mind for Bennett to have. Indeed, Bennett did receive a written warning, later reduced to a non-grievable oral warning, based on information received at the July 28th meeting.

The fourth element is that the employee must request the presence of the union representative.[9] Once asserted, the right to union representation is a matter of law, not to be negotiated by the employer. City of Seattle. Decision 3593-A (PECB, 1991).

The fourth of these elements is the area of controversy between the parties in the instant case. Both Bennett and Sandberg verified that Bennett stated that he wanted a union representative in attendance. The employer’s case seems to rest on a theory that Bennett somehow waived his right by not being serious and/or by continuing to answer questions.

The employer has not provided sufficient evidence that Bennett’s request was not made in earnest. It is ludicrous to think that Bennett was waiving his right for union involvement when he was placed in an investigative interview with the vice-president of the union present as a witness for management. As soon as the request for union representation was made, it should have been honored. Clearly, Sherman should not have asked any further questions. If, in fact, Bennett answered a previously asked question, it supports the contention that Bennett’s state of mind at the time was that he was being intimidated.

The fact that an employee continues to respond to questioning is not enough to negate the request for union representation. The decision of the U.S. Court of Appeals in General Motors v. NLRB, 674 F.2d 576 (CA 6, 1982), is helpful on this issue. There, the employee under investigation was himself a union committeeman. He did not request union representation until the third investigatory interview. The administrative law judge found that the employee did request union representation at the third and final confrontation between the employee and the employer, and that the request was ignored. The employee continued to respond to questioning and, in the course of the rather brief exchange on the plant floor, admitted to being at a bowling alley during working hours. He was discharged the next day. The court wrote:

The court’s decision in Weinqarten is abundantly clear that once such a request [for union representation] is made, the employee has the absolute right to refuse to answer any further questions until he receives the representation desired. General Motors clearly violated [the employee’s] right to fair employment under the Act when it continued to press him after he made this request. The Board’s order to General Motors to cease and desist from this practice will be enforced. (Emphasis added.)

The Commission and the Washington courts give consideration to federal precedent where it is consistent with Chapter 41.56 RCW.[10] The Commission has adopted standards similar to Weinqarten and its progeny in interpreting Chapter 41.56 RCW. An employer which denies employees their rights in this regard commits an “interference” in violation of RCW 41.56.140(1).

REMEDY

A substantive determination is necessary where a Weinqarten violation has occurred. The unfair labor practice remedy may be only a “cease and desist” order where discipline does not result, or is not based on unlawfully obtained information. On the other hand, reversal of disciplinary action and a make-whole order may be appropriate where an employer relies upon information obtained at a meeting held in violation of the principles espoused in Weinqarten and its progeny. The Commission has provided direction for determining such remedy questions, as follows:

Make-whole relief is avoided only upon a showing of independent grounds for the employer’s action, unrelated to and unaffected by events which occurred (or which did not occur) at the unlawful interview. Thus, we will impose make-whole relief for Weinqarten violations unless there is a showing that the affected employee was clearly discharged or disciplined for cause and not for attempting to assert Weinqarten rights. In making the just cause determination we will not consider any information or inferences adverse to the employee obtained by the employer at the unlawful interview.

Okanogan County. Decision 2252-A (PECB, 1986).

Although the application of that standard was successfully challenged in judicial review proceedings in that case, the test itself was held to be valid.[11]

The employer has not demonstrated that any reprimand issued to Bennett in late 1990 regarding untruthfulness, insubordination or illegal tape recording of conversations was unrelated to, and unaffected by, statements made by Bennett at the July 28th meeting.[12] In fact, it was at the July 28th meeting that Bennett first told Sherman that he still had the tape from his telephone answering machine. The appropriate remedy in this case is an order requiring the employer to make Lonnell Bennett “whole”, by expunging the disputed reprimand (including the non-grievable “verbal” reprimand which survives the grievance procedure) from his employment record.

FINDINGS OF FACT

1.         The Washington State Patrol is a public employer of state patrol officers appointed under RCW 43.43.020, and is a public employer within the meaning of the Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW.

2.         Lonnell Bennett is a “public employee” within the meaning of RCW 41.56.030(2). He was employed by the Washington State Patrol as a state patrol trooper at all times relevant to this proceeding.

3.         The Washington State Patrol Troopers Association, a “bargaining representative” within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of a unit of sergeants and troopers employed by the Washington State Patrol.

4.         On July 28, 1990, while acting in his capacity as a superior to Bennett in a para-military rank structure, Sergeant Grant Sherman compelled Bennett to attend a meeting.

5.         During the course of the meeting held on July 28, 1990, Sherman asked Bennett questions which made the nature of the meeting “investigatory”, pertaining to Bennett’s work performance. Sergeant Annette Sandberg was called in by, and as a witness for, Sergeant Sherman during the course of the meeting.

6.         During the meeting held on July 28, 1990, Bennett reasonably believed that discipline could potentially result.

7.         During the investigatory meeting of July 28, 1990, Bennett clearly requested union representation. No union representative was provided to Bennett. After Bennett made his request for union representation, Sherman continued to ask questions. Bennett continued to render answers after his request for union representation was ignored.

8.         In late 1990, Bennett received discipline concerning the matters discussed at the meeting held on July 28, 1990.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW.

2.         The complaint charging unfair labor practices in this matter was timely, pursuant to RCW 41.56.160, as the complained-of reprimand was issued within six months prior to the filing of the complaint.

3.         The meeting held between Grant Sherman and Lonnell Bennett on July 28, 1990 was “investigatory” in nature. The investigative meeting gave Bennett a right to union representation under RCW 41.56.040, because of his reasonable belief that the interview could lead to disciplinary action against him.

4.         Under the circumstances of this case, Bennett did not waive his right to union representation when he continued to answer questions after his request for a union representative was ignored.

5.         By its rejection, disregard and/or refusal of Bennett’s request for union representation at the July 28th meeting, the Washington State Patrol has interfered with, restrained and coerced a public employee in the exercise of his rights conferred by RCW 41.56.040, and has committed unfair labor practices within the meaning of RCW 41.56.140(1).

ORDER

The Washington State Patrol, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices :

1.         CEASE AND DESIST from:

a.                 Interfering with, restraining or coercing its employees in the exercise of their right to union representation in investigatory interviews where the employee reasonably perceives a possibility of disciplinary action.

b.                In any other 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 policies of Chapter 41.56 RCW:

a.                 Permit employees covered by the Public Employees’ Collective Bargaining Act to have union representation in investigatory interviews conducted by the employer.

b.                Expunge from the employment record of Lonnell Bennett all references to the reprimand given to the complainant on November 15, 1990, and make no reference to that reprimand in any future personnel matter, evaluation or dispute resolution procedure concerning Bennett’s employment with the Washington State Patrol.

b.                Expunge from the employment record of Lonnell Bennett all references to the “verbal reprimand” which was substituted for the written reprimand cited in the preceding paragraph, and make no reference to that reprimand in any future personnel matter, evaluation or dispute resolution procedure concerning Bennett’s employment with the Washington State Patrol.

c.                 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.

d.                Notify the above-named complainant, 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.

e.                 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.

Entered at Olympia, Washington, this 16th day of April, 1992.

PUBLIC EMPLOYMENT

RELATIONS COMMISSION

[SIGNED]

KATRINA I. BOEDECKER

Examiner

This order may be appealed by

filing a petition for review

with the Commission pursuant

to WAC 391-45-350.