Lee M. Burkey, Jr., Attorney at Law, appeared on behalf of the complainant at the hearing. Craig Hagstrom, Vice-President of Local 1762, submitted the closing brief.

Ronald Dickinson, Attorney at Law, appeared on behalf of the respondent.

On October 8, 1981, Professional Firefighters of Mercer Island, Local 1762, IAFF (complainant) filed a complaint charging unfair labor practices against the City of Mercer Island (respondent). The complaint was subsequently amended on November 25, 1981 in response to a request made by the Executive Director for more information. The complaint alleged that respondent violated RCW 41.56.140(1) by refusing to permit union representatives to accompany a bargaining unit employee in disciplinary meetings. A hearing was conducted on March 8, 1982 in Mercer Island, Washington, before Kenneth J. Latsch, Examiner. The parties submitted post-hearing briefs.

BACKGROUND:

The City of Mercer Island's Department of Public Safety provides police and fire protection services. The department is supervised by Director Jan Deveny, with two deputy chiefs directing police operations and one deputy chief directing fire protection personnel. Deveny reports to City Manager Lawrence Rose. Ultimately, all city operations are supervised by the City Council, which has final budget authority.

Professional Firefighters of Mercer Island, Local 1762, IAFF represents 19 firefighters employed by respondent. Alan Provost is the union's president. Peter Hiltner has worked approximately eight years for respondent in the bargaining unit represented by Local 1762.

On an unspecified date, Hiltner had been ordered to return from disability leave for a physician's examination, but refused to comply. As a result, Deveny issued a written reprimand, ordered that Hiltner forfeit 72 hours of vacation time and required Hiltner to donate 15 hours of service to the city for public projects. Hiltner contacted complainant about the situation, but examination of the collective bargaining agreement led to the conclusion that a grievance could not be filed. The agreement specified that disciplinary matters were expressly reserved to existing civil service rules. In January, 1981, Hiltner submitted the dispute to the Civil Service Commission, but the appeal was denied.

In addition to the procedures of the collective bargaining agreement and civil service system, a third review procedure existed within respondent's personnel system. Adopted and published under the authority of the city's administrative code, the "City of Mercer Island Employee Handbook", set forth the process as:

GRIEVANCE PROCEDURE:

Occasionally, job-related grievances may occur which need to be explored. Most grievances can be resolved by the employee's immediate supervisor. In the event that they cannot, the following procedure has been established to effect an equitable resolution:

1.                  A "grievance" means a claim or dispute by an employee or group of employees with respect to the interpretation or application of rules covering City employees.

2.                  An employee or group of employees, with a delegated representative if they wish to have one, who consider they have a grievance may present such a grievance within ten (10) working days of its alleged occurence to the employee's immediate supervisor who shall attempt to resolve it within five (5) working days after it is presented to him/her.

3.                  If the employee or group of employees are not satisfied with the solution by the supervisor, the grievance, in writing, may be presented to the Department Head who shall attempt to resolve it within five (5) working days after its presentation. The written statement shall outline the facts of the matter and the remedy sought.

4.                  If the employee is not satisfied with the solution by the Department Head, the written grievance together with all pertinent material may be presented to the Director of Personnel and the City Manager to be resolved within fifteen (15) working days.

The collective bargaining agreement does not refer to the grievance procedure found in the employee handbook.

Hiltner decided to invoke this procedure and contacted Deveny, who also thought that the procedure could be followed. As a result, a meeting was called in accordance with Step 3 of the procedure. Hiltner, accompanied by Provost, met with Deveny to discuss the discipline. Unable to resolve the matter through the discussions with Deveny, Hiltner submitted the dispute to Rose. Rose, believing that the appeal procedure found in the employee handbook was intended to cover only unrepresented, non-civil service employees, had reservations about allowing Hiltner to pursue the appeal. In addition, Rose thought that the procedure had not been followed properly because Hiltner had not taken the grievance through the first two steps of the procedure. Nevertheless, Rose decided that the procedure did not specifically prohibit Hiltner's appeal, and he notified Hiltner, by letter dated February 24, 1981, that a meeting would be held on March 4, 1981 to discuss the situation.

Prior to March 4, 1981, Hiltner obtained private legal counsel and both the city and the union were made aware that Hiltner would be represented by counsel at the forthcoming meeting. Hiltner also contacted Provost about the forthcoming meeting and expressed his desire that Provost accompany him. Hiltner told Rose that he wanted Provost to be present at the meeting. On March 3, 1981, Rose sent Provost a letter refusing to allow him to participate in the meeting scheduled for March 4, 1981. Rose informed Provost that the denial was based on the confidential nature of the appeal process and the fact that the grievance procedure outlined in the employee handbook was separate and apart from the bargaining relationship between complainant and respondent. At the hearing, Rose stated that the issue of confidentiality arose from the handbook's section dealing with notification about possible discipline. The section provides:

NOTIFICATION PROCESS

It is essential that an employee who is believed to have committed an infraction or violation warranting disciplinary action be advised of the infraction and the action to be taken or recommended. Strict rules of confidentiality must be observed. Information regarding any disciplinary action is to be limited to the employee involved, the supervisor taking the action, the Department Director, Director of Personnel and City Manager.

On March 4, 1981, Provost sent a letter to Rose, protesting complainant's exclusion from the meeting. On the same day, a meeting was held between Rose and Hiltner to review the discipline that had been imposed. Also in attendance were Deveny, Deputy Chief Phillip Parsons, City Attorney Ronald Dickinson and Hiltner's attorney, Al Newbould. Rose received oral testimony and documents, and he questioned Deveny and Hiltner about the disputed discipline. Rose tape-recorded the meeting and later had his secretary prepare a written transcript of the proceedings. The transcript was entered into evidence at the hearing, but testimony indicates that there were many "off the record" conversations. The discussion held at the meeting is disputed. Hiltner testified that he believed that Rose could impose additional discipline at the meeting. He also testified that he never gave up his right to have a union representative present. Respondent, through Roses's testimony, maintains that Hiltner understood that a union representative would not be allowed to attend the meeting. Rose also testified that respondent offered to stop the meeting at any time if Hiltner felt uncomfortable without a union representative. Hiltner testified that he did not recall respondent's offer.

As a result of the meeting, Hiltner, through his attorney, and respondent formulated the basis for a settlement of the grievance. However, a final agreement was not reached at the meeting. On March 19, 1981, Provost sent a second letter to Rose, requesting that they discuss the denial of union representation. Rose responded by memorandum on March 26, 1981, stating that such a meeting would be useful, but such discussions never took place. Provost contacted Dickinson on April 1, 1981 to discuss the proposed settlement, but Dickinson told him that union participation would not be appropriate given the confidential nature of the appeal procedure that Hiltner chose to follow. On April 23, 1981, Provost sent a letter to Rose asking that complainant be given the opportunity to negotiate the terms of Hiltner's grievance settlement. The request was denied.

On May 4, 1981, Hiltner contacted Provost about a forthcoming meeting Hiltner was to have with Rose concerning the finalization of the grievance settlement. Provost asked Rose that a union representative be permitted at the meeting, but Rose refused. In a letter dated May 6, 1981, Rose informed Provost that the confidential nature of the process prohibited complainant's participation. On May 6, 1981, Rose and Hiltner met to discuss the issue. The meeting resulted in a final settlement reduced to written form on May 14, 1981. Hiltner testified that he again believed the May 6, 1981 meeting to be of disciplinary nature in that he thought Rose could ultimately impose additional penalties. Rose testified that he could not impose any additional penalties. His interpretation of the procedure led Rose to the conclusion that he could only modify, reduce or rescind the discipline that had been imposed. In October, 1981 the disputed procedure was amended to specifically exclude employees subject to civil service disciplinary proceedings.

POSITIONS OF THE PARTIES:

Complainant argues that respondent's refusal to allow a union representative to be present at disciplinary meetings violated RCW 41.56.140(1). Complainant maintains that principles enunciated in NLRB v. Weingarten, 420 US 251, 95 S.Ct. 959, 43 L.Ed. 2d 171 (1975) should be applied, and that respondent violated Peter Hiltner's rights as an employee by not following those standards. Complainant further contends that Hiltner never waived his right to have a union representative present in the disciplinary meetings.

Respondent sets forth alternative arguments in its denial of unfair labor practices. Respondent maintains that the disputed meetings were not investigatory in nature, but rather were meant to review discipline which had been previously imposed. In the event that the meetings are found to be disciplinary, respondent contends that Hiltner effectively and knowingly waived his right to have a union representative present.

DISCUSSION:

In NLRB v. Weingarten, supra, and its companion case ILGWU v. Quality Manufacturing Co., 420 US 276, 95 S.Ct 972, 43 L.Ed. 2d 189 (1975), the United States Supreme Court ruled that an employer commits an unfair labor practice by denying an employee's request to have union representatives present in an investigatory meeting which the employee reasonably believes might result in disciplinary action. Compelled participation by the employee is necessary before the right to representation is activated. In interpreting this rule, certain limitations have been applied. If the meeting is called for the limited purpose of explaining previously imposed discipline, and the affected employee is not interrogated, a union representative need not be present. Certified Grocers of California, 277 NLRB 1211 (1977). The Weingarten right, therefore, does not attach unless one purpose of the interview is to obtain facts to support disciplinary action that is possible or that is being considered seriously. See: Alfred Lewis Co. v. NLRB, 587 F.2d 403 (1978). If the employer had not decided on the final disciplinary action prior to the meeting, the possibility that discipline might be imposed would require union representatives to be present. See: Alfred Lewis, supra. The Weingarten right to union representation may be waived if the affected employee does not assert the right. City of Montesano, Decision 1101 (PECB, 1981). If the employer insists on continuing the meeting after the employee requests a union representative be present, an unfair labor practice is committed. NLRB v. Illinois Bell Telephone, 674 F.2d 618 (CA 7, 1982). Once the employee asserts his rights, union representatives must be allowed to attend, or the meeting must be suspendend. See: General Motors Corporation v. NLRB, 674 F.2d 576 (CA 6, 1982).

Respondent's contention that the meetings were not disciplinary in nature is not supported by the record. It is assumed that respondent is referring to investigatory meetings since Weingarten rights are designed to protect individual employees from intimidation when the employer is investigating a particular incident for which discipline could be imposed. On March 4, 1981, respondent conducted a quasi-judicial hearing to establish whether the discipline was proper. On May 6, 1981, Rose and Hiltner had a private meeting to discuss a possible settlement, but no agreement was finalized until May 14, 1981. It is immaterial that Rose believed he could only reduce or rescind the discipline. As long as the discipline's severity could be changed, meetings between the employer and affected employee must be considered investigatory in nature.

A more troublesome question is raised by the process used to bring Hiltner's dispute before Rose. The Weingarten case applies only where the affected employee is compelled to appear at the investigatory meeting. In this case, Hiltner initiated the appeal process. It must be emphasized that Hiltner was asserting appeal rights outside of his contractual and civil service remedies. Grievance and civil service appeal procedures were explored before Hiltner submitted his dispute to the procedure outlined in the employee handbook. In essence, Hiltner was granted a second review of the disputed discipline under a procedure he voluntarily chose to follow. By volunteering to submit to the procedure found in the employee handbook, Hiltner also voluntarily submitted to the procedures employed therein. It must be concluded that an unfair labor practice was not committed.

Given the circumstances of this case, the Examiner does not address the issue of waiver raised by respondent. Further, the Examiner does not address the possibility of a violation of RCW 41.56.080, as no such violation has been argued or claimed by the complainant. The matter is decided on the basis of Hiltner's voluntary submission to an auxiliary review procedure.

FINDINGS OF FACT

1.                  The City of Mercer Island is a municipal corporation and a "public employer" within the meaning of RCW 41.56.030(1).

2.                  Professional Firefighters of Mercer Island, Local 1762, IAFF is a "bargaining representative" within the meaning of RCW 41.56.030(3). The union represents 19 employees employed as firefighters by the city. Alan Provost is the union's president.

3.                  In January, 1981, Peter Hiltner, a bargaining unit employe, initiated an appeal of disciplinary action imposed on him by Director of Public Safety Jan Deveny. Hiltner approached the union about the discipline imposed.

4.                  The union determined that the grievance arbitration provision of the collective bargaining agreement did not apply to Hiltner's situation because disciplinary matters were specifically reserved to civil service rules and regulations. The dispute was submitted to the civil service commission, but Hiltner's appeal was denied.

5.                  Hiltner decided to invoke the appeal procedure found in the "City of Mercer Island Employee Handbook". Under this process, he and Provost met with Deveny to discuss the situation, but could not resolve the dispute. The matter was appealed to City Manager Lawrence Rose.

6.                  Rose established a meeting date with Hiltner. Prior to the meeting, Hiltner requested that Provost accompany him to the meeting. Rose refused Hiltner's request on the basis of the confidentiality clause in the appeal procedure.

7.                  Rose met with Hiltner on March 4, 1981. Hiltner was accompanied by an attorney at the meeting. Rose received testimony and documents and recorded the proceedings. The issue was not resolved.

8.                  Provost approached Rose on several occassions after the March 4, 1981 meeting to discuss the Hiltner grievance. Rose refused on the basis of the confidentiality.

9.                  A second meeting was called for May 6, 1981. Before the meeting, Hiltner asked that Provost be allowed to attend. Again, Rose refused.

10.              On the basis of the March 4 and May 6, 1981 meetings, a settlement of the grievance was finalized on May 14, 1981.

11.              Hiltner voluntarily submitted the disciplinary issue to the appeal process found in the employee's handbook after it was reviewed through civil service rules, and he accepted the procedures as found in the handbook.

CONCLUSIONS OF LAW

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

2.                  By events described in Findings of Fact 6 through 11 above, the City of Mercer Island did not commit an unfair labor practice.

ORDER

The complaint charging unfair labor practices in this matter is hereby dismissed.

DATED at Olympia, Washington this 7th day of June, 1982.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

KENNETH J. LATSCH, Examiner