Hafer, Price, Rinehart and Schwerin, by M. Lee Price, Attorney at Law, appeared for the complainant.

Norm Maleng, Prosecuting Attorney, by Mary E. Cummings, Deputy Prosecuting Attorney, appeared for the respondent.

On April 10, 1989, Examiner J. Martin Smith issued a decision finding that King County violated RCW 41.56.140(1) when it denied Patricia Higgins reinstatement to employment after a medical leave, because of her history of engaging in the protected activity of filing grievances against the employer. As a remedy, the Examiner ordered the employer to hire Higgins in the position of "animal control dispatcher" or a substantially equivalent position, and to provide her back pay and benefits, with interest, at the "animal control dispatcher" rate of pay from April of 1988 until the date of her reinstatement to employment.

Both parties have petitioned for review. The employer contends that the Examiner's findings and conclusions go beyond the scope of the complaint and evidence. In addition, the employer objects to the portion of the remedial order awarding Higgins a position she has never before held, with back pay. Higgins contends that she should have been reinstated to the position of "animal control officer" retroactive to March of 1988, and that the Examiner erred in concluding that she would not have been medically eligible for that position at that time.

DISCUSSION

The Unfair Labor Practice

The issues raised in this appeal are entirely factual. We have reviewed the record, and find that the Examiner did not err in finding a violation of RCW 41.56.140(1). Further, we find that the Examiner did not consider matters beyond the scope of the complaint or of the record.

The facts of this case are unusual, in that there was direct and uncontroverted evidence of retaliation. Rarely is that the case. The Examiner properly applied the Wright Line[1] analysis. His determination that Higgins made a prima facie case, as well as his determination that the employer failed to meet the burden which shifted to it, is supported by the record.

Remedy

RCW 41.56.160 authorizes the Commission to impose "appropriate" remedies where unfair labor practices are found, giving us a considerable amount of discretion as to what is "appropriate."

Both parties object that the Examiner's remedial order is tied to the "dispatcher" position. The employer complains that Higgins has never permanently held that classification; Higgins complains that she was previously an "animal control officer", and was qualified for the position in that classification was advertised beginning in March of 1988.

The Examiner had good reason to focus on the "dispatcher" position. Higgins had done the work before, and was qualified for the position when it became available in April, 1988, and she took the affirmative step of applying for that position. However, in view of the parties' objections, we believe the more appropriate focus is the "animal control officer" position which became available in March, 1988. There is evidence Higgins applied for that position and would have qualified for it from a medical standpoint, or that she could have obtained a medical release for work in that position if the employer had asked her to do so. The remedial order will be amended accordingly.

NOW, THEREFORE, it is

ORDERED

1.                  The findings of fact and conclusions of law issued in the above-entitled matter by Examiner J. Martin Smith are affirmed and adopted as the findings of fact and conclusions of law of the Commission.

2.                  King County, its officers and agents, shall immediately:

1.                  Cease and desist from interfering with, restraining, coercing and discriminating against employees in the exercise of their rights under Chapter 41.56 RCW, and specifically with respect to the filing of grievances under a collective bargaining agreement covering their employment.

2.                  Take the following affirmative action which the Commission finds will effectuate the purposes of the Public Employees' Collective Bargaining Act:

1.                  Reinstate Patricia Higgins to employment with King County in the position of "animal control officer" as that position became available in March of 1988, or in a substantially equivalent position.

2.                  Make Patricia Higgins whole for the wages and benefits lost as a result of the discrimination against her, by payment of back pay at the rate of pay of the "animal control officer" position that became available in March of 1988, from the date that such position was filled until the date of the unconditional offer of reinstatement made pursuant to this order, computed in accordance with WAC 391-45-410.

3.                  Post, in conspicuous places on the employer's premises where notices to all employees are usually posted, copies of the notice attached hereto. Such notice shall, after being duly signed by an authorized representative of the respondent, be and remain posted for sixty (60) days. Reasonable steps shall be taken by the respondent to insure that said notices are not removed, altered, defaced, or covered by other material.

4.                  Notify the complainant, in writing, within thirty (30) 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 complainant with a signed copy of the notice required by this order.

5.                  Notify the Executive Director of the Public Employment Relations Commission, in writing, within thirty (30) days following the date of this order, as to what steps have been taken to comply herewith, and at the same time provide the complainant with a signed copy of the notice required by this order.

DATED at Olympia, Washington, this 21st day of July, 1989.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JANE R. WILKINSON, Chairman

[SIGNED]

JOSEPH F. QUINN, Commissioner