DECISIONS

Seattle School District, Decision 9355-C (EDUC, 2010)

 

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

Robert Femiano, Complainant,   vs.   Seattle Education Association,   Respondent.	CASE 19944-U-05-5062   DECISION 9355-C – EDUC     DECISION OF COMMISSION
Robert Femiano,   Complainant,   vs.   Seattle SChool District,   Respondent.	CASE 19945-U-05-5063   DECISION 9356-B - EDUC     DECISION OF COMMISSION

 

 

Robert Femiano, appeared pro se.

 

Michael Gawley, Attorney at Law, for the union.

 

 

This case comes before the Commission on a timely appeal filed by Robert Femiano (Femiano).  Femiano alleged that Seattle Education Association (union) induced the Seattle School District (employer) to commit an unfair labor practice when the union revealed to the employer that a previous union request for information was made at the request of Femiano.  Femiano’s complaint also alleged that the employer discriminated and interfered against him in violation of Chapter 41.59 RCW when it transferred him to another school.  Examiner Carlos Carrión Crespo held a hearing where the parties provided testimony and evidence.  The parties also submitted post-hearing briefs.  The Examiner held Femiano failed to establish that any unfair labor practice occurred, and dismissed the complaint in its entirety.[1]  Femiano now appeals that decision.  

 

ISSUES PRESENTED 

 

1.      Does substantial evidence support the Examiner’s findings and conclusions that the employer did not discriminate against Femiano for exercising protected rights by transferring him to a different school?

 

2.      Does substantial evidence support the Examiner’s findings and conclusion that the employer did not interfere with Femiano’s protected rights by transferring him to a different school?

 

3.      Does substantial evidence support the Examiner’s findings and conclusions that the union did not inform the employer that a union information request was made on behalf of Femiano in an attempt to induce the employer to retaliate against Femiano by transferring him to a different school?

 

For the reasons set forth below, we affirm the Examiner’s decision in its entirety.[2]   This record supports the Examiner’s findings and conclusions that Femiano failed to establish a prima facie case of discrimination.  Accordingly, it was not reversible error for the Examiner to dismiss Femiano’s interference allegation stemming from the same set of facts.  This record also supports the Examiner’s findings and conclusions that Femiano failed to establish that the union attempted to induce the employer to commit an unfair labor practice by revealing that he asked the union to make an information request on his behalf. 

 

DISCUSSION

 

This case involves the transfer of a Seattle School District teacher from one school to another without his approval.  Femiano worked at Arbor Heights Elementary School.  The principal at Arbor Heights, Carol Coram (Coram), also worked as a sports official for the National Collegiate Athletic Alliance (NCAA).  Without expressly naming her, Femiano expressed concern to the Seattle School Board about Coram’s involvement with the NCAA at a regularly scheduled Seattle School Board meeting.  Following that meeting, Femiano contacted his union representative, Ben Ibale (Ibale), and asked Ibale to request certain budget information from the employer.  Ibale followed through on Femiano’s request and asked for the information.  However, sometime during the processing of the request, Coram contacted Ibale about the information request and informed him that she was upset about the request.  Ibale responded that the request was a typical union information request.  At no time during this conversation did Ibale inform Coram that the union’s request was made on behalf of Femiano. 

 

Shortly thereafter, Coram filed a hostile work environment complaint with the employer alleging that Femiano was harassing her.  Femiano, in turn, filed a whistleblower complaint alleging that Coram’s complaint was in retaliation for his questioning of her conduct.  The employer eventually hired an outside investigator to look in the matter.  The investigator concluded that Femiano was in fact harassing Coram.[3] 

 

Based upon the investigator’s report, the employer decided to initiate the process that would transfer Femiano to another school.  The employer contacted the union to discuss a potential transfer.  When the employer informed Femiano about the transfer, he filed a Washington Industrial Safety and Health Administration (WISHA) complaint alleging that the employer transferred him for raising workplace health concerns. 

 

When the employer finalized its decision to transfer Femiano, the union filed a grievance over the transfer.  An arbitrator ultimately ruled that the employer failed to follow the formal complaint process set forth in its anti-harassment policy as well as grievance procedure set forth in the parties’ collective bargaining agreement.  Exhibit 29.   However, the arbitrator declined to rescind Femiano’s transfer based upon the “overwhelming evidence that [Femiano] violated the District’s anti-harassment policy [by] engaging ‘in a campaign of harassment, intimidation and bullying[.]’”  Femiano then filed these complaints.  

 

Appellate Review

WAC 391-45-350 governs appeals in unfair labor practice cases.  Under WAC 391-45-350(3), a party filing a notice of appeal must “identify, in separately numbered paragraphs, the specific rulings, findings of fact, conclusions of law, or order claimed to be in error.”  This Commission has previously stated that “it is not enough for a party to merely disagree with an examiner’s findings of fact as contrary to a version of events proffered by the appealing party, and an appellant must demonstrate how the examiner’s findings are not supported by substantial evidence.”  Clark County, Decision 9127-A (PECB, 2007). 

 

Although Femiano’s notice of appeal complied with WAC 391-45-350(3) by identifying which rulings he believes are in error, his notice of appeal fails to demonstrate how the record fails to support those findings and conclusions, including identifying specific findings of fact, conclusions of law, and orders that he finds in error.  Furthermore, Femiano’s arguments on appeal come only from his notice of appeal, and he declined to file a comprehensive appeal brief under WAC 391-45-350(6).  A party that does not file a brief with specific citations to the record demonstrating how the decision on appeal is in error does so at its own peril.  See Kitsap Transit, Decision 10234-A (PECB, 2009).  To the extent that Femiano's notice of appeal provides this Commission with insight regarding what findings and conclusions he contends are not supported by the record, we will use his notice of appeal as if it were a brief.[4]

 

 

ISSUE 1 – Did the Employer Discriminatorily Transfer Femiano?

 

Applicable Legal Standard

An employer unlawfully discriminates against an employee when it takes action in reprisal for the employee’s exercise of rights protected by Chapter 41.56 RCW.  Educational Service District 114, Decision 4361-A (PECB, 1994).  The employee maintains the burden of proof in employer discrimination cases.  To prove discrimination, the employee must first set forth a prima facie case by establishing the following:

 

 

1.                  The employee participated in an activity protected by the collective bargaining statute, or communicated to the employer an intent to do so;

 

2.                  The employer deprived the employee of some ascertainable right, benefit, or status; and

 

3.                  A causal connection exists between the employee’s exercise of a protected activity and the employer’s action.

 

Ordinarily, an employee may use circumstantial evidence to establish the prima facie case because parties do not typically announce a discriminatory motive for their actions.  Clark County, Decision 9127-A (PECB, 2007). 

 

In response to an employee’s prima facie case of discrimination, the employer need only articulate its non-discriminatory reasons for acting in such a manner.  The employer does not bear the burden of proof to establish those reasons. Port of Tacoma, Decision 4626-A (PECB, 1995).  Instead, the burden remains on the employee to prove by a preponderance of the evidence that the disputed action was in retaliation for the employee’s exercise of statutory rights.  Clark County, Decision 9127-A.  The employee meets this burden by proving either that the employer’s reasons were pretextual, or that union animus was a substantial motivating factor behind the employer’s actions.   Port of Tacoma, Decision 4626-A.

 

To prove discriminatory motivation, the employee must establish that the employer had knowledge of the employee's union activity.  An examiner may base such a finding on an inference drawn from circumstantial evidence although such an inference cannot be entirely speculative or improbable.  Circumstantial evidence consists of proof of facts or circumstances which according to the common experience gives rise to a reasonable inference of the truth of the fact sought to be proved.

 

Application of Standard

The Examiner found that Femiano failed to establish a prima facie case for discrimination.  In reaching this conclusion, the Examiner found that Femiano failed to establish that he engaged in protected union activity.  Femiano declined to specifically appeal any of the Examiner’s findings of fact related to this issue.  Accordingly, the scope of our review is limited to determining whether the Examiner applied the correct standard of law to the findings of facts.  

 

With respect to Femiano’s attempt to establish the first element of the prima facie case for discrimination, the Examiner found the following:

 

• Femiano’s testimony in front of the Seattle School Board was not activity protected by Chapter 41.59 RCW because the subject matter of testimony (Coram’s involvement with the NCAA) is not a matter governed by Chapter 41.59 RCW.

 

• Femiano’s filing of a WISHA complaint is not a matter that falls under the jurisdiction of this Commission and therefore was not protected activity under Chapter 41.59 RCW.

 

• Femiano’s request that the union obtain certain collective bargaining information from the employer on his behalf was an exercise of a collective bargaining right. 

 

Each of these statements represents a proper application of law to the particular facts, and the Examiner’s conclusion that Femiano’s information request made through the union constituted activity that potentially could be redressed by Chapter 41.59 RCW is correct.  Accordingly, the Examiner committed no error in moving to the second step in the prima facie case analysis with respect to this one claim.

 

The second step in establishing a prima facie case of discrimination is determining whether the employee was denied an ascertainable right, benefit, or status.  The Examiner found that Femiano was deprived of his right to teach several grades when the employer transferred him to a different school where he taught only one grade.  No party has challenged this finding; therefore we must accept it as verity on appeal.  Accordingly, we must now turn to the third step in the analysis.

 

The third step in the analysis is whether a causal connection exists between the employee’s exercise of a protected activity and the employer’s action.  The Examiner found that Femiano failed to demonstrate that a causal connection existed between Femiano’s request (through the union) for information and the decision to transfer him to a different school.

 

Femiano’s notice of appeal asserts that Ibale informed him that Coram was able to “connect the dots” to conclude that Femiano was the one who asked the union to request information about the employer’s budget, and therefore the employer moved to transfer him on the basis of the request.  We disagree.

 

Although hearsay evidence is admissible in hearings before this agency, such evidence, standing by itself, has little probative value.  Port of Tacoma, Decision 4626-A (PECB, 1995).  At best, the “connect the dots” statement is hearsay, and Femiano provided no other evidence demonstrating that the employer decided to transfer him because of the information request.  The Examiner correctly concluded that Femiano failed to meet his burden demonstrating a causal connection between his transfer and his request for information.  Accordingly, the Examiner committed no reversible error in dismissing Femiano’s discrimination complaint against the employer.[5] 

ISSUE 2 – Did the Employer Interfere With Femiano’s Protected Rights?

 

Applicable Legal Standard

Generally, the burden of proving unlawful interference with the exercise of rights protected by Chapter 41.56 RCW rests with the complaining party or individual.  An interference violation exists when an employee could reasonably perceive the employer's actions as a threat of reprisal or force, or promise of benefit, associated with the union activity of that employee or of other employees.  Kennewick School District, Decision 5632-A (PECB, 1996).  The complainant is not required to demonstrate the employer intended or was motivated to interfere with employees’ protected collective bargaining rights.  See City of Tacoma, Decision 6793-A (PECB, 2000).  Nor is it necessary to show that the employee involved was actually coerced by the employer or that the employer had a union animus for an interference charge to prevail.  City of Tacoma, Decision 6793-A.  However, an independent interference violation cannot be found under the same set of facts that failed to constitute a discrimination violation.  See Reardan-Edwall School District, Decision 6205-A (PECB, 1998).

 

Application of Standard

Here, the Examiner held that Femiano failed to sustain his burden demonstrating that the employer interfered with his protected rights.  Although we agree with the Examiner’s conclusion that Femiano failed to demonstrate that the employer interfered with his protected rights, the Examiner could have simply dismissed the interference allegation because the facts that failed to support Femiano’s discrimination allegation are the same facts that supported his independent interference claim.

 

ISSUE 3 – Did the Union Induce the Employer to Commit an Unfair Labor Practice?

 

Applicable Legal Standard

A union will commit a violation of RCW 41.59.140(2)(b) if it causes or attempts to cause an employer to discriminate against an employee in violation of the rights protected by Chapter 41.59 RCW.  It is not necessary for the employer to actually discriminate against employees.  A union’s act of simply asking an employer to make a discriminatory action is enough to be a violation.  Shoreline School District, Decision 5560 (PECB, 1996). 

 

The Examiner found that Femiano failed to establish through direct or circumstantial evidence that the union provided his name to the employer, or that the union provided his name to the employer so that the employer would retaliate against him.  The Examiner also concluded that Femiano failed to present any evidence demonstrating that the union attempted to undermine any of his collective bargaining rights. 

 

On appeal, Femiano argues that the Examiner ignored evidence demonstrating that the union and employer colluded to transfer him.  He points to Exhibit 38, an e-mail written by the employer’s Instructional Education Director, Patricia Sanders, to Steve Wilson.  In that e-mail, Sanders referenced a conversation between herself and union official Steve Pulkkinen about “moving [Femiano]”.  Femiano also points to a meeting between the union and employer, held without Femiano’s knowledge, where the union sought to safeguard Femiano’s rights during the workplace harassment investigation.  Notice of Appeal, paragraph 7, citing Exhibit 25.  Femiano claims that these meetings and statements clearly demonstrated that the union and employer colluded to transfer him. [6]  We disagree.

 

The Examiner specifically credited Ibale’s testimony which stated that he did not disclose to Coram the fact that Femiano asked the union to make the information request on his behalf.  Femiano asserts that an e-mail that he sent to Ibale supports his contention that the union did in fact disclose his name to the employer.  Exhibit 30.  Femiano’s e-mail thanked Ibale “for being honest” in disclosing a conversation between Ibale and Coram regarding the information request.  However, that e-mail is Femiano’s version of the conversation, and does not demonstrate by a preponderance of the evidence that Ibale actually disclosed Femiano’s name as the source of the request.

With respect to the meeting referenced by Sanders in Exhibit 38, we note that this kind of meeting is a typical labor management meeting, and although Femiano assigns nefarious motives to the meeting, the testimony and evidence produced at the hearing does not support a finding that the transfer was the result of collusion between the employer and union.  Furthermore, Femiano’s assertion that the union failed to demonstrate how his testimony was not credible and that the union failed to raise an affirmative defense as to how the union safeguarded his collective bargaining rights are not valid.  A complainant in an unfair labor practice complaint bears the burden of proving by a preponderance of the evidence that the respondent did in fact commit the complained-of acts.  The fact that a respondent declines to raise an affirmative defense or attempt to discredit a witness does not, in turn, satisfy a complainant’s burden. 

 

NOW, THEREFORE, it is

 

ORDERED

 

The Findings of Fact, Conclusions of Law, and Order issued by Examiner Carlos Carrión Crespo in the above-captioned cases are AFFIRMED and adopted as the Findings of Fact, Conclusions of Law, and Order of the Commission. 

 

ISSUED at Olympia, Washington, this   25^th  day of February, 2010.

 

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

                                                MARILYN GLENN SAYAN, Chairperson

 

 

 

                                                PAMELA G. BRADBURN, Commissioner

 

 

 

                                                THOMAS W. McLANE, Commissioner