Touchet School District, Decision 10860 (PECB, 2010)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
|
WASHINGTON EDUCATION ASSOCIATION,
Complainant,
vs.
TOUCHET SCHOOL DISTRICT,
Respondent.
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CASE 22755-U-09-5819
DECISION 10860 - PECB
FINDINGS OF FACT,
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Shelby A. Hopkins, Attorney at Law, for the union.
Rice Law Firm by Kenneth B. Rice, Attorney at Law, for the employer.
On September 29, 2009, the Washington Education Association (union) filed an unfair labor practice against the Touchet School District (employer) alleging that the employer had interfered with employee rights. The union represented a unit of the employer’s non-supervisory, classified employees until it was decertified on June 19, 2009.
The union’s original complaint was found to be procedurally defective. The union amended its complaint on October 29, 2009. On November 4, 2009, a preliminary ruling found that the allegations in the amended complaint constituted a cause of action. These allegations were that the employer interfered with employee rights by denying the use of the employer’s facilities for a bargaining unit meeting and by its actions involving the decertification election for the bargaining unit. Emily Martin was assigned as examiner in this matter on November 5, 2009.
The employer’s answer was due on November 25, 2009. On January 28, 2010, as the employer had still not filed an answer, the union moved that the employer be found in default. In a letter to the parties on February 16, 2010, the Examiner requested a response to the union’s motion by March 1, 2010. The employer did not respond. On March 9, 2010, the Examiner ruled that the employer was in default, and as specified by, WAC 391-45-210(4), the facts alleged in the union’s complaint were deemed to be true and the upcoming hearing would be limited to only the employer’s affirmative defenses.
On March 12, 2010, attorney Kenneth B. Rice made an appearance on behalf of the employer and requested a continuance for the hearing. Rice argued that he and his client would need more time to prepare. The Examiner denied the continuance, finding that the employer lacked good cause for a delay. In making this decision, the Examiner considered the total length of time that had passed since the filing of the complaint in September and the lack of any communication from the employer or the employer’s counsel. The employer had sufficient time to find counsel able to participate in the prehearing scheduling process and to prepare for a March 17, 2010 hearing, which had been scheduled since December 24, 2009. Further, a continuance would have unfairly harmed the right of the union to have a timely determination of its allegations.
At the hearing on March 17, 2010, Rice presented a late answer to the union’s complaint and asked for it to be admitted. The Examiner rejected the answer, as the employer had failed to provide good cause why such a late answer should be accepted. As she had ruled earlier on March 9, 2010, the Examiner held that the facts in the complaint were deemed to be true, and the hearing would be limited only to the employer’s affirmative defenses.
At the hearing, the employer was given the first opportunity to call witnesses to testify because the facts in the complaint were deemed to be true and the hearing was limited to only affirmative defenses. Another result of the facts being admitted as true was that the union would not have been allowed to present any evidence regarding those facts. Neither the employer nor union called any witnesses or presented any evidence at the hearing.
At the close of the hearing, the Examiner established that simultaneous briefs would be due on May 5, 2010, at the Commission’s office. On May 5, 2010, the union filed its brief. No brief was filed by the employer.
As stated above, because of the employer’s failure to file a timely answer, it was found in default. In accordance with WAC 391-45-210(4), the facts of the complaint are therefore admitted as true. For easier comprehension, the Examiner has summarized the relevant facts rather than include all the facts as written in the complaint. Also, where appropriate, the Examiner has taken administrative notice and supplemented these facts with additional information contained in the Commission’s official record of the decertification proceedings relevant to these allegations.
ISSUES
1. Did the employer interfere with the employees’ rights when it prohibited the union’s use of a classroom for a bargaining unit meeting?
2. Did the employer interfere with the employees’ rights through its actions related to the efforts by some employees to decertify the union?
The Examiner finds the record is insufficient to find that the employer interfered with the employees’ rights when it prohibited the union from having a meeting in a classroom. Regarding the employer’s actions related to the decertification effort, the employer unlawfully interfered with employee rights when it promoted the bargaining unit member who filed a decertification petition.
APPLICABLE LEGAL STANDARDS - INTERFERENCE
Under RCW 41.56.140(1), it is an unfair labor practice for a public employer to interfere with, restrain, or coerce public employees in the exercise of their collective bargaining rights. An interference violation exists when an employee reasonably perceives the employer’s actions as a threat of reprisal or force, or promise of benefit, associated with the union activity of that employee or 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. 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 acted with union animus for an interference charge to prevail. City of Tacoma, Decision 6793-A (PECB, 2000).
Generally, the burden of proving unlawful interference with the exercise of the rights protected by Chapter 41.56 RCW rests with the complaining party or individual. Central Washington University, Decision 10118-A (PSRA, 2010) and WAC 391-45-270(1)(a).
ANALYSIS
ISSUE 1 - THE USE OF THE EMPLOYER’S FACILTIES
Prior to April 2009, the union had been holding regular meetings on school district property on early release Wednesdays with no interference or restrictions from the employer. The union planned to use a classroom for an April 22, 2010, meeting when the employer’s superintendent, Dan McDonald, advised the union that this particular meeting could not occur because certificated employees would still be working and would need access to the classroom. The superintendent informed the union that a denial would be forthcoming from the employer’s attorney and instructed the union to make future requests to that attorney. The union was later notified by a letter on April 22, 2009, that Kenneth B. Rice would be the employer’s attorney.
On April 23, 2009, the union made a facility request for another meeting on May 6, 2009. The superintendent initially approved this request, but Rice later e-mailed the union to say that the union could not use the employer’s facility. The union responded that unless the superintendent revoked its previous approval, the union would hold the meeting as scheduled. On May 1, 2009, Rice revoked the facility use permit that the superintendent had initially authorized, stating that the union’s use would interfere with regular school activities.
Interference violations have been found when employers prohibit employees from engaging in protected activities while off-duty and in non-work areas. In King County, Decision 7819 (PECB, 2002), an employer committed unlawful interference because it enforced a policy which prohibited leafleting when it stopped an employee from distributing collective bargaining related leaflets. The employee had been leafleting while off duty, and in a non-work area, and was not negatively impacting the employer’s operation. The examiner in that case considered precedents interpreting the National Labor Relation Act, and found that an employer’s no-leafleting policy was overbroad and was presumptively invalid when applied to protected activity done in non-working time and non-working areas. The Commission reached a similar conclusion in City of Seattle, Decision 5391-C (PECB, 1997) (Reversed on other grounds in City of Seattle vs. PERC, 97 Wn. App 1076). The Commission found that an employer’s policy prohibiting employees from conducting union meetings on work time was interference as the definition of “union meeting” was so vague that employees could reasonably perceive they could not talk about union matters during a meal or break period.
Here the union argues that the employer committed an interference violation when it denied the union’s use of the employer’s facility and points to the fact that its classified bargaining unit employees would have been off-duty when the union was attempting to have its meetings. According to the facts contained in the complaint, unit employees would have been off-duty for the 1 P.M., April 22 meeting as it was an early release day for students. The union’s complaint did not specifically identify May 6 as an early release day, but such a conclusion can be made from the facts that May 6, 2009, was a Wednesday, the meeting was scheduled for 1 P.M., and the union had a history of meeting on early release Wednesdays. As so, it is reasonable to conclude that the bargaining unit employees would have been off-duty for the May 6 meeting.
If the facts in this case showed that the employees were not only off-duty, but also that they were seeking to meet in a non-work area that would have not negatively impacted the employer’s operations, then the precedent set in the King County and City of Seattle decisions would support a finding of interference. However, in this case, the employees were seeking the use of a classroom, which is not only a work area, but also an area that other district employees needed to be able to access.
Interference can also be found if an employer does not allow its property to be used for protected collective bargaining activities despite a policy which allows the use of public property for other non-work related purposes. King County, Decision 9692 (PECB, 2007). In King County, an employer committed an interference violation when it prohibited an employee from posting a flyer related to a protected collective bargaining activity since the employer had a policy which allowed for non-work related postings on its bulletin boards.
If facts in this case had demonstrated that the union’s facility permit was revoked, but a similar non-union request to use a classroom would have been granted, then interference could have been found. The Examiner finds that the facts here do not lead to such a conclusion. In its brief, the union asked the Examiner to take judicial notice of an employer policy which encourages the public to use the school facility. Judicial notice of this document is not appropriate as school policies are not commonly known. The fact that a policy might be available on the Internet does not make it appropriate for judicial notice. The union did not prove that anyone would have been permitted to use a classroom at 1 P.M. on an early release day. And so, the facts in this case are insufficient to base a finding that the denial of the meeting space was unlawful interference.
ISSUE 2 - THE EMPLOYER’S ACTIONS DURING THE DECERTIFICAITON PROCESS
The preliminary ruling in this case also found a cause of action related to the employer’s actions related to the decertification election. These actions involve: (1) bargaining unit member Darla Nolan’s promotion from library clerk to chief secretary for the superintendent; and (2) comments made by Rice related to the decertification proceedings.
The Promotion
Prior to April 27, 2009, Nolan had a conversation with the superintendent where he indicated that employees would lose flexibility if they continued with the union’s representation. Subsequently, on April 27, 2009, Nolan filed a decertification petition with the Commission. On September 2, 2009, a union staff member learned that Nolan had received a promotion to head secretary in the superintendent’s office.
An interference violation occurs 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). Nolan’s promotion constitutes an interference violation because employees could reasonably perceive the promotion to be a reward for her successful effort to decertify the union. In light of the subsequent promotion, employees could have reasonably perceived the superintendent’s comment was encouragement for Nolan to file her decertification petition. This encouragement supports the finding that Nolan’s promotion would be reasonably viewed as a reward.
Comments Made by Rice
The union’s complaint referred to a comment made by Rice during a telephone conference call regarding the decertification. The call was between staff members from the union, the employer’s superintendent, Darla Nolan, Rice, and a PERC representative. The purpose of the call was to discuss the mechanics of the decertification process and whether the showing of interest met the minimum statutory requirements. In this conference call, Rice made an offer to contact bargaining unit employees regarding the election. While this comment indicates that the employer failed to understand that directly contacting employees to discuss the election is not appropriate, the comment was made only to those participating in the phone call. The record does not show how employees would have known about this comment, unless they were notified by their own union representatives. As these comments were not directly communicated to employees, the union has not sustained its burden of proof in showing that this comment constitutes interference.
The union’s allegations also discussed a comment made in Rice’s billing record related to part of the decertification process. In particular, Rice wrote “Excellent results achieved.” The Examiner does not find that this particular comment demonstrates interference. Like the comment made during the conference call, there is no evidence that this comment was made to employees. Also, it is unclear what results Rice was characterizing as excellent. Therefore, the Examiner finds that Rice’s billing record comment is not a basis for an interference violation.
REMEDY
The Examiner is denying the union’s request that the election decertifying the bargaining unit be declared null and void. Such a remedy would be extraordinary and is not supported by the facts in this case. In particular, the record does not show that employees were aware of Nolan’s promotion at the time that they cast their ballots in the election and so the conclusion can not be made that Nolan’s promotion influenced the outcome of the election. Therefore, a typical interference remedy is imposed.
FINDING OF FACT
1. Touchet School District is a public employer within the meaning of RCW 41.56.030(1).
2. The Touchet Education Support Professionals which is affiliated with the Washington Education Association, a “bargaining representative” within the meaning of RCW 41.56.030(3), was the exclusive bargaining representative of classified Touchet School district employees at all times pertinent to this case.
3. Prior to April 2009, the union had been holding regular meetings on early release days in the district’s buildings with no interference or restriction from the district.
4. The union planned to use a school district classroom for an April 22, 2010, bargaining unit meeting.
5. On or before April 21, 2009, the employer’s superintendent, Dan McDonald, advised the union that this meeting could not occur because certificated employees would still be working and would need access to the classroom.
6. The superintendent informed the union that a denial would be forthcoming from its attorney and instructed the union to make future meeting room requests with the attorney.
7. The union was notified by a letter on April 22, 2009, that Kenneth B. Rice would be the employer’s attorney.
8. On April 23, 2009, the union made a facility request for a May 6, 2009, meeting.
9. The superintendent initially approved this request on April 23, 2009. May 1, 2009, Rice e-mailed the union to say that the union could not use the employer’s facilities.
10. The union responded that unless the superintendent revoked the approval in writing, the union would hold the meeting as approved.
11. In response, Rice revoked the facility use permit that the superintendent had initially authorized, stating that the use would interfere with regular school activities.
12. Darla Nolan, a classified employee of the employer, filed a petition with the Commission to decertify the union. The petition was filed on April 27, 2009. Shortly after filing the petition, she was promoted from library clerk to chief secretary for the superintendent.
13. Before Nolan filed her petition, she was advised by the superintendent that if the classified staff were to form a union, they would lose the flexibility they enjoyed in their then-current assignments.
14. Rice participated in a telephone conference with staff members from the union, the employer’s superintendent, Darla Nolan, and a PERC representative. The purpose of this call was to discuss the mechanics of the decertification process and whether the showing of interest met the minimum statutory requirements.
15. During this discussion, Rice volunteered to contact certain employees to verify their status and to inquire as to whether they wanted to participate in the election.
16. Rice made a comment in his billing record related to part of the decertification process. In particular, Rice wrote “Excellent results achieved.”
CONCLUSION OF LAW
1. The Public Employment Relations Commission had jurisdiction in this matter under Chapter 41.56 RCW and Chapter 361-45 WAC.
2. By denying the union’s use of a meeting room, as described in Findings of Fact 3 through 11, the employer did not interfere with, restrain and coerce its employees in the exercise of their rights guaranteed by Chapter 41.56 and did not commit an unfair labor practice in violation of RCW 41.56.140(1).
3. Through its actions related to a decertification proceeding, as described in Findings of Fact 12 through 13, the employer interfered with, restrained and coerced its employees in the exercise of their rights guaranteed by Chapter 41.56 and committed a unfair labor practice in violation of RCW 41.56.140(1).
4. Through its actions related to a decertification proceeding, as described in Findings of Fact 14 through 16, the employer did not interfere with, restrain or coerce its employees in the exercise of their rights guaranteed by Chapter 41.56 and did not commit an unfair labor practice in violation of RCW 41.56.140(1).
ORDER
TOUCHET SCHOOL DISTRICT, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:
1. CEASE AND DESIST from:
a. Interfering with PERC elections regarding the certification or decertification of the union by taking action that would encourage employees to decertify the union or reward employees for opposing the union’s certification.
b. In any other manner interfering with, restraining or coercing its employees in the exercise of their collective bargaining rights under 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. Post copies of the notice provided by the Compliance Officer of the Public Employment Relations Commission in conspicuous places on the employer’s premises where notices to all bargaining unit members are usually posted. These notices shall be duly signed by an authorized representative of the respondent, and shall remain posted for 60 consecutive days from the date of initial posting. The respondent shall take reasonable steps to ensure that such notices are not removed, altered, defaced, or covered by other material.
b. Read the notice provided by the Compliance Officer into the record at a regular public meeting of the Touchet School Board, and permanently append a copy of the notice to the official minutes of the meeting where the notice is read as required by this paragraph.
c. Notify the 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 complainant with a signed copy of the notice provided by the Compliance Officer.
d. Notify the Compliance Officer 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 Compliance Officer with a signed copy of the notice he provides.
ISSUED at Olympia, Washington, this 14th day of September, 2010.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
EMILY H. MARTIN, Examiner
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
NOTICE
THE WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION CONDUCTED A LEGAL PROCEEDING IN WHICH ALL PARTIES HAD THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT. THE COMMISSION RULED THAT THE TOUCHET SCHOOL DISTRICT COMMITTED AN UNFAIR LABOR PRACTICE IN VIOLATION OF STATE COLLECTIVE BARGAINING LAWS, AND ORDERED US TO POST THIS NOTICE TO EMPLOYEES:
WE UNLAWFULLY interfered with the union’s decertification election by promoting an employee who filed a decertification petition against the union, shortly after the election was conducted.
TO REMEDY OUR UNFAIR LABOR PRACTICE:
WE WILL not interfere with future certification or decertification elections related to the union.
WE WILL comply with PERC’s processes and procedures and will not take further action to improperly influence the right of the employees to choose their bargaining representative.
WE WILL NOT, in any other manner, interfere with, restrain, or coerce our employees in the exercise of their collective bargaining rights under the laws of the State of Washington.
DO NOT POST OR PUBLICLY READ THIS NOTICE.
AN OFFICIAL NOTICE FOR POSTING AND READING
WILL BE PROVIDED BY THE COMPLIANCE OFFICER.
The full decision is published on PERC’s website, www.perc.wa.gov.