Seattle School District, Decision 10066-B (PECB, 2010)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 609,
Complainant,
vs.
SEATTLE SCHOOL DISTRICT,
Respondent.
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CASE 21266-U-07-5428
DECISION 10066-B - PECB
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER |
Schwerin Campbell Barnard & Iglitzin, LLP, by Kathleen Phair Barnard, for the union.
John M. Cerqui, Senior Assistant General Counsel, for the employer.
On September 26, 2007, the International Union of Operating Engineers, Local 609 (union), filed a complaint charging unfair labor practices with the Public Employment Relations Commission. It alleged that the Seattle School District (employer) violated RCW 41.56.140(1) when it denied employee Michael Wade his right to union representation during two investigatory conferences with his supervisor Shelly Ward. A preliminary ruling was issued on September 28, 2007, which found a cause of action in the union’s allegations. Katrina Boedecker was assigned as the examiner on December 10, 2007, after a previously assigned examiner was no longer available. She conducted a hearing on the matter on December 12, 2007. The parties filed post-hearing briefs to complete the record.
The examiner issued Decision 10066 on May 7, 2008. The union appealed her decision to the Commission on May 27, 2008. On August 11, 2010, after a review of the full record of these proceedings, the Commission vacated the examiner’s decision and remanded the case to the Executive Director for reassignment to a different examiner who was instructed to issue a new decision based solely upon the existing record. The undersigned was assigned on August 17, 2010.
ISSUE
Did the employer interfere with Michael Wade’s Weingarten rights in either of two meetings in April 2007 with his supervisor, and therefore commit an unfair labor practice in violation of RCW 41.56.140(1)?
I find that the employer did not violate Wade’s Weingarten rights at the April meetings and therefore did not commit an unfair labor practice.
APPLICABLE LEGAL STANDARDS
Burden of Proof
In charges of unfair labor practices, the complaint has the burden of proof. As the Commission said in Whatcom County, Decision 8512-A (PECB, 2005):
In proceedings before this Commission under Chapter 391-45 WAC, the complainant has the burden of proof to show, by a preponderance of the evidence, that the respondent has committed the complained-of unfair labor practice. WAC 391-45-270(1)(a).
Thus in this case, the union has the burden of proving by a preponderance of the evidence that the employer violated Wade’s Weingarten right for union representation during two interviews concerning issues which Ward raised during the course of their conversations.
Weingarten Rights
In Methow Valley School District, Decision 8400-A (PECB, 2004) (footnotes omitted), the Commission wrote the following concerning an employee’s right of union representation during an investigative meeting, most commonly called Weingarten rights:
In NLRB v. Weingarten, 420 U.S. 251 (1975), the Supreme Court of the United States affirmed a National Labor Relations Board decision that Section 7 of the National Labor Relations Act (NLRA) provides employees the right to be accompanied and assisted by their union representatives at investigatory meetings that the employee reasonably believes may result in disciplinary action.
The U.S. Supreme Court explained that a lone employee may be too fearful or may not be articulate enough to present his side of the story during an investigatory interview. Weingarten, 420 U.S. at 263. An employee-representative's presence at an investigatory interview protects the individual employee from being overpowered or out maneuvered by the employer. Weingarten, 420 U.S. at 265 n. 10. Weingarten's language clearly indicates that the protected right is an individual employee right, not a union right. Weingarten, 420 U.S. at 256-257; Anheuser-Busch, Inc., 337 NLRB 3 (2001), enforced, 338 F.3d 267 (4th Cir. 2003). Once an employee requests union representation, the employer must either grant the request or end the interview.
This Commission and Washington Courts interpret issues arising under Chapter 41.56 RCW by examining federal decisions construing the NLRA, as amended by the Labor Management Act of 1947 (Taft-Hartley Act), when the language between the two statutes is similar. State ex rel. Washington Federation of State Employees v. Board of Trustees, 93 Wn.2d 60, 67-8 (1980). Although the language of Section 7 of the Act and RCW 41.56.040(1)(3) are not identical, the Commission has previously held that the rights granted in Section 7 may be inferred in RCW 41.56.040. Okanogan County, Decision 2252-A (PECB, 1986).
Through many subsequent decisions the Commission has determined that a violation of Weingarten rights interferes with employees’ protected rights and is an unfair labor practice under RCW 41.56.140(1). Okanogan County 2252-A (PECB, 1986).
Also in subsequent decisions, the Commission and its examiners have refined and amplified the details of what constitutes a Weingarten violation in public employment. For example, in Lewis Public Transportation Benefit Area, Decision 9275 (PECB, 2006) an examiner found that an employer is free to talk to employees at any time and is able to inform them of rules and regulations without the presence of a union representative. However, if a meeting is used to investigate facts that might lead to discipline, then the employee is within their rights to ask for a union representative to be present and the meeting should cease until the representative is present.
In Washington State Patrol, Decision 4040 (PECB, 1992) an examiner identified four elements necessary to establish a Weingarten violation:
1. The right to representation attaches only where the employer compels the employee to attend an investigatory meeting.
2. A significant purpose of the interview must be (or becomes) to obtain facts related to a disciplinary action.
3. The employee must reasonably believe potential discipline might result from the information obtained during the interview. Mason County, Decision 7048 (PECB, 2000).
4. The employee must request the presence of a union representative.
Washington State Patrol was later cited by the Commission in Cowlitz County, Decision 6832-A (PECB, 2000).
A Weingarten interference violation is a limited form of interference in that the inquiry is focused primarily on the facts of the meeting or meetings in question – as opposed to a course of conduct inquiry. Further, the remedy in these cases is limited to the discipline that is alleged to have resulted from an employer’s reliance on information gained without allowing the employee the benefit of union representation. Okanogan County, Decision 2252-A (PECB, 1986).
ANALYSIS
In the instant case, the union alleges that there were two meetings during which the union claims that Wade asked Supervisor Ward, for union representation, and she did not respond according to the standards of Weingarten. One meeting occurred on either April 23 or 24, 2007, and the other occurred on April 26, 2007. Subsequent to those meetings, on May 7, 2007, Ward gave Wade a “Letter of Direction.” I will examine each meeting according the criteria set forth above in Washington State Patrol.
April 23, 2007 Meeting
Shelly Ward is a custodial area supervisor in the school district. She is the immediate supervisor for the custodians and custodial engineers assigned to specific schools. A part of her responsibilities is to perform building inspections, train the employees in the schools in her assigned area, and to do performance evaluations of the employees under her supervision. She has been in this position since November 2005. She testified that since 2006 it has been her practice to record her visits to the schools that she is responsible for in a daily log. Ward’s log includes: the dates of the visits; the places she visits; which employees are contacted during the visits; what transpires during the visits; and finally, if any further action is to be taken. She may have several entries for one day or none at all on other dates. The log includes supervisor meetings as well as meetings with employees.
One of the employees she has supervised at all times pertinent to this case is Michael Wade, a custodial engineer at Viewlands Elementary School. As a custodial engineer, Wade is responsible for directing the custodial work in a school building and the monitoring of the school’s boilers. Wade has an “active” history with this employer, having been previously given a written warning for inappropriate behavior at another school in the district. Part of the behavior for which he had been earlier disciplined was evidence that he had been living in the boiler room of his assigned school building. The employer’s reaction to that incident was to move Wade’s assignment to Viewlands Elementary. Evidence of the employer’s previous allegations included storing personal items at his previously assigned school. It was the appearance of similar evidence at Viewlands that started the events of this case. Ward was not his supervisor during the earlier incident at the other school.
Evidence admitted at the hearing in this matter included pages from Ward’s daily log from April 2, 2007, through May 2, 2007. Several different employees were listed as being the focus of the notations on these dates, including Wade. Therefore, based on this log and Ward’s testimony, I hold that her log is a credible account of the events of April 23 and April 26, 2007. This includes the fact that the first meeting in question took place on April 23, 2007, as testified to by Ward and not on April 24, 2007 as testified to by Wade. Wade’s testimony on the date of the meeting was compromised by his earlier statement on March 23, 2007, concerning another incident where he asserted that he had not shown up for work because he did not know which day of the week it was.
On April 23, 2007, Ward wrote in her log and testified that she stopped by Wade’s office to ask him about a doctor’s note concerning a physical limitation. While in his office she noted that he had personal items there, specifically; a computer that was not school property, a fish tank, and a box of vacuum cleaner parts. When the conversation moved to the school’s boiler room, she noted additional personal items and she reminded him that he had been previously instructed not to have personal items at work and that he needed to remove them. They then proceeded to have a conversation concerning his failure to flush the school’s water pipes. Although Wade testified that he had asked for union representation at a meeting with Ward, Ward made no mention of a request by him during their conversations on the 23rd and she testified that he did not make such a request on the first meeting. Wade also testified that he believed that he and Ward had talked on both April 23rd and 24th and that it was on the 24th when he asked for union representation. Ward had no record or memory of any activity involving Wade on April 24, 2007.
In applying the Washington State Patrol analysis spelled out above, the testimony and evidence do not support that this interview qualifies as a Weingarten situation.
1. The Right to Representation Attaches Only Where the Employer Compels the Employee to Attend an Investigatory Meeting
There was no evidence or testimony that either Wade or Ward believed that this was an investigatory meeting or that Wade was compelled to be at the meeting. The meeting appears to have been a conversation initiated for a specific purpose; a physician’s note limiting Wade’s work activities. It was only in the process of that conversation did Ward discovered evidence that perhaps Wade was appearing to repeat past behavior for which he had been disciplined. Ward did not compel Wade to attend the meeting and the meeting was not intended to be an investigation related to discipline. Snohomish County, Decision 4995-B (PECB, 1996).
2. A Significant Purpose of the Interview Must Be (or Becomes) to Obtain Facts Related to a Disciplinary Action
3. The Employee Must Reasonably Believe Potential Discipline Might Result From the Information Obtained During the Interview. Mason County, Decision 7048 (PECB, 2000)
It does appear from Ward’s testimony and her log that during the course of the conversation in Wade’s office and during their visit to the boiler room, the meeting became investigatory. Both knew that Wade had been disciplined in November 2006 for apparently living in the boiler room at his earlier assignment at a different school. Therefore, it appears reasonable that Ward would ask questions about what she was seeing and that Wade could believe that questions concerning having household goods in the boiler room could again lead to discipline.
4. The Employee Must Request the Presence of a Union Representative
Although Wade asserts that he did ask for union representation at meeting, his memory was that the meeting took place on April 24, 2007. There is no evidence to support his assertion and, as referenced earlier, his credibility with dates had previously been a problem. Ward did not remember that Wade asked for union representation and her log for the 23rd does not record such a request.
CONCLUSION
The union did not prove by a preponderance of the evidence that the conversations between Ward and Wade on April 23, 2007, complied with the standards set forth in Weingarten and Washington State Patrol. As presented, the evidence concerning the meeting on April 23, 2007, cannot be the basis for the finding of an interference unfair labor practice.
April 26, 2007 Meeting
Ward made no entries in her log concerning April 24, 2007. On April 25, 2007, she recorded that she attended a supervisor meeting. On April 26, she recorded and testified that she met with Wade at Viewlands to give him a “Letter of Direction.” At the outset of their meeting, Wade told her that he wanted it delivered with a union representative present. She agreed with his request and said that she would set up such a meeting. She then recorded in her log and testified that he “kept dragging me back into a conversation about it (the Letter of Direction).”
Ward testified that the “Letter of Direction” was done following a procedure documented to her in a December, 2006 e-mail from her supervisor that explained the different steps of progressive discipline to be used in the district. She testified that it was not her understanding that the letter that she was going to give Wade was discipline, but was part of the first step of counseling. She further testified that following her meeting on April 26, as she said she would, she set up a meeting with Wade and a union representative for May 7, 2007. She gave Wade the “Letter of Direction” at that meeting with a union representative present.
Again, the facts will be analyzed against the standards of Weingarten and Washington State Patrol.
1. The Right to Representation Attaches Only Where the Employer Compels the Employee to Attend an Investigatory Meeting
The evidence presented concerning the meeting on this date does not prove that Wade was compelled to attend the meeting or that Ward’s intended purpose for the meeting was further investigation. Ward credibly testified that she intended only to present Wade with a prepared “Letter of Direction” which concerned the personal belongings that she had seen in the boiler room and a concern about not flushing out the school’s water system. The mere presenting of such a letter does not make the meeting “Investigatory” under the standards of Weingarten. City of Tacoma, Decision 3346-A (PECB, 1990)
Ward testified that she had not intended it to be an investigatory meeting as she had prepared the letter and was ready to give it to him. Further investigation of the incidents of the 23th as spelled out on the Letter of Direction would seem superfluous. The first test for a Weingarten violation has not been proven.
2. A Significant Purpose of the Interview Must Be (or Becomes) to Obtain Facts Related to a Disciplinary Action
3. The Employee Must Reasonably Believe Potential Discipline Might Result From the Information Obtained During the Interview. Mason County, Decision 7048 (PECB, 2000)
Wade and Ward both testified that after his request for union representation, the conversation continued. Ward stated that she tried to leave his office several times, but he kept talking. As his side of the conversation was getting louder and there were people outside of his office, she closed the door and let him continue. She testified that he talked about whether he had brought personal items from home while she was trying to explain the Letter of Direction to him, and that part of her job was coaching and counseling.
Through its testimony and evidence, the union did not prove that significant purpose of this meeting was or became an investigation that would lead to disciplinary action. Whether or not a Letter of Direction is discipline, only presenting such a letter does not give rise to Weingarten rights.
Weingarten rights do not extend to all meetings between an employer and its employees. An employer may call a meeting for the purpose of discussing general work problems, or even to cite certain workers to illustrate or correct problems. Northwest Engineering Co., 265 NLRB 190 (1982). If there is no “reasonable cause” to believe that the meeting is for the purpose of investigating circumstances that may result in discipline, there is no right under Weingarten to union representation.
Pierce County Fire District, Decision 3334 (PECB, 1989).
As long as such a meeting does not become an investigatory meeting a union representative is not required. Therefore, Ward was not required to stop the meeting upon Wade’s request. But she did so and then attempted to leave. Further, the course of the discussion after the request does not describe a continuing investigation that would require the presence of a union representative. Ward testified that “I just kept trying to clarify to him, again and again, where I was coming from, what I was doing there that day.” The second and third tests for a Weingarten violation have not been proved.
4. The Employee Must Request the Presence of a Union Representative
Wade did request the presence of a union representative. Both Wade and Ward were clear on this point. The fourth test has been proven. However, because the earlier tests have not been proven, there was no Weingarten violation at this meeting.
CONCLUSION
The union has not proven that Wade was denied his Weingarten rights at the meeting on April 26, 2007. The evidence as presented cannot be the basis for the finding of an interference unfair labor practice.
FINDINGS OF FACT
1. The Seattle School District is an employer within the meaning of Chapter 41.56 RCW and is a party to a collective bargaining agreement with the International Union of Operating Engineers, Local 609. One of the schools in the district is Viewlands Elementary School.
2. The International Union of Operating Engineers, Local 609, an employee organization within the meaning of Chapter 41.56 RCW, is the exclusive bargaining representative of a bargaining unit of classified employees of the employer, which includes custodial engineers.
3. Shelly Ward is a custodial area supervisor, and as a part of her duties she supervises the custodial engineers and custodians at Viewlands.
4. Michael Wade is a custodial engineer at Viewlands and his immediate supervisor is Ward.
5. On April 23, 2007, Ward visited Wade at his office at Viewlands to discuss a medical notice she had received from him and noted that he had a non-school issued computer, an aquarium and a box of vacuum parts that did not seem appropriate. When she went to the boiler room that he was responsible for, she noted dishes and silverware and items that she could not identify that she did not think were appropriately stored there. Because this behavior was consistent with past disciplined behavior, she reminded him that he was not supposed to have personal items at school. They also talked about why he had not flushed the school’s water system as a part of his usual maintenance routine.
6. The evidence presented did not prove that Wade asked for union representation at the meeting with Ward on April 23, 2007.
7. As a part of the employer’s employee improvement and progressive discipline program, an immediate supervisor may give an employee a “Letter of Direction” to give them directions concerning specific issues.
8. On April 26, 2007, Ward visited Wade at his assigned school to give him a prepared “Letter of Direction” concerning the issues that she had raised on April 23, 2007. He asked for a union representative to be present before she gave him the document and she agreed. He then continued to ask her questions about her concerns and she tried to explain them further.
9. Ward gave Wade the “Letter of Direction” on May 7, 2007, with a union representative present at the meeting.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 361-45 WAC.
2. The events and conversations which occurred on April 23, 2007, between Custodial Supervisor Shelly Ward and Custodial Engineer Michael Ward as detailed in Findings of Fact 5 and 6, do not constitute a investigatory interview as described in Weingarten and did not interfere with Wards rights as a bargaining unit employee or violate RCW 41.56.140 (1).
3. The events and conversations which occurred on April 26, 2007, between Custodial Supervisor Shelly Ward and Custodial Engineer Michael Ward as detailed in Findings of Fact 7, 8, and 9 do not constitute a investigatory interview as described in Weingarten; were not an interference with Wards rights as a bargaining unit employee or violate RCW 41.56.140(1).
ORDER
The complaint charging unfair labor practices filed in the above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 22nd day of September, 2010.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
WALTER M. STUTEVILLE, 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.