Washington State Patrol, Decision 11775-A (PSRA, 2014)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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WASHINGTON PUBLIC EMPLOYEES
Complainant,
vs.
WASHINGTON STATE PATROL,
Respondent.
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CASE 24211-U-11-6200
DECISION 11775-A - PSRA
DECISION OF COMMISSION
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Schwerin Campbell Barnard Iglitzin & Lavitt, L.L.P., by Kathleen Phair Barnard, Attorney at Law, and Laura Ewan, Attorney at Law, for the union.
Attorney General Robert W. Ferguson, by Stewart Johnston, Senior Counsel, and Kristi D. Kelly, Assistant Attorney General, for the employer.
The Washington State Patrol (employer) adheres to a detailed procedure when it investigates allegations of non-criminal employee misconduct. Those procedures include a directive to employees not to discuss the investigation with individuals other than their union or legal representative. When the employer investigates a bargaining unit employee for misconduct, the exclusive bargaining representative may represent the employee and may investigate facts to represent the employees. In this case, the Washington Public Employees Association (union) investigated facts while the employer conducted its internal investigation. After the employer interviewed the employee under investigation, the union representative shared information he obtained while investigating the facts of the case. The employer instructed the union representative not to conduct concurrent investigations.
This case presents the issue of whether the employer interfered with employee rights when the employer directed the union not to investigate facts while the employer was conducting its internal investigation.
The employer interfered with employee rights when it directed the union not to investigate facts, access records, or make telephone calls while the employer was conducting its internal investigation. An employer interferes with an employee’s statutory collective bargaining rights when an employer’s communication or action could reasonably be perceived as a threat of reprisal or force, or a promise of benefit. The union shop steward was exercising statutorily protected rights when he investigated facts pertinent to the allegation of employee misconduct during the employer’s internal investigation. The employer’s directive to the union shop steward not to conduct a parallel investigation interfered with employee rights.
ANALYSIS
Legal Standards
It is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their statutory rights. RCW 41.80.110(1)(a).
To prove an interference violation, the complainant must prove, by a preponderance of the evidence, the employer’s conduct interfered with protected employee rights. Grays Harbor College, Decision 9946-A (PSRA, 2009); Pasco Housing Authority, Decision 5927-A (PECB, 1997), aff’d, 98 Wn. App. 809 (2000)(remedy affirmed). An employer interferes with employee rights when an employee could reasonably perceive the employer’s actions as a threat of reprisal or force, or a promise of benefit, associated with the union activity of that employee or of other employees. Kennewick School District, Decision 5632-A (PECB, 1996).
An employer may interfere with employee rights by making statements, through written communication, or by actions. Snohomish County, Decision 9834-B (PECB, 2008); Pasco Housing Authority, Decision 5927-A (PECB, 1997), aff’d, 98 Wn. App. 809 (2000)(remedy affirmed).
The complainant is not required to demonstrate that 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 had union animus for an interference charge to prevail. City of Tacoma, Decision 6793-A.
Application of Legal Standards
This case arises from the employer’s internal investigation into non-criminal employee misconduct and the employer’s direction to the union shop steward not to investigate facts while the employer was conducting its internal investigation. First, we will discuss the employer’s procedure for investigating non-criminal employee misconduct. Second, we will discuss the circumstances giving rise to this complaint. Third, we will determine whether the union representative had a right under the collective bargaining agreement to use the employer’s resources during work time to conduct the investigation. Fourth, to determine whether the employer’s direction was interference, we will determine whether the investigation was a statutorily protected right and, if so, whether the union exercised that right in a reasonable manner. Finally, we will determine whether the employer interfered with employee rights.
The employer’s OPS division investigates allegations of employee misconduct.
The Office of Professional Standards (OPS) is the division of the employer responsible for investigating non-criminal employee misconduct. Investigations of employee misconduct are governed by the Administrative Investigation Manual for Civil Service Employees (AIM).
Upon receiving a complaint that an employee may have violated one of the employer’s policies, an Internal Incident Report (IIR) is completed and given to the employee. When the employer serves the employee with the IIR, the employee is given a restrictive contact order. The restrictive contact order notifies the employee that the employee is subject to an administrative investigation and, effective immediately, the employee is “to have no communication regarding this matter, either on-duty or off-duty, with any persons, employees or potential witnesses until the conclusion of” the investigation. The directive prohibits communications with those “individuals about [the] matter by any means to include: fax, telephone, mail, electronic messaging, in-person, person to person relay or any other form of communication.” The restrictive order does not prohibit discussion with the employee’s “District/Division Commander, union representative, legal advisor or persons acting under the authority of the Chief.” Failure to comply with the directive can be grounds for discipline.
Following the OPS investigation, the case file is given to the appointing authority for review. The appointing authority reviews the file and confers with the OPS commander about the result. The appointing authority then issues an “administrative insight.” Once the administrative insight is issued, the restrictive order is lifted.
The shop steward’s investigation.
The employer served a bargaining unit employee with an IIR. The employee contacted bargaining unit president and shop steward Kirk Burress. Burress and the employee discussed the IIR.
After Burress spoke with the employee, Burress commenced a brief investigation into certain facts. That investigation was limited to Burress accessing a password protected employer database to confirm whether certain equipment was operational at the time of a traffic stop giving rise to the IIR and contacting another employee by telephone and asking a question about the equipment.
The collective bargaining agreement limits a union representative’s use of employer resources.
The employer contends that regardless of whether Burress was engaged in protected activity, he did not have a statutorily protected right to use state resources to investigate facts to represent a bargaining unit employee. The employer argues that Burress did not have a statutorily protected right to use state resources in contravention on the employer’s policies, the state ethics rules, and the collective bargaining agreement. The union counters that the employer offered no evidence to support its contention that Burress’s de minimis use of the employer’s equipment violated state ethics rules. The union asserts that the collective bargaining agreement addressed the use of the employer’s equipment and did not waive the union’s right “to conduct an investigation by accessing a data base to obtain information that Burress had access to in the ordinary course of his job. . .”
The Commission interprets collective bargaining agreements for limited purposes relating to their impact on statutory collective bargaining obligations. Whitman County, Decision 7735 (PECB, 2002). We will, therefore, address whether the collective bargaining agreement granted Burress a right to engage in an investigation.
The collective bargaining agreement between the employer and the union addresses the role of job representatives, also known as shop stewards. The collective bargaining agreement grants job representatives “reasonable time during their normal, working hours to prepare for and attend meetings scheduled” by the employer. Article 38.3.B. The use of work time granted by the collective bargaining agreement limits the type of representational activities an employee may use work time for to investigatory interviews and pre-disciplinary meetings in accordance with the agreement and committees established by the agreement. The agreement further requires the employee to obtain his or her supervisor’s approval to prepare for and attend authorized meetings. In this case, Burress, in his role as a job representative, had a right to prepare for the investigatory meeting during work time.
Having found that, under the collective bargaining agreement, Burress could prepare for the investigatory meeting during work time, we must determine whether Burress accessed a secured employer database and made a telephone call to another employee during work time with employer equipment in conformity with the collective bargaining agreement.
The collective bargaining agreement identifies how the employer’s resources can be used by the union. Article 38.4 governs the use of the employer’s facilities and equipment. The union is prohibited from using employer-purchased “supplies or equipment to conduct union business or representational activities.” The use of the employer’s telephone for “representational activities” is not precluded “if there is no cost to the Employer, the call is brief in duration and it does not disrupt or distract from agency business.”
Under the collective bargaining agreement, Burress could use the employer’s telephone as long as the employer did not incur a cost, the call was brief, and the call did not disrupt the employer’s business. There is no evidence that the employer incurred a cost as a result of Burress’s telephone call to another employee. Burress’s call, which lasted approximately three minutes, was brief in duration. There is no evidence that the call disrupted the employer’s business. Under the collective bargaining agreement, Burress had a right to use the employer’s telephone for representational activities. In this case, preparing to represent an employee in an investigatory interview was a representational activity. Burress’s use of the telephone was a permissible use under the collective bargaining agreement.
The collective bargaining agreement restricts how the employer’s e-mail, fax, internet, or intranet may be used. Under Article 38.4.C, a job representative may use state owned/operated equipment to communicate with the union and the employer “for the exclusive purpose of administration of this Agreement” if the use of state owned e-mail, internet, or intranet for representational purposes will “not disrupt other state employees and will not obligate other employees to make a personal use of state resources.” The use of the e-mail, internet, or intranet will “not compromise the security or integrity of state information or software.” In his role as a job representative, Burress accessed a secured employer database to obtain information in furtherance of his investigation, not to communicate with the employer or union as allowed by the collective bargaining agreement. Under the collective bargaining agreement, Burress did not have a right to access a password protected database to investigate facts.
The collective bargaining agreement granted the union a limited right to use the employer’s equipment for union business. While acting in his role as a job representative, Burress’s use of the employer’s telephone was in conformity with the contract. However, Burress’s accessing a secured database was not in conformity with the collective bargaining agreement.
Was the union’s investigation protected by the statute?
The issue before the Commission is whether the employer’s direction to the union representative not to conduct a concurrent investigation interferes with employee rights. The employer argues that the union representative did not have a right to investigate the facts prior to the employer’s investigatory interview.
It is not necessary for a union to prove an employee was engaged in protected activity to establish an interference allegation, see City of Mountlake Terrace, Decision 11831-A (PECB, 2014). However, in this case, the parties dispute whether the union representative’s investigation was protected by the statute. To determine whether the employer interfered with employee rights, it is necessary to determine whether the union representative’s investigation was statutorily protected.
When determining whether activity is protected, we first look at whether the activity was taken on behalf of the union. University of Washington, Decision 11199-A (PSRA, 2013). If the activity appears to be union activity on its face, a “reasonableness” standard is applied. Vancouver School District v. SEIU Local 92, 79 Wn. App. 905; PERC v. City of Vancouver, 107 Wn. App. 694 (Ct. App. Div II 2001). “Employee protected activity loses its protection when it is unreasonable – but reasonableness is gauged by what a reasonable person would do in the midst of industrial strife, and not by what a reasonable person would do in the more ordinary affairs of life.” Vancouver School District v. PERC, 79 Wn. App. at 922; see also Vancouver School District, Decision 3779 (PECB, 1991), rev’d, Vancouver School District, PECB 3779-A (PECB, 1992). “Conduct may fall outside of the protections of labor statutes if the conduct is irresponsible and abusive.” City of Vancouver, 107 Wn. App. at 711 (even when it was claimed the actions were taken as part of union duties, actions that amounted to a conspiracy to retaliate against a fellow employee were unprotected). If behavior becomes too disruptive or confrontational, it loses the protection of the Act. Pierce County Fire District No. 9, Decision 3334 (PECB, 1989).
A union investigation into an employee disciplinary matter loses its protection when the union representative’s conduct is unreasonable. Vancouver School District v. SEIU Local 92, 79 Wn. App. 905 In Vancouver School District, the employer investigated an incident that occurred on a school bus. The employee under investigation sought union representation. The union requested that the employer interview more witnesses, and the employer complied. After the employer completed its interviews, the union informed the employer that the union would conduct its own investigation. The union representative spoke to an employer official about the union’s planned investigation. The employer denied the union representative’s request to ride the school bus. The union conducted an investigation by going to the school bus stop. At the bus stop, the union representative approached children and asked them where they lived and if their parents were home. While the court clearly noted that investigating a grievance is protected activity, the court found the union stepped out of the protections of the law in its handling of the investigation.
Engaging in an investigation of issues related to potential disciplinary actions of a represented employee is union business protected by the statute. See City of Pullman, Decision 11148 (PECB, 2011), aff’d, Decision 11148-A (PECB, 2012). When a union investigation may be helpful in resolving matters before discipline even issues, that conduct is protected. Washington State Patrol, Decision 11863-A (PECB, 2014).
In this case, Burress’s call to another employee was an investigation taken on behalf of the union. Burress initiated his investigation after an employee contacted him and requested representation at the employer’s investigatory interview. The purpose of Burress’s investigation was to ascertain facts that might be helpful in representing the employee.
Having found that the investigation in this case was protected by the statute, the next step is to determine whether Burress’s investigation was reasonable.
A union representative’s pre-disciplinary investigation into non-criminal employee misconduct was a reasonable exercise of an employee’s rights protected by the statute. Washington State Patrol, Decision 11863-A (PECB, 2014). In Washington State Patrol, Decision 11863-A, a Washington State Patrol Troopers Association (WSPTA) representative investigated allegations of non-criminal employee misconduct prior to the employer completing its internal investigation. The WSPTA representative contacted potential bargaining unit witnesses. There was no dispute about whether the WSPTA representative used employer resources or conducted the investigation during work hours. In that case, the WSPTA representative’s investigation was reasonable and protected by the statute.
In this case, Burress, a knowledgeable and experienced union representative, investigated allegations of non-criminal employee misconduct that may have violated employer policies. Like the WSPTA representative, who conducted a limited investigation, Burress limited his inquiry to whether a Trooper’s in-car camera was operational on a certain date. However, unlike the WSPTA representative, whose investigation was conducted in a reasonable manner, Burress’s investigation was not entirely reasonable.
When investigating allegations of non-criminal employee misconduct, a union representative should undertake the investigation in conformity with the collective bargaining agreement. In this case, the collective bargaining agreement contained provisions governing permissible uses of the employer’s resources for representational activities. While the investigation was undertaken without regard for the collective bargaining agreement, the investigation was governed by the collective bargaining agreement.
There were two components to Burress’s investigation. First, Burress telephoned an employee and inquired about a fact in the case. Second, Burress accessed a secure employer database. The telephone call was a reasonable investigation into the allegations against the employee and in conformity with the collective bargaining agreement. The act of accessing a secured database was an unreasonable investigation and not protected by the statute. In this case, accessing the database was in contravention of the collective bargaining agreement and not a reasonable exercise of rights protected by the statute..
Burress conducted a limited investigation. He made one phone call and accessed a password protected database. Burress did not attempt to conceal his investigation or use the information he obtained in violation of the statute or an unreasonable manner. In fact, Burress presented the evidence obtained from his investigation at the close of the employer’s investigatory interview. While a portion of the investigation was conducted in contravention of the collective bargaining agreement, Burress’s action was not so unreasonable to cause the investigation to lose the protection of the statute. Based on the totality of the circumstances, Burress’s investigation was a reasonable exercise of his statutory rights and retains its protection under RCW 41.80.050.
The employer’s direction to Burress not to investigate facts interfered with employee rights.
The OPS detectives interviewed the employee with Burress serving as the employee’s union representative. After the interview ended, Burress asked the detectives if certain evidence existed and provided the information he obtained in his investigation.
Shortly after the meeting ended, one of the OPS investigators called Burress and requested he meet with OPS Commander Captain Christopher Gundermann. Burress met with Gundermann, Lieutenant Travis Matheson, and the two OPS detectives.
The meeting began by Gundermann and Burress discussing the employer’s investigation. Gundermann asked Burress whether Burress had accessed agency records and contacted an employee. Gundermann told Burress, “you can’t do that, we have got regulations concerning that.” The Examiner found that “Gundermann expressed concern that Burress was conducting a parallel investigation by accessing agency records and by interviewing a potential witness. Gundermann advised Burress not to use state resources and state time to conduct investigations.” Additionally, the Examiner found “Gundermann directed Burress not to access records or make telephone calls while the employer conducted its internal investigation.” Burress understood Gundermann’s direction to mean he could not discuss the case with anyone other than the employee under investigation or the detectives and that he was not to conduct a parallel investigation.
Following Gundermann’s direction, Burress asked Gundermann what he could do in the course of an investigation. Gundermann told Burress the telephone call to another employee would not have been appropriate because Burress would have been interviewing a potential witness. Burress asked what if he had firsthand knowledge of the technological facts, when would he be able to raise such facts. The Lieutenant present informed Burress the Loudermill hearing was the appropriate time to raise those facts. Gundermann added that such information could be brought to the detectives investigating the case. Burress sought clarification from the employer about what type of investigation would have been appropriate. The employer did not clarify or modify its direction to Burress.
Burress appropriately questioned the employer about the employer’s direction not to conduct a concurrent investigation. However, a more expansive conversation would have fulfilled the purposes of the statute. The parties could have engaged in a full discussion of what was and was not an appropriate investigation under the statute, the collective bargaining agreement, and other applicable rules. In this case, the conversation continued to include a directive from the employer that Burress was not to conduct an investigation.
To interfere with employee rights, an employee must reasonably perceive the employer’s statement as a threat of reprisal or force, or a promise of benefit, associated with an employee’s union activity. Kennewick School District, Decision 5632-A (PECB, 1996). The standard is not that the employer intended to interfere. City of Tacoma, Decision 6793-A. The standard is based on the employee’s reasonable perception. The burden of proof is a preponderance of the evidence. Pasco Housing Authority, Decision 5927-A.
After the meeting with Gundermann, other employees contacted Burress to represent them. Burress declined and referred the employees to the union. The intent behind Gundermann’s comments may have been cautionary, but the effect caused Burress to curb his involvement with the union. The Examiner found the standard was met. In this case, the union established by a preponderance of the evidence that an employee could perceive the employer’s direction to the union not to inquire into the facts of alleged non-criminal employee misconduct as interfering with protected employee rights.
Conclusion
In this case, the employer issued a blanket directive without regard for the union representative’s right to conduct an investigation protected by the statute. While we do not condone a union representative engaging in activity outside of the protection of the statute under the guise of union activity, based on the totality of the circumstances Burress’s overall conduct was not so unreasonable to negate the protections of the statute. On the facts of this case, the employer’s blanket direction to the union representative not to investigate the facts until after the employer concluded its investigation threatened the union representative with discipline for engaging in union activity thereby interfering with employee rights.
NOW, THEREFORE, it is
ORDERED
The Findings of Fact issued by Examiner Lisa A. Hartrich are AFFIRMED and adopted as the Findings of Fact of the Commission, except that the following Findings of Fact are added:
14. The collective bargaining agreement granted the union a limited right to use the employer’s equipment for union business. While acting in his role as a job representative, Burress’s use of the employer’s telephone was in conformity with the contract. However, Burress’s accessing a secured database was not in conformity with the collective bargaining agreement.
15. The act of accessing a secured database was not protected by the statute. The telephone call was a reasonable investigation into the allegations against the employee.
The Conclusions of Law and Order issued by Examiner Lisa A. Hartrich are AFFIRMED and adopted as the Findings of Fact, Conclusions of Law, and Order of the Commission.
ISSUED at Olympia, Washington, this 30th day of May, 2014.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN
GLENN SAYAN, Chairperson
THOMAS W. McLANE, Commissioner
MARK E. BRENNAN, Commissioner