DECISIONS

University of Washington, Decision 11091-A (PSRA, 2012)

 

 

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

paul Bentson,   Complainant,   vs.   university of washington,   Respondent.	CASES 23244-U-10-5925               23472-U-10-5984   DECISIONS 11091-A - PSRA                       11092-A - PSRA   DECISION OF COMMISSION

 

 

 

Younglove and Coker, PLLC, by Christopher J. Coker, Attorney at Law, for the complainant.

 

Robert M. McKenna, Attorney General, by Mark Yamashita, Assistant Attorney General, for the employer.

 

 

On May 25, 2010, Paul Bentson (Bentson) filed a complaint alleging that the University of Washington (employer) interfered with his protected employee rights in violation of RCW 41.80.110(1)(a).  On May 27, 2010, Unfair Labor Practice Manager David I. Gedrose issued a deficiency notice stating that the complaint as written did not present a cause of action, and giving Bentson 21 days to file an amended complaint.  On June 16, 2010, Bentson filed an amended complaint.  Bentson’s amended complaint alleged that the employer issued a letter of formal counseling for insubordination over his failure to abide by an employer directive not to use his employer-issued keys to enter locked offices to deliver grievances filed under the applicable collective bargaining.  The Unfair Labor Practice Manager issued a preliminary ruling setting the matter for hearing. 

 

On August 25, 2010, Bentson filed a second complaint alleging that the employer discriminated against him for filing an unfair labor practice in violation of RCW 41.80.110(1)(d) by refusing to allow Bentson release time to attend a June 7, 2011 negotiating session and then issuing him a final counseling letter for insubordination when he attended that meeting.  Both matters were consolidated for hearing before Examiner Charity Atchison who, after a hearing, determined that the employer did not commit an unfair labor practice.[1] 

 

Bentson filed a timely appeal challenging the Examiner’s factual findings as well as the Examiner’s conclusions of law.  Bentson claims the Examiner erred by concluding that using employer-issued keys to enter locked offices to file grievances was not protected activity.  Bentson also claims that the facts fail to support a finding that the employer placed him on notice that he was not to use his employer-issued keys for filing grievances.  Bentson further claims that the Examiner erred in concluding the employer did not discriminate against him for filing an unfair labor practice. 

 

Because the Examiner’s application of law is correct, and substantial evidence supports the Examiner’s factual findings, we affirm.[2] 

 

DISCUSSION

 

A recitation of the pertinent facts is necessary to place this decision in its proper context.  Bentson began working for the employer in 2002 as an electrician at Harborview Medical Center.  Between 2005 and 2009, Mark Olson supervised Bentson.

 

Bentson’s position is represented by the Washington Federation of State Employees (WFSE) for purposes of collective bargaining.[3]  Since 2005, Bentson has served as a WFSE shop steward.

 

Bentson’s official work requires him to access secured areas of the employer’s facilities.  Therefore, the employer issued Bentson a set of master keys that provided him access to all secured areas of the employer’s facilities. 

 

Facts Relating to Bentson’s Use of Employer-Issued Keys

The collective bargaining agreement between the employer and WFSE permits employees to file grievances over certain workplace matters, including employee discipline.  Bentson’s duties as a shop steward included filing grievances on behalf of bargaining unit employees and contacting grieving employees’ supervisors to arrange a meeting to discuss the grievance. 

 

Bentson testified that when he needed to file a grievance on behalf of an employee, he was not always able to contact that employee’s supervisor to deliver a copy of the grievance or to discuss the grievance.  In the event that he was unable to contact a supervisor, he asked the supervisor to designate an alternate contact person to ensure that grievances were timely delivered.  Bentson testified that not every supervisor designated an alternate contact person.  He also testified that in the event he continued to have difficulty serving a grievance upon a supervisor, he would find a witness, use his employer-issued keys to open the supervisor’s office, and place the grievance on the supervisor’s desk.   

 

Olson testified that during the time he supervised Bentson, he received a complaint regarding Bentson’s use of employer-issued keys to enter locked offices to deliver grievances.  In response to this complaint, Olson stated that he directed Bentson not to enter a manager’s office unless the manager was present, and that if the manager was not present, to make arrangements to meet the manager.  Olson also testified that he told Bentson that if a grievance was time sensitive and a manager was not present, he should find a witness, preferably a supervisory level employee in the same department, to verify that Bentson placed the grievance on the manager’s desk.  The Examiner found Olson’s testimony credible.  

Bentson testified that he raised the issue of delivering grievances to managers in a labor management meeting.  The record lacks evidence demonstrating that WFSE and the employer resolved how shop stewards should deliver grievances should the necessary supervisor be unavailable.  Bentson testified that Interim Vice-President of Human Resources Peter Denis told him that it was acceptable to enter locked offices to deliver grievances.  Denis testified that he did not have the authority to direct Bentson’s use of employer-issued keys and instructed Bentson to “follow the rules” for delivering grievances established by the collective bargaining agreement.  The Examiner did not credit either Bentson’s or Denis’ testimony on this point. 

 

On Monday, June 29, 2009, Brenda Ferguson, a nurse manager, entered her locked office and found a grievance form on her desk.  Ferguson had not been in the office since the previous Thursday, and a different manager had been acting in her place.  The next day, Bentson approached Ferguson and asked her if she had received the grievance.  Ferguson then asked Benton if he had entered her office.  Bentson admitted that he entered her office to deliver the grievance.  Ferguson reported the incident to the employer’s Human Resources Department. 

 

On July 20, 2009, Pam Jorgensen, Administrative Director of Facilities and Engineering at Harborview Medical Center, had a hallway conversation with Bentson and informed him that he was not to use employer-issued keys to deliver grievances.  Jorgensen testified that she did not document the meeting.  Although Bentson testified that he could not recall having this conversation with Jorgensen, the Examiner specifically credited Jorgensen’s testimony regarding this event.

 

The record reflects a September 24, 2009 incident where Bentson attempted to enter the locked office of Anne Newcombe, the Clinical Director of Emergency Services, to deliver a grievance.  In an e-mail to Jorgensen, Newcombe stated that she intercepted Bentson before he could enter her office, and that Bentson handed her the grievance.  Although other documents entered into evidence reflect Newcombe’s version of this incident, Newcombe did not testify, and the Examiner properly rejected the employer’s attempt to enter into evidence Newcombe’s declaration regarding the incident.  Bentson testified that he could not recall if the individual that he delivered the grievance to answered the door or approached him from the hallway.    

On October 13, 2009, Chinua Lambie, the Harborview Rehabilitation Clinic Manager, returned to his office to find a grievance had been placed on his desk.  Lambie testified that he locks his door when he leaves his office.  Lambie reported the incident to the Human Resources Department.  

 

On October 26, 2009, Jorgensen sent an e-mail to Bentson informing him that he was under investigation for improper use of his employer-issued keys for union-related work.  Bentson replied by stating that Jorgensen could not “investigate [him] or any other steward while [they] are doing [their] union business.”  Bentson also directed Jorgensen to contact Lou Pisano, the employer’s Director of Labor Relations. 

 

On November 13, 2009, Jorgensen held a meeting to investigate Bentson’s use of employer-issued keys to enter locked offices.  Lynn Diaz, a member of the employer’s Human Resources Department, and Addley Tole, a WFSE official, also attended the meeting.  Jorgensen informed Bentson that he could use his employer-issued keys to perform his electrical duties.  Jorgensen also questioned Bentson about his use or attempted use of employer-issued keys to enter Lambie’s and Newcombe’s offices to deliver grievances.  Jorgensen testified that Bentson did not deny that he used his employer-issued keys to enter locked offices to deliver grievances, and admitted that he had intended to enter Newcombe’s office to deliver a grievance.  

 

Although Tole acknowledged that Bentson would follow the employer’s instructions regarding the use of employer keys, on November 16, 2009, the employer nevertheless took Bentson’s master keys leaving him only with keys necessary to perform his electrical work duties.  The employer instructed Bentson that if he needed access to an area for which he did not have a key, he could call his lead or another electrician to provide access for him. 

 

On November 30, 2009, the employer issued Bentson a formal counseling memorandum.  The reasons for the memorandum included Bentson’s failure to follow Jorgensen’s instructions to refrain from using employer-issued keys to enter locked offices to deliver grievances and for failing to separate his regular work duties from his union shop steward duties.  The memorandum requested that Bentson attend a formal counseling meeting.  The memorandum also set a “Formal Counseling Action Plan” which required Bentson to “use [his] work issued keys to access areas only for the performance of [his] job as an Electrician” and requiring him to “comply with management’s expectations – [the employer’s] keys are to be used exclusively to perform [his] responsibilities as an electrician.”  Bentson filed grievances over his formal counseling and removal of keys. 

 

Facts Relating to Allegations of Employer Discrimination for Filing an Unfair Labor Practice

In addition to being a union shop steward, Bentson served on the WFSE bargaining team, and also served as a WFSE representative on two safety committees.  In March of 2010, Bentson informed Jorgensen that he was involved in a campus-wide committee on health and safety.  Those meetings occurred at a time after Bentson’s regular work shift.  Jorgensen permitted Bentson to attend those meetings during work hours, and directed Bentson to adjust his work schedule to ensure that the meetings occurred during his regular work shift so Bentson did not accrue overtime for his attendance.  Bentson did not adjust his work schedule when he attended the meeting on two different occasions.  When Bentson attempted to claim overtime, Jorgensen denied those claims.  Bentson filed a grievance over the matter.  Although Jorgensen eventually settled the grievance by paying Bentson the overtime, she testified that she did so to avoid any wage-hour complaints and still expected Bentson to adjust his schedule to attend future committee meetings.   

 

On May 25, 2010, Bentson filed his first unfair labor practice complaint.   

 

On May 28, 2010, Leeanna Shaw, a union representative, contacted both Denis and Carly Williams (Williams), an Administrative Specialist with the employer’s Labor Relations Department, requesting that five employees, including Bentson, be given release time to participate in a June 7, 2010 negotiation session.  Williams forwarded the request to Jorgensen that same day asking if the request could be accommodated.  On June 1, 2010, Jorgensen responded to Williams by stating that she would not approve release time for Bentson.  Jorgensen explained in her e-mail to Williams that on Monday, June 7, 2009, only two electricians would be available on campus, and if Bentson were to be released, that would leave only one.  There is no evidence in this record demonstrating that Jorgensen was aware that Bentson had filed his May 25, 2010 unfair labor practice complaint.  Williams forwarded Jorgensen’s message to Shaw and Banks Evans (Evans), another union representative. 

 

On June 3, 2010, Bart Hermes, the employer’s Interim Assistant Director for Facilities and Engineering, approved sick leave for the other electrician to be absent on Monday, June 14, 2010, and Monday, June 25, 2010.  Jorgensen also approved that leave on June 4, 2010.   

 

On the morning of June 7, 2010, Tole sent Bentson and Jorgensen an e-mail stating that Bentson had not heard from Jorgensen about whether he was released to attend the meeting.  Tole asked Jorgensen to promptly respond, and, if Bentson’s release time was denied, to provide an explanation.  Jorgensen replied to Tole later that morning by forwarding her the June 1, 2010 e-mail response that had been sent to Williams stating that Bentson was not released to attend the negotiating session.  Later that day, Tole sent Jorgensen an e-mail asking if Bentson had been informed of that decision.  Jorgensen did not reply to this message, and neither Tole nor Jorgensen forwarded this message to Bentson.  Bentson attended the negotiating session.  

 

On June 17, 2010, Bentson filed an amended complaint alleging the employer interfered with his rights by issuing a formal counseling letter and action plan as a result of his protected conduct.  Also on June 17, 2010, Jorgensen issued Bentson a final counseling memorandum for insubordination for accruing unauthorized overtime on two occasions in April and May of 2010 and for attending the June 2010 negotiating session without authorization.  

 

On August 25, 2010, Bentson filed a second complaint alleging the June 17, 2010 final counseling memorandum was issued in retaliation for the May 25, 2010 unfair labor practice. 

 

ISSUE 1 – Did the Employer Interfere with Bentson’s Protected Rights?

 

Applicable Legal Standard – Statute of Limitations

This Commission has the power and authority to evaluate and remedy an unfair labor practice if an unfair labor practice complaint is filed within six months of the occurrence.  RCW 41.80.120(1).  “The six-month statute of limitations begins to run when the complainant knows or should know of the violation.”  Spokane Community College, Decision 9795-A (PSRA, 2008), citing City of Bellevue, Decision 9343-A (PECB, 2007).  The start of the six-month period, also called the triggering event, occurs when “a potential complainant has actual or constructive notice of the complained-of action.”  Emergency Dispatch Center, Decision 3255-B (PECB, 1990).

 

Bentson filed his first complaint alleging the employer interfered with his protected rights on May 25, 2010.  Applying the RCW 41.80.120(1) six-month statute of limitations to that date demonstrates that the only complained-of conduct that may be considered a violation of the Act are those events that occurred after November 25, 2009.  An examination of the facts presented further demonstrates that the November 30, 2009 formal counseling memorandum is the only employer action that is timely under the statute.  Other events that occurred before the November 25, 2009 date may be considered as background information, but cannot be considered violations of Chapter 41.80 RCW.  See Seattle School District, Decision 9355-A (EDUC, 2007). 

 

Applicable Legal Standard - Interference

Generally, the test for interference is whether a typical employee could, in the same circumstances, reasonably perceive the employer’s action as discouraging his or her union activities.  RCW 41.80.110(1)(a), see also Grant County Public Hospital District 1, Decision 8378-A (PECB, 2004).  A complainant is not required to show intent or motive for interference, that the employee involved was actually coerced, or that the respondent had a union animus.  King County, Decision 8630-A (PECB, 2005).  The complainant bears the burden of demonstrating that the employer’s conduct resulted in harm to protected employee rights.

 

On appeal, Bentson argues that the Examiner erred by considering the method in which he serves a grievance as a separate and distinct transaction from the filing of a grievance.  In Bentson’s opinion, all conduct surrounding the filing of his grievance, including the method by which that grievance is served, is protected activity.  Therefore, Bentson asserts the employer interfered with his protected rights when it limited the methods by which he could serve a grievance and by issuing him a letter of counseling.

 

Additionally, Bentson argues that the record does not support the Examiner’s conclusion that Jorgensen instructed him on July 20, 2009, to not use his employer-issued keys to enter locked offices to file grievances.  Bentson argues that the collective bargaining agreement between the employer and WFSE permits employees de minimis use of the employer’s equipment for union business, and since at least 2005, he had used his employer-issued keys to deliver grievances, and therefore a past practice existed allowing him to use employer equipment to service grievances.  We disagree with these contentions. 

 

In Central Washington University, Decision 10118-A (PSRA, 2010), the Commission held that “Washington’s labor laws do not give public employees an independent right to use an employer’s equipment or facilities for union business . . . .”  The Commission went on to explain that the law recognizes that the limitation on a union’s use of the employer’s facilities and equipment may be modified through collective bargaining.  See Central Washington University, Decision 10118-A, see also Whatcom County, Decision 8425-A (PECB, 2004).  While the act of initiating a grievance for processing is considered protected activity, nothing expressly gives an employee a protected right to use employer equipment to serve those contractual grievances upon the employer.  This includes using the employer’s equipment to physically prepare or file that grievance.  Therefore, it was not a reversible error for the Examiner to analyze separately the method by which Bentson served grievances.

 

Here, Bentson did not have the express right under Chapter 41.80 RCW to use employer-issued equipment to file grievances.  While the collective bargaining agreement between the employer and WFSE may have permitted employees de minimis use of employer equipment for union business, any allegation that the employer had violated that provision needed to be resolved through the contract’s grievance provision, and not the unfair labor practice provisions.  See City of Walla Walla, Decision 104 (PECB, 1976).

 

We also find that substantial evidence supports the Examiner’s finding that Jorgensen instructed Bentson not to use employer-issued keys to enter locked offices to file grievances.  Although Bentson argues that no evidence exists demonstrating the meeting with Jorgensen actually occurred, the Examiner made a specific finding crediting Jorgensen’s versions of events, and substantial evidence supports that finding.  In light of Jorgensen’s July 30, 2009 instructions, we agree with the Examiner’s conclusion that it was not reasonable for Bentson to continue to use his employer-issued keys to enter locked offices to file grievances.  As the Examiner correctly pointed out, Bentson’s recourse at that time was to work with his bargaining representative and management to find an acceptable solution.  Bentson continued to use his employer-issued keys for matters not associated with his duties for the employer.   Accordingly, when Jorgensen issued Bentson the November 30, 2009 formal counseling letter for insubordination, she did not interfere with Bentson’s protected rights.    

 

Finally, we reject Bentson’s argument that a past practice existed which allowed him to use employer-issued keys to enter locked offices, as that alleged past practice was beyond the scope of his May 25, 2010 complaint.  Bentson’s complaint only alleges that the employer interfered with his protected right.  The complaint does not allege that the employer unilaterally changed a term or condition of employment, and the preliminary ruling did not frame a unilateral change allegation.  See King County, Decision 9075-A (PECB, 2007)(Agency examiners may only rule upon the issues framed by the preliminary ruling).  Therefore, whether the employer altered a past practice is beyond the scope of the complaint.[4] 

 

Conclusion

We agree with the Examiner’s conclusion that the employer did not interfere with Bentson’s protected rights because the formal counseling letter was issued in reaction to activity that lacked statutory protection.  Accordingly, Bentson’s May 25, 2010 interference complaint was properly dismissed.    

 

 

 

 

ISSUE 2 – Discrimination for Filing an Unfair Labor Practice 

 

Applicable Legal Standard

RCW 41.80.110(1)(d) makes it an unfair labor practice for an employer to discharge or discriminate against an employee because that employee has filed a charge or given testimony under Chapter 41.80 RCW.  As in other discrimination cases, the complainant maintains the burden of proof.  Educational Service District 114, Decision 4361-A (PECB, 1994). 

 

To prove discrimination, the complainant must first set forth a prima facie case of discrimination by establishing the following:

 

1. An employee participated in an activity protected by the collective bargaining statute or communicated to the respondent 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 filing of an unfair labor practice or the presentation of testimony in a hearing brought under Chapter 41.80 RCW and the respondent’s action.

 

Ordinarily, an employee may use circumstantial evidence to establish the prima facie case because respondents do not typically announce a discriminatory motive for their actions.  Clark County, Decision 9127-A (PECB, 2007).  Circumstantial evidence consists of proof of facts or circumstances which according to the common experience give rise to a reasonable inference of the truth of the fact sought to be proved.

 

In response to a complainant’s prima facie case of discrimination, the respondent need only articulate its non-discriminatory reasons for acting in such a manner.  The respondent does not bear the burden of proof to establish those reasons.  Port of Tacoma, Decision 4626-A (PECB, 1995).  If the respondent produces evidence of a legitimate basis for the discriminatory action, the complainant must then prove, by a preponderance of the evidence, the respondent’s actions were nevertheless taken in retaliation for the exercise of statutory rights.  Community College District 13, Decision 8117-B (PSRA, 2005).  The complainant meets this ultimate burden by proving either that the respondent’s reasons were pretextual, or that union animus was nevertheless a substantial motivating factor behind the alleged retaliatory actions.  Port of Tacoma, Decision 4626-A.  An examiner ruling in such cases may base her or his findings on an inference drawn from circumstantial evidence, although such an inference cannot be entirely speculative or improbable.  Metropolitan Park District of Tacoma, Decision 2272 (PECB, 1986). 

 

Application of Standards

The Examiner found that Bentson established a prima facie case of discrimination:  Bentson filed an unfair labor practice, Jorgensen denied Bentson release time to attend a union negotiating session and issued Bentson a formal letter of counseling for insubordination when he attended that session, and a causal connection exists between Bentson’s activity and the discipline.  Neither Bentson nor the employer has challenged this conclusion.

 

The Examiner then held that the employer articulated non-discriminatory reasons for its actions.  Specifically, the Examiner found that Jorgensen had instructed Bentson to adjust his work schedule in order to attend safety committee meetings during his regular work shifts so that he would not accrue overtime, and Bentson failed to follow that instruction.  Therefore, because Bentson did not adjust his work schedule to attend the safety committee meeting during his regular work hours as instructed, his attempt to claim overtime for attendance at two of those meetings was initially denied.[5] 

 

Additionally, the Examiner found that Jorgensen had informed the WFSE representative that Bentson was not authorized to leave his work station to attend the June 17, 2010 negotiating session because Bentson’s attendance would leave the employer with only one electrician on staff.  Thus, when Bentson chose to attend the meetings in a manner contrary to Jorgensen’s directives, the Examiner found that the imposed discipline was based upon Bentson’s insubordination and not his union activity. 

On appeal, Bentson argued that the Examiner erred in finding the employer articulated non-discriminatory reasons.  Bentson asserted that the record does not support Jorgensen’s reasons for denying Bentson release time to attend the negotiating session, and specifically contests the employer’s argument that it needed two electricians on duty on Monday, June 7, 2009.  Bentson points out that Jorgensen ultimately approved sick leave for a different electrician on Monday, June 14, 2010, and Monday, June 25, 2010.  Therefore, according to Bentson, Jorgensen’s stated reason for denying his release was not legitimate.  We disagree. 

 

Under the standards announced above, the employer is only required to articulate non-discriminatory reasons, and is not under an obligation to prove those reasons by a preponderance of the evidence.  Bentson’s disagreement with the articulated reasons does not invalidate the employer’s reasons.  Thus, the question here is whether substantial evidence supports the Examiner’s conclusion that Bentson failed to demonstrate that the employer’s motives were substantially motivated by union animus. 

 

A key element of discrimination cases filed under RCW 41.80.110(1)(c) is that the individual imposing the discipline had knowledge that the employee filed an unfair labor practice complaint or gave testimony in a hearing.  Like other discrimination cases, the complainant may demonstrate that through circumstantial evidence, but the burden nevertheless rests with the complainant.  No evidence in this record demonstrates that Jorgensen knew that Bentson had filed an unfair labor practice complaint when she denied his release time request.  While Bentson is certainly correct that an employer will not provide a smoking gun regarding alleged discriminatory acts, Bentson, as the complainant, still bore the burden of production on this material fact. 

 

Finally, Bentson asserts that the Examiner erred in concluding that his attendance at the June 7, 2010 session was evidence of insubordination.  Bentson points out that the evidence fails to establish that the employer placed him on notice that he could not attend the negotiating session.  We disagree with this assertion.  This record supports the Examiner’s findings that Jorgensen placed Tole, Shaw, and Evens on notice of her decision.  Tole, as the union representative making the release time request on behalf of Bentson, had an obligation to inform Bentson of Jorgensen’s decision.  Shaw and Evans also could have informed Benston of the decision.  Accordingly, the formal letter of counseling issued to Bentson was not based upon his union activity; rather, as the Examiner properly found, discipline was issued because he was insubordinate by rejecting his supervisor’s instructions.

 

Conclusion

This record supports the Examiner’s conclusion that the activities for which the June 17 formal counseling letter was issued to Bentson were not statutorily protected.  The allegations in Bentson’s August 25, 2010 complaint are dismissed.[6]

 

NOW, THEREFORE, it is

 

ORDERED

 

The Findings of Fact, Conclusions of Law, and Order issued by Examiner Charity L. Atchison are AFFIRMED and adopted as the Findings of Fact, Conclusions of Law, and Order of the Commission. 

 

ISSUED at Olympia, Washington, this    28th    day of February, 2012.

 

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

                                                MARILYN GLENN SAYAN, Chairperson

 

 

 

                                                PAMELA G. BRADBURN, Commissioner

 

 

 

                                                THOMAS W. McLANE, Commissioner