University of Washington, Decision 11309-C (PSRA, 2013)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
|
Washington Federation of state employees,
Complainant,
vs.
University of washington,
Respondent.
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CASE 23900-U-11-6103
DECISION 11309-C - PSRA
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
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Younglove & Coker, P.L.L.C., by Edward Earl Younglove III, Attorney at Law, for the union.
Attorney General Robert W. Ferguson, by Mark K. Yamashita, Assistant Attorney General, for the employer.
On March 30, 2011, the Washington Federation of State Employees (union) filed an unfair labor practice complaint alleging that the University of Washington (employer) discriminated against Nicole Kennedy in violation of RCW 41.80.110(1)(d), when it disciplined Kennedy in reprisal for union activities protected by Chapter 41.80 RCW. The complaint was reviewed under WAC 391-45-110 and a preliminary ruling was issued on April 11, 2011, finding a cause of action to exist. On April 13, 2011, the Commission assigned the matter to Examiner Claire Nickleberry, who presided over a hearing on July 25, 2011. The parties filed post-hearing briefs for consideration.
On March 2, 2012, I issued a decision finding that the employer discriminated against Kennedy in violation of RCW 41.80.110(1)(d).[1] On March 6, 2012, I modified the Order that I issued on March 2, 2012.[2] The employer appealed to the Commission. On April 16, 2013, the Commission remanded the case to me to enter findings of fact, including credibility determinations, and conclusions of law.[3]
ISSUE
Did the employer discriminate against Nicole Kennedy when it disciplined her in reprisal for union activities protected by Chapter 41.80 RCW?
After examining the record as a whole, I find that the employer did discriminate against Kennedy for attending a union-management meeting when the employer disciplined Kennedy with a Final Counseling Memorandum on October 19, 2010.
APPLICABLE LEGAL STANDARD
Discrimination
An employer unlawfully discriminates against an employee when it takes action in reprisal for the employee’s exercise of rights protected by Chapter 41.80 RCW. Central Washington University, Decision 10118-A (PSRA, 2010); see also Educational Service District 114. Decision 4361-A (PECB, 1994). The employee maintains the burden of proof in employer discrimination cases. To prove discrimination, the employee must first set forth a prima facie case by establishing the following:
1. The employee participated in an activity protected by the collective bargaining statute, or communicated to the employer an intent to do so;
2. The employer deprived the employee of some ascertainable right, benefit or status; and
3. A causal connection exists between the employee’s exercise of a protected activity and the employer’s action.
Ordinarily, an employee may use circumstantial evidence to establish the prima facie case because parties do not typically announce a discriminatory motive for their actions. Clark County, Decision 9127-A (PECB, 2007).
In response to an employee’s prima facie case of discrimination, the employer need only articulate its non-discriminatory reasons for acting in such a manner. The employer does not bear the burden of proof to establish those reasons. Port of Tacoma, Decision 4626-A (PECB, 1995). Instead, the burden remains on the employee to prove by a preponderance of the evidence that the disputed action was in retaliation for the employee’s exercise of statutory rights. Clark County, Decision 9127-A. The employee meets this burden by proving either that the employer’s reasons were pretextual, or that union animus was a substantial motivating factor behind the employer’s actions. Port of Tacoma, Decision 4626-A.
To prove discriminatory motivation, the employee must establish that the employer had knowledge of the employee’s union activity. An examiner may base such a finding on an inference drawn from circumstantial evidence although such an inference cannot be entirely speculative or improbable. Circumstantial evidence consists of proof of facts or circumstances which according to the common experience gives rise to a reasonable inference of the truth of the fact sought to be proved.
ANALYSIS
Nicole Kennedy has been employed at the University of Washington Medical Center since May 2007. During the time relevant to this case, Kennedy was a Health Assistant with the employer’s Patient Transport Unit. Kennedy participated in union activities, including negotiations, before becoming a shop steward in March 2010.
In September 2010, the employer requested to meet with staff from multiple unions who represent employees of the employer. The union informed the employer that it would not participate in the meeting without having its bargaining unit members present at the meeting. Greg Devereux, Executive Director of the union, had several conversations with the employer to arrange for members to attend the October 1, 2010 meeting. Kennedy and one other member were chosen by the union to attend the meeting and release time was approved by the employer. Kennedy was notified of this approval.
On October 1, 2010, the day of the union-management meeting, Kennedy called into the employer’s sick line indicating she would be out for the day due to “flu like symptoms.” The department she works in has a list of physical symptoms that prevent an employee from being able to work with patients. If you have any of those symptoms, you cannot work with patients. Kennedy made this call at 6:19 A.M. for her shift that was to begin at 7:00 A.M. Department policy dictates that an employee needs to call in ill at least one hour in advance of their shift and if they fail to do so the entire day will be considered leave without pay. Kennedy then rested, felt better, and went to the union-management meeting, which began at 2:00 P.M. After the October 1 meeting, the union staff and members met to debrief and then attended a joint social hour.
At 2:03 P.M. on October 1, Peter Denis, Assistant Vice President of Human Resources, sent an e-mail to Dorthea McMahon, Kennedy’s manager, with a subject line stating “She’s here!!!” and no other text in the e-mail. At 3:15 P.M., McMahon forwarded this email to Kyle Rodrick, Kennedy’s direct supervisor who reports to McMahon, and Becky Hammontree, Human Resource Consultant:
Nicole called out sick for her 7:00 AM shift at 6:19 AM today claiming flu symptoms and went to the labor meeting this afternoon. Kyle had confirmed with her that release time today would not be an issue, so that excuse, while not even valid, wouldn’t be relevant anyway. What are our next steps? This is not acceptable behavior from a steward and I would like to invoke the maximum allowed corrective action.
On October 4, 2010, Kennedy’s next work day, Rodrick attempted to contact Kennedy at the end of her shift to inform her of an investigatory interview scheduled for the next day, but he was unable to locate her. On October 5th, Rodrick, Kennedy, Hammontree, and a union representative met for an investigatory interview concerning the incidents on October 1st and 4th. On October 19, 2010, Rodrick issued Kennedy a final counseling memorandum. The employer defended this level of discipline based on previous disciplinary actions.
Employee’s Prima Facie Case
The union must first set forth a prima facie case of discrimination by establishing: 1) Kennedy participated in protected union activity; 2) The employer deprived Kennedy of some ascertainable right, benefit or status; and 3) a causal connection exists between Kennedy’s exercise of protected activity and the employer’s action.
It is clear that Kennedy participated in protected activity when she attended the union-management meeting on October 1, 2010. The employer deprived her of an ascertainable right, benefit or status by issuing her a final counseling disciplinary memorandum on October 19, 2010. The close timing of these two events provides circumstantial evidence of a causal connection between Kennedy’s protected activity and the employer’s disciplinary action. The union set forth a prima facie case of discrimination.
The employer articulated several non-discriminatory reasons for issuing Kennedy a final counseling memorandum. The employer offered three separate instances of misconduct by Kennedy: calling in late, abuse of sick leave, and shift abandonment, in conjunction with Kennedy’s previous discipline.
McMahon’s Use of “Shop Steward”
In McMahon’s e-mail on October 1, 2010, McMahon stated that Kennedy’s actions were “not acceptable behavior from a steward.” At the hearing McMahon was asked to explain her choice of language. She said “I think that the relevance of the steward comment was really around the fact that was what she was attending a meeting on behalf of in her role as a steward.”
Kennedy’s role as a steward, rather than as an employee, has no place in the determination of appropriate discipline. McMahon’s reference to this title in her comment is highly suggestive that Kennedy’s role as a union steward factored into her decision to seek discipline. Additionally, McMahon’s comment would not make sense if she used the word “employee” instead. It would not be improper for an employee to call in sick for the day, feel better by the afternoon, and therefore attend an important work meeting. Kennedy’s attendance at this work related meeting was important to the employer and sanctioned by the employer, through its grant of release time. Deveraux had informed the employer that the union would not participate in the meeting without members in attendance. Kennedy was well aware of the importance of her attendance. McMahon appeared to give little value to the importance of this meeting which she described as “It was known that she had the labor relations or what have you meeting.”
McMahon’s testimony regarding her communications with Denis is also not credible. She denied several times that she had direct communication with Denis regarding allowing release time for Kennedy until she was presented with a copy of an e-mail showing that she had direct communication with Denis. McMahon’s many misrepresentations make her testimony and intentions unreliable.
Alleged Abuse of Sick Leave
At the time of McMahon’s October 1, 2010 e-mail quoted above, McMahon was only aware that Kennedy had called in sick late, for which the normal discipline is a day of leave without pay, and that she had attended the union-management meeting. McMahon obviously concluded that Kennedy was not sick when she called in and thus misused sick leave. The employer failed to prove this for two reasons.
First, Kennedy credibly stated that she felt ill in the morning with flu like symptoms, rested, and then felt better. Deveraux testified that Kennedy had informed him at the meeting that she had felt ill earlier in the day. Kennedy also stated that she was very aware that this was an important meeting and that Deveraux had gone to great lengths to get the two stewards released to attend, which was a motivating factor for her to make the effort to attend. The employer offered no evidence to show that Kennedy had not felt ill earlier and I have no reason to doubt her testimony.
Second, at the time of the meeting Kennedy was not using sick leave. When an employee calls in late when sick, the shift is unpaid, a policy Kennedy was aware of. Therefore, at the time of the meeting Kennedy was on unpaid time. Alternatively, Kennedy was granted release time for the meeting and thus was on leave for release time during the meeting rather than sick leave. In both scenarios Kennedy was not at the meeting while being compensated for sick leave and thus she could not have been misusing sick leave.
McMahon’s Decision to Issue Corrective Action
At the hearing McMahon testified that Rodrick, Kennedy’s direct supervisor, in consultation with Human Resources, was solely responsible for determining the extent of discipline imposed. Thus the employer suggests that any union animus held by McMahon did not impact the decision to issue Kennedy a final counseling memorandum because Rodrick had the decision-making authority. However, McMahon stated in her October 1 e-mail above that she “would like to invoke the maximum allowed corrective action” (emphasis added). This language is instructive rather than suggestive. Also, in a separate Formal Counseling Memo that Rodrick issued to Kennedy on September 21, 2010, he wrote that if the areas of concern arose again he “may recommend further correction action” (emphasis added) rather than a declaration that he would impose further corrective action. When asked at the hearing by the employer’s counsel, “When it comes to counseling meetings—excuse me—final or formal or informal counseling meetings is that something Kyle (Rodrick) would be responsible for?” McMahon replied, “Kyle with human resources, yes.” Counsel then asked, “You would not normally be involved in those conversations?” McMahon replied, “Correct.” McMahon’s statement that Rodrick had complete decision-making authority is not credible because Rodrick stated that he discussed the action he was going to take regarding Kennedy with McMahon and she admitted that she discussed it with him. Based on these statements, I find McMahon’s statements not credible, that Rodrick did not have the sole authority to issue discipline, and that McMahon influenced the decision to discipline Kennedy.
CONCLUSION
After an employer articulates non-discriminatory reasons for taking an action, the burden remains on the employee to prove by a preponderance of the evidence that the disputed action was in retaliation for the employee’s exercise of statutory rights. The employee meets this burden by proving either that the employer’s reasons were pretextual, or that union animus was a substantial motivating factor behind the employer’s actions.
Kennedy met her burden of proof. Her attendance at the October 1, 2010 union-management meeting was a substantial motivating factor behind the employer’s decision to issue her a final counseling disciplinary memorandum on October 19, 2010. The employer discriminated against Kennedy in reprisal for protected union activities.
FINDINGS OF FACT
1. The University of Washington (employer) is an employer within the meaning of RCW 41.80.005(8).
2. The Washington Federation of State Employees (union) is an exclusive bargaining representative within the meaning of RCW 41.80.005(9).
3. Nicole Kennedy has been employed by the employer since 2007 and has participated in union activities as a shop steward since March 2010.
4. In September 2010, the employer requested to meet with staff from multiple unions who represent employees of the employer. The union informed the employer that it would not participate in the meeting without having its bargaining unit members present at the meeting. Greg Devereux, Executive Director of the union, had several conversations with the employer to arrange for members to attend the October 1, 2010 meeting. Kennedy and one other member were chosen by the union to attend the meeting and release time was approved by the employer.
5. On October 1, 2010, the day of the union-management meeting, Kennedy called into the employer’s sick line indicating she would be out for the day due to “flu like symptoms.” The department she works in has a list of physical symptoms that prevent an employee from being able to work with patients. If you have any of these symptoms, you cannot work with patients. Kennedy made this call at 6:19 A.M. for her shift that was to begin at 7:00 A.M.
6. Kennedy then rested, felt better and went to the union-management meeting, which began at 2:00 P.M.
7. At the start of the October 1 meeting, Peter Denis, Assistant Vice President of Human Resources, e-mailed Kennedy’s manager, Dorthea McMahon, with a subject line stating “She’s here!!!” and no other text in the e-mail.
8. At 3:15 P.M., McMahon forwarded the e-mail to her subordinate and Kennedy’s direct supervisor, Kyle Rodrick, and Becky Hammontree, Human Resource Consultant:
Nicole called out sick for her 7:00 AM shift at 6:19 AM today claiming flu symptoms and went to the labor meeting this afternoon. Kyle had confirmed with her that release time today would not be an issue, so that excuse, while not even valid, wouldn’t be relevant anyway. What are our next steps? This is not acceptable behavior from a steward and I would like to invoke the maximum allowed corrective action.
9. On October 4, 2010, Kennedy’s next work day, Rodrick attempted to contact Kennedy at the end of her shift to inform her of an investigatory interview scheduled for the next day, but he was unable to locate her.
10. On October 5, 2010, Rodrick, Kennedy, Hammontree, and a union representative met for an investigatory interview concerning the incidents on October 1 and 4, 2010.
11. On October 19, 2010, Rodrick issued Kennedy a final counseling memorandum. The employer defended this level of discipline based on previous disciplinary actions.
12. It is clear that Kennedy participated in protected activity when she attended the union-management meeting on October 1, 2010. The employer deprived her of an ascertainable right, benefit or status by issuing her a final counseling disciplinary memorandum on October 19, 2010. The close timing of these two events provides circumstantial evidence of a causal connection between Kennedy’s protected activity and the employer’s disciplinary action. The union set forth a prima facie case of discrimination.
13. The employer articulated several non-discriminatory reasons for issuing Kennedy a final counseling memorandum. The employer offered three separate instances of misconduct by Kennedy: calling in late, abuse of sick leave, and shift abandonment, in conjunction with Kennedy’s previous discipline.
14. In McMahon’s e-mail on October 1, 2010, McMahon stated that Kennedy’s actions were “not acceptable behavior from a steward.” At the hearing McMahon was asked to explain her choice of language. She said “I think that the relevance of the steward comment was really around the fact that was what she was attending a meeting on behalf of in her role as a steward.”
15. Kennedy’s role as a steward, rather than as an employee, has no place in the determination of appropriate discipline. McMahon’s reference to this title in her comment is highly suggestive that Kennedy’s role as a union steward factored into her decision to seek discipline.
16. Kennedy was well aware of the importance of her attendance at the October 1, 2010 union-management meeting. McMahon appeared to give little value to the importance of this meeting which she described as “It was known that she had the labor relations or what have you meeting.”
17. McMahon’s testimony regarding her communications with Denis is also not credible. She denied several times that she had direct communication with Denis regarding allowing release time for Kennedy until she was presented with a copy of an e-mail showing that she had direct communication with Denis. McMahon’s many misrepresentations make her testimony and intentions unreliable.
18. Kennedy credibly stated that she felt ill in the morning with flu like symptoms, rested, and then felt better. Deveraux testified that Kennedy had informed him at the meeting that she had felt ill earlier in the day. Kennedy also stated that she was very aware that this was an important meeting and that Deveraux had gone to great lengths to get the two stewards released to attend, which was a motivating factor for her to make the effort to attend. The employer offered no evidence to show that Kennedy had not felt ill earlier and I have no reason to doubt her testimony.
19. McMahon testified that Rodrick, Kennedy’s direct supervisor, in consultation with Human Resources, was solely responsible for determining the extent of discipline imposed. Thus the employer suggests that any union animus held by McMahon did not impact the decision to issue Kennedy a final counseling memorandum because Rodrick had the decision-making authority.
20. McMahon stated in her October 1 e-mail that she “would like to invoke the maximum allowed corrective action” (emphasis added). This language is instructive rather than suggestive.
21. McMahon’s statement that Rodrick had complete decision-making authority is not credible because Rodrick stated that he discussed the action he was going to take regarding Kennedy with McMahon and she admitted that she discussed it with him. Based on these statements, I find McMahon’s statements not credible, that Rodrick did not have the sole authority to issue discipline, and that McMahon influenced the decision to discipline Kennedy.
22. After an employer articulates non-discriminatory reasons for taking an action, the burden remains on the employee to prove by a preponderance of the evidence that the disputed action was in retaliation for the employee’s exercise of statutory rights. Kennedy met her burden of proof. Her attendance at the October 1, 2010 union-management meeting was a substantial motivating factor behind the employer’s decision to issue her a final counseling disciplinary memorandum on October 19, 2010.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.80 RCW and Chapter 391-45 WAC.
2. The University of Washington as described in Findings of Fact 4 through 22, discriminated against Nicole Kennedy in violation of RCW 41.80.110(1)(d) and (a).
ORDER
The University of Washington, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:
1. CEASE AND DESIST from:
a. Discriminating against Nicole Kennedy for participation in protected union activities.
b. In any other manner interfering with, restraining or coercing its employees in the exercise of their collective bargaining rights under the laws of the state of Washington.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter 41.80 RCW:
a. Rescind the Final Counseling Memorandum issued to Nicole Kennedy on October 19, 2010, and remove that document from her Personnel File.
b. 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.
c. Read the notice provided by the Compliance Officer into the record at a regular public meeting of the Board of Regents of the University of Washington, 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.
d. 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.
e. Notify the Compliance Officer, 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 him with a signed copy of the notice he provides.
ISSUED at Olympia, Washington, this 31st day of July, 2013.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CLAIRE NICKLEBERRY, 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
STATE LAW GIVES YOU THE RIGHT TO:
• Form, join, or assist an employee organization (union)
• Bargain collectively with your employer through a union chosen by a majority of employees
• Refrain from any or all of these activities except you may be required to make payments to a union or charity under a lawful union security provision
THE WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION CONDUCTED A LEGAL PROCEEDING AND RULED THAT UNIVERSITY OF WASHINGTON COMMITTED AN UNFAIR LABOR PRACTICE AND ORDERED US TO POST THIS NOTICE TO EMPLOYEES:
WE UNLAWFULLY discriminated against Nicole Kennedy for participating in protected union activities.
TO REMEDY OUR UNFAIR LABOR PRACTICES:
WE WILL rescind the Final Counseling Memorandum issued to Nicole Kennedy on October 19, 2010, and remove that document from her Personnel File.
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.