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Home My WebLink AboutPublic Employment Relations Commission[ C E, W rE ID MAY 2 6 2016 Ci tY CF i— PTANGELES CIFPK PUBLIC EMPLOYMENT RELATIONS COMMISSION MICHAEL 11. SELLARS EXEC U ME DIREcrOR 112 H<xn ry street Iii:, quite .;€ 0 W Post Ot*€c(- t'>wv 40919 * Olympia, Washington 98504-0919 P609 51-1,0_731100 9t'<a (36Q) 0-1-334 a E-mail filter qqr flfi T €� rc, wrr,gov - Ml€:bsif€.> wwm,, perco wa,gozv May 24, 2016 Patrick Downie City of Port Angeles 321 East Fifth Street PO Box 1150 Port Aneles, Washington 98362 Jacob H. Black Robblee Detwiler & Black PLLP 2101 Fourth Avenue, Suite 1000 Seattle, Washington 98121-2392 Re: NOTICE OF PARTIAL DEFICIENCY City of Port Angles IUOE Local 302 (Public Works & Utilities Managers' Bargaining Unit) Case 128147-U-16 Filed April 26, 2016 Dear Mr. Downie and Mr. Black: The complaint charging unfair labor practices filed in this matter has been reviewed using the preliminary review process described in WAC 391-45-110. One purpose of this review is to comply with RCW 34.05.419(2), which requires administrative agencies to "examine the application, notify the applicant of any obvious errors or omissions, [and] request any additional information the agency wishes to obtain and is pennitted by law to require ...." At this stage of the proceedings, all of the facts alleged in the complaint are assumed to be true and provable. The question at hand is whether the complaint states a claim for relief available through unfair labor practice proceedings before the Commission. The allegations of the complaint concern: Employer interference with employee rights in violation of RCW 41.56.140(1), since October 28, 2015, by failing to put employee George Drake on notice of his right to request union representation (Weingarten right) in connection with an investigatory interview. G) 55 May 24, 2016 Page 2 Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)], by: On October 28 and 29, 2015, employer official Dan McKeen circumventing the union through direct dealing with Drake, an employee represented by the union, by proposing an extension in Drake's probationary period and giving Drake a letter proposing an extension on his probationary period, without first notifying the union and presenting the proposal letter to the union. 2. On November 3, 2015, circumventing the union through direct dealing with Drake, an employee represented by the union, by giving Drake a letter that extended his probationary period and withheld a merit increase, without first presenting the letter to the union. The allegations of the complaint concerning circumvention/direct dealing state a cause of action under WAC 391-45-110(2) for further unfair labor practice proceedings before the Commission. It is not possible to conclude that a cause of action exists at this time, for a Weingarten rights/interference allegation. The complaint does not describe a violation of Weingarten rights. Weingarten Rights In NLRB v. Weingarten, 420 U.S. 251 (1975) (Weingarten), the Supreme Court of the United States affirmed a National Labor Relations Board (NLRB) decision holding that under the National Labor Relations Act (NLRA), employees have the right to be accompanied and assisted by their union representatives at investigatory meetings that the employee reasonably believes may result in disciplinary action. Seattle School District, Decision 10732-A (PECB, 2012). hl Okanogan County, Decision 2252-A (PECB, 1986), the Commission held that the rights announced in Weingarten are applicable to employees who exercise collective bargaining rights under Chapter 41.56 RCW. See also Methow Valley School District, Decision 8400-A (PECB, 2004). As examiners explained in Washington State Patrol, Decision 4040 (PECB, 1992) and Seattle School District, Decision 10066-B (PECB, 2010), there are four elements necessary for Weingarten rights to be applicable: 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 infonnation obtained during the interview. Mason County, Decision 7048 (PECB, 2000). May 24, 2016 Page 3 4. The employee must request the presence of a union representative. An employee has a right to union representation at an "investigatory" interview which the employee reasonably believes could result in discipline. City of Bellevue, Decision 4324-A (PECB, 1994), citing NLRB v. Weingarten, 420 U.S. 251 (1975); Olranogan County, Decision 2252-A. It is the nature of an "investigatory" interview that the employer is seeking infortnation from the employee. A union representative is present to assist the employee at an investigatory interview, not to speak in place of that individual. City of Bellei)ue, Decision 4324-A. Discipline often can and does result from "investigatory" meetings, and the Commission has found interviews to be "investigatory" where they were part of an investigation concerning improper conduct. Snohomish County, Decision 4995-B (PECB, 1996). If the interview is not investigatory in nature, Weingarten rights do not apply. Employer's Meeting with Drake was Not Investigatory The complaint alleges that the employer had a meeting with Drake regarding extending his probationary period. There are no facts alleged to indicate that the October 28 and 29 meetings were investigatory in nature or that Drake had a reasonable belief that questions being asked at the meeting could result in discipline. Because the meeting is not alleged to have been investigatory, Weingarten rights would not apply. No Request for Union Representation If an employee believes that discipline may result from the meeting, the employee must request union representation in order to be protected under Weingarten. In this case, there are no facts alleged that describe Drake requesting union representation. Rather, the complaint alleges that the employer did not notify Drake of his right to request union representation under Weingarten. The law does not require that employers notify employees of their right to request union representation. The burden is on the employee to request a union representation if they wish to exercise their Weingarten rights. CONCLUSION The complaint does not state a cause of action for interference with Drake's Weingarten rights. Filing of Amended Complaint This proceeding will be held open for a limited time to permit the complainant to correct the defects or voluntarily withdraw the defective Weingarten interference allegation. If the complainant would like to continue to pursue the Weingarten interference allegation the complainant should file and serve an amended complaint within 21 days following the date of this letter. The complainant also has the option of voluntarily withdrawing the defective allegation. Any materials filed as an amended complaint will be reviewed under WAC 391-45-110 to determine if they state a cause of action. If the complainant does not file a timely amendment May 24, 2016 Page 4 correcting the defects or voluntarily withdraw the defective allegation: The allegations of Employer interference with employee rights in violation of RCW 41.56.140(1), since October 28, 2015, by failing to put employee George Drake on notice of his right to request union representation (Weingarten right) in connection with an investigatory interview will be DISMISSED; and A preliminary ruling will be issued under WAC 391-45-110 for allegations concerning: Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)], by: On October 28 and 29, 2015, employer official Dan McKeen circumventing the union through direct dealing with Drake, an employee represented by the union, by proposing an extension in Drake's probationary period and giving Drake a letter proposing an extension on his probationary period, without first notifying the union and presenting the proposal letter to the union. 2. On November 3, 2015, circumventing the union through direct dealing with Drake, an employee represented by the union, by giving Drake a letter that extended his probationary period and withheld a merit increase, without first presenting the letter to the union. Very truly yours, est sica J. Bradley, nfair Labor Practice Manager Public Employment Relations Commission jessica.bradleycot pere.wa.gov 1 (360) 570-7322 JJB:drb cc: Daren Konopaski ID JUN 2 2016 j C Y 01STArE OF WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION MICHAEL P. SELLARS, EXECUTIVE DIRECIOR - t 12 Henry Street NEI Suitc ,3OO � Post Office Box 40919 & (Wympia, Wishington 98504-0919 (360) .ff701 i.3'00 ® rax: (360) 0-7:<34 e E-mailfflingF fdiras_((c ,,p rc:.wa.gov o Website: wm-v.per€.waagov May 31, 2016 VIA EMAIL AND US MAIL Patrick Downie City of Port Angeles 321 East Fifth Street PO Box 1150 Port Aneles, Washington 98362 Jacob H. Black Robblee Detwiler & Black PLLP 2101 Fourth Avenue, Suite 1000 Seattle, Washington 98121-2392 Re: PRELIMINARY RULING City of Port Angeles IUOE Local 302 (Public Works & Utilities Managers' Bargaining Unit) Case 128147-U-16 Filed April 26, 2016 Dear Mr. Downie and Mr. Black: The complaint charging unfair labor practices filed in this matter was reviewed using the preliminary review process described in WAC 391-45-110. On May 24, 2016, I issued a Notice of Partial Deficiency explaining that the complaint did not state a cause of action for a Weingarten interference violation. On May 27, 2016, the union clarified that it is not seeking a cause of action for Weingarten interference and explicitly withdrew the allegation that was identified a defective. This clarification/partial withdrawal cured the defect that was identified in the Notice of Partial Deficiency. Assuming for purposes of this preliminary ruling that all of the facts alleged in the complaint are true and provable, it appears that unfair labor practice violations could be found. The complaint states a cause of action for further case processing of the following allegations: Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)], by: 1. On October 28 and 29, 2015, employer official Dan McKeen circumventing the union through direct dealing with Drake, an employee represented by the union, May 31, 2016 Page 2 by proposing an extension in Drake's probationary period and giving Drake a letter proposing an extension on his probationary period, without first notifying the union and presenting the proposal letter to the union. 2. On November 3, 2015, circumventing the union through direct dealing with Drake, an employee represented by the union, by giving Drake a letter that extended his probationary period and withheld a merit increase, without first presenting the letter to the union. WAC 391-45-110(2)(c) requires the filing of an answer in response to a preliminary ruling which finds a cause of action to exist. Cases are reviewed after the answer is filed to evaluate the propriety of a settlement conference under WAC 391-45-260, priority processing, or other special handling. The person or organization charged with an unfair labor practice in this matter (the "respondent") shall file and serve its answer to the complaint within 21 days following the date of this letter. The answer shall be filed with the Commission at its Olympia office. A copy of the answer shall be served on the attorney or principal representative of the person or organization that filed the complaint. Service shall be completed no later than the day of filing. An answer shall: 1. Specifically admit, deny, or explain each fact alleged in the complaint, except if a respondent states it is without knowledge of the fact that statement will operate as a denial; and 2. Assert any affinnative defenses that are claimed to exist in the matter. Except for good cause shown, a failure to file an answer within the time specified, or the failure to file an answer to specifically deny or explain a fact alleged in the complaint, will be deemed to be an admission that the fact is hue as alleged in the complaint and as a waiver of a hearing as to the facts so admitted. WAC 391-45-210. An examiner will be designated to conduct further proceedings in this matter pursuant to Chapter 391-45 WAC. Until an examiner is assigned, all correspondence and motions should be directed to the undersigned. Very truly yours, Jessica J. Bradley Unfair Labor Practice Manager Public Employment Relations Commission jessica.bradlcy(:c�perc.wa. ov 1 (360) 570-7322 JJB:drb cc: Daren Konopaski 51' 1' l a (its �E= q f t n c� SLATE OF WASH IiNGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION MICHAEL P. SELLARS, EXECUTIVE DIRECTOR 112 Henry Street NF, Suite 300 ® Post Office Box =40919 a Oly-pia, Washington 913504-0919 06) 570-7300 ® Fax: (360) 570-7334 e E-mail filings: filhigCz?perc.wa.gov ®Website: www.percwa.gov July 11, 2016 Daniel A. Swedlow Summit Law Group PLLC 315 Fifth Avenue South, Suite 1000 Seattle, Washington 98104 Jacob H. Black Robblee Detwiler & Black, PLLP 2101 Fourth Avenue, Suite 1000 Seattle, Washington 98121-2392 Re: PRE -HEARING CONFERENCE CALL City of Port Angeles Case 128147-U-16 Filed April 26, 2016 Dear Mr. Swedlow and Mr. Black: 1 JUL 14 2016 PORT AIG ITY (!_EEK A telephonic pre -hearing conference will be held on Friday, July 29, 2016, at 1:00 p.m. Be prepared to discuss the following topics: 1. Issues raised in the complaint 2. Hearing procedure 3. Potential stipulations 4. Participation in settlement discussions 5. Potential preliminary motions 6. Confirm hearing date and detennine location for the hearing 7. Any other pertinent matters New telephone instructions: To participate in the conference call, please call 1-877-668-4493. When prompted for your access code, enter 23225033# (you must press the pound (#) key after the eight digit number). If I (host) have not arrived please wait as all parties will be connected once I join the conference call. June 2, 2016 If you have questions, please feel free to contact me. Yours Truly, PUBLIC EMPLOYMENT RELATIONS COMMISSION STEPHEN W. IRVIN, Examiner Telephone: (360) 570-7316 Email: steve.irvin(duperc.wa.gov SWI:drb cc: Patrick Downie Daren Konopaski Page 2 �tAl I p fLli 1 7 STATE OF WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSIL r , JUL 2 92616 ITY 'F PCIR !'ANGELES CITY {;l_FRK MICHAEL P. SELLARS, EXECUTIVE DIRECTOR 112 Henry Street NE, Suite 300 a Post Office Box 40919 ® Olympia, Washington 98504-0919 (360) 570-7300 ® Fax: (360) 570-7334 ® E-mail filings: filing.aperc.wa.gov ® Website: www.perc.wa.gov July 27, 2016 Daniel A. Swedlow Summit Law Group PLLC 315 Fifth Avenue South, Suite 1000 Seattle, Washington 98104 Jeff D. Young 1708 West Highway 101 Port Angeles, Washington 98363 Jacob H. Black Robblee Detwiler and Black, PLLP 2101 Fourth Avenue, Suite 1000 Seattle, Washington 98121-2392 Re: BLOCKING CHARGE City of Port Angeles Case 128262-E-16 Filed June 16, 2016 and Case 128147-U-16 Filed April 26, 2016 Dear Mr. Swedlow, Mr. Young, and Mr. Black: On June 16, 2016, Jeff Young filed a petition to decertify the International Union of Operating Engineers, Local 302 (union) as the exclusive bargaining representative of the Public Works Operations supervisors at the City of Port Angeles (employer). That case was docketed as Case 128262-E-16. On April 26, 2016, the union filed an unfair labor practice alleging the employer failed to bargain in good faith by circumventing the union and directly dealing with bargaining unit employees about their wages, hours, and working conditions. Case 128147-U-16. In the event a bargaining unit is the subject of both an unfair labor practice complaint and a representation petition, the Executive Director may suspend the processing of the representation case "in order to preserve an election setting that is free from the improper influences of unfair labor practices committed by the employer or a rival union." SW Snohomish County Public M July 27, 2016 Page 2 Safety Connnunications Agency, Decision 3309 (PECB, 1989). A representation case may be suspended by a related unfair labor practice complaint if that complaint alleges facts that would constitute an unfair labor practice and the alleged unfair labor practice could improperly affect the outcome of a representation election. WAC 391-25-370. Here, both components of the test have been met. The complaint concerns the employer's good faith bargaining obligation and its responsibility to bargain with the bargaining representative selected by the employees. If the employer has dealt directly with employees concerning their wages, hours and working conditions, those acts undermine the union's status as the exclusive bargaining representative. Accordingly, the union's complaint states a cause of action that could materially affect the outcome of a representation election and the complaint in Case 128147-U-16 is of a nature that compels the invocation of the blocking charge rule. Absent a request to proceed by the complainant in the unfair labor- practice case, the representation petition cannot be processed further until the unfair labor practice proceedings are concluded. The union is requested to make its intentions known with respect to the filing of a request to proceed. Please be advised that because the unfair labor practice matter is blocking any further processing of the representation case, the unfair labor practice matter will be expedited. Very truly yours, MPS:drb cc: Daren Konopaski Patrick Downie �tAl I p fLli 1 7 STATE OF WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSIL r , JUL 2 92616 ITY 'F PCIR !'ANGELES CITY {;l_FRK MICHAEL P. SELLARS, EXECUTIVE DIRECTOR 112 Henry Street NE, Suite 300 a Post Office Box 40919 ® Olympia, Washington 98504-0919 (360) 570-7300 ® Fax: (360) 570-7334 ® E-mail filings: filing.aperc.wa.gov ® Website: www.perc.wa.gov July 27, 2016 Daniel A. Swedlow Summit Law Group PLLC 315 Fifth Avenue South, Suite 1000 Seattle, Washington 98104 Jeff D. Young 1708 West Highway 101 Port Angeles, Washington 98363 Jacob H. Black Robblee Detwiler and Black, PLLP 2101 Fourth Avenue, Suite 1000 Seattle, Washington 98121-2392 Re: BLOCKING CHARGE City of Port Angeles Case 128262-E-16 Filed June 16, 2016 and Case 128147-U-16 Filed April 26, 2016 Dear Mr. Swedlow, Mr. Young, and Mr. Black: On June 16, 2016, Jeff Young filed a petition to decertify the International Union of Operating Engineers, Local 302 (union) as the exclusive bargaining representative of the Public Works Operations supervisors at the City of Port Angeles (employer). That case was docketed as Case 128262-E-16. On April 26, 2016, the union filed an unfair labor practice alleging the employer failed to bargain in good faith by circumventing the union and directly dealing with bargaining unit employees about their wages, hours, and working conditions. Case 128147-U-16. In the event a bargaining unit is the subject of both an unfair labor practice complaint and a representation petition, the Executive Director may suspend the processing of the representation case "in order to preserve an election setting that is free from the improper influences of unfair labor practices committed by the employer or a rival union." SW Snohomish County Public M July 27, 2016 Page 2 Safety Connnunications Agency, Decision 3309 (PECB, 1989). A representation case may be suspended by a related unfair labor practice complaint if that complaint alleges facts that would constitute an unfair labor practice and the alleged unfair labor practice could improperly affect the outcome of a representation election. WAC 391-25-370. Here, both components of the test have been met. The complaint concerns the employer's good faith bargaining obligation and its responsibility to bargain with the bargaining representative selected by the employees. If the employer has dealt directly with employees concerning their wages, hours and working conditions, those acts undermine the union's status as the exclusive bargaining representative. Accordingly, the union's complaint states a cause of action that could materially affect the outcome of a representation election and the complaint in Case 128147-U-16 is of a nature that compels the invocation of the blocking charge rule. Absent a request to proceed by the complainant in the unfair labor- practice case, the representation petition cannot be processed further until the unfair labor practice proceedings are concluded. The union is requested to make its intentions known with respect to the filing of a request to proceed. Please be advised that because the unfair labor practice matter is blocking any further processing of the representation case, the unfair labor practice matter will be expedited. Very truly yours, MPS:drb cc: Daren Konopaski Patrick Downie