PERC Holds that Warden School District Did Not Commit A ULP When It Did Not Bargain With the Union Over Whether to Change the School Calendar and that Principal’s Statement to Employee Was Not Interference With Union Rights

By Chris Casillas and Sarah Derry

crystal ballIn Warden School District, PERC Examiner Whitney considered two unrelated issues:  First, the employer did not commit a ULP by not bargaining with the union over whether to adopt a perpetual calendar for the school year. Examiner Whitney found that: (1) the employer had been using the same calendar adoption process for nine years, so there was no change, and (2) although the union wanted to adopt a “perpetual calendar,” the Union never directly proposed it, so the school district did not refuse to bargain. Second, Examiner Whitney determined that the school district did not interfere with a teacher’s union rights by threatening to fire him if he did not take on another class, in part because another teacher testified that she did not think the complaining teacher had been threatened.

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Ninth Circuit Holds that Employee Did Not Have Claim Under Washington Disability Law Because She Did Not Notify Employer Soon Enough And Wrongfully Rejected Offered Accommodations

By Reba Weiss and Harrison Owens

thanks but no thanksIn Garcia v. Cintas Corp. No. 3, the Ninth Circuit affirmed a Washington District Court’s dismissal of an employee’s claim that her employer failed to accommodate her disability in violation of the Washington Law Against Discrimination (WLAD).  In her complaint, the employee claimed that her employer failed to accommodate her wrist injury after it worsened months after the injury first occurred.  The District Court found that the employee did not provide enough evidence that she notified her employer that her current work would aggravate her injury or that she was substantially limited, so it dismissed her case.  The Court of Appeals agreed with the dismissal of her case, and affirmed the District Court’s decision.

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Camden Police Officers Did Not Show Retaliation Because They Had Poor Performance And Officer Did Not Show Violation Of FMLA Rights Because He Was Not Denied Leave By Employer’s Actions

By Reba Weiss and Harrison Owens

Sick-note-large-400x266In Fraternal Order of Police, Lodge 1, et al. v. City of Camden, et al., a New Jersey District Court dismissed several officers’ claims that they had been retaliated against, and one officer’s claim that his FMLA rights had been denied by the City.  In their complaint, the officers claimed that several defendants had retaliated against them or interfered with their FMLA rights after they spoke out against a “directed patrol” policy.  The District Court dismissed all of their claims because the officers failed to show that their poor performance under the policy was not the primary reason for their transfers.  The Court also found that there was no evidence that the defendants denied one of the officers his rights under the FMLA or harmed him.

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Employee May Bring Claim of Disability Discrimination To Trial After Showing Rules Were Selectively Enforced Against Him

By Reba Weiss and Harrison Owens

daisyIn Brownell v. Snohomish County Public Utility District No. 1, a Washington Court of Appeals reversed the trial court’s dismissal of a former public utility employee’s disability discrimination lawsuit.  In his complaint, the worker claimed that he was terminated for violation of work rules that were selectively enforced against him.  The Court of Appeals found that the selective enforcement of the rules and lack of negative performance reviews showed that the worker may have a valid claim for disability discrimination.  Therefore, the Court of Appeals reversed the trial court’s dismissal of the worker’s claim and allowed him to bring his claim to trial.

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Employee Had Valid Claims For Failure To Accommodate PTSD And Sexual Harassment That Exacerbated His Symptoms

By Reba Weiss and Harrison Owens

ptsd puzzleIn Mesmer v. Charter Communications, Inc., a District Court in Washington found that a correspondence coordinator had claims of interference with his FMLA rights, failure to accommodate his PTSD, and sexual harassment under the Washington Law Against Discrimination (WLAD).  In his complaint, the coordinator claimed that he suffered from PTSD symptoms and his employer failed to accommodate his disability, subjected him to sexual harassment by a male coworker, and his employer willfully violated his FMLA rights by firing him for attempting to take medical leave.  The District Court found that the coordinator had stated sufficient facts to support his claims, and that his lawsuit should be heard at trial.

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Worker May Bring Lawsuit for Failure to Accommodate Although Disability Not Recognized Under ADA

By Reba Weiss and Harrison Owens

shy bladderIn Oberti v. Pacific Maritime Association, et al. the District Court held that an employee could continue a claim for failure to accommodate under the Washington Law Against Discrimination (WLAD) although his “shy bladder syndrome” is not considered a disability under the ADA (The ADA has since been amended to the Americans with Disabilities Act As Amended (ADAAA).  Under the new ADAAA, which greatly broadened the medical conditions which constitute a “disability”,  “shy bladder syndrome” would probably be considered a “disability”.).  In his suit, the employee claimed that his employer failed to accommodate his disability when it discharged him for failing to provide a urine sample for a drug test.  The District Court found that the employee showed that his disability was medically diagnosable and substantially limited his employment, his employer did not engage in the interactive process, and his employer did not provide accommodation.

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Court Holds that Provisional Elementary Counselor Was Not Eligible for Arbitration Under the CBA

By Erica Shelley Nelson and Jordan L. Jones

progressiveIn Spokane Sch. Dist. No. 81 v. Spokane Educ. Ass’n, the Washington Court of Appeals, Division Three held that a provisional elementary counselor was not eligible for arbitration under the collective-bargaining agreement (CBA).

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PERC Holds That The Port of Bellingham Did Not Commit A ULP When It Transferred Daily Inspection Duties Away From Its Maintenance Employees

By Chris Casillas and Jordan L. Jones

conveyor-beltIn Port of Bellingham, PERC Examiner Martin held that the employer did not commit a ULP by transferring daily inspection duties away from its maintenance employees without first providing an opportunity to bargain. Examiner Martin noted that the Port did not have an obligation to bargain in this case because (1) the work was so briefly assigned to the maintenance bargaining unit, (2) non-bargaining unit employees had also been performing the work, and (3) by the time the work was transferred to other port employees it was fundamentally different from the maintenance bargaining unit’s regular work.

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PERC Holds that Central Washington University Committed a ULP When It Contracted Out a Roofing Project Without First Providing Notice to and an Opportunity to Bargain With the Maintenance Mechanics Union

By Chris Casillas and Jordan L. Jones

opportunityIn Central Washington University, PERC Examiner Slone-Gomez held that the University committed a ULP when it contracted out a roofing project without first providing notice to and an opportunity to bargain with the Maintenance Mechanics Union in violation of RCW 41.80.110(1)(a) and (e).

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Married Homosexual Employee Has Valid Gender Discrimination Claim Against Employer Who Denied Spousal Health Benefits

By Erica Shelley Nelson and Brennen Johnson

gay marriageIn Hall v. BNSF Railway Company, the U.S. District Court for the Western District of Washington found that a homosexual male employee stated a valid gender discrimination claim against his employer for denying health benefits to his husband. The Court refused to dismiss what it determined to be a valid gender discrimination claim where the male employee and his male partner were legally married and BNSF provided coverage for the male spouses of female employees.

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