PERC Examiner Finds No Discrimination or Interference Against Monroe Corrections Sergeant

By Therese Norton

Case DismisseddIn State – Corrections, PERC Examiner Emily Whitney dismissed a discrimination and interference complaint brought by the Teamsters Local 117 against the Washington State Department of Corrections.  Decision 12002 (PSRA, 2014). The Teamsters alleged that the Department discriminated against a corrections sergeant who had previously testified in a separate PERC unfair labor practice hearing by investigating him regarding the distribution of a “sensitive” video and by denying him a promotional opportunity.  Separately, the Teamsters alleged that the Department made statements that interfered with the collective bargaining rights of a unit member and shop steward.

The Associate Superintendent questioned the corrections sergeant after the Department became aware that a video containing “sensitive” WSP material was being distributed to corrections staff.  The Department later abandoned its investigation and the corrections sergeant was not subjected to any discipline. Examiner Whitney found that the employer did not discriminate by investigating a corrections sergeant, in reprisal for union activities, because the Teamsters failed to prove that the corrections sergeant was actually disciplined and harmed in some fashion as a result of the investigation.  The Teamsters had argued that by investing the corrections sergeant, it made him more vulnerable to future corrective disciplinary action; however, Examiner Whitney disagreed, noting, “[t]he belief that this could lead to a future deprivation does not rise to the level of discrimination because the action has not yet occurred.”:

Separately, however, the Teamsters also argued that shortly after the corrections sergeant testified in a PERC ULP hearing, he applied for an open lieutenant position and requested a letter of recommendation from his supervisor.  The supervisor declined the request stating that he would not provide the recommendation because the corrections sergeant had not completed 100% of his evaluations of his subordinates.  The Teamsters argued that the denial of the letter amounted to a denial of a promotional opportunity, which was a separate form of discrimination.  Examiner Whitney agreed that the corrections sergeant was denied a promotional opportunity. 

Nevertheless, the examiner found that the employer did not discriminate because the employer responded by presenting a legitimate, non-discriminatory reason for its actions, namely the correction sergeant’s incomplete evaluations.  There was evidence that the corrections sergeant completion rate was below the standard expected by the Department.  Furthermore, the examiner concluded that the union failed to prove that the employer’s explanation was really an excuse or that the corrections sergeant’s union activity motivated the Department’s actions.  Examiner Whitney explained that the standard for completing evaluations applied to all employees and the corrections sergeant was the only one who fell below the standard.

Lastly, Examiner Whitney found that the employer did not interfere with employee rights by making threats to the corrections sergeant and his union steward in connection with union activities. Examiner Whitney applied the “reasonable perception” test and concluded that the Teamsters were unable to prove that the statements that the employer allegedly made were threats in connection with union activity. The examiner explained that the supervisor’s statements were made in response to an “inappropriate comment” made by the corrections sergeant during a routine meeting.  Examiner Whitney explained,

“The alleged comment made by [the supervisor] does not rise to the level of an interference charge.  It is not reasonable to believe that [corrections sergeant] and [shop steward] would perceive these statements as threats associated with union activity based on their own testimony of the conversation.”

Thus, the examiner concluded that the Department did not interfere with the unit members collective bargaining rights.

Editor’s Note (Christopher Casillas): Discrimination charges are notoriously difficult for unions to prove as unfair labor practice claims because they involve a multi-step burden-shifting analysis that requires a showing of unlawful intent and often involves a “mixed motive” with evidence of both unlawful and lawful intentions motivating the underlying action.  Unlike a discrimination allegation, interference charges do not require the showing of an unlawful motive.  Instead, the test is whether a reasonable person would perceive the actions by the employer to be threatening or coercive in response to protected union activity, which is a significantly lower threshold in proving an unfair labor practice case.  The “reasonable perception” test was recently confirmed by the Commission as the standard to be applied in interference cases going forward.  See City of Mountlake Terrace, Decision 11831-A (PECB, 2014).