PERC Examiner Holds No Discrimination or Interference When Outspoken Union Member’s Disability Leave Cancelled

By: Chris Casillas and Sarah E. Derry

In State-Washington State Patrol, PERC Examiner Slone-Gomez dismissed the Washington State Patrol Troopers Association’s complaint, holding that the State did not cancel a union board member’s temporary disability leave in reprisal for his union activities.

Washington State Troopers are eligible to receive temporary disability leave when they are injured while working. The grievant here was injured in a car accident in his work vehicle. He stated he had been monitoring another vehicle that was driving erratically before the accident, and was engaged in traffic enforcement. However, traffic enforcement was not part of his normal job duties, and the accident occurred while he was commuting. The employer initially approved his temporary disability leave, but later cancelled the leave when it learned that the accident occurred during his commute. Troopers are not normally considered to be working during their commutes.

As a union board member, the affected trooper filed complaints on behalf of other members, participated in union meetings, and expressed concerns through his chain of command. He was engaged in this kind of union advocacy two weeks before his disability leave was cancelled.

Even though the employer’s decision was very close in time to the trooper’s union activities, Examiner Slone-Gomez determined that the employer was not motivated by anti-union animus in denying the leave. The Examiner held that the employer was merely applying the policy correctly after it became aware the trooper had been commuting.

The union also argued that the employer interfered with the union by denying the trooper’s disability leave. Examiner Slone-Gomez noted, however, that the union failed to submit any evidence that other union members were aware of the situation or that there had been any harm to the union. Therefore, the Examiner held that the union had not established interference:

[T]he union bears the burden of proving that other members of the bargaining unit could reasonably perceive the employer’s actions regarding [the trooper’s leave] as a threat of reprisal or force or a promise of benefit and that the employer’s actions resulted in harm to bargaining unit members…. [But] the union did not even assert that other bargaining unit members were aware of the employer’s decision to rescind its approval of [the leave].  The union also presented no evidence of any possible, let alone actual, harm to other members’ protected employee rights.

This case underlines, once again, the challenge faced by unions in asserting discrimination claims under RCW 41.56.140(1).  In this case, the union met its initial burden of proof of showing that the employee was engaged in protected activity, was subsequently denied of some right or benefit, and that there was a nexus between those events.  But, ultimately, under PERC’s burden shifting analysis, the employer was able to proffer a non-discriminatory reason for the action – in this case that the existing policy did not allow for long-term disability under the circumstances – and the union was not able to show that this stated rationale was mere pretext.

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