PUBLIC EMPLOYEES RELATIONS v. City of Vancouver

• Decision Date: 03 August 2001
• Docket Number: No. 25518-9-II.,25518-9-II.
• Citation: 33 P.3d 74,107 Wash.App. 694
• Parties: PUBLIC EMPLOYEES RELATIONS COMMISSION; and Vancouver Police Officer's Guild, Respondents, v. CITY OF VANCOUVER, Appellant.
• Court: Washington Court of Appeals

33 P.3d 74

107 Wash.App. 694

PUBLIC EMPLOYEES RELATIONS COMMISSION; and Vancouver Police Officer's Guild, Respondents, v. CITY OF VANCOUVER, Appellant.

No. 25518-9-II.

Court of Appeals of Washington, Division 2.

August 3, 2001.

Michelle Holman Kerin, Asst. City Attorney, Portland, OR., Debra Quinn, Asst. City Attorney, Terry Michael Weiner, Asst. City Attorney, Vancouver, WA., for Appellant.

David Alan Snyder, Portland, OR., Spencer Walter Daniels, Attorney Generals Office, Olympia, WA., for Respondent.

Jaime B. Goldberg, Portland, OR., Amicus Curiae Clark County Sheriff's Guild.

Lisa Carol Vargo, Aithchison & Vick, Renton, WA., Amicus Curiae Auburn Police Guild.

BRIDGEWATER, J.

The City of Vancouver (the City) appeals a final order of the Public Employees Relations Commission (PERC), which found that the City committed an unfair labor practice in violation of RCW 41.56 for questioning members of the bargaining unit represented by the Vancouver Police Officers Guild (Guild) about discussions that took place at Guild Executive Board (Board) and general membership meetings. Allegedly, Guild members made comments regarding possible retaliation toward a guild member, Officer Navin Sharma, because of information given by Sharma about his sergeants in the course of an Internal Affairs (IA) investigation. PERC's hearing examiner (Examiner) ruled in favor of the City, finding that no Guild member could have reasonably perceived the City interfered with their collective bargaining rights or would interfere with future union activity. PERC disagreed, and ruled for the Guild.

We reverse PERC's ruling, holding that an employer may ask questions regarding discussions occurring at a union meeting so long as they do not amount to interference with collective bargaining rights protected by RCW 41.56, which the questions here did not. We also hold that RCW 41.56, which protects union activity, is subject to a reasonableness test, and that because the officer's safety was a legitimate concern of the employer, the employer could ask narrowly tailored questions of employees concerning the union meeting. Therefore no reasonable employee would perceive that the City was interfering with collective bargaining rights. Thus we hold that the City did not commit an unfair labor practice.

FACTS

The Guild is the sole bargaining unit, representing about 150-170 uniformed police holding the ranks of officer, corporal, and sergeant employed by the City. The sergeants' primary role is to supervise officers assigned to their patrol shift. Members of the Guild's Executive Board (Board) hold regular meetings and are responsible for day-to-day guild business. Both the Board and general membership meetings are not open to the public or management. The meetings are "the forum by which free-flowing discussion occurs among bargaining unit members." Clerk's Papers (CP) at 181 (Finding of Fact 4). On and off duty officers attend the meetings.

The City uses an internal affairs (IA) procedure to investigate alleged misconduct of police officers. The aim of IA investigations is to determine whether a violation of Vancouver Police Department (VPD) policy has occurred. Employees are subject to discipline if they fail to answer fully and truthfully questions posed to them during an IA investigation. In June 1998, the City commenced IA investigation No. IA 98-31 regarding the conduct of some sergeants at a VPD training session. Investigators interviewed Sharma regarding the conduct of his sergeants at the training session. Sharma's comments were the subject of discussion at subsequent Board and general membership meetings. An officer who attended the general membership meetings allegedly told Sharma about the discussions; he expressed concern for Sharma's safety.

Sharma told Lt. Hall about what had been relayed to him as employee comments made at the Board and Guild general membership meetings. Sharma relayed to Hall that another officer told him he "had been the subject of conversation" at a Board meeting and general membership meeting. Ex. 1. Lt. Hall subsequently filed allegations against the employees, accusing them of making disparaging comments about Sharma's IA 98-31 interview at the union meeting. The allegations included violations of VPD Rules of Conduct regarding harassment, respect toward members and others, violations of canons of ethics for law enforcement, and violations of the City's harassment and discrimination policies. The allegations pertained to statements made at a Board meeting and/or a general membership meeting that: (1) Sharma was a "not a friend of the guild" and had revealed too much in IA 98-31; (2) members should possibly boycott a charity program that Sharma had organized; (3) members should release or post Sharma's IA 98-31 interview transcript to be viewed by other officers; (4) Sharma's new sergeant would "straighten him out;" (5) the alleged "black-balling" might go as far as not covering Sharma on calls.¹ Sharma also maintained that his SWAT² locker had been rifled through and that his supervisors on the SWAT team (subjects of IA 98-31) gave him "cold shoulder" treatment. It appeared to Hall that Sharma believed that certain sergeants had instigated a concerted effort to "get even" with Sharma for his IA 98-31 testimony.

Deputy Chief Thiessen, responsible for IA investigations, reviewed the allegations. Independently, she was aware of rumors that employees were angry at Sharma and were referring to him as a snitch. She had concerns for Sharma's safety and felt that the City had a duty to investigate possible harassing, retaliatory, or discriminating behavior. The VPD human resource analyst, a former labor and employment attorney, was also concerned that there might be violations of federal civil rights law—i.e., laws against harassment, discrimination, or retaliation under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. The analyst also had concerns for Sharma's safety. The analyst, who participated in the discussions about whether to investigate the allegations, felt that the City had a duty to investigate. Based on Deputy Thiessen's recommendation, the City initiated an IA investigation. The City approved stress-related disability leave for Sharma, and removed him from a patrol unit supervised by one of the sergeants who was the subject of the IA investigation.

As part of its investigation, the City questioned at least 26 Guild members, 5 of whom were Board members, about the alleged comments made at the Board and general membership meetings. The City utilized some Guild members in questioning the members. The City invited a Guild representative to attend the interviews. The City took "safeguards" before initiating interviews. First, Deputy Thiessen instructed the investigators to not ask questions about union strategy or policy. Second, Deputy Thiessen asked the investigators to show the questions to the legal department to ensure that the questions did not seek information regarding union activity. Third, the City read to police officers the following statement before commencing the interview:

We will not ask any questions regarding Guild policy, practice, or strategy. The City of Vancouver Police Department does have a legitimate interest of protecting employees from possible conduct that is retaliatory, discriminatory, and/or harassing. Consequently, questions pertaining to Guild executive board meetings will be circumscribed to illicit only those facts related to alleged violations of City and Vancouver Police Department Policy.

Admin. Record at Ex. 10. Guild members faced disciplinary proceedings if they failed to answer the questions. The City also allowed each witness to have legal representation present during questioning, which was not the customary practice in previous IA investigations. The City did require that a member's attorney reserve any questions and objections until later in the interview so as not to interfere with the investigation.

On February 2, 1999, the first day that the City questioned Guild members, the Guild filed a complaint with PERC charging the City with unfair labor practices, specifically with interference with employee rights under RCW 41.56.140(1). On March 17, 1999, PERC voted to seek an injunction restraining the City from continuing its interrogation of Guild members. Clark County Superior Court then entered a preliminary injunction.

A PERC Examiner presided over a twoday hearing. Before the hearing, the Guild filed a motion in limine seeking to exclude particular statements made by Guild members and specific discussions that occurred at Guild meetings. The Examiner refused to issue "a blanket ruling," instead entertaining specific objections to specific questions that might undermine the restraining order. The Examiner stated that the effect of the superior court's injunction was to freeze the employer's investigation and that she did not want to undercut that ruling. The Examiner also stated at the outset that she thought that the truth of the alleged comments was irrelevant to the issue to be decided.

The Examiner found that no Guild member could have reasonably perceived the City interfered with his or her collective bargaining rights or future union activity. Thus, the Examiner concluded that the Guild did not establish that the City's interrogation of the employees in the circumstances of the case interfered with their rights in violation of RCW 41.26.140(1). The Examiner dismissed the complaint. The Examiner held that the City could question union officers and bargaining unit members about the alleged harassing, discriminatory, and retaliatory comments made about Sharma during a union meeting.

The Guild petitioned PERC for review of the Examiner's decision. PERC reversed the Examiner. PERC differed from the Examiner on a crucial finding of fact; PERC found that the Guild members could have reasonably perceived the City's...