By Therese Norton
In Washington State Patrol, PERC Examiner Hartrich found that WSP interfered with employee rights when it directed a shop steward not to inquire about relevant facts while preparing to represent a bargaining unit employee in an investigatory interview. Washington State Patrol, Decision 11775 (PSRA, 2013).
The investigation involved a WSP civilian employee. The shop steward made inquiries into whether any evidence from a video camera of the incident existed by accessing a Patrol database and briefly spoke to a technician. During the investigatory interview of the WSP civilian employee, the shop steward mentioned the possibility of videotape evidence, of which the investigator had previously been unaware.
Shortly following the suggestion, the shop steward was summoned into meeting with four OPS officers, including a lieutenant, and was questioned as to whether he was conducting a “parallel investigation.” He was then directed to discontinue his investigation. The shop steward testified that the reaction from the officers left him feeling confused: “[In] all of my training over the years and my experiences . . . I never had been in a situation where I was told . . . I could no longer advocate, be an advocate for people that I represent.”
The Examiner first determined that the shop steward had engaged in protected union activity. The parties’ collective bargaining agreement allowed the shop steward to use work time to assist the union member and his actions constituted reasonable preparation for an investigatory interview.
Next, the Examiner evaluated whether the employer took some action a typical employee could reasonably perceive as discouraging union activity. The employer argued that under the “thicker skin” principle, the union steward should not have felt intimidated or coerced by the employer because he had many years of experience and training as a union representative. The “thicker skin” principle means that claimed perceptions of threats and coercion are less reasonable the longer a union official is involved in representing the interests of bargaining unit employees. The Examiner concluded that the “thicker skin” principle did not apply in this case because the statement was “a directive made by uniformed officers to an unranked, individual shop steward.”
The Examiner concluded that the employer’s right to control its internal investigations is not absolute. The employer must account for employees’ statutorily protected rights granted by the legislature under RCW 41.80.
