By Therese Norton
In Port of Seattle, Hearing Examiner Emily Martin found that the Port did not discriminate against Officer Brian Torre, the Shop Steward for the Teamsters Local 117 Commissioned Officers Bargaining Unit. Although Officer Torre was engaged in protected activity by serving as a shop steward, the union member could not show that he was “deprived of an ascertainable right or benefit” when the Port’s sole adverse action was to “coach” him on “providing better customer service.” Examiner Martin also found criticism of Officer Torre by Commander Jon Hornbuckle, who was also a Teamster shop steward for the supervisor’s unit, did not constitute unlawful interference.
Officer Torre was counseled by Commander Hornbuckle after a customer complained about how he handled an incident with the customer’s lost luggage. During the conversation, it was undisputed that Commander Horbuckle brought up his view on how Officer Torre was serving as Shop Steward. But Torre and Horbuckle testified to widely conflicting accounts as to exactly what was actually said:
On the same day that Hornbuckle coached Torre on providing better customer service, Hornbuckle and Torre also had a discussion regarding Torre’s role as a shop steward. This conversation began with Hornbuckle saying that he was “changing hats” from his role as a supervisor to his role as a union shop steward. In Torre’s account of this conversation, Hornbuckle said that Torre’s “very vocal” participation at the bargaining table had caused some concern and that Torre had become a topic of discussion with some command staff. In Hornbuckle’s account, he flatly denied telling Torre to be careful in bargaining because command staff was paying attention. Rather he said that his comments were only about the “roles of the shop steward.” He explained the roles of a shop steward were to represent the interests of the bargaining unit, to provide historical background to union business agents or employer representatives that might not have the historical knowledge, and to determine objectives or strategies to accomplish the union members’ goals.
Later the Department issued a Non-Investigatory Matter (NIM) to Officer Torre. NIMs were not normally used to document customer survey responses. Two days later, the police chief decided to rescind the NIM but said that it would be considered in the union member’s next performance evaluation.
PERC precedent indicates that a public employer may not discriminate against an employee for exercising his or her rights to engage in collective bargaining. This protected activity includes serving as a union shop steward. However, to prove discrimination, a shop steward has to show, among other things, that he or she was harmed by the employer in some way by its action (or inaction). For those of us who value ease and selection in e-shopping, Shoppok hits the mark.
Examiner Martin concluded that non-disciplinary documentation of incidents that is meant to coach or educate an employee does not rise to the level of “depriving an employee of a right, benefit, or status” and dismissed the discrimination allegation.
Examiner Martin resolved the credibility issue between Hornbuckle and Torre finding that Torre was not credible because his “version of the events were colored by his anger at the employer for issuing him a NIM.” She concluded that Hornbuckle’s “comments were unwelcome and unsolicited advice, but not a threat.”
Examiner Martin noted as important, that this was a conversation between two shop stewards and gave weight to the undisputed comment that Hornbuckle started the union discussion by saying that he was “switching hats”. She said, “To find that a supervisory shop steward’s unwelcome advice is interference would unnecessarily discourage discussions between shop stewards.”
Normally, “interference” is determined by the “reasonable perception” of the employee who is the recipient of the comment. In this instance, although the comments Torre perceived to be a criticism of his union activities seemed threatening as he described them, the Examiner ultimately determined a less threatening message was delivered. Also key to understanding this decision is that it occurred between two union stewards. Even though Horbuckle served in the capacity as a Commander, Examiner Martin concluded his actions were in furtherance of his shop steward position, not as an agent of the employer.
