By Chris Casillas and Jordan L. Jones
In Port of Anacortes, PERC Examiner Jamie L. Siegel held that the Port did not unilaterally change a past practice when it ended maintenance mechanic David Bost’s light duty assignment. Examiner Siegel also found that the Port did not discriminate against Mr. Bost for union activity when it ended his light duty assignment.
In this case, Mr. Bost was injured on-the-job and subsequently had surgery in the fall of 2013. Mr. Bost returned to work around December 23, 2013, and was placed on a light duty assignment which was to end on February 15, 2014. The cost of this light duty assignment was subsidized by L&I’s “Stay-at-Work Program.” Mr. Bost then suffered a non-work related medical issue on January 14, 2014. Mr. Bost’s doctor for the work-related injury released him to work full duty without restriction on February 3, 2014, but this was not communicated to the Port until February 11. After the Port learned that the doctor for the work-related injury released Mr. Bost for full duty without restriction, the light duty assignment was ended. Mr. Bost later got a second opinion from his doctor for his non-work related medical issue who cleared him to work full duty without restriction for February 18.
The International Longshore and Warehouse Union, Local 25, argued that the Port made a unilateral change to a past practice when it discontinued Mr. Bost’s light duty assignment on February 11. The Union contended that “there was an unwritten, long standing practice in place by which management representatives approved employee requests for light-duty assignments when employees were injured off-duty.”
In addition, the Union argued that the Port retaliated against Mr. Bost for engaging in protected Union activity. In October of 2013, within a week of the Union filing a representation petition, the Port “called meetings with Bost and two other employees ‘to instruct them to remove the [U]nion buttons they were wearing . . . .” Examiner E. Matthew Greer held in Port of Anacortes that the Port “interfered with protected employee rights.”
The Union now asserts that given the Port’s hostility toward the Union and the unusual timing of Mr. Bost’s dismissal from light duty work, it is reasonable for employees to perceive the negative employment actions taken by the Port as related to their Union activity.
Examiner Siegel stated that:
To establish a past practice, a party must prove the following two basic elements: (1) a prior course of conduct, and (2) an understanding by the parties that such conduct is the proper response to the circumstances. To establish these elements, “it must . . . be shown that the [prior course of] conduct was known and mutually accepted by the parties.” The party claiming a past practice bears the burden of proof.
Examiner Siegel noted that the parties agreed that there was “no written policy addressing light duty” and found that the Union did not establish a past practice. Examiner Siegel found that the Unions’ two witnesses could not cite any specific examples of when the practice of assigning light duty occurred and that it had been established by both parties.
To establish a past practice requires specific examples of when the practice occurred and has been accepted by both parties. [One of the Union’s witnesses indicating that he had] . . . never heard of an employee who was injured off-duty being denied light duty does not assist in establishing a past practice.
Likewise, Examiner Siegel found that the Union’s other witness “introduced no documentary evidence regarding [an employee’s] . . . injuries or light duty associated with these injuries.”
In addition, Examiner Siegel found that the Port did not discriminate against Mr. Bost when it ended his light duty assignment. Examiner Siegel noted that even if the Union was able to establish a prima facie case of discrimination, the Union failed “to carry its ultimate burden of proving [that] the Employer’s action was in retaliation for the employee’s exercise of [his] statutory rights.”
The Port has “established [that] it had a legitimate, nondiscriminatory reason for discontinuing Bost’s light duty assignment” which included a “lack of light duty work”, “concerns about Bost not timely reporting injuries”, “light duty would no longer be financially subsidized by L&I because the L&I doctor released Bost to return to full duty” etc . . . . Examiner Siegel noted that the Union could not establish that “the reasons [given by the Port] were pretext of retaliation or that [U]nion animus substantially motivated the [E]mployer’s action.”
Examiner Siegel dismissed the Union’s complaint after it failed to prove that the Port made a unilateral change to a past practice or discriminated against Mr. Bost for union activity when it discontinued his light duty assignment.
