By Chris Casillas and Jordan L. Jones
In Pierce County, PERC Examiner Lisa A. Hartrich held that the Employer did not commit an unfair labor practice (ULP). Examiner Hartrich stated that the Union did not make a prima facie case for their discrimination claim and that the interference allegations were untimely filed.
In this case, Pierce County Sergeant Gavin Foster was flying the Employer’s airplane when he had a propeller strike accident that damaged the airplane. At the time of the accident, Sergeant Foster was a supervisor for the air operations unit in addition to being a supervisor for the community support team. Subsequently, Sergeant Foster’s community support team supervisor and Union president Lieutenant Cynthia Fajardo requested to meet with him. Lieutenant Fajardo stated that she did not intend on the meeting to be investigatory in nature, but just wanted to find out from Sergeant Foster why he was not assisting her community support team at the time of the accident.
When Sergeant Foster met with Lieutenant Fajardo, he brought along a Union representative to sit with him during the meeting. Lieutenant Fajardo told the Sergeant that if he wanted a Union representative to be present, she would have to fill out an incident performance report which would involve an inquiry, criticism, or commendation. Sergeant Foster then agreed to meet with her without a Union representative. Following this meeting, Lieutenant Fajardo suspected that Sergeant Foster was falsely reporting his shift-time and a GPS tracking device was placed on the Sergeant’s county-owned vehicle without his knowledge. Sergeant Foster was later terminated as a result of an investigation that sustained 12 policy violations spurred by this GPS information.
The Pierce County Deputy Sheriff’s Independent Guild filed a ULP complaint alleging that Pierce County discriminated against the Sergeant by terminating him for requesting a Union Representative during his meeting and that the Employer also interfered with the Sergeant’s Weingarten rights.
In response, Pierce County denied the discrimination claim and contended that the interference allegation was untimely because it was filed past the six-month statute of limitations when the Sergeant knew or should have known there was a Weingarten violation; that the Union’s claim that it did not have notice of the Weingarten violation until months after Sergeant Foster’s meeting with Lieutenant Fajardo is irrelevant.
Examiner Hartrich found that the Union did not bring forward a prima facie discrimination claim. She noted that the Union did not present any evidence, circumstantial or otherwise, that Sergeant Foster was terminated because he had requested a Union representative at his meeting with Lieutenant Fajardo. Examiner Hertrich stated that the 12 sustained policy violations were Pierce County’s basis for terminating Sergeant Foster.
With regard to the separate interference charge concerning the alleged Weingarten violation, Examiner Hartrich also stated that:
The [U]nion’s argument overlooks well-established law that Weingarten rights attach to the individual employee, not the [U]nion [and that the] . . . focus is on the date when a potential complainant had actual or constructive notice of the complained action.
In other words, Examiner Hartrich felt that the Union’s interference claim was untimely filed because Sergeant Foster was put on actual or constructive notice by his meeting with Lieutenant Farjardo; that it did not matter if the Union claimed it wasn’t aware of this meeting until months later. Nevertheless, Examiner Hartrich explained that that the Union was put on notice at the time of the meeting between Sergeant Foster and Lieutenant Fajardo because its representative had tried to attend the interview. Therefore, Examiner Hartrich held that Pierce County did not commit a ULP.
The statute of limitations is a critically important issue that every union must be mindful of because it is a jurisdictional issue for PERC in which they cannot accept cases involving events that occurred more than six months prior to the complaint filing. In this situation, however, the Commission will have to closely scrutinize whether the Examiner properly applied the standard to this case. The Examiner is correct that the Weingarten right attaches to the individual employee. Nonetheless, the “triggering event,” for purposes of the statute of limitations, is when the union knew, or should have known, of the unfair labor practice. In this case, that event occurred when there was knowledge that an employee had been required to attend an investigatory interview and that employee had sought, and been denied, representation. The union’s argument is that while it knew a meeting took place earlier it was only months after the actual meeting between this employee and his supervisor that the employee and union learned that the meeting was in fact an interview to discover possible wrongdoing. It was only at that point, which was within the six-month window, that the violation was understood to have occurred, which the union argued was the triggering event. If the employer was being deceptive, this is often referred to as “subterfuge,” and if it occurred this could alter the timing of the triggering event for purposes of the statute of limitations. If appealed, the Commission will have to evaluate whether any subterfuge occurred, making the complaint potentially timely.
