City of Yakima, Decision 10270 (PECB, 2009)


                         STATE OF WASHINGTON
                                   
          BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
                                   
                                   
YAKIMA POLICE PATROLMANS           )
ASSOCIATION,                       )
                                   )
                    Complainant,   )    CASE 21562-U-08-5494
                                   )    
          vs.                      )    DECISION 10270 - PECB
                                   )
CITY OF YAKIMA,                    )    FINDINGS OF FACT, 
                                   )    CONCLUSIONS OF LAW, 
                    Respondent.    )    AND ORDER
___________________________________)

     Cline & Associates, by Reba Weiss, Attorney at Law, for the union.

     Menke Jackson Beyer Elofson Ehlis & Harper, LLP, by Kirk A.
     Ehlis, Attorney at Law, for the employer.

On February 29, 2008, the Yakima Police Patrolmans Association
(union) filed a complaint charging unfair labor practices against
the City of Yakima (employer) with the Public Employment Relations
Commission.  A preliminary ruling was issued finding causes of
action for multiple allegations of unfair labor practices.  A
hearing was held on June 3, 4, 5, and 6, 2008, before Examiner Sally
B. Carpenter.  The parties filed post-hearing briefs.

ISSUES

1:   Did the employer make a unilateral change in a mandatory
     subject of bargaining by:

          A.  Extending the duration of the Detective Sergeant in
          Training (DST) position from one year to two years?

          B.  Failing to post the DST position in the fall of 2007?

          C.  Failing to complete the investigation of misconduct
          allegations before using such allegations in an employee's 
          evaluation?

2:   Did the employer refuse to provide relevant information
     requested by the union concerning consultant reports?

3:   Did the employer discriminate against Officer Elaine Gonzalez
     in reprisal for protected union activities?

4:   Did the employer interfere with employee rights by the Police
     Chief's addition of negative comments to Gonzalez's evaluation?

I find that the union has carried its burden of proof on each of the
allegations listed above.  The employer interfered with employee
rights in violation of RCW 41.56.140(1), discriminated against
Elaine Gonzalez in violation of RCW 41.56.140(1), and refused to
bargain in violation of RCW 41.56.140(4).

STATUTE OF LIMITATIONS

The complaint was filed in this case on February 29, 2008.  The
statute of limitations for unfair labor practice complaints is six 
months.(fn:1)  Events occurring prior to August 29, 2007 are discussed
solely as background to establish context leading to allegations
made in this current case.(fn:2)  Events prior to August 29, 2007 are
not determinative in this case. 
____________________
fn:1     RCW 41.56.160--COMMISSION  TO PREVENT UNFAIR LABOR PRACTICES
AND ISSUE REMEDIAL ORDERS AND CEASE AND DESIST ORDERS.  
(1) The commission is empowered and directed to prevent any unfair
labor practice and to issue appropriate remedial orders:  PROVIDED,
That a complaint shall not be processed for any unfair labor
practice occurring more than six months before the filing of the
complaint with the commission.

fn:2     City of Fircrest, Decision 5094 (PECB, 1995).


APPLICABLE LAW

Refusal to Bargain and Unilateral Changes
The Public Employees' Collective Bargaining Act, Chapter 41.56 RCW,
gives the Commission jurisdiction over unfair labor practice
complaints.  It is an unfair labor practice for a public employer to
refuse to engage in collective bargaining. RCW 41.56.140(4).  Absent
a union waiving its statutory right to notice and opportunity to
bargain, an employer is prohibited from making unilateral changes in
wages, hours and working conditions, whether those matters are
covered in the parties' collective bargaining agreement or in the
past practices of the parties.  An employer commits an unfair labor
practice if it fails to bargain concerning a mandatory subject of
bargaining.  State - Social and Health Services, Decision 9551-A
(PSRA, 2008).  

Mandatory subjects of bargaining are wages, hours and working
conditions.  RCW 41.56.030(4).  When called upon to determine
whether a particular proposal or topic is a mandatory subject of
bargaining, the Commission uses a balancing test under International
Association of Fire Fighters, Local 1052 v. Public Employment
Relations Commission (City of Richland), 113 Wn.2d 197 (1989).  "It
is well established that the duty to bargain imposes a duty to give
notice and provide opportunity for good faith bargaining prior to
implementing any change of practice concerning the wages, hours, or
working conditions of bargaining unit employees."  City of Pasco,
Decision 9181-A (PECB, 2008). 

For an interest arbitration-eligible group, the employer may not
unilaterally implement a change if good faith bargaining fails to
reach an agreement.  The status quo must be maintained until an
interest arbitrator has issued a decision.

Timely notice of a proposed change is essential.  Early in its
planning process, an employer must give notice to the union so that
the union may decide whether to request bargaining on the issue.  If
the union requests bargaining, there must be time for it to
formulate proposals and for both sides to enter into good faith
bargaining.  A fait accompli will be found if the employer has
planned a decision which the union cannot influence in bargaining. 

     In the absence of formal notice, however, it must be shown that
     the union had actual, timely knowledge of the contemplated
     change. The Commission's focus should be on the circumstances
     as a whole, and on whether an opportunity for meaningful
     bargaining existed. If the union is adequately notified of a
     contemplated change at a time when there is still an
     opportunity for bargaining which could influence the employer's
     planned course of action, and the employer's behavior does not
     seem inconsistent with a willingness to bargain if requested,
     then a fait accompli should not be found.

City of Edmonds, Decision 8798-A (PECB, 2005), quoting Washington
Public Power Supply System, Decision 6058-A (PECB, 1998).

A pattern and practice between the employer and union can become a
silent part of the parties' collective bargaining agreement.  The
employer cannot make unilateral changes in past practices.  For a
past practice to exist, two basic elements are required: (1) an
existing prior course of conduct; and (2) an understanding by the
parties that the conduct was known and mutually accepted by the
parties as the proper response to the circumstances.  City of Pasco,
Decision 9181-A.  Past practices create enforceable expectations in
a collective bargaining relationship.
   
A law enforcement workplace is extremely complicated, with shift
work, specialty assignments, and constant training needs requiring
frequent changes in working hours.  This challenges the police
officer to balance a career in law enforcement with family and
community obligations.  Thus, the delicate precision of: shift
bidding, how assignments are obtained, when notice of a change is
given, and what assignments are necessary for promotional
opportunities all have a critical significance.  Law enforcement
past practices are more precise, detailed, and subtle than in
simpler industries.  The United States Supreme Court recognized and
underlined this in a series of three 1960 decisions called the
Steelworkers Trilogy.   "[T]he industrial common law - the practices
of the industry and the shop - is equally a part of the collective
bargaining agreement, although not expressed in it."  United
Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S.
574 (1960).  The Warrior case quotes with approval, "There are too
many people, too many problems, too many unforeseeable contingencies
to make the words of the contract the exclusive source of rights and
duties. One cannot reduce all the rules governing a community like
an industrial plant to fifteen or even fifty pages."(fn:3)
____________________
fn:3     Quoted by the Supreme Court from Cox, "Reflections Upon Labor
Arbitration," 72 Harv.L.Rev. 1482, 1498-1499 (1959). 


Analysis - Refusal to Bargain - Unilateral Changes

There are three unilateral change allegations in this case.

Issue 1:  A. Did the employer make a unilateral change in a
          mandatory subject of bargaining by extending the duration
          of the Detective Sergeant in Training (DST) position from
          one year to two years?

The employer's police department includes 120 police officers and
sergeants who are represented by the union.  In September 2003, Sam
Granato was appointed as Police Chief.  Chief Granato did not have
prior law enforcement experience in Washington State.  The employer
and the union have a mature bargaining relationship which has
developed over many years.

Several essential scheduling issues are historically imbedded in the
parties' relationship.  One scheduling issue was the parties' past
practice of doing shift bidding for patrol positions on an annual
calendar basis.  Shift bidding was done in October or early November
for the following year.  Work shifts were for one year.  Another
scheduling past practice of the parties was that temporary police
officer reassignments could not exceed six months.(fn:4)
____________________
fn:4     The Policy and Procedure manual for the Yakima Police
Department provides that "No employee shall be required to work more
than six consecutive months . . . unless by request."  Manual
Section 5.06.01.  Testimony indicated that the parties had a long
history of applying this language to their practice that the maximum
duration of a special assignment was six months unless otherwise
agreed to.


Assignment to the detective roster was also guided by past
practices.  The police department rotates officers and sergeants 
through its divisions, initiated by the employee's request in
response to the employer's job posting.  A detective assignment
requires training and experience developed on the job, thus typical
detective assignments last for approximately five years. 

In 2006, the shift roster for the police department consisted of
three divisions:

     -    Patrol - two teams.  Each team had 31 officers and
          sergeants, for a total of 62 employees.

     -    Detective [or Criminal Investigation Division] - four
          assignment areas, 23 officers and sergeants.

     -    Special Operations - three assignment areas, 19 officers
          and sergeants.

Assignment to a division is guided by past practice.  Specialty
positions, those in the detective and special operations divisions, 
are normally multi-year tasks.  Annual decisions are made on how to
fill the specialty positions.  Management first decides which
employees to keep in their current specialty slot.  Next, management
posts openings for the soon-to-be-vacant positions in specialty jobs
and then selects individuals to fill the positions.  Finally, patrol
shifts are filled by shift bidding based on seniority.  Employees
bid for their preferred patrol shift.  The union learns who has been
assigned to a specialty position by the absence of that employee's
name from the patrol shift bid seniority list. 

The DST position was created in 2005.  On August 25, 2005, Chief
Granato issued a memo regarding "Department Reorganization."  He
wrote in part:

     The Detective Division will add another Sergeant's position. 
     This sergeant's position will be a one-year career development
     position.  It will give sergeants who lack recent detective
     experience an opportunity to gain experience in investigation
     and crime scene management.  The purpose of this position is to
     more fully develop sergeants, who may not have had an
     opportunity to be assigned to detectives recently, the skills
     needed so they could supervise and manage major crime
     investigations.  This position will rotate by seniority.

The union was not consulted prior to the issuance of this memo. 
While the union considered filing a failure-to-bargain complaint or
a grievance, they decided not to do so after having internal
discussions and some conversations with management.

There were two primary factors that the union considered in
permitting the new DST position to proceed unchallenged.  One was
the opportunity for skills development and improvement in the
quality of the department's work.  The union president testified,
"we had approximately seven sergeants with no investigative skills,
. . . I was hoping they were going to get . . . an opportunity to
learn about crime scene management."(fn:5)  He went on to testify that
it was not a pure seniority assignment. Sergeants who were already
in specialty positions, who had recently served as detectives, or
who were nearing retirement would not be placed in this one-year
training position.  Like most specialty positions, the DST
assignment had: regular Monday through Friday work assignments with
nights, weekends and holidays off; an assigned take-home car; paid
clothing allowance; and other benefits.
____________________
fn:5     The 2006 shift roster identifies 15 sergeants.  

With these understandings as to posting, duration, seniority
assignment, benefits, and training, the union acceded to the new
one-year DST position.  Thereafter, Chief Granato posted the opening
for the new position in August 2005, as follows:

     Detective Sergeant (Career Development Position):
     As stated on the Department reorganization memo, Sergeants who
     lack recent experience in the Detective Division will fill this
     position.  This slot is a one-year rotation and is filled by 
     seniority.

In 2006 the DST position was filled by Sergeant Bob Hester, who was
appointed by seniority and lack of recent detective experience.  In
2007 the position was filled by Sergeant Lloyd George.  The
unilateral charge issue in this case arose from the Chief's
assignment of Lloyd George to a second year in the DST position.

On October 3, 2007, the employer posted the 2008 shift bidding list
for patrol division positions, with bidding to begin immediately. 
Officers and sergeants who were assigned to specialty positions 
were not on the list.  Sergeant Lloyd George's name was not on the
list.  He held the 2007 one-year position of Detective Sergeant in
Training (DST).(fn:6)  Based on past practice, the union expected him
to return to the patrol division and to be on the October shift bid
list.  The union filed a grievance that same date.  The Chief
testified he consulted legal counsel and was told he was required to
bargain the change in the duration of the DST position from one year
to two years.
____________________
fn:6     The senior sergeant next in line for the DST position was
Sergeant Brenda George.  She was the sergeant who was at Yakima
Police Athletic League (an assignment in the special operations
division) during the Crystal Dodge incidents described later.


On October 9, 2007, Chief Granato sent the union president a letter
beginning, "This memorandum will serve as formal notice to the
Association the Department is considering the expansion of the
assignment for the Detective Sergeant Training Position from a one
year to a two year assignment." 

Meanwhile, shift bidding for 2008 patrol division assignments had
begun on October 3.  On October 23, bidding was completed and the
final shift roster was issued.  Sergeant Lloyd George was assigned
to the position of DST.  Sergeant Brenda George was on the patrol list.

By letter of October 22, 2007, the Chief wrote the union, "The City
stands ready to bargain the proposed extension of the Detective
Sergeant Training position." The employer and the union met to
bargain on November 16, 2007.  The tape recording of the meeting was
transcribed by a court reporter.  The transcribed conversation shows
no genuine openness by the employer to any program other than
expansion of the DST assignment from one year to two years for
Sergeant Lloyd George in 2008.  The Chief did not make any proposal
to modify, postpone or in any other manner revise his proposal.  The
employer engaged in surface bargaining.  The union did not agree to
the proposed change.

On November 21, 2007, the Chief sent a letter to the union stating
in part, "Please be advised that I plan on implementing the changes
to the Detective Sergeant in Training position rotation that I have
previously proposed as of January 1, 2008."

The Commission's balancing test is used to determine whether the
issue here, the duration of a specialty assignment, is a mandatory
subject of bargaining.  On one side of the balance is the
relationship the topic bears to employee wages, hours and working
conditions.  On the other side is the extent to which the topic is a
management prerogative.  

Shift bidding on a 24-hour-a-day, seven-day-a-week operation is a
central issue for police officers and sergeants.  Employees bid
annually for their next year's work schedule in the fall. 
Reassignments, such as from patrol to detectives, or back to patrol,
are given before beginning the shift bidding process.  This notice
of reassignment allows police officers and sergeants to correctly
participate in shift bidding.
  
A change in the duration of a specialty assignment is a mandatory
subject of bargaining.  The employer presented the union with a fait
accompli when it posted the 2008 bidding list on October 3, 2007. 
The employer violated its duty to maintain the status quo until
either the parties reached agreement at the bargaining table, or an
interest arbitration award gave the employer the ability to make the
requested change.  The employer did not give pre-decision notice to
the union.  The employer engaged in surface bargaining while bidding
on the roster proceeded.  The employer planned a decision which the
union could not influence in bargaining.

Issue 1:  B. Did the employer make a unilateral change in a
          mandatory subject of bargaining by failing to post the DST
          position in the fall of 2007?

Like the duration of a specialty assignment, the posting of a
specialty assignment position has a similar effect on employee
wages, hours and working conditions, and is a mandatory subject of 
bargaining.

The parties' current collective bargaining agreement, executed
September 11, 2007, requires the employer to post openings in
non-patrol positions: "Art 23, Section 10-Notice of Specialty
Openings. Notice of all openings for specialty positions will be
posted."  Because this agreement language states "all openings" for
specialty positions will be posted, the employer had a duty to post
the DST position in 2007.  In addition, the past practice, beginning
in 2005, was to post the position each year.  The employer changed a
mandatory subject of bargaining without prior notice to the union
and an opportunity for good faith bargaining.

Issue 1:  C. Did the employer make a unilateral change in a
          mandatory subject of bargaining by failing to complete the
          investigation of misconduct allegations before using such
          allegations in an employee's evaluation?

Officer Elaine Gonzalez signed her two-year personnel evaluation on
August 28, 2007, after her two sergeants had prepared and signed the
evaluation.  The employee signature line on the evaluation form
recites, "I hereby certify that I have reviewed this evaluation in
the presence of the rater and have received a copy. . . ."  The
signature line conveys a message that the evaluation is complete at
the time the employee signs.  In late September 2007, Officer
Gonzalez received another copy of her evaluation from her sergeant. 
The new copy had negative comments written by Chief Granato, who
stated, "I do not concur in the area of civilian contacts.  There is
a pattern of rudeness to citizens."  The sergeant supervising
Gonzalez and other witnesses testified they had never seen an
addition to an evaluation after the employee had signed it.  No
citizen complaints against Officer Gonzalez had been completely
investigated and sustained during the time period covered by the
evaluation. 

The relationship of performance evaluations to employee wages, hours
and working conditions must be balanced with management
prerogatives.  An examiner in Seattle School District, Decision 8976
(PECB, 2005), citing previous decisions, reiterates that job
evaluations affect employee working conditions, because they are
often "considered by employers and arbitrators in making judgments
about matters affecting job security . . . ."  Employees have a
reasonable expectation that the employer will not change its
evaluation practices, absent fulfillment of its bargaining
obligations.  An evaluation is a working condition because it can
impact the employee's ability to get specialty assignments and
promotions for the rest of their career.

The employer introduced a few evaluations in which "attaboy"
comments had been added by the employer.  However, no evaluation
other than Officer Gonzalez's had a negative comment added after the
employee had signed it.  No prior incidents had occurred where
incomplete investigations into citizen complaints had been noted on
an employee's evaluation.  The employer changed a mandatory subject
of bargaining without prior notice and an opportunity for good faith
bargaining, by failing to complete the investigation of misconduct
allegations against Officer Gonzalez before using such allegations
in her evaluation.

APPLICABLE LAW

Refusal to Provide Information
It is an unfair labor practice for a public employer to refuse to
engage in collective bargaining.  RCW 41.56.140(4).  The Commission
has stated that the duty to bargain includes a duty to provide
relevant, necessary information requested by the opposite party for
the proper performance of its duties in the collective bargaining
process.  Port of Seattle, Decision 7000-A (PECB, 2000).  This is
consistent with viewing the duty to provide information as part of
an ongoing and continuous obligation to bargain.  Union requests for
information pertaining to employees in the bargaining unit
represented by that union are presumptively relevant.  Port of
Seattle, Decision 7000-A; City of Bremerton, Decision 6006-A (PECB, 
1998).

There are three elements of proof required for a finding that an
employer unlawfully refused to provide information.  Those elements
are: (1) the union is the exclusive bargaining representative of the
employees involved; (2) the union requested existing information
relevant to the performance of its functions in collective
bargaining or contract administration; and (3) the employer failed
or refused to provide the requested information.  

When a union requests information, the employer must respond.  The
employer has a duty to explain any confusion about, or objection to,
the request, and then negotiate with the union toward a resolution
satisfactory to both parties. Port of Seattle, Decision 7000-A;
Seattle School District, Decision 5542-C (PECB, 1997).  In Seattle
School District, Decision 5542-C, the Commission further holds that
an employer must discuss the requested items with the union "so as
to attempt to reach a mutually acceptable compromise or
accommodation on the request."

For instance, in the Seattle School District case, employees were
first placed on administrative leave, then discharged.  The employer
took the position that it had no duty to disclose investigation
documents  unless and until the employees were fired.  The Seattle
School District decision specifically rejects that contention.  The
Commission held that an employer must respond to the union's
requests during the process, not after the termination is completed.
 
In the Port of Seattle decision, the employer declined to produce
foreman time logs and payroll labor reports.  The Commission found a
violation because the employer did not explain its concerns to the
union and make a good faith effort to reach agreement with the union
on its request.  If an employer believes a document request is
irrelevant or unclear, it is obligated to timely communicate its
concerns to the union.  Pasco School District, Decision 5384-A
(PECB, 1996).

A party has an obligation to make a good faith effort to locate the
information requested.  City of Seattle, Decision 10249 (PECB,
2008).  Any objection by the employer to providing requested
documents must be handled through clear and prompt communication in
the form of dialogue with the union.

Analysis - Refusal to Provide Information

Issue 2:  Did the employer refuse to provide relevant information
          requested by the union concerning consultant reports?

The police department supervises a program called Yakima Police
Athletic League (YPAL).  A police sergeant and two police officers
are assigned full-time to work on the premises of YPAL with youth
from the community.  YPAL is a non-profit corporation run by a Board
of Directors.  Chief Granato was chair of the board in 2006. YPAL
had one employee in 2006, Crystal Dodge.  Her position was paid by
grant funds.  Dodge provided support services to the police officers
and sergeant who staffed the program.

In January 2006, Sergeant Brenda George was assigned to YPAL.  Two
officers reported to her, Ben Hittle and Rey Garza.  Crystal Dodge
complained to Sergeant George that Officer Hittle was harassing her
because she had a physical handicap. Sergeant George spoke to Hittle
and reported the allegation to her supervisor, Captain Light.  Light
then spoke to the captain from 2005, who confirmed Hittle's behavior
towards Crystal Dodge was an ongoing issue.

Chief Granato found out about Crystal Dodge's allegations at a
meeting on the YPAL premises on March 1, 2006.  Granato told Hittle
if it was going on, to quit it.  Ben Hittle was a friend of the
Chief.  Within a month the Chief reassigned Sergeant George to
patrol duty.  In early June, 2006, Crystal Dodge left YPAL and
obtained legal counsel.  Her attorney filed a handicap
discrimination claim against the employer.

The employer hired a consultant to investigate the charge of
unlawful workplace discrimination.  The first consultant the
employer hired, Carolyn Cairns, was fired in December 2006 after she
submitted her preliminary report.  The Cairns report was critical of
the police administration, finding that the Chief's "actions and
inactions were motivated in substantial part, by retaliation based
on Dodge's discrimination complaints regarding Hittle . . . ."  The
Cairns report goes on to recite many instances of statements made by
the Chief and others, concluding, "It is therefore not at all
surprising that various witnesses are concerned that he will
retaliate."  A second consultant hired by the employer, Kris Cappel,
submitted a report with different conclusions six months later.  In
response to the Cappel report, the Chief wrote his city manager, "I
believe appropriate action and discipline was administered by me (to
Officer Hittle) at the March 2006 meeting."

In the course of these investigations, many employees were
interviewed by the consultants.  All interviewed employees for the
second report (Cappel report) were given their Garrity rights.(fn:7) 
Garrity rights are only given when the matters at issue involve
criminal misconduct.  Sergeant Brenda George was one of the
individuals given her Garrity rights.
____________________
fn:7     Garrity v. New Jersey, 385 U.S. 493 (1967), concerned police
officers allegedly involved in fixing traffic tickets.  In Seattle
Police Officers' Guild v. City of Seattle, 80 Wn.2d 307 (1972), the
Supreme Court of the State of Washington followed the Garrity
holding, stating, "Thus an employee knows that if he fails to
divulge information pertinent to the issue of his use or abuse of
his public trust he may lose his job." 


Chief Granato wrote an apology letter to Crystal Dodge on September
11, 2007.(fn:8)  He concludes that letter by saying, "The Command Staff
supervisors involved have been appropriately disciplined.  The
failure to supervise by the first line supervisor is under review
and discipline if any has yet to be determined."  The first line
supervisor at YPAL was Sergeant Brenda George.
____________________
fn:8     The Chief's letter was dated within the six-month statute of
limitations for the complaint in this case.


The employer received the first consultant's report from Cairns on
the situation at YPAL in December 2006.  On February 28, 2007, the
union filed its first request for documents; by letter to the city
manager the union requested a copy of the Cairns report.  The union
withdrew that request, substituting a formal request.  

On March 13, 2007, the union made its formal request for the Cairns
report, specifically stating that the request was not made under the
Public Disclosure Act.  "We are claiming our rights to the report
under Collective Bargaining rights R.C.W. 41.56 and the City of
Yakima/Yakima Police Department Collective Bargaining Contract." 
The union's request for information goes on to enumerate reasons why
the report is relevant to the union's duty to represent its members.
There is no record of any response from the employer to the union's
March 13 request.

However, the employer's attorney, Jeff Kruetz, had responded to the
union's former withdrawn request by letter dated February 12, 2007. 
It gave the following three reasons for refusal:

     Pursuant to RCW 42.56.250(5), investigative records compiled by
     an agency are not subject to disclosure pending the conclusion
     of the investigation. . . . [S]ome or part of the records and
     related documents may be subject to the attorney-client
     privilege and therefore exempt from public disclosure. . . .
     [S]ome of the documents you requested may have been prepared in
     anticipation of litigation and therefore exempt under the work
     product exemption, they may not be disclosable.

The union's request for information was prompted by complex events
around the handicap discrimination charge filed against the
employer.  In response to an anonymous whistleblower complaint, the
employer commissioned the first consultant report by Cairns.  A
video conference report meeting was held between Cairns, City
Manager Zais, Police Chief Granato, City Attorney Ray Paolella, and
Helen Hawley on November 7, 2006.  The Chief rejected Cairns'
findings, and the meeting concluded with the Chief having an
opportunity to suggest other witnesses or provide other evidence.  A
week later the Chief's attorney wrote the employer a letter
asserting that the Chief believed he had an attorney-client
relationship with Cairns, and thus she could not use what he told
her in her report.  The employer terminated the contract with Cairns
after she delivered a written report to the employer dated December
1, 2006. 

The employer then hired a second consultant, Kris Cappel.  Cappel's
report is dated May 17, 2007.  It comes to strikingly different
conclusions than that of the Cairns report.  The Cappel report was
accepted by the employer.

On September 28, 2007, the employer issued a press release
captioned, "YPAL Whistleblower Complaints Investigation Completed." 
Shortly thereafter there was a local newspaper article about the
investigation, and redacted copies of both consultant reports were
posted on the newspaper's website.  The union obtained redacted
copies of the reports from the website.  

On December 4, 2007, in a formal letter from the union to the
employer, the union's written request for information was renewed
and expanded.  In addition to previous requests, the union requested
all interview notes and background information used by the
consultants to form their opinions and reports.  

Kruetz, the employer's attorney, responded to the union's December 4
request on December 13, 2007, with a letter and thirteen enclosed
documents.  The letter begins with "This letter is written in
response to your December 4, 2007 Public Records Act request."  The
thirteen documents are then listed, followed by the employer's
reasons to redact information:

     The redacted information in these documents was redacted
     pursuant to the American With Disabilities Ace, HIPPA, and
     Washington's Healthcare Information Act, Chapter 70.02 RCW. 
     Additionally, pursuant to RCW 42.56.230(2) personal information
     that would violate an individual's right to privacy has been
     redacted from the enclosed documents.

This December 13, 2007, response is the only information given to
the union by the employer.  It does not provide all the documents
requested by the union, nor does it explain why all documents are
not produced.  It did not include any interview notes or background
information used by the consultants, nor mention that part of the
union's request.  The employer did not offer to meet with the union
to discuss the request.  

On December 17, 2007, the union sent another letter to Kruetz, the
employer's attorney.  The letter repeated that the request for
information was made under Chapter 41.56 RCW, explained the
employer's duty to respond, and raised questions concerning whether,
even under the Public Disclosure Act, the production of documents
could be limited.  The letter stated,  "That certainly has not been
how the City of Yakima has responded to past requests nor how I have
seen other agencies respond.  That simply seems to be an effort by
the City to keep secret the underlying information."  The employer
did not respond to this letter.

No unredacted copy of the consultant reports was ever provided to
the union.  No response was ever provided to the union's request for
the interview notes and background information used by the
consultants in preparation of their reports.  The employer did not
provide any evidence it made an attempt to obtain the documents
sought by the union.

The employer had a duty to provide information to the union as part
of its ongoing and continuous obligation to bargain.  Seattle School
District, Decision 5542-C, specifically holds that an employer has
the duty to provide requested information to a union at the time the
investigation is proceeding so that the union may carry out its
responsibilities toward its members.

If the employer has concerns about releasing information to the
union, it must explain any confusion about, or objection to, the
request and then negotiate in good faith with the union toward a
resolution satisfactory to both parties.  It cannot dictate what
will be released and when it will be released.  Port of Seattle,
Decision 7000-A; City of Seattle, Decision 10249; and Seattle School
District, Decision 5542-C.

The union had a member (Sergeant Brenda George) whose conduct was
under review for possible disciplinary action as a result of the
YPAL events.  The union had a legitimate interest in the details of
the YPAL investigations as contained in the consultant reports.

The employer has a duty to provide documents immediately to the
union upon request.  The employer has a duty to obtain copies of
documents which it does not have but presumably could obtain.  If
the employer has any concerns, it has a duty to immediately share
those in open communications with the union.  The employer failed to
carry out its duties under the law.

APPLICABLE LAW

Discrimination
The Commission decides discrimination cases under standards drawn
from decisions of the Supreme Court of the State of Washington.  The
test for discrimination is:

     A discrimination violation occurs when an employer takes action
     which is substantially motivated as a reprisal against the
     exercise of rights protected by Chapter 41.56 RCW.  See
     Educational Service District 114, Decision 4361-A (PECB, 1994),
     where the Commission embraced the standard established by the
     Supreme Court of the State of Washington in Wilmot v. Kaiser
     Aluminum, 118 Wn.2d 46 (1991), and Allison v. Seattle Housing
     Authority, 118 Wn.2d 79 (1991).  A discrimination violation can
     be found when:      
     1.   An employee exercises a right protected by the collective
          bargaining statute, or communicates to the employer an
          intent to do so.
     2.   The employee was deprived of some ascertainable right,
          status or benefit.
     3.   A causal connection exists between the protected union
          activity and the action claimed to be discriminatory.  
     Where a complainant establishes a prima facie case of
     discrimination, the employer need only articulate
     non-discriminatory reasons for its actions.  The employer does
     not have the burden of proof to establish those matters. Port
     of Tacoma, Decision 4626-A (PECB, 1995).  The burden remains on
     the complainant to prove, by a preponderance of the evidence,
     that the disputed action was in retaliation for the employee's
     exercise of statutory rights.  That may be done by showing that
     the reasons given by the employer were pretextual, or by
     showing that union animus was nevertheless a substantial
     motivating factor behind the employer's actions.   Port of
     Tacoma, Decision 4626-A.  


Seattle School District, Decision 9628-A (PECB, 2008).

Analysis - Discrimination

Issue 3:  Did the employer discriminate against Officer Elaine
          Gonzalez in reprisal for protected union activities?

Officer Elaine Gonzalez was an active leader and member of the
bargaining team of the union, prior to and during Chief Granato's
time.  The parties' collective bargaining agreement expired on
December 31, 2005.  On September 1, 2006, the Commission certified
17 unresolved issues for interest arbitration.
  
On September 19, 2006, Officer Gonzalez and the union president met
with the mayor and a city council member.  Gonzalez and the union
president complained to the elected officials about Chief Granato's
breach of traditional negotiating processes.  The union said that:
(1) the Chief had given a public speech and had gone to the
newspaper supporting mandatory random drug testing of officers prior
to the first negotiating session; (2) the Chief told the union there
was a random testing procedure for Yakima management but no such
policy was produced; and (3) the Chief continued to take the issue
to the public rather than keeping it at the bargaining table.

On January 1, 2005, prior to difficulties at the bargaining table,
Officer Gonzalez had been transferred into "major crimes", in the 
detective division.  The assignment was a good career step. 
Typically an assignment to major crimes lasts approximately three to
six years, with five years being average.

On September 21, 2006, Officer Gonzalez was told she would be
transferred out of detectives.  It was two days after the meeting
with elected officials.  It was three weeks after the parties had
been certified for interest arbitration.  Her supervisor, Sergeant 
Levno, told Officer Gonzalez that the Chief had made the decision
and had decided her time in detectives was up.  The union filed a
grievance.  On November 2, 2006, Captain Schnieder called in Officer
Gonzalez and told her that he had made the transfer decision because
she was getting burned out. During the time Officer Gonzalez was in
major crimes, the department sent her to many advanced crime scene
trainings.  Her performance warranted retention and extensive
training until her sudden September transfer.  No credible
explanation was given for the precipitous change from being approved
for training to removal from detectives.

Sixteen of the 17 certified issues were settled before the matter
was finally submitted to Arbitrator Michael Beck.  The final open
issue was the question of whether the employer's proposal for random
drug testing would be included as a collective bargaining agreement
provision.  Officer Gonzalez testified against the employer's
proposed drug policy in the interest arbitration hearing held in
June 2007.  The random drug testing dispute was emotional, lengthy,
and a matter of principle for both sides.  The drug testing dispute
was frequently covered and commented on by the local media.  A fired
police officer claimed he was terminated because of the friction
over the employer's proposed drug testing.  Beck's award was issued
on December 4, 2007.  The award states, "The random drug testing
proposal of the Employer is rejected.  The Union proposal of no
random testing is awarded."

On August 28, 2007, Officer Gonzalez was given the original of her 
two-year performance evaluation, covering the period from June 1,
2005, to May 31, 2007.  Typically performance evaluations are for
one-year periods.  Two different sergeants who had been her
supervisors completed the form.  Gonzalez signed the original of the
evaluation at that time and was given a copy.  

In late September 2007, Officer Gonzalez received another copy of
her evaluation from her sergeant.  The new copy had negative
comments written by Chief Granato, "I do not concur in the area of
civilian contacts.  There is a pattern of rudeness to citizens." 
The statute of limitations for the complaint in this matter began on
August 29, 2007.

Officer Gonzalez engaged in protected activities.  There was close
timing between her protected activities and adverse actions by the
employer.  The Chief's negative notes in her evaluation were
unprecedented and were based on complaints which had not yet been
investigated to completion.  A causal connection can be inferred
from the timing and type of adverse action taken.  Cause can also be
inferred based on a pattern shown by Officer Gonzalez's removal from
detectives in 2006.  The union has established a prima facie case of 
discrimination.

The employer argues in rebuttal that there were four individuals on
the union bargaining team, and that only Officer Gonzalez had any
complaint about her evaluation.  The employer also argues that the
Chief's notes on the evaluation are of no consequence and therefore
not an adverse action.  The argument continues that the Chief did
not change any of the numerical scores, but merely added text
indicating disagreement with a numerical score. 

In response, the union points to the timing and the pattern of
conduct.  Intent is rarely directly proven through employer
admissions.  Causal connection must be inferred from the employer's
actions.  The employer's reasons are pretextual.  Union animus was a
substantial motivating factor behind the employer's actions.

Two things especially persuade me that the employer violated the
law.  One is the fact that the Chief had never previously written a
negative comment in an employee's completed evaluation.  The other
is the employer's argument concerning the consequences of negative
comments in an employee's permanent file.  It stretches credibility
to say that the Chief's notes have no effect on the employee, and
that disagreement with a numerical score does not amount to changing
the score.

APPLICABLE LAW

Interference
RCW 41.56.140(1) states:

     It shall be an unfair labor practice for a public employer:
          (1) To interfere with, restrain, or coerce public
     employees in the exercise of their rights guaranteed by this 
     chapter.

The Commission's test for an interference violation is:

     [W]hether one or more employees could reasonably perceive
     employer actions as a threat of reprisal or force or promise of
     benefit associated with the pursuit of rights under Chapter
     41.56 RCW.  It is not necessary for a complainant to show that
     the employer intended to interfere, or even that the employees
     involved actually felt threatened.  City of Omak, Decision
     5579-B (PECB, 1997).

City of Tacoma, Decision 8031-A (PECB, 2004), aff'd, Decision 8031-B
(PECB, 2004).

Analysis - Interference
Several witnesses testified that the Chief's close scrutiny of
Officer Gonzalez, and his addition of the remarks in her evaluation
immediately after she negotiated and testified at the interest
arbitration hearing, led to a perception that an active and
assertive union leader will suffer adverse employment consequences.

The perception is reasonable.  Both the removal from detectives and
the negative notes on her personnel evaluation happened immediately
after Officer Gonzalez had opposed the Chief in her role as union
leader.  The timing of these events could make a typical employee
believe there is a pattern of coercion and threats.

I find the union carried its burden of proof of an independent
interference violation for the Chief's addition of negative comments
to Elaine Gonzalez's evaluation.
                                   
                           FINDINGS OF FACT
                                   
1.   The City of Yakima (employer) is a public employer within the
     meaning of RCW 41.56.030(1).  The employer maintains and
     operates a Police Department.  Sam Granato serves as Police Chief.

2.   The Yakima Police Patrolmans Association (union) is a labor
     organization and exclusive bargaining representative within the
     meaning of RCW 41.56.030(3).  The union represents a bargaining
     unit of police officers up to and including the rank of sergeant.

3.   On August 25, 2005, the employer established a one-year
     specialty position for Detective Sergeant in Training (DST), to
     be filled by seniority for those who lacked recent experience
     in investigation and crime scene management.

4.   The DST position had: a take-home car; a regular Monday through
     Friday work week with nights, holidays, and weekends off; and a
     paid clothing allowance.  The employer posted the position
     opening. 

5.   Shifts are filled for calendar year periods.  Special
     assignments, such as detective and special operations, are set
     prior to posting the bid sheet for patrol assignments. 

6.   On October 3, 2007, the employer posted the 2008 patrol shift
     bidding list.  Sergeant Lloyd George's name was not on the
     list, which indicated to the union that he remained in the DST
     specialty position for a second year.  The employer changed the
     duration of the DST position in the fall of 2007 for the 2008
     assignment year.  The employer  did not advise the union that
     it proposed to make that change.  

7.   On October 3, 2007, the union filed a grievance.  The duration
     of a specialty assignment is a mandatory subject of bargaining.
      The employer was advised by its attorney that it had to
     bargain the decision to change the assignment's duration.
 
8.   On October 9, 2007, the employer sent a letter to the union
     indicating that it was considering expanding the DST assignment
     to two years.  The employer and union met to bargain on
     November 16, 2007.

9.   The parties signed a collective bargaining agreement on
     September 11, 2007 which states in part that "all openings for
     specialty positions will be posted."  The DST position is a
     detective assignment and therefore is a specialty position.

10.  The employer did not post the DST 2008 position in 2007.  The
     posting of a specialty assignment is a mandatory subject of 
     bargaining.

11.  On August 28, 2007, Officer Gonzalez was given the original of 
     a two-year evaluation completed by two sergeants who had been
     her supervisors.  Gonzalez signed the original of the
     evaluation at that time and was given a copy. 

12.  In late September 2007, Officer Gonzalez received another copy
     of her evaluation with negative comments written by Chief
     Granato.  Granato stated that there "is a pattern of rudeness
     to citizens."  No other employee had received an evaluation
     with a negative comment added after the evaluation was  signed
     by the employee.  The negative comments on her evaluation
     deprived Gonzalez of an ascertainable right, status or benefit.

13.  No citizen complaints against Officer Gonzalez had been
     completely investigated and sustained during the time period
     covered by Gonzalez's evaluation.

14.  No prior incidents had occurred where incomplete investigations
     into citizen complaints had been noted on an employee's
     evaluation.  Employee job evaluations are a mandatory subject
     of bargaining.

15.  In 2006, the employer commissioned an investigation into
     Crystal Dodge's charge of handicap discrimination in the Yakima
     Police Athletic League (YPAL).  Carolyn Cairns interviewed many
     employees in preparing her report, which was issued in December 
     2006.

16.  A second consultant was hired to investigate the same issue. 
     Kris Cappel issued her report in May 2007, six months later. 
     She also interviewed many employees, and all interviewees were
     given their Garrity rights indicating that a potential criminal
     investigation was underway.

17.  The union requested the Cairns report beginning on February 28,
     2007.  The union formally requested the same report
     specifically under Chapter 41.56 RCW on March 13, 2007.  In
     February 2007, the employer refused to provide a copy of the
     report.  The employer did not respond to the March request.

18.  On September 11, 2007, Chief Granato said in an apology letter
     to Crystal Dodge that "failure to supervise by the first line
     supervisor is under review and discipline if any has yet to be
     determined."  Sergeant Brenda George was the first line
     supervisor at YPAL.

19.  The union had a member, Sergeant Brenda George, whose conduct
     was under review for possible disciplinary action as a result
     of the YPAL events.  The union had a legitimate interest in the
     details of the YPAL investigations as contained in the
     consultant reports.

20.  The employer issued a press release on September 28, 2007, and 
     shortly thereafter, redacted copies of the Cairns and Cappel
     reports were posted on a local newspaper's website.  On
     December 4, 2007, the union renewed its request for information
     and expanded it to a request for unredacted copies of the
     consultant reports and all interview notes and background
     information used by the consultants to form their opinions and 
     reports.

21.  The employer responded by letter on December 13, 2007.  The
     employer did not provide all the documents requested by the
     union, nor explain why all documents were not produced.  The
     employer did not include any interview notes or background
     information used by the consultants, nor mention that part of
     the union's request.  The employer did not offer to meet with
     the union to discuss the request.

22.  The union sent another letter to the employer dated December
     17, 2007, explaining why the union believed the employer had a
     legal duty to disclose the information.   The employer did not
     respond to this letter.

23.  Officer Elaine Gonzalez was an active leader and member of the
     bargaining team of the union prior to and during Chief
     Granato's time.  Gonzalez was engaged in protected union
     activities. 

24.  The parties' collective bargaining agreement expired on
     December 31, 2005.  On September 1, 2006, the Commission
     certified 17 unresolved issues for interest arbitration. 
 
25.  Officer Gonzalez and the union president met with the mayor and
     a city council member regarding contract bargaining on
     September 19, 2006. Officer Gonzalez criticized Chief Granato's
     use of the media in his pursuit of mandatory random drug
     testing of officers.

26.  On September 21, 2006, two days after the meeting with elected
     officials, Officer Gonzalez was told she would be removed from
     her special assignment in detectives and assigned to patrol by
     direction of the Chief.

27.  In June, 2007, an interest arbitration hearing was held. 
     Sixteen of the 17 issues certified for interest arbitration
     were settled before the hearing.  The only issue at the hearing
     was the employer's proposal for random drug testing.  Officer
     Gonzalez testified at the interest arbitration hearing against
     Chief Granato's proposal for mandatory random drug testing.

28.  A causal connection exists between Officer Gonzalez's protected
     activities and the negative comments to her evaluation  added
     by the Chief.  The reasons given by the employer for its
     actions were pretextual.  Union animus was a substantial
     motivating factor behind the employer's actions.

29.  An employee could reasonably perceive the negative comments
     added by the Chief to Officer Gonzalez's evaluation as a threat
     of reprisal associated with the pursuit of rights under Chapter
     41.56 RCW.

                          CONCLUSIONS OF LAW
                                   
1.   The Public Employment Relations Commission has jurisdiction in
     this matter under Chapter 41.56 RCW and Chapter 391-45 WAC.

2.   By unilaterally changing the duration of the Detective Sergeant
     in Training assignment from one to two years as described in
     Findings of Fact 3 through 8, the employer  refused to bargain
     and violated RCW 41.56.140(4) and (1).

3.   By unilaterally failing to post the Detective Sergeant in
     Training assignment for 2008 as described in Findings of Fact 9
     and 10, the employer refused to bargain and violated RCW
     41.56.140(4) and (1).

4.   By unilaterally failing to complete the investigation of
     misconduct allegations before using such allegations in an
     employee's evaluation as described in Findings of Fact 11
     through 14, the employer refused to bargain and violated RCW
     41.56.140(4) and (1).

5.   By refusing to provide relevant information requested by the
     union as described in Findings of Fact 15 through 22, the
     employer refused to bargain and violated RCW 41.56.140(4) and (1).

6.   By adding negative comments to Officer Elaine Gonzalez's
     evaluation  as described in Findings of Fact 11, 12 and 23
     through 28, the employer  discriminated against Gonzalez and
     violated RCW 41.56.040 and RCW 41.56.140(1).

7.   By adding negative comments to an employee's evaluation as
     described in Findings of Fact 12 and 29, the employer
     interfered with employee rights in violation of RCW 41.56.140(1).

                                ORDER
                                   
The City of Yakima, its officers and agents, shall immediately take
the following actions to remedy its unfair labor practices:

1.   CEASE AND DESIST from:

     a.   Making a unilateral change in a mandatory subject of
          bargaining without prior notice to the union and an
          opportunity for the union to request bargaining.
     b.   Refusing to provide relevant information requested by the 
          union.

     c.   Discriminating against any employee for engaging in
          protected union activities.

     d.   Interfering with any employee for exercising collective
          bargaining rights.
     e.   In any other manner interfering with, restraining or
          coercing public employees in the exercise of their
          collective bargaining rights under the laws of the state
          of Washington.

2.   TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the
     purposes and policies of Chapter 41.56 RCW:

     a.   Restore the status quo ante by reinstating the wages,
          hours and working conditions which existed for employees
          in the affected bargaining unit prior to the unilateral
          change in duration of the Detective Sergeant in Training
          (DST) position found unlawful in this order.

     b.   Post all openings in non-Patrol Division positions in
          accord with Article 23, Section 10 of the parties'
          collective bargaining agreement.

     c.   Provide the union with the information it requested
          concerning consultant reports and associated materials
          related to the investigation of workplace discrimination
          charges filed by Crystal Dodge.

     d.   Permanently remove the September 2007 copy of Officer
          Elaine Gonzalez's personnel evaluation from her files both
          in Human Resources and in the Police Department, and
          substitute the evaluation which she originally signed on
          August 28, 2007.

     e.   Post copies of the notice provided by the Compliance
          Officer of the Public Employment Relations Commission in
          conspicuous places on the employer's premises where
          notices to all bargaining unit members are usually posted.
          These notices shall be duly signed by an authorized
          representative of the respondent, and shall remain posted
          for 60 consecutive days from the date of initial posting.
          The respondent shall take reasonable steps to ensure that
          such notices are not removed, altered, defaced, or covered
          by other material.

     f.   Read the notice provided by the Compliance Officer into
          the record at a regular public meeting of the City Council
          of the City of Yakima, and permanently append a copy of
          the notice to the official minutes of the meeting where
          the notice is read as required by this paragraph.

     g.   Notify the complainant, in writing, within 20 days
          following the date of this order, as to what steps have
          been taken to comply with this order, and at the same time
          provide the complainant with a signed copy of the notice
          provided by the Compliance Officer.

     h.   Notify the Compliance Officer of the Public Employment
          Relations Commission, in writing, within 20 days following
          the date of this order, as to what steps have been taken
          to comply with this order, and at the same time provide
          the Compliance Officer with a signed copy of the notice
          provided by the Compliance Officer.

Issued at Olympia, Washington this  16th  day of January, 2009.


                    PUBLIC EMPLOYMENT RELATIONS COMMISSION



                    SALLY B. CARPENTER, Examiner


This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-45-350.


CASE 21562-U-08-5494 DECISION 10270 - PECB PUBLIC EMPLOYMENT RELATIONS COMMISSION NOTICE TO EMPLOYEES THE WASHINGTON PUBLIC EMPLOYMENT RELATIONS COMMISSION CONDUCTED A LEGAL PROCEEDING IN WHICH ALL PARTIES HAD THE OPPORTUNITY TO PRESENT EVIDENCE AND ARGUMENT. THE COMMISSION RULED THAT THE CITY OF YAKIMA COMMITTED UNFAIR LABOR PRACTICES IN VIOLATION OF STATE COLLECTIVE BARGAINING LAWS: WE UNLAWFULLY refused to bargain with the Yakima Police Patrolmens Association (union), refused to provide relevant information to the union, discriminated against an employee for union activities, and interfered with employee rights. TO REMEDY OUR UNFAIR LABOR PRACTICES: WE WILL restore the status quo ante by reinstating the wages, hours and working conditions which existed for employees in the affected bargaining unit prior to the unilateral change in duration of the Detective Sergeant in Training (DST) position. WE WILL post all openings in non-Patrol Division positions in accord with Article 23, Section 10 of the parties' collective bargaining agreement. WE WILL provide the union with the information it requested concerning consultant reports and associated materials related to the investigation of workplace discrimination charges filed by Crystal Dodge. WE WILL permanently remove the September 2007 copy of Officer Elaine Gonzalez's personnel evaluation from her files both in Human Resources and in the Police Department, and substitute the evaluation which she originally signed on August 28, 2007. WE WILL NOT, in any other manner, interfere with, restrain, or coerce our employees in the exercise of their collective bargaining rights under the laws of the State of Washington. DO NOT POST OR PUBLICLY READ THIS NOTICE. AN OFFICIAL NOTICE FOR POSTING AND READING WILL BE PROVIDED BY THE COMPLIANCE OFFICER. The full decision is published on PERC's website, www.perc.wa.gov.