STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
FRANKLIN D. WOOD,
Complainant.	CASE NO. 5742-U-85-1058
vs.	DECISION NO. 2481 - PECB
CITY OF CENTRALIA,	FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Respondent.

Michael Hanbey, Attorney at Law, appeared on behalf of the complainant.

Skellenger, Ginsberg and Bender by Michael J. Fox, Attorney at Law, appeared on behalf of the respondent.

On March 25, 1985, Franklin D. Wood (complainant) filed a complaint charging unfair labor practices against the City of Centralia (respondent). The complaint alleged that the city, through supervisory personnel at Centralia City Light, violated RCW 41.56.140(1), (3) and (4) by terminating Mr. Wood from employment at City Light's hydroelectric facility. A hearing was conducted on July 16, August 22, August 23, October 17, October 18, and November 20, 1985 in Olympia, Washington. The parties submitted post-hearing briefs.

BACKGROUND

The City of Centralia provides a number of municipal services to local residents. At all times pertinent to this case, the city operated under a "city commission" form of government under which an elected three-member commission established policy guidelines for the city's general operation. The commission was composed of the commissioner of finance, the commissioner of public works, and the commissioner of safety/mayor. Each commission member had specific responsibilities with respect to the function of city departments. For example, the mayor was responsible for police and fire department operations. The commissioner of finance dealt with matters affecting the city's financial condition and accounting practices, and the commissioner of public works directed the various public works programs run by the city. While the commission retained overall legislative control over city programs, department heads supervised daily department operations.

Events leading to this unfair labor practice complaint occurred in Centralia City Light, a city-owned local electric utility. Considered to be a city department, the utility is under the policy supervision of the commissioner of public works. William Rickard served as the commissioner of public works until November, 1983, when Peter Corwin was elected to that position. During all times pertinent to the unfair labor practice complaint, William Cummings served as superintendent of the utility, and William Wheeler served as the assistant superintendent. The utility was responsible for the generation and transmission of electricity to its customers. A line crew kept transmission lines in repair, while a separate crew maintained the utility's hydroelectric plant. Each crew was supervised by a foreman who reported to Cummings.

International Brotherhood of Electrical Workers, Local 77 represented a bargaining unit of employees at City Light, described in the April 1, 1981 through March 31, 1984 collective bargaining agreement as:

... all employees within the classifications covered by this Agreement ...

The contract contained a wage scale that included the following job classifications:

General foreman, foreman, lineman, apprentice lineman, equipment operator, laborer, chief operator, apprentice operator, labor foreman, canalman, dam tender, senior clerk, junior clerk, meter reader, and substitute dam tender.

The classifications of chief operator, apprentice operator, labor foreman, canalman, dam tender, and substitute dam tender are descriptive of the various assignments given to employees at the hydroelectric plant.

The utility's hydroelectric operation is located approximately 25 miles northeast of Centralia, Washington, on the Nisqually River. Water is diverted from the river through a canal which leads to the power station. The water falls through a series of pipes until it reaches the station's turbines, which actually generate the electricity produced at the facility. The water then flows back into the nearby river. The hydroelectric facility provides approximately 40% of the utility's power needs. The rest of the city's power requirements are met by purchase of power from the Bonneville Power Administration.

The facility, often referred to as the "Yelm hydro plant" is in continuous operation, except for maintenance periods when the water flow is stopped, and the canal and the turbines are inspected for wear. During the regular course of events, employees in the classification of "canalman" keep the waterway clean, and make routine repairs to insure that the water flow is uninterrupted. "Dam tenders" are responsible for initial water diversion and must maintain the diversion equipment in operating condition. Employees working as "operators" are responsible for the turbines and maintenance of the power station. Prior to September 30, 1984, there were four operators and one apprentice operator at the hydro plant. Three operators worked established eight-hour shifts to provide continuous service at the facility. The fourth operator worked as a "relief man", filling in for regularly scheduled operators who were ill or were on vacation. The apprentice also performed some relief work but, for the most part, worked in conjunction with the other operators on the normal work shifts.

The complainant in this case, Franklin D. Wood, was originally hired by the utility on November 20, 1980 as an apprentice operator at the hydro facility. As an apprentice operator, Wood worked as a relief person when other operators were on vacation in addition to his regular Wednesday "graveyard" shift. At the time he was hired, Wood believed that he would be required to serve a three-year apprenticeship before he could attain journeyman status. However, the record indicates that the utility did not follow a consistent practice in its apprenticeship program, and several employees had spent as much as six years to complete the apprenticeship period. Advancement to journeyman status depended on the amount of time spent actually operating the facility's electrical generation equipment.

Wood had a good work record with the utility. Several senior operators believed that Wood was the best qualified operator at the facility. At an unspecified time in 1982 Wood assisted a consultant who was repairing the facility's turbines. Wood was never reprimanded or disciplined during his service with Centralia City Light.

During 1982, Wood, along with several other hydro plant employees, took a test conducted by Assistant Superintendent Wheeler. Wood believed that his opportunity to become a journeyman would be enhanced if he passed the test. Wheeler testified that he allowed Wood to take the test as a matter of convenience, but that he would still be required to complete the prescribed number of hours before he could achieve journeyman status.

During calendar year 1983, the utility's management became aware that two employees in the hydro facility were planning to retire within months of each other. The management then decided to advance plans to automate the Yelm plant. Apparently, the automation issue had arisen before. During the course of operation at the plant, a number of improvements were made to facilitate automation. As early as 1976, the plant had been ready to switch over to an automated mode, except for the installation of a paging system. The record indicates that the paging equipment was installed in 1977, but the automation idea was not pursued. Management officials believed that the automation could be accomplished without layoffs in 1983 because of the forthcoming retirements. Since negotiations for a successor collective bargaining agreement were scheduled to take place, the utility decided to raise the automation issue during the course of bargaining.

During 1983, the labor relations atmosphere at the utility deteriorated. In part, problems arose between management and the line crew. Superintendent Cummings insisted that the line crew stay near the work site during lunch breaks rather than returning to the shops in Centralia. This change in long-standing practice alienated the line crew, and those feelings were carried into the negotiations. While the hydro plant crew did not share the same level of frustration as the line crew, there were concerns about the proposed automation at the Yelm facility.

A number of specific incidents leading to the instant unfair labor practice complaint occurred in 1983. Not surprisingly, those events were subject to more than one interpretation. On May 24, 1983, Assistant Superintendent Wheeler and Senior Operator Lester Clarambeau spoke about Clarambeau's possible withdrawal from the union. Clarambeau was due to retire at the end of the year. Clarambeau, testifying on behalf of Wood, stated that Wheeler approached him with the withdrawal idea. Wheeler testified that Clarambeau approached him about withdrawal because he was concerned about the amount of retirement income he could anticipate if he stayed in the union. Wheeler stated that he would investigate the matter and would find out what a nonunion position would mean to Clarambeau's retirement pay. Wheeler further testified that Clarambeau mentioned a plan that he and Wood had devised to help Cummings in his difficulties with the utility's line crew. According to Wheeler, Clarambeau and Wood were prepared to agitate the hydro facility crew in strong support of the position taken by the line crew against Cummings. The ultimate goal of this action would have been to foment a strike involving all of the utility's workforce. After a strike began, Cummings could selectively rehire those employees he wished, and would, therefore, be in a position to permanently replace those crew members that were causing him difficulties. Wheeler testified that he was surprised at Clarambeau's suggestion, and that he took no action on it. However, it was well known at the hydro plant that Clarambeau believed that Wood should succeed him as senior operator, and the proposed plan of action would have allowed Cummings to promote Wood without regard to his status as the junior operator at the plant.

On June 13, 1983, a second meeting took place concerning the plan to disrupt the existing labor-management relationship. Again, the specific events are in dispute. Superintendent Cummings testified that Clarambeau telephoned him at the utility's main office in Centralia to express concern about a crack that had developed in the dike near the power station. Clarambeau testified that Cummings called him and offered to have lunch with him that day. In any event, the two met at a restaurant in Yelm. Clarambeau testified that Cummings raised the issue of Clarambeau's withdrawal from the union, saying that he would "make it worth" Clarambeau's while if he withdrew. Clarambeau further testified that Cummings raised the idea of forcing a strike to take place, and identified Clarambeau and Wood as "key men" who would ultimately benefit after the strike was broken. Cummings agreed that the issue of Clarambeau's withdrawal was discussed, but only in terms of Clarambeau's dissatisfaction with the proposed rate of pay he would receive in a non-union position. After Cummings told him of the wage rate being considered for him, Clarambeau did not raise the issue again that day. Rather, according to Cummings, conversation shifted to the status of relations between the superintendent and the line crew. Cummings testified that he and Clarambeau left the restaurant for the location of the problem in the dike. As they travelled, Clarambeau expressed sympathy for Cummings' difficulties with the line crew, and mentioned that he and Wood had devised a plan to eliminate the problem. Cummings testified that Clarambeau refused to discuss any specifics and suggested that they visit Wood at his residence to explain the plan completely. Clarambeau testified that he suggested Cummings visit Wood so that Cummings could explain the plan that he had approached Clarambeau about.

Cummings and Clarambeau proceeded to Wood's residence in separate vehicles, with Cummings arriving first. Wood was at home because it was his regularly scheduled day off. Wood testified that he was in his yard, and observed Cummings' approach. According to Wood, Cummings stopped his vehicle, approached Wood and immediately said that he wanted Wood to be an "agitator" at the hydro facility. Wood testified that Cummings told him that he would change Wood's work cycle, resulting in different days off, and then have Wood express anger to the rest of the hydro crew, with the intent to create an atmosphere where a strike could take place. Cummings denied that he made any such statements. Cummings testified that he and Wood spoke about a new grass cutter until Clarambeau arrived. Wood testified that he started talking about the grass cutter to divert Cummings from any more discussion about the "agitator" idea. Clarambeau arrived approximately ten minutes later. After Clarambeau's arrival, the three men spoke for a considerable length of time. Wood and Clarambeau testified that Cummings went through the plan in more detail, and mentioned the forthcoming automation of the facility. In discussing the automation, Cummings raised the issue of on-site housing for the remaining operators. Cummings testified that Clarambeau took over the conversation after he arrived. Cummings testified that he was very uncomfortable about the subject, and he believed that Wood had some doubts about it as well. According to Cummings, he said that he would explore the legalities of the plan, but expressed his concern that the plan was neither legal or practical. Cummings testified that he discussed the possibility of automation at the hydro plant after the "agitator" issue was dropped. Cummings stated that automation would lead to revised work schedules, and that Wood and Clarambeau were very opposed to such changes. Cummings also discussed the likelihood that resident operators would be used if automation took place.

After he left the meeting, Cummings spoke with the utility's attorney about the plan. He testified that he called Clarambeau on June 14, 1983, to tell him that the plan was illegal and he would have no part of it.

On July 1, 1983, Wood's work shift was modified. On July 12, 1983, Wood received a copy of a memorandum to all hydro operators detailing several changes in the plant's operations. As part of the changes, Wood's shift was moved from Monday through Friday to Saturday through Wednesday, with Wednesday being worked on "graveyard" shift. As a result of the change, there would not be a regularly scheduled day shift operator on Wednesday, and the plant would be on automatic mode. Wood was further directed to assist in cleaning the canal entrance to the plant during weekends. While he was on the new graveyard shift, Wood discussed the situation at the plant with operator Michael Norquist. Norquist testified that Wood related his concern about Cummings' "agitator" plan during their conversation.

In August, 1983, Cummings called a meeting at the facility for all of the operators. Cummings and Wheeler discussed the automation plan, including the use of on-site housing. Cummings told the operators that resident operators would be used to run the plant. The residents would work ten days and then have four days off. The operators expressed disagreement with the idea, and Cummings suggested that they formulate their own suggestions to be discussed.

On September 21, 1983, Local 77 filed an unfair labor practice complaint, docketed as City of Centralia, Case No. 4864-U-83-836, alleging that several unfair labor practices had taken place. Of importance to the instant matter, the complaint alleged that Cummings had attempted to coerce union members to withdraw from the union, and that the utility was attempting to unilaterally impose the automated operation at the Yelm hydro facility.

At some unspecified point after the general election in November, 1983, a second meeting was held on the automation issue. Held at the hydro plant, the meeting was attended by the operators, Cummings, Wheeler, and the Centralia City Commission. Peter Corwin, who had just been elected to the city commission and was waiting to take office, also attended. During the course of the meeting, Commissioner Rickard agreed to talk with the affected employees to explore alternatives to the proposed changed in work schedules caused by the planned automation.

Approximately one week later, a further meeting was held in Centralia. Wood testified that he spoke to Wheeler just before the meeting took place, and that Wheeler indicated that the city could consider a plan involving only one on-site residence with a rotating shift schedule. Wheeler denied any conversation with Wood prior to the meeting. At the meeting, the operators presented a plan calling for a 24-hour shift followed by a 72-hour rest period. Wood had worked extensively on the proposal, and he presented it at the meeting. The city did not accept the plan, and Cummings presented two alternatives: two resident operators or one resident with three operators rotating to provide service at the plant. The issue was not settled at the conclusion of the meeting.

The issue was not discussed further until December 13, 1983, when the operators received a letter from Commissioner Rickard. The letter expressed thanks for the operators' efforts in the automation discussions, and detailed the various alternatives set forth. The letter succinctly set forth the plan preferred by the city in a formal proposal:

1.         As of April 1, 1984, the present operator positions would be eliminated and two resident operator positions would be made available. These positions would receive a monthly salary which will be established by negotiations;

2.         There would be two canalman positions made available at an hourly rate which would be set by negotiations:

3.         That any member of the present hydro operator crew wishing to apply for either of these positions receive priority by seniority over all other applicants provided that they submit their applications by February 1, 1984.

On the same date, Wood and Wheeler spoke about Wood's apprenticeship status. It had been determined that Wood did not have enough hours as an operator to advance to journeyman status, and the city's apprenticeship committee recommended that his apprenticeship period be extended for six months. Wheeler approached Wood with a card from the state apprenticeship program, and asked him to sign it. Wood disagreed with the number of hours that were listed and kept the card.

On December 29, 1983, Clarambeau retired. At that time, Wood was the junior operator at the hydro facility.

In January, 1984, Wood's apprenticeship problem was discussed at a union meeting. Wood wanted to file a grievance, but Business Representative Ed Downing decided to discuss the situation with Cummings. A meeting was held, but the issue was not resolved.

On January 31, 1984, Wood applied for one of the available canalman positions. He did not apply for an operator position. It was subsequently determined that two senior employees had also applied for the canalman vacancies, and that only one incumbent operator had applied for the resident position.

In February, 1984, Wood participated in several collective bargaining sessions at Downing's request. On April 1, 1984, the existing contract expired, but negotiations continued. In the same month, the city discussed new titles in relation to the resident operator proposal. Rather than referring to two residents, the city referred to a resident operator and a "relief" operator for the automated facility. The city still expected the relief operator to live on-site, but there was new emphasis on canalman duties to be performed by the relief person.

While negotiations continued, the city let bids for the construction of two residences at the Yelm hydro plant. In addition, the city began interviews for the relief operator position.

In April, 1984, the unfair labor practice complaint in Case No. 4864-U-83-836 was withdrawn. Wood testified that he believed that the withdrawal would help the stalled negotiations, and that the city's attorney, Michael J. Fox, made representations to that effect in a telephone conversation. Fox testified that he never made any promises about the status of negotiations if the complaint was withdrawn.

On June 1, 1984, Rollie Campbell was hired as the relief operator at the hydro plant. At that time, Wood was working as a replacement for a journeyman who was on a 30-day disciplinary suspension.

In July, 1984, Wood approached Wheeler, telling him that he wanted to apply for the relief operator position. Wheeler told him that it was too late because he had not applied for the job on February 1, 1984, as directed by the city. In August, 1984, Wood spoke to Commissioner Corwin about the relief operator position and, on September 5, 1984, he submitted an application to Corwin.

On September 25, 1984, Wood's employment with Centralia City Light was terminated. Subsequently, he applied for several positions, but he was not hired. A successor collective bargaining agreement was finally settled in February, 1985. Wood filed the instant unfair labor practice complaint on March 25, 1985.

POSITIONS OF THE PARTIES

Complainant argues that he was discharged because of his union activities. Complainant maintains that respondent's course of action against him is directly related to his refusal to act as an "agitator" at the Yelm hydro facility, and that he was not afforded a fair chance to apply for available positions. Complainant points to changes in his apprenticeship status, his active participation in negotiations, and respondent's change in position concerning the use of a relief operator position as clear evidence that respondent acted improperly by dismissing him.

Respondent argues that it did not commit any unfair labor practice. Respondent contends that complainant actually formulated the "agitator" idea, and that management personnel promptly rejected the notion. Respondent further contends that complainant's apprenticeship status was changed in his favor, and that complainant was aware of the application process but refused to apply for any position requiring on-site living. Finally, respondent denies that there was ever any intent to discharge complainant because of his union activities or sympathies.

DISCUSSION

There are two interpretations of the facts set forth above. Complainant believes that he was the innocent victim of a management scheme to cause dissension in the bargaining unit, and that his refusal to cooperate cost him his job. Conversely, respondent believes that it was initiating a cost-saving automation plan, and complainant injected himself in the situation by developing a plan to remove a number of senior employees from consideration for the available positions. The ultimate issue is whether complainant has sustained his burden of proof in presenting his version of the events.

To analyze a case such as this, a standard of proof is necessary. The National Labor Relations Board has adopted a "causation test" to determine whether a discharge was motivated by an anti-union animus. The complainant must first make a prima facie showing sufficient to support an inference that protected conduct was a "motivating factor" in the employer's decision to discharge. Once the inference has been established, the employer has the burden to prove that the same action would have taken place even in the absence of protected conduct. See: Wright Line Inc., 251 NLRB 150 (1980). The Commission has adopted the Wright Line analysis. See: City of Olympia, Decision 1208-A (PECB, 1982).

There is a problem in complainant's case arising from the time frame in which most of the questioned conduct occurred. RCW 41.56.160 sets forth specific time limitations for the filing of unfair labor practice complaints:

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 ...

In this case, the complaint was filed six months to the day from complainant's dismissal by Centralia City Light. The series of events outlined in the complaint took place, for the most part, in 1983, and so are beyond remedy in this case even if found to be unlawful.

In this case, complainant has presented a number of witnesses who supported his version of the facts. At the same time, respondent has presented a number of witnesses disputing complainant's recollection of crucial events. Given the contradictory nature of the testimony presented, complainant has not met his initial burden under the Wright Lines analysis. While complainant must only establish an inference that the employer was motivated by anti-union feelings in his discharge, the record does not allow the examiner to draw such inferences. Clearly, complainant has made several serious accusations about the course of conduct followed by several management officials. If complainant had sustained his burden of proof, serious consequences would have followed. It is important to note that every major event leading to the discharge was in dispute, and respondent presented testimony which was just as credible as that presented by complainant. In fact, respondent presented compelling evidence that the "agitator" scheme originated with Lester Clarambeau, a close friend and working associate of complainant. Given this conflict in testimony, it is impossible to distinguish fact from perception.

Even if complainant had sustained his initial burden of proof, the record establishes that respondent automated the Yelm hydro facility as a business decision which was not related to any employee's exercise of protected rights. A bidding procedure was established on the basis of seniority, and all interested employees were encouraged to apply. If the complainant had applied for one of the resident operator positions, he would likely have been hired. However, Mr. Wood repeatedly expressed his disagreement with on-site housing, and he did not apply for an operator position until several months after the deadline for making application. While complainant may not have agreed with respondent's ideas concerning plant automation, respondent did not act in a manner designed or intended to single out complainant for his union sympathies. Additionally, there is no indication that respondent somehow changed the nature of the resident operator position by re-titling it as "relief operator". The employee hired was still expected to live in a utility-provided house at the Yelm hydro facility. Since complainant had repeatedly expressed his refusal to consider on-site living, respondent acted reasonably by recruiting a new employee.

The record does not disclose a casual connection between the 1983 events and complainant's dismissal. There is no indication that complainant was disabled from applying for any available position, and it is clear that complainant chose to apply only for a job that he could not be given because of his low seniority ranking. It would be an abuse of authority to deal only with the 1983 events since they comprise a discrete transaction that has not been connected with the only event that took place during the statutory time limit, Mr. Wood's dismissal. The complaint must be dismissed.

FINDINGS OF FACT

1.                  The City of Centralia provides a number of services to local residents, including electrical utility service through Centralia City Light, and is a "public employer" within the meaning of RCW 41.56.030(1).

2.                  Franklin D. Wood was hired to work in the utility's hydroelectric plant in November, 1980, and, during all times pertinent, was a "public employee" within the meaning of RCW 41.56.030(2). Wood was a member of a bargaining unit of employees represented by International Brotherhood of Electrical Workers, Local 77.

3.                  The hydro plant was designed to run with the use of a number of operators working on different shifts, but the plant had several features intended to allow for automation. The utility had not taken steps to fully automate the facility, partly because of a concern over the number of layoffs that such a change in operations would cause.

4.                  In 1983, the utility discovered that two employees were scheduled to retire within several months of each other, and it was determined that the hydro plant could be fully automated without layoffs because of the retirements. At all times pertinent, Wood was the junior operator at the hydro plant.

5.                  On June 13, 1983, Superintendent William Cummings met with Lester Clarambeau and Franklin Wood at Wood's residence. While the subject of automation was discussed in some detail, the record discloses a true conflict in testimony regarding a plan to have Wood act as an "agitator" to create tension among the workforce at the hydro plant. While Wood and Clarambeau testified that Superintendent Cummings approached them with the idea, Cummings presented credible testimony that he had been approached with the "agitator" scheme by Clarambeau and Wood.

6.                  From August through November, 1983, a series of meetings were held between the hydro operators and city officials to resolve the automation issue. A final solution was not reached, and the city finally proposed that a selection process would be established for available positions based upon the employees' seniority. There was to be two resident operator positions and two canal maintenance positions under the automation plan.

7.                  At several points during the discussions concerning the automation plan, Wood expressed his refusal to move on-site as a resident operator.

8.                  On December 12, 1983, the city mailed its proposed work schedule to each of the affected employees. The employees were directed to apply for the two resident operator positions and the two canalman positions by February 1, 1984. Successful applicants would be chosen on the basis of seniority. At that time, and at all times pertinent, Wood was the junior operator at the Yelm hydro plant.

9.                  On January 31, 1984, Wood applied for a canalman position. He did not apply for either resident operator position. Two more senior employees were awarded the available canalman positions.

10.              Because only one operator applied for the resident operator position, the city began an active recruitment for a second resident operator.

11.              On June 1, 1984, the city hired Rollie Campbell to work as "relief operator". The relief operator was expected to live on-site, and was considered to be a resident operator by the utility.

12.              In July, 1984, Wood informed Assistant Superintendent Bill Wheeler that he was interested in the relief operator position. Wood repeated this request to City Commissioner Peter Corwin on September 5, 1984. Wood's application for the relief operator position was not considered because the position was already filled.

13.              On September 25, 1984, Wood was discharged from employment with Centralia City Light.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW.

2.                  By events described in the above Findings of Fact, the City of Centralia has not committed unfair labor practices within the meaning of RCW 41.56.140 (1), (3), or (4).

ORDER

The complaint charging unfair labor practices is hereby DISMISSED.

DATED at Olympia, Washington, this 30th day of June, 1986.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

KENNETH J LATSCH Examiner

This Order may be appealed by filing a petition for review with the Commission pursuant to WAC 391-45-350.