ALASKA LABOR RELATIONS AGENCY
3301 EAGLE STREET, SUITE 208
P.O. BOX 107026
ANCHORAGE, ALASKA 99510-7026
907-269-4895
FAX 907-269-4898
ALASKA STATE EMPLOYEES
ASSOCIATION, AFSCME LOCAL 52,
AFL-CIO,
COMPLAINANT,
)
vs.
)
)
STATE OF
ALASKA,
)
)
RESPONDENT. )
___________________________________)
Case No. 99-1027-ULP
DECISION AND ORDER NO. 252
Digest: An employer violates AS 23.40.110(a)(3) and AS 23.40.110(a)(1) when it
terminates an employee because the employee contacted a union steward about an
agreement to extend the probationary period.
Appearances: Harriet Lawlor, Business Agent for the Alaska State Employees
Association (ASEA); and Kent Durand, labor relations analyst for the State of
Alaska (State).
Panel: Aaron Isaacs, Jr., Dick Brickley, and Raymond Smith.
DECISION
Statement of the Case
On December 14, 1999, ASEA filed an unfair labor practice charge against the
State of Alaska, on behalf of state employee Kandace Wafer. The charge, amended
on December 27, 1999, alleges that the State wrongfully terminated Wafer because
she requested that her union review an extension-of-probation memorandum. The
State disputes the charge, contending that it "followed all appropriate
procedures in effectuating the non-retention, and that the non-retention
decision "was not based on any consideration" regarding protected and
concerted activity.
The Agency panel heard this dispute on June 28, 2000. Hearing Examiner Mark
Torgerson presided. This matter was decided based on the evidence submitted and
the testimony of witnesses at the June 28, 2000, hearing. The record closed on
August 29, 2000, after Board member Isaacs had the opportunity to finish
reviewing the hearing tape and evidence.
Issues
1. Did the State violate AS 23.40.110(a)(3) and (1) by terminating the employee
because the employee exercised rights protected under AS 23.40.080?
2. If the State committed a violation, what is the remedy?
Findings of Fact
The panel, by a preponderance of the evidence, finds the facts as follows:
1. ASEA filed a complaint on behalf of Kandace Wafer on December 13, 1999 (Exh.
1 at 57-58). The nature of the complaint states: "Ms. Wafer was issued a
letter to extend her probation. Ms. Wafer requested the letter be reviewed by
the shop steward. After doing this the employer terminated the employee without
further explanation." (Exh. D). The State responded that "[o]n
11/30/99 at 2:30 pm, Ms. Wafer advised her supervisor that she had spoken with
her union representative, Marcos, on Friday (11/26/99) and she had decided not
to sign the extension of probation letter." (State April 6, 2000, Notice of
Defense; Exh. D). The State thus denied relief on the complaint. The complaint
went through all steps required by the parties' contract and the State denied
relief at each step.
2. Wafer began working as an Administrative Clerk II for the Department of
Corrections in Palmer on June 1, 1999. Her last day was November 30, 1999.
3. Rebecca Brunger was Wafer's supervisor. She is a Probation Officer III. She
has been a supervisor for a year and is a member of the Alaska Public Employees
Association. She has worked as a probation officer for 12 years. Brunger started
to get concerned about Wafer's performance and discussed her concern with her
supervisor, Colleen Tafs, the Chief Probation Officer for the Department's
Southcentral Region.
4. Tafs has worked for the Department for 17 years. The two began discussing
Wafer's performance in September. Due to Wafer's starting date of June 1, 1999,
Wafer was supposed to get an interim, three-month evaluation in September 1999,
halfway into the six-month period. Tafs told Brunger it was imperative to do a
timely interim evaluation to give Wafer adequate time to improve her
performance. Tafs told Brunger Wafer needed to be able to have the chance to
improve her performance if she was going to be able to "make
probation." However, Brunger did not complete the interim evaluation until
October 1999. The evaluation covered a four-month period (June 1 to September
30) instead of three months. She gave Wafer the evaluation sometime in October,
and both parties signed the evaluation on October 19. Tafs said they were very
busy in the fall of 1999.
5. Brunger gave Wafer a letter of instruction, regarding a performance issue, in
a meeting on November 8, 1999. Following that meeting, Brunger began to consider
extending Wafer's probationary period, which was due to expire on November 30,
1999. She discussed this possibility with her supervisor, Colleen Tafs. Brunger
was told that the only other option besides an extension was to do a
"non-retention," which means the employee would be terminated from
employment at the end of the probationary period.
6. On November 23, 1999, Brunger approached Wafer and first discussed with her
the possibility of extending Wafer's probationary period. Brunger offered Wafer
a 90-day extension period. Wafer considered it and inquired about the
possibility of a 60-day period. They discussed the two alternatives, and Wafer
asked for time to think about it. On November 24, 1999 Wafer told Brunger she
would agree to a 60-day extension of her probationary period. Brunger agreed to
the extension and said she would draw up the necessary paperwork after making
sure it was acceptable to the Department's personnel division.
7. On November 30, the last day of Wafer's probationary period, Brunger
completed a memorandum summarizing the 60-day extension of probation. (Exh. 2).
At approximately 2:30 p.m., she called Wafer into her office and gave Wafer the
memorandum, which describes the extension of the probationary period and the
discussions that had occurred between them. The memorandum states in full:
According to the GGU Contract, the probationary period is regarded as a part of
the examination process which shall be utilized for closely observing the
employee's work and adjustment to the position. Employees who, in the judgment
of the Employer, have satisfactorily passed the probationary period shall be
retained and given permanent status in the job class at the end of this
applicable probationary period. Employees who, in the judgment of the Employer,
have not or will not or will not [sic] satisfactorily pass the probationary
period shall not be retained in the job class. Article 11.02 A.1.b, specifies
that the Employer may, after written mutual agreement with the Employee, extend
the probationary period of an Employee in ranges 5 through 13 for a period not
to exceed three (3) months.
On November 23, 1999, I met with you to discuss the possibility of extending
your probationary period in order to provide you with additional time to
demonstrate satisfactory job performance as well as to allow myself additional
time to observe your performance so it may be evaluated. The following day,
November 24, 1999, you advised me that you would be willing to agree to having
your probationary period extended, however [you] preferred that the period of
time be two months rather than three months. As such, the necessary paperwork
will be forwarded to personnel to activate the extension of your probationary
period from December 1, 1999 to February 1, 2000.
(Exh. 2).
8. The parties dispute what happened and what was said when Brunger and Wafer
discussed the extension-of-probation memorandum on November 30, 1999, the last
day of Wafer's probationary period. Wafer testified that after she reviewed the
memorandum, she asked Brunger if she could speak to her union representative
about the memorandum. Wafer testified that she had never been a union member
before; she didn't understand everything about the extension and wanted to
discuss it with her union representative. Wafer said that when she asked Brunger
to let her speak to Marcos Perez, her union steward, Brunger looked shocked and
said "fine" but told Wafer that Brunger needed the signed document
before the end of the day. Wafer said she talked to Perez right away, at
approximately 2:30 p.m. When she finished her discussion with Perez, she went
back to her desk and signed the document. She tried to contact her supervisor
after she signed it, but her supervisor's door was shut. Wafer said everyone
knew that if Brunger's door was shut, you don't knock. Brunger came out of her
office one time, and Wafer attempted to give her the extension agreement (Exh.
2) and Wafer's personal letter agreeing to extend her probation (Exh. 3).
However, Brunger refused to accept the documents, saying: "Not now."
9. Brunger testified on direct examination that after she called Wafer into her
office and gave her the memorandum, Wafer said she did not wish to extend her
probationary period. Wafer told Brunger she had a conversation with her steward,
Marcos Perez the previous Friday, and Perez said Wafer was in effect being
punished because she received a late performance evaluation. Brunger said she
asked Wafer if Wafer was sure she did not wish to extend her probationary
period, and Wafer said she did not wish to do so. Brunger said Wafer indicated
she would be calling Perez "to make sure." Brunger testified there is
no doubt in her mind that she was not confused about Wafer's statement regarding
the extension of probation. Brunger did not ask Wafer why she changed her mind
on extending the probationary period.
10. On cross-examination, Brunger testified that Wafer took a look at the
memorandum and said she decided she would not sign it, and she was looking
forward to completing her probationary period. Brunger was convinced that Wafer
understood that if she did not sign the extension, she would be given a
non-retention memorandum. Brunger understood that Wafer was going to talk to her
union steward.
11. Brunger was shocked when Wafer said she did not want to extend her
probationary period, especially considering the fact that Wafer had agreed
previously to the extension.
12. Marcos Perez is a probation officer with the Department of Corrections in
Palmer. He received a phone call from Wafer at approximately 2:30 p.m. on
November 30, 1999. Wafer asked Perez questions about the memorandum extending
her probationary period, and also contract issues, which were the focus of her
concern. He discussed the probation extension with Wafer and told her it was a
positive move for her. Perez's impression was that the employee was concerned
about approaching Perez. She told Perez that Brunger seemed shocked when she
told Brunger she wanted to contact Perez about the memorandum.
13. After contacting Perez, Wafer signed the extension agreement and dated it
November 30, 1999. She also wrote a separate letter (also dated November 30,
1999) expressing agreement to the extension. (Exh. 3).
14. Colleen Tafs, Brunger's supervisor, spoke with Brunger by phone on the
morning of November 30 and asked if everything was in place. Brunger called Tafs
at approximately 2:30 p.m. and told her Wafer did not want to extend her
probation. Brunger told Tafs Wafer refused to sign the extension and did not
want the extension. Tafs said Brunger seemed surprised by Wafer's change of
mind. Brunger figured it was just a matter of getting the extension document
signed. Tafs told Brunger she would drive to Palmer and do a non-retention.
However, Brunger said something to Tafs that led Tafs to believe Brunger had
left Wafer "with an opening." Tafs' impression was Wafer was going to
get back to Brunger if Wafer reconsidered. Tafs told Brunger that if Wafer
changed her mind, let her know and they would call Steve Porter, the Labor
Relations Specialist with the Department of Corrections. Tafs was available by
cell phone as she drove from Anchorage to Palmer.
15. Tafs arrived in the Palmer office a little before 4:00 p.m. on November 30.
Tafs was not sure what she would do if Brunger informed her Wafer had
reconsidered. She asked Brunger if Wafer had reconsidered. Brunger said Wafer
had not gotten back to her.
16. Sometime between 4:15 and 4:20 p.m., Brunger brought Wafer into Brunger's
office. Tafs had told Brunger that Tafs would do the talking. Tafs handed Wafer
her termination (non-retention) notice and told her that they had decided they
were not going to retain her. Wafer immediately asked Brunger: "What
happened?" She then began talking to Brunger when Tafs interrupted her and
said the decision to non-retain her was coming from Tafs, and Wafer was to
direct any comments to Tafs. Then, Tafs continued on and told Wafer about direct
deposit rules, paperwork to complete the process and other such termination
information. The conversation ended at 4:25 p.m.
17. Marcos Perez received a phone call from Wafer shortly after 4:30. It was
"heartbreaking" to him when Wafer told him she had been terminated. He
was distraught about Wafer not receiving the extension. Perez then called
Brunger, who put the phone call on speakerphone with Tafs. Perez asked them if
Wafer's non-retention had anything to do with his talking with her. They said
"no."
18. Tafs said the basis of Wafer's non-retention was her refusing or rejecting
the extension.
19. We find all witnesses were credible. However, we find that Wafer's testimony
regarding her agreement to extend the probationary period fits more consistently
with the testimony of the other witnesses. Therefore, we find Wafer did not tell
Brunger that she would not sign the extension agreement and that she was looking
forward to the completion of her probationary period. We find Wafer asked
Brunger to be allowed to discuss the written extension agreement with her union
steward.
DISCUSSION
I. Did the State violate AS 23.40.110(a)(3) and (a)(1) by terminating the
employee because the employee exercised rights protected under AS 23.40.080?
ASEA contends the employee was unlawfully discharged because she contacted a
union steward to discuss the agreement to extend her probation. The State argues
that the decision to non-retain the employee had nothing to do with her
contacting the union steward. The State asserts that the employee was not
retained because she decided she did not want to extend her probationary period,
and she refused to sign the extension agreement.
AS 23.40.110(a)(1) prohibits an employer from interfering with, restraining, or
coercing an employee in the exercise of the employee's rights guaranteed in AS
23.40.080. Among other rights, AS 23.40.080 protects the right to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection.
AS 23.40.110(a)(3) prohibits employer discrimination in regard to hire or tenure
of employment to encourage or discourage union membership. The language in this
section of the Public Employment Relations Act is similar to that in section
8(a)(3) of the National Labor Relations Act. This latter section of the NLRA is
discussed in 1 Patrick Hardin, The Developing Labor Law, at 191 (3d ed. 1992):
Although the statute literally prohibits only
discrimination "to encourage or discourage [union] membership," the
courts have long maintained that Congress intended section 8(a)(3) to protect
more than "bare membership" and have long held that discrimination
generally designed to encourage or discourage union activities or support is
unlawful. The term "membership" thus refers to all types of indicia of
union support.
We find the question for decision is whether or not the employee was terminated
because she engaged in protected activity. ASEA contends that the activity
engaged in by Wafer was her contacting steward Marcos Perez to get advice on the
extension-of-probation agreement, and to obtain information about a contractual
clause cited in the agreement. We find, by a preponderance of the evidence that
Wafer was non-retained because she contacted the union.
We find Wafer is a credible witness. We therefore find
credible her testimony that she told Brunger she wanted to discuss the agreement
with her union steward. We find she did not tell Brunger she had decided to turn
down the extension. Although we find Brunger a credible witness, we can only
conclude she did not hear Wafer correctly when they discussed the signing of the
extension agreement on November 30, 1999. If Wafer had decided to not extend her
probationary period, it would make little sense for her to contact her union
steward. Moreover, Marcos Perez credibly testified that Wafer called and
requested information on the extension of probation. Perez said the focus of her
concern was provisions in the collective bargaining agreement. This testimony
dovetails with that of Wafer, who said this job was the first union job she ever
held, and she was confused by a citation to contract language. She called Perez
to get an explanation of this section.
We find Brunger and Tafs' testimony credible. However, we
reduce the weight of Brunger's testimony, as it is not as consistent with the
facts as is Wafer's testimony. It does not make sense, for example, that Wafer
would say she did not want to extend her probation, but she would then take the
probation extension document from Brunger's office and discuss it with Perez,
her union steward. If she were so adamant about refusing to extend her
probation, as suggested in Brunger's testimony, there would be no apparent
reason for her to discuss the decision with Perez. Moreover, Perez testified
that Wafer called to ask about a contractual clause in the contract. During that
conversation, Perez told her the extension was a positive step for her.
In addition, we find Wafer's undisputed statement to
Brunger in the November 30 termination meeting, "what happened",
consistent with a statement of surprise. We find that Wafer felt they had an
agreement to extend probation, she had contacted her union steward to verify the
written agreement to extend was consistent with the oral agreement, and she was
subsequently surprised when she was instead terminated from employment. We
believe Wafer felt she and the employer had an agreement to extend probation,
and she was taken aback by the sudden change of decision by the employer.
After the non-retention meeting with Tafs and Brunger,
Wafer again expressed surprise and consternation when she contacted Perez. We do
not think Wafer would be surprised if she were given the very termination notice
that the employer thought she wanted. Wafer also expressed concern to Perez that
her contact with Perez earlier that afternoon may have caused her termination.
She could not think of any other reason for the decision to terminate. Perez
must have felt the same way, because he immediately called Tafs and Brunger to
ask if Wafer's contact with him was a possible reason for the termination.
Finally, Wafer signed the extension agreement and dated it
November 30, 1999. She also signed another letter, on November 30, in which she
accepted the extension. If the employee did not intend to extend her probation,
she would not have signed these documents.
Accordingly, we conclude that the employee was terminated
from her employment because she contacted her union steward. We find this is a
violation of AS 23.40.110(a)(3) and AS 23.40.110(a)(1).
II. Remedy.
On behalf of Wafer, ASEA asked that if we find a violation occurred, it
requested that the employer make the employee whole "for any lost wages and
benefits she would have otherwise earned and to provide her employment equal in
pay and nature and condition to that which she was deprived where she can have a
reasonable expectation of succeeding." (ASEA Prehearing Statement dated May
3, 2000).
We find the following is an appropriate remedy. The employer must make the
employee whole for any lost wages and benefits she would have otherwise earned.
In addition, the employer must return her to the work position she had when she
was terminated. The parties may mutually agree to return the employee to the
office where she was, or to another office mutually agreed to. If they cannot
agree, the employee must return to the office she worked in during the June 1 to
November 30, 1999, period.
After Wafer returns to work, the State must extend her
probationary period for the agreed upon 60-day period.
CONCLUSIONS OF LAW
1. The State of Alaska is a public employer under AS 23.40.250(7), and the
Alaska State Employees Association is an organization under AS 23.40.250(5).
This Agency has jurisdiction under AS 23.40.110 to consider this matter.
2. As complainant, ASEA has the burden to prove each element of its case by a
preponderance of the evidence.
3. ASEA has proven by a preponderance of the evidence that the State of Alaska
violated AS 23.40.110(a)(3) and (1) when it non-retained employee Candace Wafer
on November 30, 1999, because she contacted her union steward.
ORDER
1. The complaint by the Alaska State Employees Association is GRANTED.
2. The State of Alaska shall reinstate employee Candace Wafer to the position
she held on November 30, 1999, and extend Wafer's probationary period by 60
days.
3. The State of Alaska shall make the employee whole for any lost wages and
benefits she would have otherwise earned, as indicated in the "remedy"
section of this decision.
4. The State of Alaska shall post a notice of this decision and order at all
work sites where members of the bargaining unit affected by the decision and
order are employed or, alternatively, serve each employee affected personally. 8
AAC 97.460.
ALASKA LABOR RELATIONS AGENCY
______________________________________
Aaron Isaacs, Jr., Acting Chair
______________________________________
Raymond Smith, Board Member
______________________________________
Dick Brickley, Board Member
APPEAL PROCEDURES
This order is the final decision of this Agency. Judicial review may be obtained
by filing an appeal under Appellate Rule 602(a)(2). Any appeal must be taken
within 30 days from the date of filing or distribution of this decision.
CERTIFICATION
I hereby certify that the foregoing is a full, true and correct copy of the
order in the matter of ALASKA STATE EMPLOYEES ASSOCIATION, AFSCME LOCAL 52,
AFL-CIO, vs. STATE OF ALASKA, Case No. 99-1027-ULP, dated and filed in the
office of the Alaska Labor Relations Agency in Anchorage, Alaska, this 14th day
of December, 2000.
________________________
Donna Bodkin
Administrative Clerk III
This is to certify that on the 14th day of December, 2000, a
true and correct copy of the foregoing was mailed,
postage prepaid, to
Harriet Lawlor, ASEA
Kent Durand, State
Signature