Not Discrimination When Deputies Demoted After Investigation And ULP Filings

Written on 01/05/2024

Corrections deputies McKenzie Bur­gess and Scott Cram work at the Franklin County Jail in Pasco, Washington. Both are active in their union, and were shop stewards. They served under Franklin County Sheriff Jim Raymond since his election in 2015.

Sheriff Raymond had a contentious relationship with the union, exemplified by a change in policy he imposed under which the union’s business agent could only access the jail if escorted by the Sheriff or a Human Resources representative. The Union filed several unfair labor practice charges with the Public Employment Relations Commission (PERC) against Raymond for this and other alleged in­terferences with union affairs. Raymond addressed the public directly through his Facebook page on multiple occasions, expressing his belief that allowing the union to conduct union business at the jail was inappropriate and a safety risk.

The Union filed two additional ULP complaints on behalf of Burgess and Cram, based on allegations of unlawful employer conduct during three meetings in April and June 2021. According to the allegations, in those meetings: (1) Raymond told Burgess that she was free to quit if she could not agree to abstain from union activity while in the jail; (2) Jail Commander Stephen Sultemeier told Cram that he needed to “get in line” with Raymond’s position on union activity in the jail if he wanted to move up the ranks; and (3) that Sultemeier insisted that jail supervisory staff vote whether to keep or change negotiated overtime policy without giving notice to or solic­iting input from the union. The Union alleged that this behavior constituted unlawful threats against or interference with union activity. Raymond thereaf­ter opened internal investigations into Burgess and Cram because, in the view of the jail command staff, Burgess and Cram’s allegations underlying the ULP charges were lies.

Burgess and Cram were extensive­ly interviewed about what transpired during the three meetings. About ten other employees were interviewed and the investigation took several months. Ultimately, investigators concluded that Burgess and Cram were untruthful and insubordinate on dozens of occasions during the investigation and recom­mended that both be terminated. Ray­mond instead chose to demote Burgess and Cram after a Loudermill hearing. The Union filed additional ULPs alleging that Burgess and Cram’s demotions were discriminatory for their involvement in filing ULPs after the April and June 2021 meetings.

PERC sided with the Employ­er, finding that although the Union established a prima facie case for dis­crimination, it was unable to refute the Employer’s non-discriminatory reasons for demoting Burgess and Cram. PERC agreed with the Union that Burgess and Cram’s demotions were causally connected to protected activity – filing ULP charges. However, PERC also believed that the demotions were not retaliation for filing those charges, but rather the result of a legitimate internal investigation. PERC concluded that the investigation was too thorough to be a sham designed to punish Burgess and Cram, because it lasted three months and included interviews of many other jail employees. The bulk of the policy violations alleged against Burgess and Cram stemmed from their unwillingness to cooperate in the investigation, which was documented and credibly explained by the investigators at the ULP hearing.

Although the Union was able to demonstrate considerable anti-union an­imus on Raymond’s part – as evidenced through his Facebook posts attacking the union – PERC did not find that an­ti-union animus motivated Burgess and Cram’s demotions. Again, the Commis­sion highlighted the facts that Raymond did not issue discipline until after a thorough investigation. Raymond chose not to terminate Burgess and Cram, as recommended by the investigators, but rather showed restraint after considering mitigating factors. PERC also noted that the Union failed to prove that Burgess and Cram were treated differently than other employees alleged to have given false statements. Taken together, PERC found that Burgess and Cram’s demo­tions were legitimate, and not unlawful anti-union discrimination.

Teamsters Local 839 v. Franklin County, Case 135905-U-22, 2023 WL 6948889 (Wash. Pub. Employer Rela­tions Commission, 2023).