Puyallup School District, Decision 10049 (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
INTERNATIONAL UNION OF OPERATING )
ENGINEERS, LOCAL 286, )
)
Complainant, ) CASE 21594-U-08-5506
)
vs. ) DECISION 10049 - PECB
)
PUYALLUP SCHOOL DISTRICT, ) PRELIMINARY RULING
) AND ORDER OF PARTIAL
Respondent. ) DISMISSAL
___________________________________)
On March 13, 2008, the International Union of Operating Engineers,
Local 286 (union) filed a complaint charging unfair labor practices
with the Public Employment Relations Commission under Chapter 391-45
WAC, naming the Puyallup School District (employer) as respondent.
The complaint was reviewed under WAC 391-45-110,(fn:1) and a deficiency
notice issued on March 19, 2008, indicated that it was not possible
to conclude that a cause of action existed at that time for some of
the allegations of the complaint. The union was given a period of
21 days in which to file and serve an amended complaint, or face
dismissal of the defective allegations. The union has not filed any
further information. The Unfair Labor Practice Manager dismisses
the defective allegations of the complaint for failure to state
causes of action and finds causes of action as set forth in the
preliminary ruling below. The employer must file and serve its
answer within 21 days following the date of this Order.
____________________
fn:1 At this stage of the proceedings, all of the facts alleged in
the complaint are assumed to be true and provable. The question at
hand is whether, as a matter of law, the complaint states a claim
for relief available through unfair labor practice proceedings
before the Public Employment Relations Commission.
DISCUSSION
The allegations of the complaint concern employer interference with
employee rights in violation of RCW 41.56.140(1) and refusal to
bargain in violation of RCW 41.56.140(4), by (1) its unilateral
change to the job share benefit available to bargaining unit
employees, without providing an opportunity for bargaining, and (2)
its unilateral change in working conditions by implementing a new
school bus drivers' handbook, without providing an opportunity for
bargaining.
The allegations of the complaint concerning interference and refusal
to bargain regarding the implementation of the school bus drivers'
handbook state a cause of action under WAC 391-45-110(2) for
further unfair labor practice proceedings before the Commission.
The deficiency notice set forth the defects to the complaint.
First, the following statute applies to the timeliness of unfair
labor practice complaints.
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.
The union filed the complaint on March 13, 2008. Allegations of the
complaint subject to remedial orders must have occurred on or after
September 13, 2007. The complaint alleges that the employer
discontinued the job share benefit on August 21, 2007. This
allegation is untimely.
Second, Chapter 391-45 WAC governs the filing and processing of
unfair labor practice complaints. Complaints must conform to WAC
391-45-050.
WAC 391-45-050 CONTENTS OF COMPLAINT
Each complaint charging unfair labor practices shall contain,
in separate numbered paragraphs:
. . . .
(2) Clear and concise statements of the facts constituting
the alleged unfair labor practices, including times, dates,
places and participants in occurrences.
The statement of facts implies continuing unfair labor practices
resulting from the employer's actions on August 21, 2007, by
alleging that the employer's decision regarding the job share
benefit had an adverse impact on employees on or after September 13,
2007. However, the statement of facts does not supply information
concerning times, dates, places, and participants in the alleged
occurrences.
NOW, THEREFORE, it is
ORDERED
1. Assuming all of the facts alleged to be true and provable,
interference and refusal to bargain allegations of the
complaint state causes of action, summarized as follows:
Employer interference with employee rights in violation of
RCW 41.56.140(1) and refusal to bargain in violation of
RCW 41.56.140(4), by its unilateral change in working
conditions by implementing a new school bus drivers'
handbook, without providing an opportunity for bargaining.
These allegations of the complaint will be the subject of
further proceedings under Chapter 391-45 WAC.
2. Puyallup School District shall:
File and serve its answer to the allegations listed in
paragraph 1 of this Order, within 21 days following the
date of this Order.
An answer shall:
a. Specifically admit, deny or explain each fact alleged in
the complaint, except if a respondent states it is without
knowledge of the fact, that statement will operate as a
denial; and
b. Assert any affirmative defenses that are claimed to exist
in the matter.
c. Specify whether "deferral to arbitration" is requested
and, if so:
i. Indicate whether a collective bargaining agreement was
in effect between the parties at the time of the alleged
unilateral change;
ii. Identify the contract language requiring final and
binding arbitration of grievances;
iii. Identify the contract language which is claimed to
protect the employer conduct alleged to be an unlawful
unilateral change;
iv. Provide information (and copies of documents)
concerning any grievance being processed on the matter at
issue in this unfair labor practice case; and
v. State whether the employer is willing to waive any
procedural defenses to arbitration.
The answer shall be filed with the Commission at its Olympia
office. A copy of the answer shall be served on the attorney
or principal representative of the person or organization that
filed the complaint. Service shall be completed no later than
the day of filing. Except for good cause shown, a failure to
file an answer within the time specified, or the failure to
file an answer to specifically deny or explain a fact alleged
in the complaint, will be deemed to be an admission that the
fact is true as alleged in the complaint, and as a waiver of a
hearing as to the facts so admitted. WAC 391-45-210.
3. The allegations of the complaint concerning employer
interference with employee rights in violation of RCW
41.56.140(1) and refusal to bargain in violation of RCW
41.56.140(4), by its unilateral change to the job share benefit
available to bargaining unit employees, without providing an
opportunity for bargaining, are DISMISSED for failure to state
causes of action.
ISSUED at Olympia, Washington, this 21st day of April, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
DAVID I. GEDROSE, Unfair Labor Practice Manager
Paragraph 3 of 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.