Western Washington University, Decision 10068 (PSRA, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
PUBLIC SCHOOL EMPLOYEES OF )
WASHINGTON, )
)
Complainant, ) CASE 21631-U-08-5518
)
vs. ) DECISION 10068 - PSRA
)
WESTERN WASHINGTON UNIVERSITY, )
)
Respondent. ) ORDER OF DISMISSAL
___________________________________)
On April 2, 2008, Public School Employees of Washington (union),
filed a complaint charging unfair labor practices with the Public
Employment Relations Commission under Chapter 391-45 WAC, naming
Western Washington University (employer) as respondent. The
complaint was reviewed under WAC 391-45-110,(fn:1) and a deficiency
notice issued on April 14, 2008, indicated that it was not possible
to conclude that a cause of action existed at that time. The union
was given a period of 21 days in which to file and serve an amended
complaint, or face dismissal of the case.
____________________
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.
On April 30, 2008, the union filed an amended complaint. The Unfair
Labor Practice Manager dismisses the amended complaint for failure
to state a cause of action.
DISCUSSION
The allegations of the complaint concern employer interference with
employee rights in violation of RCW 41.80.110(1)(a) and refusal to
bargain in violation of RCW 41.80.110(1)(e), by its unilateral
change in imposing multi-unit and multi-employer bargaining upon the
union, at off-campus locations, without providing an opportunity for
bargaining.
The deficiency notice pointed out the defects to the complaint.
The union alleges that the employer has interfered with employee
rights and refused to bargain by informing the union that it intends
to pursue bargaining with the union by negotiating a master contract
with five bargaining units represented by the union at both Western
Washington University and Central Washington University. The union
further alleges that the employer informed the union that
negotiations would not take place on either campus, but at another
location. The union's remedy includes requests that the Commission
order a return to the status quo and make union members whole for
losses suffered as a result of the employer's actions.
Employers are required to meet with the exclusive bargaining
representatives of their employees at reasonable times and places
for the purposes of collective bargaining. Employers are required
to bargain in good faith through honest communications and efforts
to reach agreements that go above and beyond what might be expected
in other business relationships. Violations of these duties may
constitute unfair labor practices. Unfair labor practices may also
be found where an employer decides upon and unilaterally implements
changes to mandatory subjects of bargaining.
The statement of facts does not allege that the employer refused to
meet, impeded reaching an agreement by breach of its good faith
bargaining obligations, or actually imposed a unilateral change to a
mandatory subject of bargaining. The union's complaint thus does
not allege facts sufficient to conclude that the employer has
actually interfered with employee rights and refused to bargain.
Further, the requested remedial actions presume a finding of a
unilateral change to mandatory subjects of bargaining. As noted,
such a finding would involve both a unilateral decision and its
implementation. The preliminary ruling process makes no provisions
for declaratory rulings concerning decisions alone. The union's
complaint is defective under the stated facts.
Amended Complaint
The sole difference between the complaint and amended complaint is
the amended complaint's incorporation by reference of three
declarations by the following persons: Marty Hitchcock, Tina
Peterson, and John Kapple. Only Kapple's declaration discusses
facts relevant to this case. The pertinent section of Kapple's
declaration restates the allegation in the complaint that "at some
point in November or December of 2007," the employer informed the
union that it had decided to negotiate a master agreement for the
five union bargaining units at Western Washington University and
Central Washington University, and that the bargaining would not
take place on the campuses, but at another location, "such as
Seattle."
The amended complaint reiterates the union's position that the
employer's statements of November or December 2007 constituted a
fait accompli and thus were unilateral changes actionable under
Chapter 41.80 RCW. In determining whether a fait accompli has
occurred, the Commission focuses on the circumstances as a whole and
whether the opportunity for meaningful bargaining existed. Clover
Park Technical College, Decision 8534-A (PECB, 2004). A fait
accompli will not be found where: (1) 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 (2) the employer's behavior does not
seem inconsistent with a willingness to bargain if requested. Lake
Washington Technical College, Decision 4721-A (PECB, 1995).
The union alleges that the employer notified the union of its
proposals in "November or December 2007." The union filed its
complaint on April 2, 2008, and its amended complaint 28 days later.
The amended complaint does not contain facts alleging that,
immediately following its November or December pronouncement, the
employer demanded multi-unit and multi-employer bargaining at an
off-campus location. The union does not allege that in the five to
nearly six months between November 2007 and the end of April 2008,
the employer repeated its intentions regarding multi-unit,
multi-employer, and off-campus bargaining, or has arranged for and
demanded bargaining sessions under those conditions. Finally, the
union does not allege that it has ever demanded bargaining over the
aforementioned issues and that the employer has refused. The facts
alleged by the union in the amended complaint do not sustain a cause
of action for employer interference and refusal to bargain in
violation of Chapter 41.80 RCW.
NOW, THEREFORE, it is
ORDERED
The amended complaint charging unfair labor practices in Case
21631-U-08-5518 is DISMISSED for failure to state a cause of action.
ISSUED at Olympia, Washington, this 12th day of May, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
DAVID I. GEDROSE, Unfair Labor Practice Manager
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.