Kent School District, Decision 10298 (EDUC, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
KENT EDUCATION ASSOCIATION, )
)
Complainant, ) CASE 22144-U-08-5644
)
vs. ) DECISION 10298 - EDUC
)
KENT SCHOOL DISTRICT, ) PRELIMINARY RULING
) AND ORDER OF PARTIAL
Respondent. ) DISMISSAL
___________________________________)
On December 5, 2008, the Kent Education Association (union) filed a
complaint charging unfair labor practices with the Public Employment
Relations Commission under Chapter 391-45 WAC, naming the Kent
School District (employer) as respondent. The complaint was
docketed by the Commission as Case 22144-U-08-5644.
The complaint was reviewed under WAC 391-45-110,(1) and a deficiency
notice issued on December 30, 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 complaint. On January
21, 2009, the union filed an amended complaint. As more fully set
forth below, the Unfair Labor Practice Manager dismisses certain
allegations of the amended complaint for failures to state causes of
action and finds causes of action for the remaining allegations the
amended complaint. The employer must file and serve its answer to
the valid causes of action in the amended complaint within 21 days
following the date of this decision.
____________________
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:
[1] Employer interference with employee rights in violation of
RCW 41.59.140(1)(a) and refusal to bargain in violation of RCW
41.59.140(1)(e), by its (a) unilateral change in subcontracting
out bargaining unit work, without providing an opportunity for
bargaining, (b) refusal to provide relevant information
requested by the union regarding (I) workload and teaching
responsibilities related to the one-to-one laptop program and
(ii) social security and district employee numbers for
bargaining unit employees, (c) unilateral change to workload
and teaching responsibilities related to the one-to-one laptop
program, without providing an opportunity for bargaining, (d)
unilateral change to optional benefits for bargaining unit
members, without providing an opportunity for bargaining, (e)
unilateral change to work assignments for special education
teachers, without providing an opportunity for bargaining, (f)
unilateral change regarding the use of employer buildings for
union meetings, without providing an opportunity for
bargaining, (g) unilateral change to the number of union
representatives allowed in disciplinary interviews of
bargaining unit members, without providing an opportunity for
bargaining, (h) unilateral change to the Kent Phoenix Academy
(Phoenix Academy) high school advisory program concerning (I)
individual learning plans, (ii) lessons and assignments for
students under instruction of other teachers, (iii) making
weekly phone calls to students, and (iv) attendance at school
improvement team meetings, without providing an opportunity for
bargaining, (I) employer official Merrilee Carey's
circumvention of the union through direct dealing with
employees represented by the union concerning early release
time related to the Phoenix Academy high school advisory
program, without first notifying the union, (j) breach of its
good faith bargaining obligations through its bargaining team's
lack of authority to negotiate during collective bargaining
sessions, (k) unilateral change to the use of work assessment
forms, without providing an opportunity for bargaining, (l)
unilateral change in the operation of heating and ventilation
systems, which affect the working conditions of bargaining unit
members, without providing an opportunity for bargaining, (m)
unilateral change to parent-teacher conferences at Daniel
Elementary, without providing an opportunity for bargaining,
(n) employer official Janet Muldrow's circumvention of the
union through direct dealing with employees represented by the
union concerning the Daniel Elementary parent-teacher
conferences, without first notifying the union; (o) failure to
implement a grievance settlement; [2] employer interference
with employee rights in violation of RCW 41.59.140(1)(a), by
threats of reprisal or force or promises of benefit toward
bargaining unit members in relation to their union activities,
through (a) the comments of employer officials Janae Landis and
Diana Pratt to bargaining unit members regarding schedule
changes, (b) the comments of employer official Bonnie Wong to
bargaining unit members regarding their union activities; [3]
employer interference with employee rights in violation of RCW
41.59.140(1)(a) and discrimination in violation of RCW
41.59.140(1) (c), by employer official Merrilee Carey's actions
toward a bargaining unit representative at Kent Phoenix
Academy, in reprisal for union activities protected by Chapter
41.59 RCW.
The deficiency notice found causes of action for the following
allegations:
Employer interference and refusal to bargain by failure to
provide information on the one-to-one laptop program, a
unilateral change in the use of employer buildings for union
meetings, unilateral changes to the Phoenix Academy high school
advisory program, and circumvention related to that program.
The deficiency notice pointed out the defects to the remaining
allegations. The statement of facts fails to set forth sufficient
information to support the union's allegations. In addition, the
allegation concerning the grievance settlement may not be processed
through an unfair labor practice complaint.
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.
Although the defective portions of the complaint sufficiently set
forth notices of the union's legal claims, they lack the details
required by WAC 391-45-050(2). The Commission does not investigate
the facts presented in unfair labor practice complaints. As stated
above, all facts presented are assumed to be true and provable. In
addition, pre-hearing discovery procedures common to civil court
proceedings are not available in unfair labor practice cases.
Notices of claims are insufficient by themselves to state a cause of
action. The statement of facts must set forth in detail the times,
dates, places, and participants for each claim presented. Finally,
all claims for which a remedy is sought must be filed within the
six-month statute of limitations under RCW 41.59.150(1).
The union also makes a claim regarding a grievance settlement over
teacher consent for students returning to class. This is a
contractual matter between the union and employer. While the
Commission offers grievance mediation and arbitration services, it
does not adjudicate contractual disputes between unions and
employers through unfair labor practice proceedings. The union must
pursue this matter through the arbitration process or in court.
The Amended Complaint
The amended complaint does not contain the following allegations as
stated in the original complaint: a unilateral change in the
operation of heating and ventilation systems, which affect the
working conditions of bargaining unit members, without providing an
opportunity for bargaining, and failure to implement a grievance
settlement. These allegations are considered withdrawn.
The allegation concerning a unilateral change in subcontracting out
bargaining unit work, without providing an opportunity for
bargaining, does not comply with the requirements of WAC
391-45-050(2) and remains defective. The amended statement of facts
does not provide times, dates, places or participants. The
arbitration award of David W. Stiteler, of October 22, 2008, was not
considered in this ruling. It is not relevant to the union's unfair
labor practice complaint since the Commission cannot enforce an
arbitrator's award. Further, an arbitration award will not be
incorporated by reference into an unfair labor practice complaint.
The amended complaint alleges a unilateral change to the number of
union representatives allowed in disciplinary interviews of
bargaining unit members, without providing an opportunity for
bargaining. In order to state a cause of action for a unilateral
change, the complainant must show that an actual change was
implemented. The amended statement of facts indicates that although
the employer announced a change in its interview policy, the union
continues to provide two representatives at disciplinary interviews.
The amended allegation is defective.
The following allegations are time-barred: comments of employer
officials Janae Landis and Diana Pratt to bargaining unit members
regarding schedule changes. The union filed the complaint on
December 5, 2008. The following statute of limitations applies:
RCW 41.59.150--COMMISSION TO PREVENT UNFAIR LABOR
PRACTICES SCOPE. (1) The commission is empowered to prevent
any person from engaging in any unfair labor practice as
defined in RCW 41.59.140: 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. . . .
Allegations of the amended complaint occurring prior to June 5,
2008, while possibly relevant as background material, are not
subject to remedial orders of the Commission. The allegations
concerning Landis and Pratt remain defective.
Allegations concerning comments of employer official Bonnie Wang to
bargaining unit members regarding their union activities are also
time-barred, with the exception of comments allegedly made to
Camille Yuasa in the fall of 2008.
Finally, the amended complaint fails to cure the defects to the
allegation of employer interference with employee rights and
discrimination, by employer official Merrilee Carey's actions toward
Amy Wiskerchen. The amended statement of facts does not indicate
whether the alleged actions occurred after June 5, 2008. The
reports of other bargaining unit members in November 2008 concerning
Carey's alleged actions do not cure the defects. There are no
indications of who the bargaining members are, if they observed the
alleged actions, and when they observed them.
The remaining allegations of the amended complaint state causes of
action for unfair labor practices committed in violation of Chapter
41.59 RCW.
NOW, THEREFORE, it is
ORDERED
1. Assuming all of the facts alleged to be true and provable, the
allegations of the amended complaint in Case 22144-U-08-5644
state causes of action, summarized as follows:
[1] Employer interference with employee rights in
violation of RCW 41.59.140(1)(a) and refusal to bargain in
violation of RCW 41.59.140(1)(e), by its (a) refusal to
provide relevant information requested by the union
regarding (i) workload and teaching responsibilities
related to the one-to-one laptop program and (ii) social
security and district employee numbers for bargaining unit
employees, (b) unilateral change to workload and teaching
responsibilities related to the one-to-one laptop program,
without providing an opportunity for bargaining, (c)
unilateral change to optional benefits for bargaining unit
members, without providing an opportunity for bargaining,
(d) unilateral change to work assignments for special
education teachers, without providing an opportunity for
bargaining, (e) unilateral change regarding the use of
employer buildings for union meetings, without providing
an opportunity for bargaining, (f) unilateral change to
the Kent Phoenix Academy (Phoenix Academy) high school
advisory program concerning (i) individual learning plans,
(ii) lessons and assignments for students under
instruction of other teachers, (iii) making weekly phone
calls to students, and (iv) attendance at school
improvement team meetings, without providing an
opportunity for bargaining, (g) employer official Merrilee
Carey's circumvention of the union through direct dealing
with employees represented by the union concerning early
release time related to the Phoenix Academy high school
advisory program, without first notifying the union, (h)
breach of its good faith bargaining obligations through
its bargaining team's lack of authority to negotiate
during collective bargaining sessions, (I) unilateral
change to the use of work assessment forms, without
providing an opportunity for bargaining, (j) unilateral
change to parent-teacher conferences at Daniel Elementary,
without providing an opportunity for bargaining, (k)
employer official Janet Muldrow's circumvention of the
union through direct dealing with employees represented by
the union concerning the Daniel Elementary parent-teacher
conferences, without first notifying the union; [2]
employer interference with employee rights in violation of
RCW 41.59.140(1)(a), by threats of reprisal or force or
promises of benefit through the comments of employer
official Bonnie Wong to Camille Yuasa regarding union
activities.
These allegations of the amended complaint will be the subject
of further proceedings under Chapter 391-45 WAC.
2. The Kent School District shall:
FILE AND SERVE ITS ANSWER TO THE ALLEGATIONS LISTED IN
PARAGRAPH 1 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 amended complaint as set forth in paragraph 1 of this
order, 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.
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 amended 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 amended complaint, will be deemed to be an
admission that the fact is true as alleged in the amended
complaint, and as a waiver of a hearing as to the facts so
admitted. WAC 391-45-210.
3. The following allegations of the amended complaint in Case
22144-U-08-5644 are DISMISSED for failure to state a cause of
action:
[1] Employer interference with employee rights in
violation of RCW 41.59.140(1)(a) and refusal to bargain in
violation of RCW 41.59.140(1)(e), by its (a) unilateral
change in subcontracting out bargaining unit work, without
providing an opportunity for bargaining, (b) unilateral
change to the number of union representatives allowed in
disciplinary interviews of bargaining unit members,
without providing an opportunity for bargaining, (c)
unilateral change in the operation of heating and
ventilation systems, which affect the working conditions
of bargaining unit members, without providing an
opportunity for bargaining, (d) failure to implement a
grievance settlement; [2] employer interference with
employee rights in violation of RCW 41.59.140(1)(a), by
threats of reprisal or force or promises of benefit
through the comments of employer officials Janae Landis
and Diana Pratt to bargaining unit members regarding
schedule changes; [3] employer interference with employee
rights in violation of RCW 41.59.140(1)(a) and
discrimination in violation of RCW 41.59.140(1) (c), by
employer official Merrilee Carey's actions toward Amy
Wiskerchen, in reprisal for union activities protected by
Chapter 41.59 RCW.
ISSUED at Olympia, Washington, this 5th day of February, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
DAVID I. GEDROSE, Unfair Labor Practice Manager
Paragraph 3 of this order will be
the final order of the agency on
any defective allegations, unless
a notice of appeal is filed with
the Commission under WAC 391-45-350.