Highline School District, Decision 10301 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
TEAMSTERS LOCAL 763, )
)
Complainant, ) CASE 22189-U-09-5663
)
vs. ) DECISION 10301 - PECB
)
HIGHLINE SCHOOL DISTRICT, ) PRELIMINARY RULING
) AND ORDER OF PARTIAL
Respondent. ) DISMISSAL
___________________________________)
On January 8, 2009, Teamsters Local 763 (union) filed a complaint
charging unfair labor practices with the Public Employment Relations
Commission under Chapter 391-45 WAC, naming the Highline School
District (employer) as respondent. The complaint was docketed by
the Commission as Case 22189-U-09-5663. The allegations of the
complaint concern [1] employer interference with employee rights and
discrimination in violation of RCW 41.56.140(1), by its actions
regarding Shannon Kaspank and Greg Seth in connection with union
activities; and [2] 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 skimming security service officer work at New
Start High School previously performed by bargaining unit members,
without providing an opportunity for bargaining. The complaint was
reviewed under WAC 391-45-110,(fn:1) and a deficiency notice issued on
January 20, 2009, 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.
____________________
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 February 5, 2009, the union filed an amended complaint. The
Unfair Labor Practice Manager dismisses the allegations of the
complaint concerning employer discrimination and finds causes of
action for the allegations concerning independent employer
interference and interference and refusal to bargain.
DISCUSSION
The deficiency notice pointed out the defects to the complaint.
One, the following statute of limitations applies in this case:
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 Commission requires complainants to provide specific dates for
their allegations. References to allegations committed "within the
past six months" are insufficient to state a cause of action. The
statement of facts does not provide dates for any of the allegations
concerning Kaspank, Seth, or security service officer work at New
Start High School.
Two, 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 allegations concerning the employer's alleged interference and
discrimination regarding Kaspank and Seth do not conform to WAC
391-45-050(2), which requires information regarding times, dates,
places, and employer participants, and thus do not state a cause of
action.
Three, the union alleges employer interference and discrimination
against Kaspank and Seth. Interference allegations will state a
cause of action if the statement of facts indicates employer threats
of reprisal or force or promises of benefit in connection with
employees' union activities. In order to state a cause of action
for discrimination, the statement of facts must indicate that the
employer's actions have actually deprived employees of ascertainable
rights, status, or benefits in reprisal for union activities
protected by Chapter 41.56 RCW. The statement of facts indicates
employer threats of reprisal or force against Kaspank and Seth, but
does not indicate that the employer has deprived Kaspank and Seth of
ascertainable rights, status, or benefits; thus, the complaint does
not state a cause of action for discrimination.
The Amended Complaint
The amended complaint cured the first two defects by providing facts
required under RCW 41.56.160(1) and WAC 391-45-050(2). However, the
amended complaint fails to state causes of action for employer
discrimination against Seth and Kaspank. The union's claim that
Seth's reputation was harmed as a result of the employer's
investigation does not, without more facts, indicate a deprivation
his rights, status, or benefits in reprisal for union activities
protected by Chapter 41.56 RCW.
Regarding Kaspank, the union has not stated a claim for
discrimination by its assertion that the employer's refusal to
include her in the bargaining unit constitutes said discrimination.
The employer is not automatically susceptible to a discrimination
claim because it declines to place Kaspank in the bargaining unit.
The union has filed a unit clarification petition over the position
at issue.(fn:2) The question of whether the position belongs in the
bargaining unit will be decided based upon the Commission's decision
in the unit clarification proceeding. The union's allegations do
not indicate that the employer has deprived Kaspank of any rights,
status, or benefits in reprisal for union activities protected by
Chapter 41.56 RCW.
____________________
fn:2 Under WAC 391-35-110(2), the processing of the petition in
Case 22190-C-09-1391 is currently on hold pending the resolution of
this unfair labor practice case.
NOW, THEREFORE, it is
ORDERED
1. Assuming all of the facts alleged to be true and provable, the
interference and refusal to bargain allegations of the amended
complaint in Case 22189-U-09-5663 state causes of action,
summarized as follows:
[1] Employer interference with employee rights in
violation of RCW 41.56.140(1), by threats of reprisal or
force or promises of benefit made to Shannon Kaspank and
Greg Seth as a result of their union activities; and [2]
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 skimming security service officer
work at New Start High School previously performed by
bargaining unit members, without providing an opportunity
for bargaining.
The interference and refusal to bargain allegations of the
amended complaint will be the subject of further proceedings
under Chapter 391-45 WAC.
2. Highline 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 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 allegations of the amended complaint in Case
22189-U-09-5663 concerning employer discrimination against
Shannon Kaspank and Greg Seth in violation of RCW 41.56.140(1)
are DISMISSED for failures to state causes of action.
ISSUED at Olympia, Washington, this 13th 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.