Northshore Utility District (Washington State Council of County
and City Employees, Local 1024, Council 2), Decision 10304 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
NORTHSHORE UTILITY DISTRICT, )
)
Complainant, ) CASE 22194-U-09-5665
)
vs. ) DECISION 10304 - PECB
)
WASHINGTON STATE COUNCIL OF COUNTY )
AND CITY EMPLOYEES, LOCAL 1024, )
COUNCIL 2, ) PRELIMINARY RULING
) AND ORDER OF PARTIAL
Respondent. ) DISMISSAL
___________________________________)
On January 8, 2009, Northshore Utility District (employer) filed a
complaint charging unfair labor practices with the Public Employment
Relations Commission under Chapter 391-45 WAC, naming the Washington
State Council of County and City Employees, Local 1024, Council 2
(union) as respondent. The allegations of the complaint concern [1]
Union interference with employee rights in violation of RCW
41.56.150(1) and refusal to bargain in violation of RCW
41.56.150(4), by (a) repudiating an agreement on disciplinary action
made with the employer, (b) repudiating a provision of the
collective bargaining agreement, (c) advising employees that they
are at will--contrary to provisions of the collective bargaining
agreement, (d) insisting upon a unilateral change to previously
agreed upon matters and past practice; and [2] union interference
with employee rights in violation of RCW 41.56.150(1), by (a)
advising employees that they are at will, and (b) sending an
internal union memorandum to employees regarding the 2009 COLA.
The complaint was reviewed under WAC 391-45-110,(1) and a deficiency
notice issued on January 21, 2009, indicated that it was not
possible to conclude that a cause of action existed at that time.
The employer 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 11, 2009, the employer filed an amended complaint. The
Unfair Labor Practice Manager dismisses the defective allegations of
the amended complaint concerning independent interference for
failures to state causes of action, and finds causes of action for
interference and refusal to bargain allegations of the amended
complaint. The union must file and serve its answer to the amended
complaint within 21 days following the date of this decision.
DISCUSSION
The deficiency notice pointed out the defects to the complaint.
One, 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.
(3) A statement of the remedy sought by the complainant.
In order to state a cause of action, a complainant must provide a
statement of facts in accordance with WAC 391-45-050. 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. The allegations
in this case rely in major part on references to exhibits. It is
the responsibility of the complainant to set forth its allegations
in a clear and concise manner in the statement of facts, not through
legal claims referencing exhibits. Finally, the complaint does not
contain a statement of the remedy sought by the employer.
Two, in alleging union refusal to bargain, the employer claims that
the union violated the collective bargaining agreement or other
agreements when it repudiated an agreement with the employer as well
as a provision of the collective bargaining agreement, and when the
union falsely and illegally advised employees that they are at will,
contrary to provisions of the collective bargaining agreement. In
addition to failing to include facts required by WAC 391-45-050(2),
these allegations appear to be defective as a matter of law. The
Commission does not assert jurisdiction to remedy violations of
collective bargaining agreements or other contractual disputes
through the unfair labor practice provisions of Chapter 41.56 RCW.
The Commission acts to interpret collective bargaining statutes and
does not act in the role of arbitrator to interpret collective
bargaining agreements or other contractual agreements between
parties. The employer must address these issues through arbitration
or the courts.
Three, the employer alleges union refusal to bargain by its
insisting upon a unilateral change to previously agreed upon matters
and past practice. A party to a collective bargaining relationship
may insist on changes to agreements between the parties, but the
opposing party is under no obligation to alter its position if it
satisfies its own bargaining obligations. Under the facts
presented, a claim that the union "insisted" on changes to its
agreements with the employer does not indicate a cause of action for
refusal to bargain.
Four, the employer alleges independent union interference with
employee rights by its telling employees they are at will and
sending an internal union memorandum to employees concerning the
2009 COLA. The Commission has no jurisdiction over internal union
affairs, including union communications with its members, barring a
showing of retaliation for union activities or invidious
discrimination based upon such factors as race or gender. Under the
limited facts presented here, the unnamed employees offended by
either of the union's actions would need to seek redress through
internal union procedures or the courts. See Seattle School
District (International Union of Operating Engineers), Decision
9135-B (PECB, 2007).
The Amended Complaint
The employer includes a remedy in its amended complaint and cures
defects regarding its specific claims of union interference and
refusal to bargain. The employer alleges that the union
unilaterally repudiated an agreement between the parties concerning
resolution of a disciplinary issue involving Kevin Milliken. The
employer has stated a cause of action for union interference with
employee rights in violation of RCW 41.56.140(1) and refusal to
bargain in violation of RCW 41.56.150(4).
The employer further alleges that the union's claim that employees
are at will in the absence of a collective bargaining agreement is a
breach of its duty to bargain in good faith. The employer has
stated a second cause of action for union refusal to bargain.
The employer has not repeated its non-specific claims for
allegations of the original complaint concerning (a) the union's
repudiation of other provisions of the collective bargaining
agreement, or (b) insistence upon other unilateral changes to
previously agreed upon matters and past practices. The non-specific
claims included in the original complaint are considered withdrawn.
The employer has not cured its defective allegations concerning
independent union interference with employee rights. It is an
unfair labor practice for either an employer or union to interfere
with the collective bargaining rights of employees protected under
Chapter 41.56 RCW. The employer alleges independent union
interference with employee rights in violation of RCW 41.56.150(1),
by the union's threat of reprisal or force or promises of benefit
concerning unidentified employees' union activities, through (a)
telling employees they are at will, and (b) sending an internal
union memorandum to employees concerning the 2009 COLA. The
employer alleges that such actions were directed at bargaining unit
members considering a decertification petition against the union or
changing union leadership.
Under WAC 391-45-010, an employer has standing to file an unfair
labor practice complaint against a union on behalf of employees.
The employer alleges that union representatives were aware that
"some employees" were considering a decertification petition or
change in union leadership. Statements of facts must comply with
WAC 391-45-050(2), which requires information regarding
"participants in occurrences." The employer's allegations that
unnamed employees were coerced by the union's actions are
insufficient to state a cause of action for interference. Although
the union's intent in its statements and writings is not at issue,
the employer's allegations must indicate union interference with
actual, identified employees. The employer's amended complaint
fails to provide the facts required to state a cause of action for
independent union interference.
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 amended
complaint in Case 22194-U-09-5665 state a cause of action,
summarized as follows:
Union interference with employee rights in violation of
RCW 41.56.150(1) and refusal to bargain in violation of
RCW 41.56.150(4), by (a) its unilateral change to the
practice of resolution of discipline for Kevin Milliken,
without providing an opportunity for bargaining, and (b)
breach of its good faith bargaining obligations regarding
negotiations over just cause provisions of the collective
bargaining agreement.
The interference and refusal to bargain allegations of the
amended complaint will be the subject of further proceedings
under Chapter 391-45 WAC.
2. The Washington State Council of County and City Employees,
Local 1024, Council 2, shall:
FILE AND SERVE ITS ANSWER TO THE ALLEGATIONS LISTED IN
PARAGRAPHS 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
22194-U-09-5665 concerning [1] union interference with employee
rights in violation of RCW 41.56.150(1), by threats of reprisal
or force or promises of benefit concerning unidentified
employees' union activities, through (a) telling employees they
are at will, and (b) sending an internal union memorandum to
employees concerning the 2009 COLA, are DISMISSED for failures
to state causes of action; [2] to the extent that the employer
might continue to allege union interference and refusal to
bargain by additional claims of (a) the union's repudiating any
other provisions of the collective bargaining agreement, or (b)
insisting upon any other unilateral changes to previously
agreed upon matters and past practice, those allegations are
DISMISSED.
ISSUED at Olympia, Washington, this 20th 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.