City of Seattle, Decision 10363 (PECB, 2009)


                         STATE OF WASHINGTON
                                   
          BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
                                   
                                   
STEVEN K. CASTELLO,                )
                                   )
                    Complainant,   )    CASE 22322-U-09-5691
                                   )
          vs.                      )    DECISION 10363 - PECB
                                   )
CITY OF SEATTLE,                   )
                                   )
                    Respondent.    )    ORDER OF DISMISSAL
___________________________________)

On March 6, 2009, Steven K. Castello (Castello) filed a complaint
charging unfair labor practices with the Public Employment Relations
Commission under Chapter 391-45 WAC, naming the City of Seattle
(employer) as respondent.  The complaint was reviewed under WAC
391-45-110,(fn:1) and a deficiency notice issued on March 11, 2009,
indicated that it was not possible to conclude that a cause of
action existed at that time.  Castello 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 3, 2009, Castello 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 and discrimination in violation of RCW 41.56.140(1),
and domination or assistance of a union in violation of RCW
41.56.140(2), by its actions regarding Castello. 

The deficiency notice pointed out the defects to the complaint. 
One, the term "union" on the complaint form designates a bargaining
representative as defined in RCW 41.56.030(3).  The "union of
employees" referred to in the complaint does not constitute a
bargaining representative.  For the purposes of this deficiency
notice, the term "union" refers only to a bargaining representative.

Castello attached to the complaint a collective bargaining agreement
between the employer and IAFF, Local 27 (union) and refers to the
union in the statement of facts.  However, it does not appear that
the union is a party to this complaint.  Related to this, Castello
has no standing to enforce  provisions of the collective bargaining
agreement between the employer and the union.  
Two, the complaint alleges domination or assistance of a union in
violation of RCW 41.56.140(2); however, none of the facts alleged in
the complaint indicate that the employer has involved itself in the
internal affairs or finances of the union, or that the employer has
attempted to create, fund, or control a "company union."

Three, Castello claims employer interference with employee rights
and discrimination in violation of RCW 41.56.140(1).  Castello
alleges that the employer has violated his rights secured under the
Constitution of the United States.  The Commission has no
jurisdiction over allegations concerning violations of
constitutional rights.  The name "Public Employment Relations
Commission" is sometimes interpreted as implying a broader scope of
authority than is actually conferred upon the agency by statute. 
The agency does not have authority to resolve each and every dispute
that might arise in public employment, but only has jurisdiction to
resolve collective bargaining disputes between employers, employees,
and unions.  The Commission could process this case only if the
facts showed that the employer allegedly took action against
Castello as a result of, or in reprisal for, his union activities. 
However, the facts indicate that Castello purposefully and knowingly
acted outside of the collective bargaining process.  Under the facts
presented, the Commission has no jurisdiction in this case.

                        The Amended Complaint
                                   
The amended complaint withdraws the allegation concerning employer
domination or assistance of a union.  Castello realleges his claims
of employer interference and discrimination, claiming violations of
the "National Labor Relations Act, Sec. 7 [sec. 157] . . . [and]
Sec. 8 [sec. 158](a)(1)(2)."  Castello asserts that his actions
constituted "protected concerted activity" under the Act (NLRA).

However, the Commission does not recognize a cause of action for 
"protected concerted activity."  The Commission's jurisdiction is
limited to State of Washington statutes governing collective
bargaining -in this case, Chapter 41.56 RCW.  The Commission has no
jurisdiction to enforce federal law and has consistently declined to
interpret Chapter 41.56 RCW to provide for the protection of
employee concerted activities similar to the NLRA.  See City of
Seattle, Decision 9439-B (PECB, 2009). 

NOW, THEREFORE, it is 

                               ORDERED

The amended complaint charging unfair labor practices in Case
22322-U-09-5691 is DISMISSED for failure to state a cause of action.

ISSUED at Olympia, Washington, this  8th  day of April, 2009.


                    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.