University of Washington, Decision 10444 (PSRA, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
WASHINGTON FEDERATION OF STATE )
EMPLOYEES, )
)
Complainant, ) CASE 22462-U-09-5737
)
vs. ) DECISION 10444 - PSRA
)
UNIVERSITY OF WASHINGTON, ) PRELIMINARY RULING
) AND ORDER OF PARTIAL
Respondent. ) DISMISSAL
___________________________________)
On May 12, 2009, the Washington Federation of State Employees
(union) filed a complaint charging unfair labor practices with the
Public Employment Relations Commission under Chapter 391-45 WAC,
naming the University of Washington (employer) as respondent. The
complaint was reviewed under WAC 391-45-110,(fn:1) and a deficiency
notice issued on May 15, 2009, indicated that it was not possible to
conclude that a cause of action existed at that time for some of the
allegations of the complaint. The union was given a period of 21
days in which to file and serve an amended complaint or face
dismissal of the defective allegations. The union has not filed any
further information.
____________________
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.
The Unfair Labor Practice Manager dismisses the allegations of the
complaint concerning employer discrimination for failure to state a
cause of action, and finds causes of action for the allegations of
the complaint concerning independent employer interference and
employer interference and refusal to bargain. The employer must
file and serve its answer to complaint within 21 days following the
date of this decision.
DISCUSSION
The allegations of the complaint concern:
[1] 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 (a) its unilateral change in the Use of
Force policy by implementing new Use of Force and Use of Force
Continuum policies, without providing an opportunity for
bargaining, (b) employer official William Garber (Garber)
circumventing the union by direct dealing with employees
represented by the union in discussing the new policies with
bargaining unit members on November 13, 2009, and on or about
January 8, 2009, without notice to or in the presence of the
union, (c) its refusal to provide relevant information
requested by the union regarding the new policies; [2] employer
interference with employee rights in violation of RCW
41.80.110(1)(a), by threats of reprisal or force or promises of
benefit made by Garber to Charles Smith and Michael Nervik
concerning their union activities; and [3] employer
interference with employee rights in violation of RCW
41.80.110(1)(a) and discrimination in violation of RCW
41.80.110(1)(c), by investigating and disciplining numerous
bargaining unit employees in reprisal for union activities
protected by Chapter 41.80 RCW.
The deficiency notice pointed out the defects to the complaint
concerning employer discrimination. WAC 391-45-050(2)(Rule)
requires that complaints provide "clear and concise statements of
the facts constituting the alleged unfair labor practices, including
times, dates, places and participants in occurrences." It is an
unfair labor practice for an employer to deprive employees of
ascertainable rights, status, or benefits in reprisal for union
activities protected by Chapter 41.80 RCW. The complaint alleges
that the employer investigated and disciplined "numerous" bargaining
unit members who attended a union meeting on November 24, 2008. The
allegation does not identify the employees, does not conform to the
Rule, and thus does not state a cause of action for interference and
discrimination.
NOW, THEREFORE, it is
ORDERED
1. Assuming all of the facts alleged to be true and provable, the
following allegations of the complaint state a cause of action,
summarized as follows:
[1] 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 (a) its unilateral change in the Use of
Force policy by implementing new Use of Force and Use of Force
Continuum policies, without providing an opportunity for
bargaining, (b) employer official William Garber (Garber)
circumventing the union by direct dealing with employees
represented by the union in discussing the new policies with
bargaining unit members on November 13, 2009, and on or about
January 8, 2009, without notice to or in the presence of the
union, (c) its refusal to provide relevant information
requested by the union regarding the new policies; and [2]
employer interference with employee rights in violation of RCW
41.80.110(1)(a), by threats of reprisal or force or promises of
benefit made by Garber to Charles Smith and Michael Nervik
concerning their union activities.
These allegations of the complaint will be the subject of
further proceedings under Chapter 391-45 WAC.
2. The University of Washington 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 complaint, 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 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 complaint, will be deemed to be an admission that the
fact is true as alleged in the complaint, and as a waiver of a
hearing as to the facts so admitted. WAC 391-45-210.
3. The allegations of the complaint concerning employer
interference with employee rights in violation of RCW
41.80.110(1)(a) and discrimination in violation of RCW
41.80.110(1)(c), by investigating and disciplining numerous
bargaining unit employees in reprisal for union activities
protected by Chapter 41.80 RCW, are DISMISSED for failure to
state a cause of action.
ISSUED at Olympia, Washington, this 17th day of June, 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.