Kelso School District, Decision 9744 (PECB, 2007)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
NORMA BRITT, )
)
Complainant, ) CASE 20951-U-07-5345
)
vs. ) DECISION 9744 - PECB
)
KELSO SCHOOL DISTRICT, )
)
Respondent. ) ORDER OF DISMISSAL
___________________________________)
NORMA BRITT, )
)
Complainant, ) CASE 20952-U-07-5346
)
vs. ) DECISION 9745 - PECB
)
PUBLIC SCHOOL EMPLOYEES OF )
WASHINGTON, )
)
Respondent. ) ORDER OF DISMISSAL
___________________________________)
On March 2, 2007, Norma Britt (Britt) filed complaints charging
unfair labor practices with the Public Employment Relations
Commission under Chapter 391-45 WAC, naming the Kelso School
District (employer) and the Public School Employees of Washington
(union) as respondents. The complaint against the employer was
docketed as Case 20951-U-07-5345, and the complaint against the
union was docketed as Case 20952-U-07-5346. The complaints were
reviewed under WAC 391-45-110,(fn:1) and a deficiency notice issued on
April 30, 2007, indicated that it was not possible to conclude that
causes of action existed at that time. Britt was given a period of
21 days in which to file and serve amended complaints, or face
dismissal of the cases.
____________________
fn:1 At this stage of the proceedings, all of the facts alleged in
the complaints are assumed to be true and provable. The question at
hand is whether, as a matter of law, the complaints state claims for
relief available through unfair labor practice proceedings before
the Public Employment Relations Commission.
Britt filed amended complaints on May 24, 2007. The Unfair Labor
Practice Manager dismisses the amended complaints for failure to
state causes of action.
DISCUSSION
The complaints concern allegations against the employer and union
regarding failure to promote Britt to the position of Assistant
Dispatch/Driver Trainer.
It is not possible to conclude that a cause of action exists at this
time for allegations of the complaint against either the employer or
union. As the deficiency notice pointed out, the complaints contain
identical allegations and have common, multiple defects.
One, the Commission has adopted the following rule concerning the
filing of an unfair labor practice complaint:
WAC 391-45-050 CONTENTS OF COMPLAINT
Each complaint charging unfair labor practices shall contain,
in separate numbered paragraphs:
(1) Information identifying the parties and (if known)
their representatives, including:
(a) The name, address and telephone number of the
employer, and the name, address, telephone number, fax number,
and e-mail address of its principal representative;
(b) The name, address and telephone number of the entity
(employer or employee organization) accused of committing
unfair labor practices (respondent), and the name, address,
telephone number, fax number, and e-mail address of its
principal representative; and
(c) The name, address, telephone number, fax number, and
e-mail address of the party filing the complaint (complainant),
and the name, address, telephone number, fax number, and e-mail
address of its principal representative.
(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.
(4) The name, signature and, if any, title of the person
filing the complaint, and the date of the signature.
(5) Information concerning the parties' relationships,
including:
(a) The employer's principal business;
(b) Identification of the employer department or division
in which the dispute arises;
(c) The parties' contractual relationship, indicating that:
(i) The parties have never had a contract; or
(ii) A copy of the current (or most recent) collective
bargaining agreement is attached;
(d) The status of related grievance proceedings between
the parties, indicating that:
(i) no grievance has been filed on the dispute involved; or
(ii) A grievance on the dispute is being processed under
the parties' collective bargaining agreement; or
(iii) An arbitration award has been issued on a related
grievance;
(e) A description of the bargaining unit involved,
specifying inclusions and exclusions; and
(f) The number of employees in the bargaining unit.
(6) Indication of the sections of the Revised Code of
Washington (RCW) alleged to have been violated.
Britt did not complete the complaint form. Although she lists the
school district as employer, she lists herself as the employer's
attorney. She did not fill out the sections for respondent or
complainant. Britt indicates in her statement of facts that she has
filed grievances, but did not indicate so on the form. She did not
check any of the boxes indicating her alleged violations. She did
not sign and date the form. Other than providing a copy of the
collective bargaining agreement, Britt did not comply with WAC
391-45-050.
Two, Commission rules require service of complaints on all parties:
WAC 391-45-030 COMPLAINT IN WRITING--NUMBER OF
COPIES--FILING--SERVICE. Each complaint charging unfair labor
practices shall be in writing, and shall be filed at the
commission's Olympia office, as required by WAC 391-08-120(1).
The party filing the complaint shall serve a copy on each party
named as a respondent, as required by WAC 391-08-120 (3) and (4).
Britt stated in the materials attached to the complaint form that
she did not serve either the employer or the union with the
complaint.
Three, the Commission is bound by the following provisions of
Chapter 41.56 RCW:
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.
Britt's statement of facts details events beginning in 1995 and
continuing through November 27, 2006. Her allegations are
restricted to those events occurring on or after September 2, 2006.
Four, the statement of facts makes reference to an alleged violation
of the collective bargaining agreement between the employer and
union. The Commission does not assert jurisdiction to remedy
violations of collective bargaining agreements through unfair labor
practice proceedings. City of Walla Walla, Decision 104 (PECB,
1976). The Commission acts to interpret collective bargaining
statutes and does not act in the role of arbitrator to interpret
collective bargaining agreements. Clallam County, Decision 607-A
(PECB, 1979); Bremerton School District, Decision 5722-A (PECB, 1997).
Five, Britt apparently alleges employment discrimination and hostile
work environment, but does not allege those claims are in violation
of her collective bargaining rights under any applicable statute.
The Commission has no jurisdiction to adjudicate employment
discrimination and hostile work environment claims unrelated to
collective bargaining.
Amended Complaints
Britt filed an amended complaint relative to both the employer and
the union, attaching one set of facts. Britt checked the box on the
complaint form for "union interference," but did not check the box
for "employer interference." Britt also checked the box for "other
unfair labor practice." The Commission copied the complaint and
docketed one set of the amended complaint as pertaining to the
employer and one set as pertaining to the union.
Britt's amended complaint cured defects 1-3 as detailed in the
deficiency notice.
Complaint against the Employer
Britt continues to allege that the employer violated the collective
bargaining agreement by failing to hire her for the Assistant
Dispatch/Driver Trainer position. As the deficiency notice pointed
out, the Commission does not assert jurisdiction to remedy alleged
violations of collective bargaining agreements. Britt also suggests
that the employer's actions were unfair. As stated in the
deficiency notice, the Commission does not have jurisdiction to
adjudicate employment discrimination claims, including failure to
hire or promote. Britt must pursue her contract and employment
claims through an arbitrator or the courts.
If Britt intends to allege that the employer committed "other"
violations, the amended complaint fails to explain the nature of the
violations or specify the statute(s) allegedly violated.
The amended complaint fails to allege facts sufficient to conclude
that the employer committed any violations under Chapter 41.56 RCW.
Complaint against the Union
Britt alleges union interference with employee rights. It is an
unfair labor practice for a union to interfere with employee rights
in violation of RCW 41.56.150(1). Britt does not allege any facts
sufficient to conclude that the union made a threat of reprisal or
force or promise of benefit as a result of Britt's activities
protected under Chapter 41.56 RCW.
Britt alleges that the union committed an "other" violation when it
failed in its duty to fairly represent her involving a grievance she
filed with the employer over the Assistant Dispatch/Driver Trainer
position. While a union owes a duty of fair representation to
bargaining unit employees, the Commission does not assert
jurisdiction over "breach of duty of fair representation" claims
arising exclusively out of the processing of contractual grievances.
Mukilteo School District (Public School Employees of Washington),
Decision 1381 (PECB, 1982). Such claims must be pursued before a
court which can assert jurisdiction to determine (and remedy, if
appropriate) any underlying contract violation.
To the extent that Britt alleges that the union violated the
collective bargaining agreement or discriminated against her in
employment, as with the allegations against the employer, the
Commission does not have jurisdiction in those matters.
The amended complaint fails to allege facts sufficient to conclude
that the union committed any violations under Chapter 41.56 RCW.
NOW, THEREFORE, it is
ORDERED
The complaints charging unfair labor practices in Case
20951-U-07-5345 and Case 20952-U-07-5346 are DISMISSED for failure
to state causes of action.
ISSUED at Olympia, Washington, this 19th day of June, 2007.
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.