Community College District 6 - Seattle and Community College
District 7 - Shoreline, Decision 9753 (CCOL, 2007)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
RICCARDO GREEN, )
)
Complainant, ) CASE 20920-U-07-5335
)
vs. ) DECISION 9753 - CCOL
)
COMMUNITY COLLEGE DISTRICT 6 - )
SEATTLE, )
)
Respondent. ) ORDER OF DISMISSAL
___________________________________)
)
RICCARDO GREEN, )
)
Complainant, ) CASE 20921-U-07-5336
)
vs. ) DECISION 9754 - CCOL
)
SEATTLE COMMUNITY COLLEGE )
FEDERATION OF TEACHERS, )
LOCAL 1789, )
)
Respondent. ) ORDER OF DISMISSAL
___________________________________)
)
RICCARDO GREEN, )
)
Complainant, ) CASE 20918-U-07-5333
)
vs. ) DECISION 9755 - CCOL
)
COMMUNITY COLLEGE DISTRICT 7 - )
SHORELINE, )
)
Respondent. ) ORDER OF DISMISSAL
___________________________________)
)
RICCARDO GREEN, )
)
Complainant, ) CASE 20919-U-07-5334
)
vs. ) DECISION 9756 - CCOL
)
SHORELINE COMMUNITY COLLEGE )
FEDERATION OF TEACHERS, )
LOCAL 1950, )
)
Respondent. ) ORDER OF DISMISSAL
___________________________________)
RICCARDO GREEN, )
)
Complainant, ) CASE 20922-U-07-5337
)
vs. ) DECISION 9757 - CCOL
)
COMMUNITY COLLEGE DISTRICT 7 - )
SHORELINE, )
)
Respondent. ) ORDER OF DISMISSAL
___________________________________)
)
RICCARDO GREEN, )
)
Complainant, ) CASE 20923-U-07-5338
)
vs. ) DECISION 9758 - CCOL
)
WASHINGTON FEDERATION OF STATE )
EMPLOYEES, )
)
Respondent. ) ORDER OF DISMISSAL
___________________________________)
On February 13, 2007, Riccardo Green (Green) filed complaints
charging unfair labor practices with the Public Employment Relations
Commission under Chapter 391-45 WAC, concerning allegations against
Community College District 6 - Seattle (District 6 - Seattle) and
Community College District 7 - Shoreline (District 7 - Shoreline),
Seattle Community College Federation of Teachers, Local 1789 (Local
1789), Shoreline Community College Federation of Teachers, Local
1950 (Local 1950), and the Washington Federation of State Employees
(WFSE). The Commission docketed the complaints as six case numbers.
Case 20920-U-07-5335 concerns allegations against District 6 -
Seattle, Case 20921-U-07-5336 concerns allegations against Local
1789, Case 20918-U-07-5333 concerns allegations against District 7 -
Shoreline, Case 20919-U-07-5334 concerns allegations against Local
1950, Case 20922-U-07-5337 concerns allegations against District 7 -
Shoreline, and Case 20923-U-07-5338 concerns allegations against
WFSE.
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 a cause of action existed at that
time. Green 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 a claim
for relief available through unfair labor practice proceedings
before the Public Employment Relations Commission.
On May 8 and 14, 2007, Green filed documents in support of his
claims. On May 21, Green filed amended complaints for all cases
except Case 20921-U-07-5336. On May 24, 2007, Green filed amended
complaints for all cases. The Unfair Labor Practice Manager
dismisses the amended complaints for failure to state causes of action.
DISCUSSION
Complaints
Green submitted identical statements of facts for all six
complaints. Green checked the same boxes on the complaint forms for
charges against Local 1789, Local 1950, and WFSE (interference,
inducing the employer to commit a violation, refusal to bargain, and
"other unfair labor practice"). Green checked the same boxes on the
complaint forms for charges against District 6 - Seattle, Case
20920-U-07-5335, and District 7 - Shoreline, Case 20922-U-07-5337
(interference, discrimination, discrimination for filing charges,
refusal to bargain, and "other unfair labor practice"). However, in
District 7 - Shoreline, Case 20918-U-07-5333, Green checked
interference, discrimination, refusal to bargain, and "other unfair
labor practice," but did not check discrimination for filing
charges. Green's statement of facts also alleges employer
discrimination due to race, national origin, color, and gender.
Green's allegations concern employer interference with employee
rights in violation of RCW 28B.52.073(1)(a), and union interference
with employee rights in violation of RCW 28B.52.073(2)(a), by the
employers and unions entering into agreements to exclude Green from
the bargaining units represented by the unions, and thereby
stranding him without access to statutory collective bargaining rights.
Green further alleges that District 6 - Seattle and District 7 -
Shoreline discriminated against him in violation of RCW
28B.52.073(1)(c), discriminated against him for filing charges in
violation of RCW 28B.52.073(1)(d), and refused to bargain in
violation of RCW 28B.52.073(1)(e). Green also alleges that the
employer discriminated against him based upon race, national origin,
color, and gender.
Green alleges that Local 1789, Local 1950, and WFSE induced the
employer to commit an unfair labor practice in violation of RCW
28B.52.073(2)(b), and refused to bargain in violation of RCW
28B.52.073(2)(d).
Complaint against District 6 - Seattle
The allegations of the complaint in Case 20920-U-07-5335 are common
to the other employer complaints (with the exception in Case
20918-U-07-5333, noted above). Green claims that District 6 -
Seattle committed violations of interference, discrimination,
discrimination for filing charges, refusal to bargain, other
violations, and discrimination based on protected classes.
The deficiency notice pointed out multiple defects. One, Green
claims discrimination based upon race, national origin, color, and
gender. The Commission has no jurisdiction over claims involving
violation of civil rights for protected classes. Such claims must
be pursued in court.
Two, 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:
. . . .
(2) Clear and concise statements of the facts constituting
the alleged unfair labor practices, including times, dates,
places and participants in occurrences.
. . . .
(5) Information concerning the parties' relationships,
including:
. . . .
(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;
Green's statement of facts does not clearly identify the alleged
unfair labor practices, nor does it give times, dates, places, and
participants. Green did not supply information regarding the
parties' contractual relationship. The complaint does not comply
with WAC 391-45-050(2) and (5).
Three, regarding Green's claim of "other unfair labor practice," he
does not specify the statute allegedly violated, nor the specific
unfair labor practice referred to.
Four, regarding the interference claim, while Green alleges facts
relevant to a claim that the employer interfered with his rights by
excluding him from a union, he does not allege facts sufficient to
conclude that the employer made any threats of reprisal or force or
promise of benefit in violation of RCW 28B.52.073(1)(a).
Five, in relation to the allegations of discrimination under RCW
28B.52.073(1)(c), the complaint fails to allege facts indicating
that the employer's actions were taken in reprisal for union
activities protected under Chapter 28B.52 RCW.
Six, in relation to the allegations of violation of RCW
28B.52.073(1)(d), a violation concerning discrimination for filing
an unfair labor practice charge cannot stand absent evidence that
Green has previously filed an unfair labor practice complaint with
the Commission. The complaint does not contain any such factual
allegations.
Seven, the duty to bargain under Chapter 28B.52 RCW exists only
between an employer and the incumbent exclusive bargaining
representative of its employees. The refusal to bargain provisions
of RCW 28B.52.073(1)(e) can only be enforced by a union. Individual
employees such as Green do not have standing to process a refusal to
bargain claim.
Complaints against District 7 - Shoreline
The complaint filed against District 7 - Shoreline in Case
20918-U-07-5333 alleges employer interference, discrimination,
refusal to bargain, and "other unfair labor practices." The
complaint filed in District 7 - Shoreline, Case 20922-U-07-5337,
alleges employer interference, discrimination, discrimination for
filing charges, refusal to bargain, and "other unfair labor
practices." The defects detailed in the deficiency notice regarding
District 6 - Seattle, Case 20920-U-07-5335, apply equally to the
District 7 - Shoreline complaints.
Complaint against Local 1789
The allegations against Local 1789 in Case 20921-U-07-5336 are
common to the complaints against Local 1950 and WFSE. Green claims
that Local 1789 committed violations of interference, inducing the
employer (District 6 - Seattle) to commit violations, refusal to
bargain, and "other unfair labor practices."
The deficiency notice pointed out multiple defects. One, as in the
complaints against the employers, Green fails to comply with WAC
391-45-050(2) and (5).
Two, Green's claim regarding "other unfair labor practices" does not
specify the statutes allegedly violated nor the specific violations.
Three, regarding the interference claim, while Green alleges facts
relevant to a claim that the union interfered with his rights by
excluding him from membership, he does not allege facts sufficient
to conclude that the union made any threats of reprisal or force or
promise of benefit in violation of RCW 28B.52.073(2)(a).
Four, regarding the claim that the union induced the employer to
commit a violation, the complaint states no facts alleging that the
union requested the employer to act unlawfully. Metro (Amalgamated
Transit Union, Local 587), Decision 2746-A (PECB, 1989).
Five, regarding the refusal to bargain allegation, Green has no
standing to bring this claim, as noted above.
Complaints against Local 1950 and WFSE
Green's claims against Local 1789 in Case 20921-U-07-5336 are
duplicated in Case 20919-U-07-5334 against Local 1950, and in Case
20923-U-07-5338 against WFSE. The defects found in Green's claims
against Local 1789 apply equally to the complaints against Local
1950 and WFSE.
Amended Complaints
The amended complaints filed on May 21 and May 24, 2007, are
identical in content. The May 24 amended complaints contained a
complaint omitted in the May 21 filings, as noted above, and
provided proof of service.
The deficiency notice detailed two defects common to all complaints.
One, the complaints claim discrimination based upon race, national
origin, color, and gender. The amended complaints all claim
employment discrimination under Chapter 49.60 RCW. The Commission
has no jurisdiction over claims involving the aforementioned
statute.
Two, the complaints failed to comply with WAC 391-45-050. The
amended complaints substantially cure this defect.
District 6 - Seattle, Case 20920-U-07-5335
The amended complaint does not reassert refusal to bargain or
identify "other violations." Those claims are considered withdrawn.
The amended complaint reasserts claims for employer interference,
discrimination, and discrimination for filing charges.
The amended complaint alleges employer interference in violation of
RCW 28B.52.073(1)(a), by excluding Green from a bargaining unit
represented by the union, thereby stranding him without access to
statutory collective bargaining rights. It is an unfair labor
practice for an employer to enter into an agreement with one or more
unions to exclude a position from a bargaining unit contrary to a
recognized right or status, thereby stranding the employee. Castle
Rock School District, Decision 4722-B (EDUC, 1995). In order to
state a cause of action, Green needs to allege facts sufficient to
conclude that he was unlawfully excluded from the bargaining unit.
Green states that he was a tai chi and self defense instructor for
the employer's continuing education department, but alleges no facts
indicating that this position was in the bargaining unit. Green
does not allege facts sufficient to conclude that he was unlawfully
excluded from the bargaining unit, or that the employer unlawfully
entered into an agreement with the union to exclude this position
from the bargaining unit. Green has not alleged facts sufficient to
conclude that a cause of action could be found for employer
interference with employee rights.
Regarding the claims of employer discrimination and discrimination
for filing charges, the amended complaint does not allege facts
sufficient to conclude that causes of action could be found for
those claims.
The amended complaint adds a new charge: employer domination or
interference with a union in violation of RCW 28B.52.073(1)(b).
However, none of the facts alleged in the amended complaint suggest
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." City of Anacortes, Decision
6863 (PECB, 1999). The amended complaint does not state a cause of
action for that claim.
District 7 - Shoreline, Case 20922-U-07-5337
The amended complaint does not reassert "other violations" and this
claim is considered withdrawn. Green adds the claim of employer
domination or interference with a union and reasserts employer
interference, discrimination, discrimination for filing charges, and
refusal to bargain. As with the claims against District 6 -
Seattle, Green fails to allege facts sufficient to conclude that
causes of action could be found for interference,(fn:2) discrimination,
discrimination for filing charges, and domination. Further, Green
lacks standing to assert a refusal to bargain violation.
____________________
fn:2 Green states that he was a tai chi instructor for the District
7 - Shoreline continuing education department.
District 7 - Shoreline, Case 20918-U-07-5333
The amended complaint does not reassert claims for employer refusal
to bargain or "other violations." Those claims are considered
withdrawn. Green reasserts employer interference and
discrimination, and adds claims for employer domination and
discrimination for filing charges. As with the foregoing claims
regarding both employers, he fails to allege facts sufficient to
conclude that causes of action could be found.
Local 1789, Case 20921-U-07-5336
The amended complaint does not reassert union refusal to bargain or
"other violations" and those claims are considered withdrawn. Green
reasserts claims for union interference and inducing an employer to
commit a violation. He adds a claim for union violation of RCW
28B.52.073(2)(c), discrimination against an employee for filing
charges.
The amended complaint alleges union interference in violation of RCW
28B.52.073(2)(a), by excluding Green from a bargaining unit
represented by the union, thereby stranding him without access to
statutory collective bargaining rights. It is an unfair labor
practice for a union to enter into an agreement with an employer to
exclude a position from a bargaining unit contrary to a recognized
right or status, thereby stranding the employee. Castle Rock School
District, Decision 4722-B (EDUC, 1995). In order to state a cause
of action, Green needs to allege facts sufficient to conclude that
he was unlawfully excluded from the bargaining unit. Green states
that he was a tai chi and self defense instructor for the employer's
continuing education department (District 6 - Seattle), but alleges
no facts indicating that this position was or is in the bargaining
unit. Green does not allege facts sufficient to conclude that he
was unlawfully excluded from the bargaining unit, or that the union
unlawfully entered into an agreement with the employer to exclude
this position from the bargaining unit. Green has not alleged facts
sufficient to conclude that a cause of action could be found for
union interference with employee rights.
Green alleges no facts supporting the inducement claim. Regarding
the allegation of union discrimination for filing charges, Green
provides no evidence that he had previously filed an unfair labor
practice complaint against the union and so does not state a cause
of action for that claim.
Local 1950, Case 20919-U-07-5334
WFSE, Case 20923-U-07-5338
The amended complaints in the above noted cases do not reassert
union refusal to bargain or "other violations" and those claims are
considered withdrawn. Green reasserts claims for union interference
and inducing the employer to commit a violation and adds a claim for
union discrimination for filing charges. As with the claims set
forth against Local 1789, Green fails to allege facts sufficient to
conclude that causes of action could be found.
NOW, THEREFORE, it is
ORDERED
The amended complaints charging unfair labor practices in the above
captioned matters are DISMISSED for failure to state causes of action.
ISSUED at Olympia, Washington, this 20th 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.