State - Labor and Industries (Washington Federation of State
Employees), Decision 8377 (PSRA, 2004)


                         STATE OF WASHINGTON

          BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION


WASHINGTON STATE - LABOR AND       )
INDUSTRIES,                        )
                                   )
                    Employer.      )
-----------------------------------)
CASSANDRA GIBSON,                  )
                                   )
                    Complainant,   )    CASE 17440-U-03-4521
                                   )
          vs.                      )    DECISION 8377 - PSRA
                                   )
WASHINGTON FEDERATION OF STATE     )
EMPLOYEES,                         )
                                   )
                    Respondent.    )    ORDER OF DISMISSAL
                                   )
___________________________________)


On April 16, 2003, Cassandra Gibson (Gibson) filed a complaint
charging unfair labor practices with the Public Employment Relations
Commission under Chapter 391-45 WAC, naming the Washington
Federation of State Employees (union) as respondent.  Gibson is
employed by the Washington State Department of Labor and Industries
(employer).  The complaint was reviewed under WAC 391-45-110,(1) and
a deficiency notice issued on December 29, 2003, indicated that it
was not possible to conclude that a cause of action existed at that
time.  Gibson was given a period of 21 days in which to file and
serve an amended complaint, or face dismissal of the case.
____________________
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.


No further information has been filed by Gibson.  The Unfair Labor
Practice Manager dismisses the complaint for failure to state a
cause of action.


DISCUSSION

The allegations of the complaint concern union inducement of
employer to commit an unfair labor practice in violation of RCW
41.56.150(2) and other unspecified unfair labor practices, by
informing the employer in a December 19, 2002, memo that union shop
steward Dale Pettit would not be representing Gibson on an appeal
before the Washington State Personnel Appeals Board.

Several defects are noted with the complaint.  One, the complaint
alleges that the union's December 19 memo violated RCW 41.56.080 so
that when employer officials communicated the contents of the memo
to Pettit, the employer violated unspecified provisions of RCW
41.56.140.

RCW 41.56.080 states as follows:

          RCW 41.56.080  CERTIFICATION OF BARGAINING REPRESENTATIVE
     -- SCOPE OF REPRESENTATION.  The bargaining representative
     which has been determined to represent a majority of the
     employees in a bargaining unit shall be certified by the
     commission as the exclusive bargaining representative of, and
     shall be required to represent, all the public employees within
     the unit without regard to membership in said bargaining
     representative:  PROVIDED, That any public employee at any time
     may present his grievance to the public employer and have such
     grievance adjusted without the intervention of the exclusive
     bargaining representative, if the adjustment is not
     inconsistent with the terms of a collective bargaining
     agreement then in effect, and if the exclusive bargaining
     representative has been given reasonable opportunity to be
     present at any initial meeting called for the resolution of
     such grievance.


In State - Department of Labor and Industries, Decision 8261 (PSRA,
2003), the provisions of RCW 41.56.080 were discussed as follows:

     RCW 41.56.080 grants rights to employees in relation to their
     exclusive bargaining representative. . . .
     The obligations of an exclusive bargaining representative under
     RCW 41.56.080 may give rise to a "breach of duty of fair
     representation" claim by an employee. . . .


However, 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).
 While a union does owe a duty of fair representation to bargaining
unit employees with respect to the processing of grievances, such
claims must be pursued before a court which can assert jurisdiction
to determine (and remedy, if appropriate) any underlying contract
violation.

Gibson must pursue her alleged violation of RCW 41.56.080 claims
before a court.  As the complaint fails to state a cause of action
against the employer under RCW 41.56.140, there are insufficient
factual allegations to support a cause of action that the union
induced the employer to commit an unfair labor practice in violation
of RCW 41.56.150(2).

Second, in relation to the allegations of other unfair labor
practices, the complaint fails to explain and specify what "other"
statute has been violated by the union's actions.


NOW, THEREFORE, it is

                               ORDERED

The complaint charging unfair labor practices in the above captioned
matter is DISMISSED for failure to state a cause of action.

ISSUED at Olympia, Washington, this  1st  day of March, 2004.

                    PUBLIC EMPLOYMENT RELATIONS COMMISSION



                    MARK S. DOWNING, 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.