City of Mabton, Decision 9992-A (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
TEAMSTERS, LOCAL 760, )
)
Complainant, ) CASE 21469-U-08-5470
)
vs. ) DECISION 9992-A - PECB
)
CITY OF MABTON, )
)
Respondent. ) DECISION OF COMMISSION
)
___________________________________)
Reid, Pedersen, McCarthy & Bellew, L.L.P., by David Ballew,
Attorney at Law, for the union.
The Wesley Group, by Kevin Wesley, for the employer.
This case comes before the Commission on a timely appeal filed by
Teamsters, Local 760 (union) seeking review and reversal of an order
of dismissal issued by Examiner Carlos Carrion Crespo.(fn:1) The City
of Mabton supports the Examiner's conclusion.
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fn:1 City of Mabton, Decision 9992 (PECB, 2008).
ISSUE PRESENTED
1. Was dismissal of the union's complaint appropriate in light of
the fact that the union served the employer with its original
complaint, but failed to serve the employer's representative?
2. Was dismissal of the union's complaint appropriate in light of
the fact that the union failed to prove that it served the
employer with its amended complaint?
For the reason set forth below, we affirm the Examiner's decision to
dismiss the union's complaint. Although the union was not required
under the facts of this case to serve a copy of its original or
amended complaints upon Kevin Wesley, the employer's past
representative, the union failed to perfect service of its amended
complaint on the employer.
FACTUAL SITUATION
On January 11, 2008,(fn:2) Wayne Johnson, the union's business
representative, filed a complaint on behalf of Francisco Tijerina
alleging that the employer violated Chapter 41.56 RCW when it
terminated Tijerina based upon his union activity. The complaint
listed Mayor Velva Herrera as the employer's contact person, and
also listed Wesley as the attorney or representative of the
employer. The union did not provide a record of service with its
complaint.(fn:3) The agency docketed this case listing the union as
the complainant.
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fn:2 Unless otherwise noted, all events took place in 2008.
fn:3 Although WAC 391-08-120(4) does not require a party to file a
record of service with documents filed with this Commission, it does
require parties to create a signed document stating how service was
completed. However, the recommended practice for parties filing
documents with this agency is to file records of service at the same
time.
On January 23, Unfair Labor Practice Manager David I. Gedrose issued
a deficiency notice finding the complaint defective under WAC
391-45-050, which regulates the content of a complaint. The Unfair
Labor Practice Manager addressed the deficiency notice to Johnson,
as well as Wesley. It is important to stress that Wesley had not
yet filed a notice of appearance with the agency.(fn:4)
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fn:4 Commission staff also sent the deficiency notice to Herrera
and John Parks, who, according to the docket records, is associated
with the union's office.
On January 25, the union filed an amended complaint which complied
with the requirements of WAC 391-45-050. The union once again did
not provide a record of service with this complaint.(fn:5) The Unfair
Labor Practice Manager issued a preliminary ruling on January 29,
sending this matter to hearing. The preliminary ruling was once
again addressed and mailed to Johnson and Wesley.
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fn:5 See footnote 2.
Following the issuance of the preliminary ruling, Wesley, claiming
to be the employer's representative of record, sent a letter to the
Unfair Labor Practice Manager claiming that the employer could not
provide an answer as required by WAC 391-45-190 and -210 because the
union failed to serve both him and the employer with a copy of the
amended complaint. In addition, Wesley's letter asked that the
amended complaint be dismissed.
On February 15, the Examiner issued a show cause directive requiring
the union to provide the records of service for its documents. On
February 22, the union filed a copy of the United States Postal
Service certified mailing receipts. Examination of those records
indicate that this agency, as well as Herrera, were sent copies of a
document (presumably the complaint) on January 8. The receipt
indicated that Herrera received the filing on January 10, and this
agency received the filing on January 11. The union provided no
other evidence supporting its record of service.
The Examiner dismissed the union's complaint stating that while "the
union showed that it had served a copy of the [original] complaint
on the mayor of the city of Mabton, the fact remains that the union
did not serve the counsel of record with a copy of the amended
complaint." The union then filed this appeal.
ANALYSIS
ISSUE 1 - Service of Original Complaint
Applicable Legal Principles
This dispute concerns application and interpretation of the
Commission's rules of practice and procedure, Chapter 391-08 WAC.
Specifically, the union claims that the Examiner misapplied WAC
391-08-120(3) when he dismissed the union's complaint for failure to
serve Wesley with a copy of the complaint. We agree.
WAC 391-08-120(3) outlines the requirements of a party when filing a
document with this agency, and states, in part:
A party which filed any papers with the agency shall serve a
copy of the papers upon all counsel and representatives of
record and upon unrepresented parties designated by them or by
law.
While we agree with the employer that this rule requires services
upon all counsel and representatives of record, we disagree that
Wesley was, in fact, the employer's representative of record in this
case. Throughout these proceedings, Wesley never filed a notice of
appearance under WAC 391-08-010 affirmatively stating that he was
representing the employer in this matter. Thus, while Wesley may
have historically represented the employer in matters before this
agency, that historical relationship does not translate into a
permanent standing appearance before this agency for future matters.
The employer argues that Wesley was not required to file a notice of
appearance because the union recognized Wesley as the employer's
representative on its complaint. If we were to accept the
employer's argument creating a standard that requires service upon
historical representative(s), in addition to the actual
respondent(s), an unnecessary burden would be placed upon
complainants.(fn:6) Simply put, while a complainant may list a
historical representative upon a complaint, that representative is
not the representative of record until he or she files a notice of
appearance.(fn:7)
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fn:6 If such a requirement was in place, a complainant filing
against an employer who has used different representatives for
different matters would have to serve all of those representatives
in order to perfect service. What would happen if the complainant
did not know of a particular historical representative?
fn:7 As such, the Commission's staff should not add a respondents'
attorney or representative listed on a complaint form to the docket
record until a notice of appearance is filed. However, attorney or
representative filing the complaint on behalf of a party is presumed
to be appearing on the filing party's behalf.
Turning to the record before us, we note the union used certified
mail, which is an acceptable method of obtaining proof of service
under WAC 391-08-120(4)(c)(i). Thus, based upon the record before
us, we find the Examiner erred in finding that the union failed to
perfect service of its complaint when it failed to serve Wesley with
a copy of its original complaint.
ISSUE 2 - Service of the Amended Complaint
The same legal principles used in our analysis of the first issue
apply here. Following the issuance of the deficiency notice, the
union filed its amended complaint. The Examiner issued a show cause
directive requesting the union to provide proof of service of its
complaint, though he did not specify which complaint. While the
union provided proof of mailing for its original complaint, it
failed to provide any demonstrative evidence that it served its
amended complaint upon the employer. As the Examiner aptly points
out, the Commission's rules are in place to encourage effective
communications between all parties and to nurture the orderly
resolution of disputes, and by enforcing timely and effective
service, these rules ensure due process is afforded to all parties.
City of Mabton, Decision 9992, citing State - Patrol, Decision 8709
(PSRA, 2004). Full compliance with the service rules avoids the
need for hearing and decisions on "substantial" compliance claims.
City of Kalama, Decision 6276 (PECB, 1998). The union's complaint
must be dismissed for failure to comply with the service rules.(fn:8)
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fn:8 Based upon the limited record before us, it appears that the
six-month statute of limitations has yet to expire for this matter,
so nothing would preclude the union from properly refilling and
serving it complaint.
ORDER
The Order of Dismissal issued by Examiner Carlos Carrion Crespo is
AFFIRMED and adopted as the Order of Dismissal of the Commission.
Issued at Olympia, Washington, the 7th day of May, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
DOUGLAS G. MOONEY, Commissioner