City of Kennewick (IUOE, Local 280), Decision 7111 (PECB, 2000)

A complaint charging unfair labor practices was filed by Marcia Wyatt against the International Union of Operating Engineers, Local 280 with the Public Employment Relations Commission on April 12, 2000. The allegations of the complaint concern union refusal to perform its duties under RCW 41. 56. 120, and union refusal to bargain in violation of RCW 41. 56. 150(4)­, by failure to pursue a grievance for Wyatt to arbitration.

On May 17, 2000, the employer filed a letter with a date of May 11, 2000, advising the Commission of its position concerning the complaint. As the employer is not a party to the complaint, its letter was not considered in review of this matter.

On June 8, 2000, a deficiency notice was issued und­er WAC 391-45-110. The deficiency notice reviewed the complaint under RCW 34. 05. 419(2­), which requires administrative agencies to:

Examine the application, notify the applicant of any obvious errors or omissions, [and] request any additional information the agency wishes to obtain and is permitted by law to require . . .

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 Commission.

The deficiency notice indicated that it was not possible to conclude that a cause of action exists as 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.

The complaint also alleges a violation of RCW 41. 56. 120. That statute reads as follows:

RCW 41. 56. 120 Right to strike not granted. Nothing contained in this chapter shall permit or grant any public employee the right to strike or refuse to perform his official duties.

The deficiency notice indicated that while RCW 41. 56. 120 does concern the issue of whether public employees may refuse to perform their duties, it does not impose any obligations on a union concerning its duty of fair representation nor does it apply to the facts as alleged in the complaint.

The deficiency notice informed the complainant that absent the filing and service of an amended complaint stating a cause of action within 21 days following the date of the deficiency notice, the complaint would be dismissed. Nothing further has been received from the complainant.

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, this30^th day of June, 2000.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARK S.  DOWNING, Director of Administration

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.