City of Kelso, Decision 10233 (PECB, 2008)

On October 20, 2008, the Kelso Police Benefit Association (union) filed a complaint charging unfair labor practices with the Public Employment Relations Commission under Chapter 391-45 WAC, naming the City of Kelso (employer) as respondent. The complaint was reviewed und­er WAC 391-45-110,[1] and a deficiency notice issued on October 23, 2008, indicated that it was not possible to conclude that a cause of action existed at that time for the allegations of the complaint concerning employer domination or assistance of a union. The union was given a period of 21 days in which to file and serve an amended complaint or face dismissal of the defective allegations. The union has not filed any additional information.

The Unfair Labor Practice Manager dismisses the allegations of the complaint concerning employer domination or assistance of a union for failure to state a cause of action, and finds a cause of action for the refusal to bargain (and derivative interference) allega­tions of the complaint. The employer must file and serve its answer within 21 days following the date of this decision.

DISCUSSION

The allegations of the complaint concern employer domination or assistance of a union in violation of RCW 41.56.140(2) [and if so, derivative "interference" in violation of RCW 41.56.140(1)], and refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative "interference" in violation of RCW 41.56.140(1)], by its unilateral changes in (a) wages for Ernie Moore (Moore) and (b) adopting a rationale for Moore's wage increase, without providing an opportunity for bargaining.

The allegations of the complaint concerning refusal to bargain and derivative interference state a cause of action under WAC 391‑45‑110(2) for further unfair labor practice proceedings before the Commission.

The deficiency notice pointed out the defects of the allegations concerning domination or assistance of a union and derivative interference.

It is an unfair labor practice for an employer to engage in domination or assistance of a union. In order to state a claim for relief, the union must provide facts showing that the employer arguably 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." The facts provided in the complaint concern an alleged unilateral wage increase for one bargaining unit employee; they do not indicate a violation of RCW 41.56.140(2).

NOW, THEREFORE, it is

ORDERED

1          Assuming all of the facts alleged to be true and provable, the following allegations of the complaint state a cause of action, summarized as follows:

Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative "in­terference" in violation of RCW 41.56.140(1)], by its unilateral changes in (a) wages for Ernie Moore (Moore) and (b) adopting a ratio­nale for Moore's wage increase, without pro­viding an opportunity for bargaining.

These allegations of the complaint will be the subject of further proceedings under Chapter 391-45 WAC.

2          The City of Kelso shall:

File and serve its answer to the allegations listed in paragraph 1 of this Order, within 21 days fol­lowing the date of this Order.

The answer shall be filed with the Commission at its Olympia office. A copy of the answer shall be served on the attorney or principal representative of the person or organization that filed the complaint. Service shall be completed no later than the day of filing. An answer shall:

a.            Specifically admit, deny or explain each fact alleged in the complaint, except if a respondent states it is without knowledge of the fact, that statement will operate as a denial.

b.            Specify whether "deferral to arbitration" is re­quested and, if so:

i.         Indicate whether a collective bargaining agreement was in effect between the parties at the time of the alleged unilateral change;

ii.        Identify the contract language requiring final and binding arbitration of grievances;

iii.       Identify the contract language which is claimed to protect the employer conduct al­leged to be an unlawful unilateral change;

iv.       Provide information (and copies of documents) concerning any grievance being processed on the matter at issue in this unfair labor practice case; and

v.        State whether the employer is willing to waive any procedural defenses to arbitration.

C.           Assert any other affirmative defenses that are claimed to exist in the matter.

Except for good cause shown, a failure to file an answer within the time specified, or the failure of an answer to specifically deny or explain a fact alleged in the complaint, will be deemed to be an admission that the fact is true as alleged in the complaint, and as a waiver of a hearing as to the facts so admitted. WAC 391‑45‑210.

An examiner will be designated to conduct further proceedings in this matter pursuant to Chapter 391‑45 WAC. Until an examiner is assigned, all correspondence and motions should be directed to the undersigned.

3          The allegations of the complaint concerning employer domina­tion or assistance of a union in violation of RCW 41.56.140(2) [and if so, derivative "interference" in violation of RCW 41.56.140(1)] are DISMISSED for failure to state a cause of action.

ISSUED at Olympia, Washington, this 24^th day of November, 2008.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

DAVID I. GEDROSE, Unfair Labor Practice Manager

Paragraph 3 of this order will be

the final order of the agency on

any defective allegations unless

a notice of appeal is filed with

the Commission under WAC 391-45-350.