King County, Decision 5595-A (PECB, 1996)

Jared Karstetter, Legal Advisor, appeared on behalf of the union.

Jonathan Dutczak appeared pro se.

David Gaba, Lead Labor Negotiator, appeared on behalf of the employer.

This case comes before the Commission on a petition filed by Jonathan Dutczak, seeking review of an order issued by Examiner Paul T. Schwendiman.[1]

BACKGROUND

Effective from January 1, 1993 through December 31, 1995, King County (employer) and Public Safety Employees, Local 519, SEIU, AFL-CIO (union) were parties to a collective bargaining agreement covering employees in the King County Department of Adult Detention. The contract contained a union security provision.

On May 26, 1995, the union filed a petition pursuant to Chapter 391-95 WAC, seeking a ruling on Jonathan Dutczak’s obligations under the union security provision of the collective bargaining agreement. The petition claimed disputes as to both (1) the eligibility of the employee to assert a right of non-association, and (2) the designation of the charity to receive the alternative payments. The union had previously concurred in Dutczak’s assertion of a right of non-association, and the employee had been making payments to the Cooperas Cove Independent School District in Cooperas Cove, Texas. Dutczak proposed to continue alternative payments to that institution.

Examiner Paul T. Schwendiman held a hearing. On July 5, 1996, the Examiner ordered Dutczak to make alternative payments of union dues and fees to Children’s Orthopedic Hospital. Dutczak filed a letter with the Examiner on July 12, 1996, indicating a desire to bring the case before the Commission. He requested “guidelines to whatever steps are necessary to petition ‘the order’”. On July 17, 1996, Dutczak was mailed copies of Chapters 391-95 and 10-08 WAC, which describe the requirements for filing and serving a petition for review.

DISCUSSION

Filing and Service of Petition for Review

The filing and service of a petition for review of a union security determination is governed by WAC 391-95-270, which states in part as follows:

WAC 391-95-270 Proceedings before the commission--Petition for review. The final order of the examiner shall be subject to review by the commission on its own motion, or at the request of any party made within twenty days following the date of the order issued by the examiner. The original and three copies of the petition for review shall be filed with the commission at its Olympia office and the party filing the petition shall serve a copy on the other party to the proceeding and on the employer. The petition for review shall identify the actions or rulings claimed to be in error. Any party to the proceeding may, within fourteen days after the initiation of review, file briefs or written arguments for consideration by the commission. The original and three copies of any brief or written argument shall be filed with the commission at its Olympia office and a copy shall be served upon the other party.

The letter filed by Dutczak in this case states:

This is a request to appeal your decision regarding case #11801-D-95-115; Decision 5595 - PECB, paragraph #2 says I may petition “the order”. This letter shall serve as notice that I request to petition “the order” by Public Employment Relations Commission. I am represented “pro se” and ask that you set forth guidelines to whatever steps are necessary to petition “the order.”

Only one copy was filed, the face of the document does not show that Dutczak served other parties, and specific actions or rulings claimed to be in error are not identified.

Requirement of Service -

WAC 391-08-120(3) describes the alternative methods for effecting “service”, stating, in part:

(3) All notices, pleadings, and other papers filed with the agency or the presiding officer shall be served upon all counsel and representatives of record and upon parties not represented by counsel or upon their agents designated by them or by law. Service shall be by one of the following methods:

(a) Service may be made personally, in the manner provided in RCW 4.28.080;

(b) Service by first class, registered, or certified mail shall be regarded as completed upon deposit in the United States mail properly stamped and addressed.

[Emphasis by bold supplied.]

The rules have been interpreted and applied to require that service be effected in a timely manner.[2] Because of the statutory mandate to promote the continual improvement of the employer-employee relationship, and healthy employer-union relations depend upon communication between the parties, the Commission interprets the rules to require service contemporaneous to filing. See, Mason County. Decision 3108-B (PECB, 1991).

We expect the parties to closely monitor their own compliance with the rules. If a party fails to do so, we have an obligation to apply the rule in fairness to the other party. City of Puyallup, Decision 5460-A (PECB, 1996). The rule requiring service on other parties exists for important legal reasons, and complaints have been routinely dismissed for inadequate or improper service.[3] The Commission has dismissed petitions for review where the petition did not indicate, on its face, that copies were provided to either the union or the employer, and no affidavits of service were included. See, Spokane School District, Decision 5151-A and 5152-A (PECB, 1995); and Tacoma School District. Decision 5337-B (PECB, 1996). Our rules do not require that parties appearing before the Commission be represented by legal counsel, but an individual proceeds at his peril. Leniency towards a pro se litigant is sometimes appropriate, but the Commission must consider the rights of other parties. King County, Decision 2704-A (PECB, 1987). See, also, Tacoma School District, Decision 5337-B (PECB, 1996).

Waiver of Rules -

The Commission has the authority to waive rules under WAC 391-08-003 and Mason County, supra, but waiver is normally based on whether the purposes of the applicable collective bargaining statute is effectuated.[4] In this instance, we find no basis to find that waiver of the service requirements is appropriate. Such a waiver would neither further the statutory policies exemplified by Chapter 41.56 RCW of “communication” and “orderly dispute resolution”, nor promote peace in labor relations. [5]

Failure to State Grounds for Appeal -

WAC 391-95-270 specifically requires a petition for review be filed and served on the parties within 20 days following the date of the order. Here, the Examiner’s order was dated July 5, 1996. Therefore, Dutczak had until July 25th to serve the parties and perfect his petition. Even if we were to waive the rules to begin the 20-day tolling period when the rules were mailed to Dutczak (July 17th) , he still did not comply with the rules. To this date, Dutczak has not attempted to perfect his petition for review.

NOW, THEREFORE, it is

ORDERED

The petition for review filed by Jonathan Dutczak is dismissed for failure to perfect an appeal pursuant to WAC 390-95-270.

Issued at Olympia, Washington, the 17th day of September, 1996.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SINGED]

MARILYN GLENN SAYAN, Chairperson

[SINGED]

SAM KINVILLE, Commissioner

[SINGED]

JOSEPH W. DUFFY, Commissioner