DECISIONS

On March 25, 1991, a complaint charging unfair labor practices was filed with the Public Employment Relations Commission, naming Holly Norton and Vicki Colfelt as complainants and naming the Mukilteo School District as respondent. Consistent with the case docketing practices of the Commission, a separate case number was assigned for each individual complainant, as indicated above.

The matters came before the Executive Director for processing pursuant to WAC 391-45-110,[1] and a preliminary ruling letter issued on May 2, 1991 pointed out certain defects with the complaints as filed. The conduct at issue in the complaints was a transfer of bargaining unit work (dispatching, driving a school bus, and preparation of state transportation reports) to two new non-bargaining unit positions “on or about October 1, 1990”. It was pointed out that individual bargaining unit employees lack standing to pursue “refusal to bargain” allegations such as “skimming” of unit work. See, Grant County, Decision 2703 (PECB, 1987).

An amended complaint filed on May 28, 1991 identifies the complainant as “Mukilteo Association of Classified Personnel, an affiliate of Public School Employees of Washington”. The conduct at issue continues, however, to be the hiring of a retired employee on a date “subsequent to October 1, 1990”. It does not contradict the earlier indications that the original complaint was filed on behalf of the individuals, rather than by or on behalf of the exclusive bargaining representative.

The cases again came before the Executive Director for processing under WAC 391-45-110. A second preliminary ruling letter issued on October 2, 1991 concluded that there were defects which precluded processing of the cases:

1. The “on or about October 1, 1990” allegations of the original and amended complaints fail to meet the specificity requirements of WAC 391-45-050(3). The filing of the original complaint on March 25, 1991 came only six days short of the end of the “statute of limitations” period for which a complaint could have been timely filed under RCW 41.56.160. If the actual date of the disputed hiring were prior to September 25, 1990, the entire case would be subject to dismissal as untimely.

2. The complaints filed on March 25, 1991 were a nullity, because the individual employees lacked standing to pursue the “refusal to bargain” theory which inherently underlies any “skimming” allegation. Although the original complaints were filed by the General Counsel of the state-wide affiliate of the Mukilteo Association of Classified Personnel, the organization itself did not make its presence known until an April 30, 1991 filing in response to a motion to dismiss filed by the employer on April 12, 1991. Even then, the affidavit by the organization at that time indicated that the complaint had been filed in the name of the individuals to prevent the local union from committing a breach of its duty of fair representation and/or that there was some schism within the organization. By that time, the “statute of limitations” period had already passed for conduct occurring “on or about October 1, 1990”.

3. Even if the “amended” complaint filed by the union on May 28, 1991 were taken as a separate unfair labor practice case, the filing came after the 6-month “statute of limitations” period had passed. The pursuit of other dispute resolution procedures does not toll the running of the statute of limitations set forth in RCW 41.56.160. King County, Decision 3558-A (PECB, 1990); North Franklin School District, Decision 3844 (PECB, 1991).

The complainant was allowed an additional 14 days in which to file and serve an amended complaint which stated a cause of action. Nothing further has been heard or received from the complainant.

NOW, THEREFORE, it is

ORDERED

The complaints charging unfair labor practices filed in the above-captioned matters are DISMISSED for failure to state a cause of action.

Dated at Olympia, Washington, the 13th day of January, 1991.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This order may be appealed by

filing a petition for review

with the Commission pursuant

to WAC 391-45-350.