Kiona Benton School District, Decision 10865 (EDUC, 2010)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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KIona benton education association,
Complainant,
vs.
kiona benton school district,
Respondent.
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CASE 23492-U-10-5990
DECISION 10865 - EDUC
ORDER DENYING MOTION
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James Gasper, Attorney at Law, for the union.
Lyon Weigand & Gustafson, PS, by Jeanie Tolcacher, Attorney at Law, for the employer.
This case came before the Commission on a motion for temporary relief filed under WAC 391-45-430. Confirming the action taken by the Commission at a public meeting held on September 14, 2010, the motion is DENIED.
PROCEDURAL HISTORY
The Kiona Benton Education Association (union) is the exclusive bargaining representative of the certificated employees of the Kiona Benton School District. On July 30, 2010, the union filed an unfair labor practice alleging that the employer discriminatorily reassigned bargaining unit member Connie Meredith (Meredith) from her assignment as a first grade teacher to a position as an eighth grade remedial English teacher in retaliation for Meredith’s union activity.[1]
On August 23, 2010, the union filed notice that it intended to seek temporary relief. On September 3, 2010, the union filed its motion and affidavits in support of that motion as required under WAC 391-45-430 asking this Commission to seek temporary relief on its behalf to compel the employer to return Meredith to her former teaching assignment. The union argued that Meredith would suffer irreparable harm if the employer were not required to return her to her former teaching assignment.
Consistent with agency practice, the agency assigned a new case number, Case 23492-U-10-5990, to the temporary relief proceeding. Consideration of the matter was scheduled for the next Commission meeting, September 14, 2010.
DISCUSSION
Under limited circumstances, the Commission invokes its authority under RCW 41.59.150 to seek temporary relief by authorizing the Attorney General of Washington to file suit in the courts to preserve the status quo pending the outcome of unfair labor practice proceedings. RCW 41.59.150 states:
RCW 41.59.150 Commission to prevent unfair labor practices — Scope.
(1) The commission is empowered to prevent any person from engaging in any unfair labor practice as defined in RCW 41.59.140: PROVIDED, That a complaint shall not be processed for any unfair labor practice occurring more than six months before the filing of the complaint with the commission. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, equity or otherwise.
(2) If the commission determines that any person has engaged in or is engaging in any such unfair labor practices as defined in RCW 41.59.140, then the commission shall issue and cause to be served upon such person an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action as will effectuate the purposes and policy of this chapter, such as the payment of damages and/or the reinstatement of employees.
(3) The commission may petition the superior court for the county in which the main office of the employer is located or wherein the person who has engaged or is engaging in such unfair labor practice resides or transacts business, for the enforcement of its order and for appropriate temporary relief.
The Commission adopted WAC 391-45-430 to govern motions for temporary relief. The Commission’s rule states, in part:
WAC 391-45-430 MOTION FOR TEMPORARY RELIEF. In addition to the remedies available under WAC 391-45-410, a complainant in an unfair labor practice proceeding may make a motion requesting that the commission seek appropriate temporary relief through the superior court, and all such motions shall be processed as provided in this section.
. . . .
(5) The executive director shall forward all motions and affidavits to the commission, which shall determine whether an injunction pendente lite should be sought. In making its determination, the commission shall adhere to the following policy:
"The name and authority of the public employment relations commission shall not be invoked in connection with a request for temporary relief prior to the completion of administrative proceedings under WAC 391-45-010, et seq., unless it appears that one or more of the allegations in the complaint of unfair labor practices is of such a nature that, if sustained, the complainant would have no fair or adequate remedy and the complainant would suffer irreparable harm unless the status quo be preserved pending the completion of administrative proceedings."
(a) If the commission concludes that temporary relief should be sought, the executive director, acting in the name and on behalf of the commission and with the assistance of the attorney general, shall petition the superior court of the county in which the main office of the employer is located or wherein the person who is alleged to be engaging in unfair labor practices resides or transacts business for an injunction pendente lite.
. . . .
(c) A determination by the commission that temporary relief should not be sought at a particular time shall not bar renewal of the motion for temporary relief following the completion of administrative proceedings in which unfair labor practice violations have been found to exist.
(emphasis added).
In this case, the Commission declined to use its authority to seek temporary relief on the union’s behalf. The union failed to persuade the Commission that Meredith will suffer irreparable harm if temporary relief were not granted.
NOW, THEREFORE, it is
ORDERED
The motion for temporary relief made in the above-captioned matter is DENIED.
ISSUED at Olympia, Washington, this 17th day of September, 2010.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
THOMAS W. McLANE, Commissioner
[1] Case 23417-U-10-5969. The union’s complaint also alleges that the employer interfered with protected employee rights.