DECISIONS

Clark County, Decision 11845 (PECB, 2013)

 

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

Click here to enter text.CLARK COUNTY PROSECUTORS’ GUILD,   Complainant,   vs.   CLARK COUNTY, Click here to enter text. Respondent.

CASE 25811-U-13-6610   DECISION 11845 - PECB     PRELIMINARY RULING AND ORDER OF PARTIAL DISMISSAL

 

On June 28, 2013, the Clark County Prosecutors’ Guild (union) filed a complaint charging unfair labor practices with the Public Employment Relations Commission under Chapter 391-45 WAC, naming Clark County (employer) as respondent.  The complaint was reviewed und­er WAC 391-45-110,^[1] and a partial deficiency notice issued on July 9, 2013, indicated that it was not possible to conclude that a cause of action existed at that time for certain allegations of the complaint.  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 filed an amended complaint on July 29, 2013. 

 

The Unfair Labor Practice Manager dismisses defective allegations of the amended complaint, and finds causes of action for valid allegations of the amended complaint as set forth in the Order below.  The employer must file and serve its answer to the amended complaint within 21 days following the date of this Decision.

 

DISCUSSION

 

The allegations of the complaint concern employer violations of Chapter 41.56 RCW, by its actions concerning Rick Olson (Olson), Tonya Rulli (Rulli), Ann Cruser (Cruser), and the Appellate Team Leader position.  The partial deficiency notice pointed out the valid and defective portions of the complaint. 

 

The allegations of the complaint concerning the Appellate Team Leader position state a cause of action under WAC 391-45-110(2) for further unfair labor practice proceedings before the Commission, as more fully set forth below. 

 

It is not possible to conclude that a cause of action exists at this time for the allegations of the complaint concerning Olson, Rulli, and Cruser.  Those aspects of the complaint are defective.

 

Olson and Rulli

The complaint concerns employer refusal to bargain in violation of RCW 41.56.140(4) [and derivative interference in violation of RCW 41.56.140(1)], by its circumvention of the union through direct dealing with employees represented by the union, in its communications with Olson and Rulli regarding their union membership status; and employer domination or assistance of a union in violation of RCW 41.56.140(2) [and derivative interference in violation of RCW 41.56.140(1)], by interference with internal union affairs and finances concerning Olson’s and Rulli’s union dues. 

 

The union must provide specific evidence of violations, including times, dates, places, and participants, as required by WAC 391-45-050(2).  The complaint does not identify any communications between the employer and Olson that indicate direct dealing, nor does the complaint show that the employer has interfered with internal union affairs or finances.  Information submitted by the union shows that Olson has apparently requested nonassociation status under Chapter 391-95 WAC, and that the employer declined to terminate Olson’s employment in light of that request (exhibit 2).  The information indicates a possible contractual dispute over union security provisions of the collective bargaining agreement, rather than an unfair labor practice issue.  There is no information on Rulli other than her name.  The complaint speculates and/or offers non-specific allegations about employer communication with Olson and Rulli and does not show how the employer could be responsible for their alleged failure or refusal to pay union dues.

 

Cruser

The complaint alleges employer refusal to bargain (and derivative interference) by circumvention of the union through direct dealing with an employee represented by the union, in its communications with Cruser over the Appellate Team Leader position.  The complaint states that the union learned of alleged direct dealing in March 2013 involving verbal and written communications between employer representatives and Cruser, but does not give specific information about the alleged communications. 

 

Violations of the collective bargaining agreement

To the extent that the union alleges violations of the collective bargaining agreement by the employer involving Olson, Rulli, Cruser, and the Appellate Team Leader position, the Commission does not have jurisdiction over those claims.  The union must pursue a remedy through the grievance and arbitration procedures of the collective bargaining agreement.

 

Appellate Team Leader position

The union alleges that the employer created the Appellate Team Leader position without fulfilling its bargaining obligations with the union.  That claim states a cause of action for further unfair labor practice proceedings.

 

Amended Complaint

 

Olson

The amended complaint states a cause of action for employer domination or assistance of a union by unlawful interference with internal union affairs and finances in violation of RCW 41.56.140(2) [and derivative interference in violation of RCW 41.56.140(1)], by:  (1) the employer’s actions regarding (a) Olson’s union dues, and (b) Olson’s assertion of nonassociation under Chapter 391-95 WAC; and (2) employer refusal to bargain in violation of RCW 41.56.140(4) [and derivative interference in violation of RCW 41.56.140(1)], by circumvention of the union through direct dealing with an employee represented by the union, in the employer’s discussions with Olson regarding union dues and nonassociation, without notice to or participation by the union.

 

Rulli

The amended complaint appears to allege violations concerning employer unlawful interference with internal union affairs and finances, and circumvention of the union, by the employer’s actions regarding Rulli’s union dues and union membership.  However, the amended complaint indicates that the union was aware of the employer’s alleged actions involving Rulli between September 1 and December 20, 2012.  The union filed its original complaint on June 28, 2013.  Under the six month statute of limitations set forth in RCW 41.56.160(1), the union should have filed a complaint involving Rulli on or before June 20, 2013.  In any case, the amended complaint states that the employer and union reached a negotiated settlement over disputes involving Rulli.  The information concerning Rulli appears to involve background information more than unfair labor practice claims.  To the extent that the amended complaint alleges violations concerning Rulli, those allegations must be dismissed.

 

Cruser

The amended complaint re-alleges the allegations of the complaint that the union has information about the employer’s direct dealing with Cruser over the Appellate Team Leader position, but  still does not provide specific details about those alleged communications.  Without more information, the allegations concerning the employer’s discussions with Cruser do not state a cause of action for circumvention of the union.  However, the amended complaint does state a cause of action for a unilateral change by the employer’s appointing Cruser to the Appellate Team Leader position without a selection process open to other bargaining unit members, without providing an opportunity for bargaining the decision and/or effects.

 

NOW, THEREFORE, it is

 

                                                                    ORDERED

 

1.                  Assuming all of the facts alleged to be true and provable, the following allegations of the amended complaint state causes of action:

 

[1]        Employer domination or assistance of a union through unlawful interference with internal union affairs and finances in violation of RCW 41.56.140(2) [and derivative interference in violation of RCW 41.56.140(1)], by the employer’s actions regarding (a) Olson’s union dues, and (b) Olson’s assertion of nonassociation under Chapter 391-95 WAC;

 

[2]        Employer refusal to bargain in violation of RCW 41.56.140(4) [and derivative interference in violation of RCW 41.56.140(1)], by:

 

(a)    circumvention of the union through direct dealing with an employee represented by the union, in the employer’s discussions with Olson regarding union dues and nonassociation, without notice to or participation by the union; and

 

(b)   its unilateral changes in (i) creating the Appellate Team Leader position, without providing an opportunity for bargaining the decision and/or effects, and (ii) appointing Cruser to the Appellate Team Leader position without a selection process open to other bargaining unit members, without providing an opportunity for bargaining the decision and/or effects.

 

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

Clark County 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.

 

An answer shall:

 

a.         Specifically admit, deny or explain each fact alleged in the amended complaint, as set forth in Paragraph 1 of this Order, except if a respondent states it is without knowledge of the fact, that statement will operate as a denial; and

 

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

 

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 amended complaint.  Service shall be completed no later than the day of filing.  Except for good cause shown, a failure to file an answer within the time specified, or the failure to file an answer to specifically deny or explain a fact alleged in the amended complaint, will be deemed to be an admission that the fact is true as alleged in the amended complaint, and as a waiver of a hearing as to the facts so admitted.  WAC 391‑45‑210.

 

Deferral to Arbitration does not apply

 

The addition of the causes of action regarding Olson, for unlawful interference with internal union affairs and finances and circumvention of the union, disqualify the amended complaint from deferral to arbitration under WAC 391-45-110(3).  Those are statutory claims and are not subject to deferral.  The Commission does not bifurcate unfair labor practice complaints.  This case will not be deferred to arbitration in whole or in part. 

 

2.                  The allegations of the amended complaint concerning:  (1) employer domination or assistance of a union by unlawful interference with internal union affairs and finances in violation of RCW 41.56.140(2) [and derivative interference in violation of RCW 41.56.140(1)], by its actions regarding Rulli’s union dues and union membership; (2) employer refusal to bargain in violation of RCW 41.56.140(4) [and derivative interference in violation of RCW 41.56.140(1)], by circumvention of the union through direct dealing with an employee represented by the union, in discussing and developing the Appellate Team Leader position with Cruser, without notice to or participation by the union; and (3) any allegations concerning violations of the collective bargaining agreement regarding Olson, Rulli, Cruser, and the Appellate Team Leader position, are DISMISSED for failures to state causes of action.

 

ISSUED at Olympia, Washington, this  6th  day of August, 2013.

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

DAVID I. GEDROSE, Unfair Labor Practice Manager

 

Paragraph 2 concerning dismissal 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.