DECISIONS

Wapato School District, Decision 12074 (EDUC, 2014)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

On April 24, 2014, the Wapato Education Association (union) filed a complaint charging unfair labor practices with the Public Employment Relations Commission under Chapter 391-45 WAC, naming the Wapato School District as respondent.  The complaint was reviewed und­er WAC 391-45-110,^[1] and a notice of partial deficiency issued on May 1, 2014, indicated that it was not possible to conclude that a cause of action existed at that time for certain aspects 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 portions of the complaint. 

The Unfair Labor Practice Manager dismisses the defective allegations of the amended complaint and finds a cause of action for the valid allegations of the amended complaint, as summarized in the Preliminary Ruling 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 refusal to bargain in violation of RCW 41.59.140(1)(e) [and derivative interference in violation of RCW 41.59.140(1)(a)], by its unilateral changes, without providing the opportunity for bargaining, (a) in new evaluation provisions for provisional teachers, and (b) requiring provisional teachers and members of the bargaining unit to write student growth plans.

The allegations of the complaint concerning student growth plans 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 defect concerning provisional teacher evaluations. 

In order to state a cause of action for a unilateral change, the statement of facts must indicate that the alleged unlawful change has occurred.  The statement of facts alleges that the employer unilaterally required the written student growth plans to be turned in by April 22.  The complaint was filed on April 24; thus, the event had allegedly occurred when the complaint was filed.  However, there is no indication in the statement of facts that the employer has implemented the new evaluation provisions for provisional teachers.  The statement of facts makes reference to attached exhibits, but references to attachments do not conform to the requirements of WAC 391-45-050(2).  The statement of facts must provide the essential facts to the complaint; exhibits would possibly become relevant only in a subsequent hearing. 

                                                             Amended Complaint

The amended complaint does not add any information to the complaint showing that the employer has implemented the new evaluation provisions for provisional teachers.  An allegation that an employer “intends” to implement a proposal does not state cause of action.  State – Office of the Governor, Decision 10948-A (PSRA, 2011). 

NOW, THEREFORE, it is

                                                                    ORDERED

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

Employer refusal to bargain in violation of RCW 41.59.140(1)(e) [and derivative interference in violation of RCW 41.59.140(1)(a)], by its unilateral change in requiring provisional teachers and members of the bargaining unit to write student growth plans, without providing an opportunity for bargaining.

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

Wapato School District 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;

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 specific 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

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.

2.                  The allegations of the amended complaint concerning employer refusal to bargain in violation of RCW 41.59.140(1)(e) [and derivative interference in violation of RCW 41.59.140(1)(a)], by its unilateral change in new evaluation provisions for provisional teachers, without providing an opportunity for bargaining, is DISMISSED for failure to state a cause of action.

ISSUED at Olympia, Washington, this  29^th  day of May, 2014.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

DAVID I. GEDROSE, Unfair Labor Practice Manager

Paragraph 2 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.