City of Pasco, Decision 12884 (PECB, 2018)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

On May 15, 2018, the Pasco Police Officers Association (union) filed a complaint charging unfair labor practices with the Public Employment Relations Commission (PERC) under Chapter 391‑45 WAC, naming the City of Pasco (employer) as respondent.  The complaint was reviewed under WAC 391-45-110,^[1] and a deficiency notice issued on June 12, 2018, indicating that it was not possible to conclude that a cause of action existed at that time.  The union was given a period of 21 days in which to file and serve an amended complaint, or face dismissal of the case.

On June 13, 2018, the union filed an amended complaint.  The Unfair Labor Practice Administrator dismisses the amended complaint for failure to state a cause of action.

ISSUE

The amended complaint alleges:

Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so derivative interference in violation of RCW 41.56.140(1)] by breaching its good faith bargaining obligations regarding the grievance procedure and/or work schedule during successor collective bargaining negotiations.

The amended complaint is untimely and does not describe facts that could constitute violations within the Commission’s jurisdiction.

BACKGROUND

The Pasco Police Officers Association (union) represents nonuniformed, noncommissioned full‑time and part-time employees of the City of Pasco (employer) in the Pasco Police Department.  The parties’ most recent collective bargaining agreement (CBA) expired on December 31, 2016.

The parties allegedly met in March 2017 for the first time to negotiate a successor CBA.  During this first meeting, the union allegedly proposed a modification to the expired CBA’s grievance procedure and proposed a new work schedule for the Crime Specialist/Evidence Technician position and the Crime Specialist/Analyst position.

During a bargaining session on July 26, 2017, the parties discussed the grievance procedure and work schedules.  The employer and union allegedly had an in-depth discussion of the union’s grievance procedure proposal.  The employer allegedly stated it would insist on the current procedures.  The parties did not reach agreement on the grievance procedure language during the session.  The parties also allegedly discussed the association’s work schedule proposal.  The employer allegedly indicated it did not want to put work schedules into the contract.  The parties allegedly did not reach agreement on the work schedule during the session.

According to the amended complaint, on unspecified dates, the parties had subsequent conversations and exchanged e-mails regarding the grievance procedure and work schedule proposals.

On March 20, 2018, the parties filed for mediation and had mediation sessions on June 25 and 26, 2018.

ANALYSIS

Timeliness

Applicable Legal Standard

The rules for contents of complaint are contained in WAC 391-45-050.  WAC 391-45-050(2) requires the complainant to submit “[c]lear and concise statements of the facts constituting the alleged unfair labor practices, including times, dates, places and participants in occurrences.”  There is a six-month statute of limitations for unfair labor practice complaints.  “[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.”  RCW 41.56.160(1).  The six-month statute of limitations begins to run when the complainant knows or should know of the violation.  City of Bellevue, Decision 9343-A (PECB, 2007), citing City of Bremerton, Decision 7739-A (PECB, 2003).  The start of the six-month period, also called the triggering event, occurs when a potential complainant has “actual or constructive notice” of the complained-of action.  Emergency Dispatch Center, Decision 3255-B (PECB, 1990).

The time limitation has been strictly enforced, even when settle­ment negotiations are occurring. The Executive Director has stated:

While the union's efforts to resolve these issues with the employer are commendable, the fact of making those settlement efforts does not absolve the union of compliance with the statute of limitations.  To the contrary, a party faced with delays or avoidance by the opposite party to a dispute may well need to file a timely unfair labor practice complaint to protect its rights, even if settlement negotiations are ongoing.

City of Spokane, Decision 4937 (PECB, 1994).  See also Spokane County, Decision 2167-A (PECB, 1985).

The only exceptions to strict enforcement of the six-month period have occurred in cases where a complainant shows it had no actual or constructive notice of the acts or events which are the basis of the charges.  City of Seattle, Decision 5930 (PECB, 1997), citing City of Pasco, Decision 4197‑A (PECB, 1994).

Application of Standard

To determine timeliness, the Commission looks at the dates of events in the complaint or amended complaint in relation to the filing date.  The complaint was filed on May 15, 2018.  In order to be timely, the union would have needed to describe events that took place on or after November 15, 2017.  According to the amended complaint, the last identified alleged violation date is July 26, 2017, when the employer indicated it would not change the grievance procedure nor include work schedules into the contract.  The employer’s position was firmly stated on July 26.  While the amended complaint also alleges that the parties held mediation sessions on June 25 and 26, 2018, it does not allege any new violations on the employer’s part.  The amended complaint also does not allege the union had no actual or constructive notice of the employer’s acts.  The union should have taken steps to file a complaint no later than close of business on January 26, 2018, in order to keep its rights under the unfair labor practice procedure alive.  The facts as alleged occurred more than six months before the complaint was filed with the Commission.  Thus the amended complaint is dismissed.

ORDER

The amended complaint charging unfair labor practices in the above captioned matter is DISMISSED for failure to state a cause of action.

ISSUED at Olympia, Washington, this  6th  day of July, 2018.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

EMILY K. WHITNEY, Unfair Labor Practice Administrator

This order will be the final order of the

agency unless a notice of appeal is filed

with the Commission under WAC 391-45-350.