DECISIONS

Clover Park Technical College, Decision 12966 (PECB, 2019)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

On November 27, 2018, Tamara T. Roberson (Roberson or complainant) filed a complaint charging unfair labor practices with the Public Employment Relations Commission under Chapter 391-45 WAC, naming the Clover Park Technical College (employer) as respondent.  The complaint was reviewed under WAC 391-45-110,^[1] and a deficiency notice issued on December 26, 2018, indicated that it was not possible to conclude a cause of action existed at that time.  Roberson was given a period of 21 days in which to file and serve an amended complaint or face dismissal of the case.  On December 28, 2018, Roberson filed an amended complaint.  The allegations of the amended complaint concern:

Employer interference in violation of RCW 41.56.140(1) within six months of the date the complaint was filed, by failing to provide Tamara Roberson with the opportunity to file a grievance concerning her dismissal.

Employer contract and other statutory violations.

The amended complaint lacks necessary facts to state causes of action that could rise to an interference violation within the Commission’s jursidiction.  The allegations that the employer violated the provisions of the existing collective bargaining agreement and other statutes are also not within this Commission’s jurisdiction.  Thus the complaint is dismissed.

BACKGROUND

Roberson worked for the Tacoma Community College starting in 2004.  On September 4, 2018, she accepted a position with the employer.  The position with the employer was a probationary position.  The amended complaint alleges that Roberson was never informed that the position was contingent on completing a probationary period.

Roberson’s position was a position within the bargaining unit represented by the Clover Park Federation of Employees, Local 4789 (union).  According to the amended complaint, Article 14 of the agreement collective bargaining agreement outlines the process for terminating an employee.  However, Article 8.3 of the parties’ collective bargaining agreement grants the employer the discretion to terminate any employee who is still in their probationary period.  The amended complaint also states that the termination of a probationary employee is not subject to the collective bargaining agreement’s grievance procedure (Article 7).

On October 22, 2018, the employer notified the complainant that her employment would be terminated effective the next day.  On October 23, 2018, the complainant and her union representative allegedly learned from Director of Human Services Kirk Walker that the employer terminated the complainant’s probationary employment for failure to meet expectations.  Walker also allegedly told the complainant that she could not file a grievance about her termination.

The amended complainant also alleged that the employer never notified her that she was not meeting expectations in violation of provisions of the existing collective bargaining agreement.  The complaint alleged that these actions interfered with her protected rights and also violated the provisions of the collective bargaining agreement when it terminated her employment.  Finally, the complainant alleged that the employer violated RCW 41.56.080 by not processing a grievance related to her termination and that the union has refused to communicate with the complainant.

ANALYSIS

Interference

It is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their statutory rights.  RCW 41.56.140(1).  The Commission recently clarified the standard for employer interference in City of Mountlake Terrace, Decision 11831-A (PECB, 2014).  To prove interference, the complainant must prove, by a preponderance of the evidence, the employer’s conduct interfered with protected employee rights.  Grays Harbor College, Decision 9946-A (PSRA, 2009); Pasco Housing Authority, Decision 5927-A (PECB, 1997), aff’d, 98 Wn. App. 809 (2000) (remedy affirmed).  An employer interferes with employee rights when an employee could reasonably perceive the employer’s actions as a threat of reprisal or force, or a promise of benefit, associated with the union activity of that employee or of other employees.  Kennewick School District, Decision 5632-A (PECB, 1996).

An employer may interfere with employee rights by making statements, through written communication, or by actions.  Snohomish County, Decision 9834-B (PECB, 2008); Pasco Housing Authority, Decision 5927-A.

The complainant is not required to demonstrate that the employer intended or was motivated to interfere with employees’ protected collective bargaining rights.  City of Tacoma, Decision 6793-A (PECB, 2000).  Nor is it necessary to show that the employee involved was actually coerced by the employer or that the employer had union animus for an interference charge to prevail.  Id.

The amended complaint lacks facts alleging an independent interference violation.  It alleges the employer refused to allow Roberson to file a grievance.  The amended complaint lacks facts that Roberson was engaged in protected activity.  Additionally, it lacks facts allegeding Roberson could reasonably perceive the refusal to file a grievance as a threat of reprisal or force or promise of benefit associated with the unidentified protected activity.  Because the amended complaint lacks facts necessary to allege an independent interference violation, the amended complaint must be dismissed.

Contract & Statutory Violations

The amended complaint alleges violations of the parties’ collective bargaining agreement.  The Commission does not assert jurisdiction to remedy violations of collective bargaining agreements through the unfair labor practice provisions of the statute.  City of Walla Walla, Decision 104 (PECB, 1976).  Allegations that the employer and/or union violated a collective bargaining agreement are not matters that the Commission can address.  Remedies for contract violations must be sought through the grievance and arbitration machinery within the contract, or through the courts.  Thus, the portions of the complaints alleging violations of the collective bargaining agreement by the employer do not state causes of action with the Public Employment Relations Commission.  Lake Washington School District, Decision 6312 (EDUC, 1998).  Because the Commission does not have jurisdiction over the contract and statutory violations, the amended complaint must be dismissed.

Finally, the complaint alleges that the employer violated RCW 28B.50.874 which governs the transfer of a vocational-technical institute to the state system of community and technical colleges.  RCW 28B.50.874  states that during such transfer employees should “Suffer no reduction in compensation, benefits, seniority, or employment status.”  That statute is not applicable to the fact alleged in the amended complaint.

                                                                        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  23rd  day of January, 2019.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

DARIO DE LA ROSA, 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.