Clark Regional Emergency Services Agency, Decision 12985 (PECB, 2019)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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CLark county dispatchers guild,
Complainant,
vs.
clark regional emergency services agency,
Respondent.
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CASE 130525-U-18
DECISION 12985 - PECB
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
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Patrick A. Emmal, Attorney at Law, Emmal Skalbania & Vinnedge, for the Clark County Dispatchers Guild.
Michael C. Bolasina, Attorney at Law, Summit Law Group PLLC, for Clark Regional Emergency Services Agency.
Clark County Dispatchers Guild (union) filed an unfair labor practice complaint against Clark Regional Emergency Services Agency (employer) alleging unilateral changes to a past practice concerning release time for contract negotiations. In response to the employer’s motion for summary judgment, the union admitted that the case did not actually involve contract negotiations. Because there are no genuine issues of material fact as to the issue stated in the preliminary ruling, the complaint is dismissed.
On March 28, 2018, the union filed an unfair labor practice complaint against the employer. A preliminary ruling was issued on April 17, 2018. The employer answered the complaint on May 2, 2018. The undersigned Examiner was assigned on May 15, 2018. On October 22, 2018, the employer filed a motion for summary judgment (motion). On February 28, 2019, the union responded to the employer’s motion. On March 1, 2019, the employer filed a reply in support of its motion. On March 15, 2019, the union provided additional information relating to the motion.
BACKGROUND
The union’s March 28, 2018, complaint alleged, in pertinent part:
Historically and as a past practice, the Guild’s executive board was permitted release time from duty and to have their hours adjusted to avoid loss in pay to attend contract negotiations;
On or about November 9, 2017, Operation Manager Kris DeVore sent an e-mail to the Guild limiting the number of executive board members that could attend negotiations scheduled for November 11, 2017, to two (2).
As a result of the employer’s unilateral action, three (3) members of the Guild’s executive board were excluded from the application of the past practice.
On April 17, 2018, the Acting Unfair Labor Practice Manager framed the following issue for hearing:
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)] within six months of the date the complaint was filed, by unilaterally changing the parties practice of the use of release time and hours adjustment for contract negotiations, without providing the union an opportunity for bargaining.
In its May 2, 2018, answer, the employer “denie[d] that the dispute at issue pertains to or involves the attendance by executive board members at a negotiations session.” The employer stated that DeVore sent an email “limiting . . . the number of Guild executive board members who could attend a Guild meeting during their scheduled shift on November 16, 2017.”
In its October 22, 2018, motion for summary judgment, the employer asserted that there was no negotiation session scheduled for November 11, 2017, and no request for release time for executive board officers to attend a negotiation session on or around that date. The employer asserted that the union actually had requested release time to attend a Guild membership meeting on November 16, 2017, and the employer only allowed two officers to be released, consistent with the contract and past practice. The employer’s motion was supported by a declaration Kris DeVore.
In the union’s initial response to the employer’s motion, the union argued that there was a dispute of material facts, without addressing the factual assertions in the employer’s motion.
In response to a request from the Examiner to identify whether specific facts were in dispute, on March 15, 2019, the union stated, “[i]t is true that the Guild release time was requested for a Guild General Membership Meeting, not for a negotiations session.” The union also stated that “[t]he date should be corrected” to reflect that the request was made for November 16, 2017, rather than November 11. The union then appeared to assert that a violation of the contract and past practice had occurred when the employer only released two executive board members to attend the union’s membership meeting.
ANALYSIS
Applicable Legal Standards
Summary judgment motions are considered under WAC 10-08-135 which states that a “motion for summary judgment may be granted and an order issued if the written record shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” A “material fact” is one upon which the outcome of the litigation depends. State – General Administration, Decision 8087-B (PSRA, 2004). A motion for summary judgment calls upon the examiner to make final determinations on a number of critical issues without the benefit of a full evidentiary hearing and record. The granting of such a motion cannot be taken lightly. Port of Seattle, Decision 7000 (PECB, 2000). The party moving for summary judgment has the burden of demonstrating the absence of any genuine issue as to a material fact. “A summary judgment is only appropriate where the party responding to the motion cannot or does not deny any material fact alleged by the party making the motion. . . . Entry of a summary judgment accelerates the decision-making process by dispensing with a hearing where none is needed.” Pierce County, Decision 7018-A (PECB, 2001), citing, City of Vancouver, Decision 7013 (PECB, 2000). Pleadings and briefs can be sufficient to determine if there is a genuine issue of material fact. Pierce County, Decision 7018-A, citing City of Seattle, Decision 4687-A (PECB, 1996).
A summary judgment to dismiss a cause of action found to exist in a preliminary ruling “would have to have been based upon admissions against interest or other statements made by the complainant independent of the complaint itself.” City of Orting, Decision 7959-A (PECB, 2003), citing, Port of Seattle, Decision 7603-A (PECB, 2003).
Application of Standards
The preliminary ruling framed the issue in this case as a unilateral change in practice relating to contract negotiations. Following the employer’s motion for summary judgment, the union admitted that the facts in the complaint relating to contract negotiations were not true. There is no dispute of material fact that a unilateral change relating to contract negotiations did not occur as alleged in the complaint.
Once an examiner has been assigned, the analysis of the case must be confined to the issues framed by the preliminary ruling. King County, Decision 9075-A (PECB, 2007). Although the union appeared to assert that the employer violated the collective bargaining agreement and past practice by only releasing two executive board members to attend a general membership meeting, these issues are beyond the scope of the preliminary ruling and will not be considered. King County, supra, City of Orting, supra. The complaint is dismissed.
FINDINGS OF FACT
1. Clark Regional Emergency Services Agency is a public employer within the meaning of RCW 41.56.030(12).
2. The Clark County Dispatchers Guild is a bargaining representative within the meaning of RCW 41.56.030(2).
3. The Clark County Dispatchers Guild filed an unfair labor practice complaint with the Commission on March 28, 2018. The complaint asserted that the employer had unilaterally changed a past practice by limiting the number of executive board members that could attend negotiations scheduled for November 11, 2017, to two.
4. Based on the complaint, a preliminary ruling was issued on April 17, 2018, finding a cause of action to exist for 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)] within six months of the date the complaint was filed, by unilaterally changing the parties’ practice of the use of release time and hours adjustment for contract negotiations, without providing the union an opportunity for bargaining.
5. On October 22, 2018, the employer filed a motion for summary judgment, and “denie[d] that the dispute at issue pertains to or involves the attendance by executive board members at a negotiations session.” The employer stated that they did limit the number of executive board members who could attend a general membership meeting on November 16, 2017, to two.
6. In response to a request from the Examiner to identify whether specific facts were in dispute, on March 15, 2019, the union stated, “[i]t is true that the Guild release time was requested for a Guild General Membership Meeting, not for a negotiations session.”
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter pursuant to chapter 41.56 RCW and chapter 391-45 WAC.
2. According to findings of fact 3 through 6, no genuine issue of material fact exists under WAC 10-08-135 and Clark Regional Emergency Services Agency is entitled to judgment as a matter of law.
ORDER
The complaint charging unfair labor practices filed in the above-captioned matter is dismissed.
ISSUED at Olympia, Washington, this 29th day of March, 2019.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
SEAN LEONARD, Examiner
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.