King County (Uniformed Command Association), Decision 13049 (PECB, 2019)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

On May 22, 2019, Douglas Justus filed a complaint charging unfair labor practices with the Public Employment Relations Commission under chapter 391-45 WAC, naming the Uniformed Command Association as respondent.  The complaint was reviewed under WAC 391-45-110,^[1] and a deficiency notice was issued on July 2, 2019, indicating that it was not possible to conclude a cause of action existed at that time.  Justus was given a period of 21 days in which to file and serve an amended complaint or face dismissal of the case.

On July 19, 2019, Justus filed an amended complaint.  The Unfair Labor Practice Administrator dismisses the amended complaint as untimely filed.

ISSUE

Union interference with employee rights in violation of RCW 41.56.150(1), outside the six month statute of limitations, by breaching its duty of fair representation in refusing to file a grievance on behalf of Douglas Justus because of Justus’ previous interactions with the union while he was guild president.

The amended complaint includes facts that occurred outside the six-month statute of limitations and is untimely filed.  Thus the amended complaint is dismissed as untimely.

BACKGROUND

Douglas Justus (complainant) was a corrections jail captain for the department of adult and juvenile detention for King County (employer) and was represented by the Uniform Command Association (union).  Justus was promoted to his captain’s position in July 2013.  While in the bargaining unit, at times he held elective office and sat on the negotiating committee.

Prior to being a captain, Justus was a corrections officer and a member of the King County Corrections Guild (guild).  Justus held terms of office as guild vice president and president between 2000 to 2013.  In those roles he participated in several contract negotiations, arbitrations, and other union activities.  The guild allegedly had a problematic relationship over the years with the union.  As the guild president, Justus filed many complaints against captains’ activities.  Justus also allegedly filed many grievances against the employer because of issues associated with the captains.

Justus was terminated effective November 5, 2018.  After Justus’ termination, the union obtained timeline waivers for grievances filed through the collective bargaining agreement and the employer’s personnel board.  On November 19, 2018, Justus was notified by e-mail that the union would not file a grievance for his termination.  On an unidentified date, Justus asked the union to reconsider its decision to not file a grievance and on November 23, 2018, the union affirmed its decision.

ANALYSIS

Timeliness

Applicable Legal Standard

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).  Continuing violation arguments do not create an exception for enforcement of the six-month statute of limitations.  See King County, Decision 3558-A (PECB, 1990).

The only exception to the strict enforcement of the six-month statute of limitations is when the complainant had no actual or constructive notice of the acts or events that are the basis of the charges.  City of Pasco, Decision 4197-A (PECB, 1994).  In order to be clear and unambiguous, the notice must contain specific and concrete information regarding the proposed change.  The six-month clock begins to run when a party gives clear and unambiguous notice of its intent to implement the action in question.  Emergency Dispatch Center, Decision 3255-B.

Application of Standard

In the deficiency notice, the complainant was informed of the six-month statute of limitations.  The complaint was deficient because it did not include the date in which Justus learned the union would not file a grievance on his behalf.  The complainant was given an opportunity to correct the defect.  The amended complaint stated that on November 19, 2018, Justus was provided notice that the union would not file a grievance on his behalf.

The complaint was filed on May 22, 2019.  In order to be timely, the complainant would have needed to describe events that took place on or after November 22, 2018.  According to the amended complaint, Justus was provided notice of his termination on November 19, 2018.  Justus had actual, unambiguous knowledge of his termination on November 19, 2018.  Justus’ filing of a subsequent request for reconsideration does not alter the date of his actual notice.  The complaint would have needed to be filed no later than May 19, 2019, to have been timely filed.

The amended complaint alleges that the reconsideration decision on November 23, 2018, should be the date used for the statute of limitations.  Continuing violation arguments do not create an exception for enforcement of the six-month statute of limitations.  See King County, Decision 3558-A.  Similar to the facts in King County, Justus was provided clear notice of his termination on November 19, 2018.  While the outcome of another dispute may have caused the complainant to hope for a positive determination in this case, such anticipation does not excuse the late filing.  Because the complaint and amended complaint were untimely filed, they must be dismissed.

ORDER

The amended complaint charging unfair labor practices in the above-captioned matter is DISMISSED as untimely.

ISSUED at Olympia, Washington, this  14th  day of August, 2019.

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.