King County, Decision 13222 (PECB, 2020)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

Denise Cobden, Senior Union Representative, for PROTEC17.

Kelsey Schirman, Deputy Prosecuting Attorney, for King County.

On July 1, 2020, PROTEC17 (union) filed an unfair labor practice complaint against King County (employer). The complaint was reviewed under WAC 391-45-110.[1] A deficiency notice issued on July 14, 2020, notified the union that a cause of action could not be found 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 deficient allegations.

No further information has been filed by the union. The Unfair Labor Practice Administrator dismisses the deficient allegations and issues a preliminary ruling for other allegations of the complaint.

ISSUES

The complaint alleges the following:

Employer refusal to bargaining in violation of RCW 41.56.140(4) [and if so derivative interference in violation of RCW 41.56.140(1)]:

(a)        Within six months of the date the complaint was filed, by skimming and contracting out Public Health Administrative Support Supervisor work, without providing the union an opportunity for bargaining.

(b)        Outside six months of the date the complaint was filed, by unilaterally eliminating the Public Health Administrative Support Supervisors’ positions, without providing the union an opportunity for bargaining

The skimming and contracting out of bargaining unit work allegation of the complaint states a cause of action under WAC 391-45-110(2) for further case proceedings before the Commission.

The unilaterally eliminating positions allegation of the complaint does not state a cause of action and is dismissed.

Background

PROTEC17 (union) represents a bargaining unit including Public Health Administrative Support Supervisors at King County (employer). Various bargaining unit employees work in the WIC/First Steps program. On May 13, 2019, the union met with the employer who announced the WIC/First Steps program would be undergoing a reorganization, and as a result, at least two Public Health Administrative Support Supervisors would be eliminated.

On October 23, 2019, the union filed a demand to bargain the impacts of the elimination of the Public Health Administrative Support Supervisors positions. The parties have allegedly not exhausted their bargaining obligations. Around December 2019, the Public Health Administrative Support Supervisors received transfer in-lieu of layoff letters eliminating their positions. On January 1, 2020, the employer implemented the reorganization and Public Health Nursing Supervisors, members of Washington State Nurses Association, and Area Managers began doing the bargaining unit work of the Public Health Administrative Support Supervisors

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).

Application of Standard

To determine timeliness, the Commission looks at the dates of events in the complaint in relation to the filing date. The complaint was filed on July 1, 2020. In order to be timely, the complainant would have needed to describe events that took place on or after January 1, 2020. According to the complaint, the Public Health Administrative Support Supervisors received transfer notices eliminating their positions in December 2019. The complaint did not include the specific December date. For the unilateral change of eliminating bargaining unit work to have been timely filed, the complaint would have been needed to be filed within six months of the specific December date (i.e. in June 2020). The complainant did not file an amended complaint. Because the complaint was not timely filed, the allegation regarding the unilateral elimination of the position is dismissed.

Order

1.                  Assuming all of the facts alleged to be true and provable, the skimming and contracting out allegation of the complaint states a cause of action, summarized as follows:

Employer refusal to bargaining 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 skimming and contracting out Public Health Administrative Support Supervisor work, without providing the union an opportunity for bargaining

This allegation will be the subject of further proceedings under chapter 391-45 WAC.

2.                  The respondent shall file and serve an answer to the allegation listed in paragraph 1 of this Order within 21 days following the date of this Order. The answer shall

(a)     specifically admit, deny, or explain each fact alleged in the complaint, except if the respondent states it is without knowledge of the fact, that statement will operate as a denial; and

(b)     assert any affirmative defenses that are claimed to exist in the matter.

(c)     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 contract language that 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.

The answer shall be filed and served in accordance with WAC 391-08-120. Except for good cause shown, if the respondent fails to file a timely answer or to file an answer that specifically denies or explains facts alleged in the complaint, the respondent will be deemed to have admitted and waived its right to a hearing on those facts. WAC 391‑45‑210.

3.                  The allegation of the complaint concerning unilaterally eliminating positions is DISMISSED for timeliness.

ISSUED at Olympia, Washington, this  18th  day of August, 2020.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

Emily K. Whitney, Unfair Labor Practice Administrator

Paragraph 3 of this 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.