Puyallup School District (International Union of Operating Engineers Local 302), Decision 13846 (PECB, 2024)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

Cherlyn Merz, the complainant.

Jeff Frazier, Attorney at Law, for the International Union of Operating Engineers Local 302.

On February 27, 2024, Cherlyn Merz (complainant) filed an unfair labor practice complaint against the International Union of Operating Engineers Local 302 (union). The complaint was reviewed under WAC 391-45-110.[1] A deficiency notice issued on March 29, 2024, notified Merz that a cause of action could not be found at that time. Merz was given a period of 21 days in which to file and serve an amended complaint or face dismissal of the case.

No further information has been filed by Merz. The Unfair Labor Practice Administrator dismisses the complaint for failure to state a cause of action.

ISSUE

The complaint alleges the following:

Union not responding to employer’s January 12 response.

The complaint is dismissed. It does not allege facts related to the types of violations that can be raised before PERC.

Background

Cherlyn Merz is a Custodian at the Puyallup School District (employer) and is represented by the International Union of Operating Engineers Local 302 (union). The union and employer are parties to a collective bargaining agreement effective September 1, 2022, through August 31, 2025.

The complaint alleges the FOM’s have no direct supervision over the Custodian’s they oversee. On January 8, 2024, a grievance was filed related to lack of direct supervision. On January 12, 2024, the Assistant Superintendent of Human Resources and Employer Relations, Amie Brandmire, allegedly replied to the grievance asserting there was no contract violation and the district was moving the grievance to step 4. The union allegedly received the January 12 communications. On January 23, 2024, Merz responded to Brandmire. There has allegedly not been a response from the employer since Merz’s January 23 response. The union also allegedly has had no response after the January 12 response from the employer.

ANALYSIS

Violations of the Grievance Procedure and CBA

Applicable Legal Standard

The role of PERC is to resolve labor relations disputes between unions, employers, and on occasion individual employees. When a complaint is filed with the agency, PERC does not investigate the filing party’s claim. Rather, agency staff will review the complaint and statement of facts to determine if it states a cause of action. If it states a cause of action, the case will be forwarded to a PERC hearing examiner who serves as an administrative law judge. When an individual employee files a complaint with PERC, the individual takes on the responsibility for presenting their case before the agency (although the individual may hire an attorney to represent them).

A complaint must comply with the agency’s filing rule, WAC 391-45-050. The complaint must contain a statement of facts with numbered paragraphs. The statement of facts should include:

•                     Specific allegations that constitute a violation of state law and required elements. For a list of types of violations that may be raised before PERC and the required elements please visit: https://perc.wa.gov/ulp-employee-filing/;

•                     Times, dates, and places of occurrences and the names of the participants in a chronological order that explains the alleged unfair labor practices;

•                     Whether a related grievance has been filed and its status. If you do not know if a grievance has been filed, please indicate so;

•                     A description of the remedies requested.

These requirements are necessary to put the respondent on notice of the alleged unfair labor practice and to allow the respondent to reference specific allegations within the complaint when filing an answer.

It is worth noting that PERC’s jurisdiction is limited to labor relations disputes. The Commission has consistently refused to resolve “violation of contract” allegations or attempts to enforce a provision of a collective bargaining agreement through the unfair labor practice provisions it administers. Anacortes School District, Decision 2464-A (EDUC, 1986) (citing City of Walla Walla, Decision 104 (PECB, 1976)). The Commission interprets and administers collective bargaining statutes but does not act in the role of arbitrator to interpret or enforce collective bargaining agreements. State – Corrections (Teamsters Local 313), Decision 8581 (PSRA, 2004) (citing Clallam County, Decision 607-A (PECB, 1979); City of Seattle, Decision 3470-A (PECB, 1990); Bremerton School District, Decision 5722-A (PECB, 1997)).

An unfair labor practice complaint is not the appropriate avenue to address alleged violations of the parties’ CBA. The CBA can be enforced through the contractual grievance procedure or through the courts.

Unions are private organizations. The Commission generally does not get involved in internal union affairs. Western Washington University (Washington Public Employees Association), Decision 8849-B (PSRA, 2006). The remaining allegations relate to internal union affairs which the Commission has no jurisdiction to remedy.

Just because the complaint does not state a cause of action for an unfair labor practice, it does not necessarily mean the allegations involve lawful activity. It means that the issues are not matters within the purview of PERC. Tacoma School District (Tacoma Education Association), Decision 5086-A (EDUC, 1995).

Application of Standard

The statement of facts alleges the employer denied the grievance and moved it to step 4 in the process. The statement of facts appears to allege the union has not responded to a January 12 communication from the employer. There are no facts alleging the union’s lack of response is in bad faith, arbitrary, or discriminatory. PERC does not have jurisdiction to resolve “violation of contract” allegations or attempts to enforce a provision of a collective bargaining agreement.

Merz was provided an opportunity to correct the deficiency and did not file an amended complaint. The original complaint continues to fail to allege facts related to the types of violations that may be raised before PERC.

Order

The 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  16th  day of May, 2024.

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.