City of Seattle, Decision 2148(PECB, 1985)

On November 28, 1984, Ellen Levitt filed a complaint charging unfair labor practices with the Public Employment Relations Commission. The complaint listed the City of Seattle as the employer and listed Service Employees International Union, Local 6, as the respondent. In the space provided for indication of the sections of statute alleged to have been violated, however, the complainant had marked provisions regulating the conduct of public employers. Two separate cases were docketed, since the allegations appeared to allege charges against both the employer and the union.

The factual allegations of the handwritten complaint are sometimes difficult to read, but sufficiently recite an incident which occurred on November 24, 1984, when Levitt, working as a security guard, reported as scheduled to work at the Flag Pavilion at the Seattle Center. She was then told to work inside a different building, and shortly thereafter to work outside the building. Other allegations concern seniority violations, denial of break time, call‑out pay violations and personal harassment. The complaint also alleges that one or more meetings occurred, attended by Levitt, her union representative and the employer. The sequence of events is unclear, as the dates mentioned for the meetings are November 20, 1984 (four days prior to the incident indicated above) and November 30, 1984 (two days after the complaint was filed). Her union representative informed her at such a meeting that she could either voluntarily terminate her employment or be discharged. The allegations conclude by claiming the union did not adequately represent the complainant, and that the employer and union representatives were friends.

The matters are presently before the Executive Director for preliminary rulings pursuant to WAC 391‑45‑110. The question at hand is whether, assuming all of the facts alleged to be true and provable, the complaints state claims for relief which can be granted through the unfair labor practice procedures of the Public Employment Collective Bargaining Act, Chapter 41.56 RCW.

There is no allegation made that the employer acted against the complainant in reprisal for her union activity. Instead, the claims against the employer all appear to involve complaints about her assignments, seniority status, call‑out pay, break time and whether the employer had just cause for her termination. If the complainant is claiming these are violations of the collective bargaining agreement, she has no remedy through unfair labor practice proceedings before the Public Employment Relations Commission. The Commission lacks jurisdiction to remedy violations of collective bargaining agreements through the unfair labor practice procedures of Chapter 41.56 RCW. See: City of Walla Walla, Decision 104 (PECB, 1976). Such actions are remedied through the grievance and arbitration provisions of the contract itself, or through civil litigation in the courts. Similarly, there is no allegation that the employer was in collusion with the union in bargaining contract provisions which would be discrimina­tory against the complainant, or that the contract was applied in a discriminatory manner. Thus, there would appear to be no basis for concluding that the City of Seattle could be found guilty of an unfair labor practice in this case.

The allegations against the union appear to involve a charge of breach of the union's "duty of fair representation". The Public Employment Relations Commission has drawn a distinction between two types of fair representation issues, asserting jurisdiction over one type and declining jurisdiction over the other. In Mukilteo School District (Public School Employees of Washington), Decision 1381 (PECB, 1982), and in a number of more recent cases, jurisdic­tion has been declined with respect to breach of duty of fair representation claims arising exclusively from the processing of grievances arising under existing collective bargaining agreements. Such matters must be pursued through a civil suit filed in a Superior Court having jurisdiction over the employer. By way of contrast, Elma School District (Elma Teachers Organization), Decision 1349 (PECB, 1982), involved allegations of discrimination against a grievant because of her previous support of another labor organization. A violation of the nature alleged in Elma would place in question the right of the organization involved to continue to enjoy the status and benefits conferred by the statute on an exclusive bargaining representative. This case appears to fall within the class governed by the Mukilteo case. There is no allegation that the complainant was discriminated against on any unlawful basis. The one reference to friendship is too vauge to warrant action without more facts. The union had a duty to investigate the complainant's grievance and to make a good faith determination on its merit. It need not blindly support a frivolous grievance. The union may or may not have breached its duty of fair representation with respect to its processing of the complainant's grievance. However, such issues are matters for the courts to decide.

The complainant offers in the complaint to provide more informa­tion. The Commission does not "investigate" complaints, and the preliminary ruling must be based on the written original or amended complaint(s) filed with it and served on the other parties. With the direction herein provided, complainant may be better able to amend the complaint to focus attention on claims within the Commission's jurisdiction.

NOW, THEREFORE, it is

ORDERED

The complainant will be allowed a period of fourteen (14) days following the date of this Order to amend the complaints. In the absence of an amendment, the complaints will be dismissed as failing to state a cause of action.

DATED at Olympia, Washington, this 22nd day of January, 1985.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director