Tacoma Housing Authority, Decision 6816 (PECB, 1999)

On August 17, 1998, Saul Padilla filed a complaint charging unfair labor practices with the Public Employment Relations under Chapter 391-45 WAC. Allegations that the Tacoma Housing Authority (employer) discriminated against Padilla by requiring his presence at a “mandatory EAP referral” meeting without permitting him to have union representation were docketed as Case 14087-U-98-3487.Allegations that the Pierce County, Washington, Building and Construction Trades Council (union) has breached its duty of fair representation, by agreeing with the employer that union represen­tation was unnecessary, were docketed as Case 14252-U-98-3534.The cases were combined for processing.

A Deficiency Notice was issued on August 3, 1999, under WAC 391-45-110,[1] pointing out several problems with the complaints, as filed. The complainant was given a period of 14 days to file and serve an amended complaint that stated a cause for action or face dismissal of the complaint.

Nothing further has been heard from the complainant. The com­plaints are thus dismissed.

DISCUSSION

WAC 391-45-050 requires the filing of a complaint containing sufficient details to put the agency and other parties on notice of the alleged unlawful conduct. The Commission maintains an impartial posture in the processing of unfair labor practice cases, and its staff does not “investigate” complaints in a manner that would be familiar to those who practice before the National Labor Relations Board. The complaint did not contain the required details about the disputed meeting, and did not name the partici­pants at the meeting.

Although a right to union representation at investigatory inter­views is recognized under National Labor Relations Board v. Weingarten, Inc., 420 U.S. 251 (1975) and Commission precedents adopting the principles set forth in that federal court ruling, the right to union representation only applies where the employee makes a request for union representation, and it does not apply to all meetings between employers and employees. The complaints in these cases fall short of suggesting that Padilla had a reasonable expectation that discipline could result from questions to be asked of him at the meeting held in June of 1998.

A request for union representation for a meeting held in July of 1998 appeared to be premature, because the employer had not informed Padilla of the nature of the meeting.

The propriety of the “mandatory EAP referral” appeared to fall into the category of a violation of contract claim under the collective bargaining agreement. The Commission does not assert jurisdiction to remedy violations of collective bargaining agreements through the unfair labor practice provisions of the statute. City of Walla, Decision 104 (PECB, 1976).Such claims must be pursued through the grievance and arbitration machinery of the contract, or through the courts.

The propriety of the union’s refusal to file a grievance appeared to fall into the category of “breach of duty of fair representa­tion” claims over which the Commission does not assert jurisdic­tion. See, Mukilteo School District (Public School Employees of Washington), Decision 1381 (PECB, 1982).Such claims must be pursued in a court which can assert jurisdiction to determine and remedy (if appropriate) any underlying contract violation.

NOW, THEREFORE, it is

ORDERED

1.                  Case 14252-U-97-3534; DECISION 6817 - PECB: The complaint filed in this matter is DISMISSED.

2.                  Case 14087-U-98-3487; DECISION 6816 - PECB: The complaint filed in this matter is DISMISSED.

DATED at Olympia, Washington, this 3rd day of September, 1999.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

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.