DECISIONS

Western Washington University, Decision 11057 (PSRA, 2011)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

CLAUS JOENS,   Complainant,   vs.   WESTERN WASHINGTON UNIVERSITY,   Respondent.

CASE 23867-U-11-6097   DECISION 11057 -  PSRA     ORDER OF DISMISSAL

 

On March 18, 2011, Claus Joens (Joens) filed a complaint charging unfair labor practices with the Public Employment Relations Commission under Chapter 391-45 WAC, naming Western Washington University (employer) as respondent.  The complaint was reviewed under WAC 391-45-110,^[1] and a deficiency notice issued on March 30, 2011, indicated that it was not possible to conclude that a cause of action existed at that time.  Joens was given a period of 21 days in which to file and serve an amended complaint or face dismissal of the case.  On the same day the deficiency notice was issued, Joens filed an identical copy of the March 18 complaint, labeled as an amended complaint.  However, the document did not amend the complaint and was considered a duplicate complaint. 

 

On April 21, 2011, Joens filed an amended complaint in response to the deficiency notice.  The Unfair Labor Practice Manager dismisses the amended complaint for failure to state a cause of action.

 

DISCUSSION

 

The deficiency notice pointed out the defects to the complaint.  Joens’s complaint alleged discrimination by the employer, and a claim against the Public School Employees of Washington (union) for inducing the employer to discriminate against Joens.  Joens also alleged numerous other actions against him by the employer and union.  Joens filed one statement of facts concerning the allegations against both the employer and the union.  The complaints were docketed as separate cases:  Case 23867-U-11-6097 (employer) and Case 23868-U-11-6098 (union). 

 

Case 23867-U-11-6097

The allegations of the complaint concern employer discrimination in violation of RCW 41.80.110(1)(c) [and if so, derivative interference in violation of RCW 41.80.110(1)(a)], in reprisal for union activities protected by Chapter 41.80 RCW, by its termination of Joens for filing a grievance over a letter of reprimand; breach of contract; civil and criminal offenses; and violations of other Washington State laws, the Constitution of the United States, and the Washington State Constitution.

 

The name “Public Employment Relations Commission” is sometimes interpreted as implying a broader scope of authority than is actually conferred upon the agency by statute.  The agency does not have authority to resolve each and every dispute that might arise in public employment, but only has jurisdiction to resolve collective bargaining disputes between employers, employees, and unions.  In the present case, the Commission has jurisdiction only over unfair labor practice complaints filed under Chapter 41.80 RCW, and has no jurisdiction over other state or federal laws, including civil and criminal offenses, Chapter 357-37 of the Washington Administrative Code (WAC), other Washington statutes, the Constitution of the United States, or the Washington State Constitution.  In addition, 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 Walla, Decision 104 (PECB, 1976).  Joens must seek remedies with state and federal courts or other state or federal agencies. 

 

Joens’s sole allegation under Chapter 41.80 RCW concerns his claim that the employer terminated him because he filed a grievance after the employer issued him a letter of reprimand.  It is an unfair labor practice in violation of RCW 41.80.110(1)(c), for an employer to discriminate against an employee because the employee exercised collective bargaining rights or communicated to the employer an intent to do so; the employee’s union activity must be a substantial motivating factor for the employer’s actions.  Educational Service District 114, Decision 4361-A (PECB, 1994).  Chapter 391-45 WAC applies to unfair labor practice complaints.  WAC 391-45-050(2) requires that complaints contain “Clear and concise statements of the facts constituting the alleged unfair labor practices, including times, dates, places and participants in occurrences.”   

 

Joens does not identify any union activity on his part other than filing his grievance.  The bulk of the complaint, and the materials accompanying the complaint, focus on allegations of employer actions taken against Joens for alleged performance problems, but no connection is made between those employer actions and any pre-grievance union activities engaged in by Joens.  Joens alleges, without giving sufficient information under WAC 391-45-050(2), that the employer terminated him because he filed the grievance.  However, prior to the grievance the employer was already taking action against Joens because of his alleged performance issues.  There is no indication that the employer’s performance concerns were merely pretexts for actions against Joens based on his pre-grievance union activities.  Taking into consideration the information supplied by Joens, the context of the complaint does not indicate that the grievance by itself could be a substantial motivating factor for Joens’s termination.  The complaint does not state a cause of action for employer discrimination in violation of RCW 41.80.110(1)(c), or for derivative interference in violation of RCW 41.80.110(1)(a). 

 

Amended Complaint

 

WAC 391-45-050 sets forth the requirements for the filing of unfair labor practice complaints:

 

CONTENTS OF COMPLAINT

 

Each complaint charging unfair labor practices shall contain, in separate numbered paragraphs:

     (1) Information identifying the parties and (if known) their representatives, including:

     (a) The name, address and telephone number of the employer, and the name, address, telephone number, fax number, and e-mail address of its principal representative;

     (b) The name, address and telephone number of the entity (employer or employee organization) accused of committing unfair labor practices (respondent), and the name, address, telephone number, fax number, and e-mail address of its principal representative; and

     (c) The name, address, telephone number, fax number, and e-mail address of the party filing the complaint (complainant), and the name, address, telephone number, fax number, and e-mail address of its principal representative.

     (2) Clear and concise statements of the facts constituting the alleged unfair labor practices, including times, dates, places and participants in occurrences.

     (3) A statement of the remedy sought by the complainant.

     (4) The name, signature and, if any, title of the person filing the complaint, and the date of the signature.

     (5) Information concerning the parties' relationships, including:

     (a) The employer's principal business;

     (b) Identification of the employer department or division in which the dispute arises;

     (c) The parties' contractual relationship, indicating that:

     (i) The parties have never had a contract; or

     (ii) A copy of the current (or most recent) collective bargaining agreement is attached;

     (d) The status of related grievance proceedings between the parties, indicating that:

     (i) No grievance has been filed on the dispute involved; or

     (ii) A grievance on the dispute is being processed under the parties' collective bargaining agreement; or

     (iii) An arbitration award has been issued on a related grievance;

     (e) A description of the bargaining unit involved, specifying inclusions and exclusions; and

     (f) The number of employees in the bargaining unit.

     (6) Indication of the sections of the Revised Code of Washington (RCW) alleged to have been violated.

 

The amended complaint has multiple defects:

 

•         It re-alleges on one complaint form, and with one statement of facts, allegations against both the employer and the union.

•         It responds to the deficiency notice, but does not restate the allegations of the complaint.

•         The amended statement of facts is not clear and concise and does not contain numbered paragraphs.

•         Joens identifies the employer’s contact as the Attorney General of Washington, with an address in Olympia.

•         Joens identifies the union as the respondent.

•         Joens did not sign the amended complaint.

•         The amended complaint was due on April 20, 2011.

The amended complaint adds the claim of employer interference in violation of RCW 41.80.110(1)(a), but consists largely of legal case citations and argument.  It re-alleges violations of statutes and laws outside of the Commission’s jurisdiction.  It combines arguments concerning the employer and the union.  Joens provides four new sets of facts regarding his claim against the employer. 

 

First, Joens states that the grievance was filed on August 30, 2010.  Second, Joens states for the first time that Tom Dorr (Dorr) advised Joens that filing a grievance irreparably damages Joens’s status and position with the employer.  The amended complaint does not identify Dorr, but the original complaint states that Dorr was Joens’s supervisor between September 2009 and April 2010.  The date and context of Dorr’s alleged statement are not provided.  It is not apparent whether Dorr made the comment during the period he supervised Joens, that is, prior to the filing of the grievance, or at the time the grievance was filed.  The allegations do not give information regarding the aforementioned occurrence, including the time, date, and place.  WAC 391-45-050(2).

 

Third, Joens states that after the grievance was filed, the employer responded by requiring him to publicly report bathroom breaks to his peers, and threatened him with termination for abandoning his position during an approved vacation period.  Those allegations also appear for the first time, and no further information is given, including times, dates, places, and participants in occurrences as required by WAC 391-45-050(2).  Joens has not provided sufficient information to state a cause of action regarding the aforementioned claims.

 

Fourth, Joens states for the first time that the employer “processed [Joens] for termination on the date the response to the grievance was due.”  The original complaint does not give a date for the grievance’s filing, but does state that Joens was terminated in retaliation for filing the grievance “two weeks after the grievance was filed.”  The amended complaint states that Joens “was terminated immediately following filing a grievance.”  The original complaint states that Joens was terminated on October 1, 2010.  The facts supplied by Joens do not clearly draw a connection between the grievance and Joens’s termination, and statements concerning the timing of the grievance in relation to the termination are inconsistent and confusing.  In addition, the amended complaint does not overcome the finding in the deficiency notice concerning the complaint’s failure to show that the grievance could be a substantial motivating factor in Joens’s termination.  As stated in the deficiency notice, Joens provides evidence in the original complaint indicating that the employer had motivations for terminating his employment unrelated to Joens’s union activities.  The employer had issued a Letter of Direction to Joens on June 10, 2010, and a Letter of Reprimand on August 2, 2010, both related to performance issues.  Joens’s only stated union activity was the filing of the grievance on August 30, 2010.  Thus, the amended complaint does not indicate that Joens had a history of union activities, or that−but for the grievance−Joens’s employment status was secure, and does not alter the conclusions stated in the deficiency notice. 

 

CONCLUSION

 

Although isolated and minor procedural defects are not necessarily fatal to unfair labor practice complaints, the combination of procedural defects in the amended complaint makes the processing of it impossible.  In addition, the amended complaint fails to cure the substantive defects of the original complaint.  Joens’s allegation that the August 30 grievance was the substantial motivation for his termination on October 1, following the June 10 Letter of Direction and the August 2 Letter of Reprimand, is unsupported by the facts submitted by Joens in the original complaint and the amended complaint.  The amended complaint does not state causes of action for any violations of Chapter 41.80 RCW. 

 

NOW, THEREFORE, it is

 

                                                                    ORDERED

 

The amended complaint charging unfair labor practices in Case 23867-U-11-6097 is DISMISSED for failure to state causes of action.

 

ISSUED at Olympia, Washington, this  6th  day of May, 2011.

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

DAVID I. GEDROSE, Unfair Labor Practice Manager

 

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.