DECISIONS

Seattle School District, Decision 11176 (PECB, 2011)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

On August 12, 2011, the Seattle/King County Building and Construction Trades Council (union) filed a complaint charging unfair labor practices with the Public Employment Relations Commission under Chapter 391-45 WAC, naming the Seattle School District (employer) as respondent.  Prior to a ruling on the complaint, the union filed an amended complaint on August 16, 2011.  The amended complaint was reviewed und­er WAC 391-45-110,^[1] and a deficiency notice issued on August 18, 2011, indicated that it was not possible to conclude that a cause of action existed at that time for one of the claims in the amended complaint.  The union was given a period of 21 days in which to file and serve a second amended complaint or face dismissal of the defective allegation.  The union has not filed any further information.   

The Unfair Labor Practice Manager dismisses the defective allega­tion of the amended complaint for failure to state a cause of action and finds a cause of action for the remaining allegations, as more fully set forth below.  The preliminary ruling is included in the Order.  The employer must file and serve its answer to the amended complaint within 21 days following the date of this Decision.

DISCUSSION

The deficiency notice discussed the complaint.  The original complaint was amended on August 16, 2011.  This was an administrative amendment only; the complaint’s statement of facts was not amended.

The allegations of the amended complaint concern employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1)], by:  Its unilateral change to Don Canfield’s (Canfield) position as foreperson, without providing an opportunity for bargaining; breach of its good faith bargaining obligations concerning Canfield’s foreperson position; and discrimination (and if so, derivative interference) in violation of RCW 41.56.140(1).

The allegations of the amended complaint concerning refusal to bargain state a cause of action under WAC 391-45-110(2) for further unfair labor practice proceedings before the Commission. 

The discrimination allegations were found to be defective.  It is an unfair labor practice for an employer to discriminate against an employee in reprisal for union activities by depriving the employee of ascertainable rights, benefits, or status.  The union checked the box on the amended complaint form for “employer discrimination.”  The union did not check the box on the amended complaint form for “employer refusal to bargain.”  However, the statement of facts and remedy request concern the union’s allegations that the employer unilaterally changed Canfield’s job position and breached its good faith bargaining obligations concerning Canfield’s position.  Neither the statement of facts nor the remedy request mention discrimination allegations.  Based upon the statement of facts and remedy request, a cause of action can be given for refusal to bargain despite the failure to check the proper box on the amended complaint form.  However, it is not clear if the union intended to allege discrimination by checking that box on the amended complaint form.

NOW, THEREFORE, it is

                                                                    ORDERED

1.                  Assuming all of the facts alleged to be true and provable, the following allegations of the amended complaint state a cause of action, summarized as follows:

Employer refusal to bargain in violation of RCW 41.56.140(4) [and if so, derivative interference in violation of RCW 41.56.140(1), by:

(a)    its unilateral change to Canfield’s position as foreperson, without providing an opportunity for bargaining, and

(b)   breach of its good faith bargaining obligations concerning Canfield’s position as foreperson.

Those allegations of the complaint will be the subject of further proceedings under Chapter 391-45 WAC.  Although the preliminary ruling includes a cause of action for a unilateral change, the cause of action for breach of good faith bargaining obligations concerns an alleged statutory violation that is not subject to deferral.  The Commission does not bifurcate unfair labor practice complaints.  This case will not be deferred to arbitration in whole or in part.

Seattle School District shall:

File and serve its answer to the allegations listed in Paragraph 1 of this Order, within 21 days fol­lowing the date of this Order.

An answer shall:

a.         Specifically admit, deny or explain each fact alleged in the complaint, except if a 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.

The answer shall be filed with the Commission at its Olympia office.  A copy of the answer shall be served on the attorney or principal representative of the person or organization that filed the complaint.  Service shall be completed no later than the day of filing.  Except for good cause shown, a failure to file an answer within the time specified, or the failure to file an answer to specifically deny or explain a fact alleged in the complaint, will be deemed to be an admission that the fact is true as alleged in the complaint, and as a waiver of a hearing as to the facts so admitted.  WAC 391‑45‑210.

2.                  The allegations of the complaint concerning employer discrimination (and if so, derivative interference) in violation of RCW 41.56.140(1), are DISMISSED for failure to state a cause of action.

ISSUED at Olympia, Washington, this  19th  day of September, 2011.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

DAVID I. GEDROSE, Unfair Labor Practice Manager

Paragraph 2 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.