State – Individual Providers (Service Employees International Union 775), Decision 12864 (PECB, 2018)

                                                       STATE OF WASHINGTON

                     BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

On February 16, 2018, Michael Harris (complainant) filed a complaint charging unfair labor practices with the Public Employment Relations Commission (PERC) under Chapter 391‑45 WAC, naming the Service Employees International Union 775 (union) as respondent.  The complaint appeared to be missing pages.  On March 2, 2018, Harris filed an amended complaint, which included the missing pages.  The amended complaint was reviewed under WAC 391‑45‑110,^[1] and a deficiency notice issued on March 14, 2018, indicating that it was not possible to conclude that a cause of action existed at that time.  Harris was given a period of 21 days in which to file and serve a second amended complaint, or face dismissal of the case.

No further information has been filed by Harris.  The unfair labor practice manager dismisses the amended complaint for failure to state a cause of action.

ISSUES

The amended complaint alleges:

Union interference with employee rights in violation of RCW 41.56.150(1), within six months of the date the complaint was filed, by breaching its duty of fair representation in refusing to file a grievance on behalf of Michael Harris.

The facts alleged in the amended complaint do not describe actions that could constitute an unfair labor practice under the Commission’s jurisdiction.  The amended complaint is dismissed.

BACKGROUND

According to the amended complaint, Harris became a member of the union on August 22, 2017.  Harris was allegedly scheduled to receive wages electronically on the first and fifteenth of every month, provided the date did not fall on a weekend day.  On September 1, 2017, Harris allegedly electronically filed his timesheet, which resulted in a “received” status.  On September 8, 2017, Harris was allegedly informed his timesheet had been rejected and needed to be resent.  When Harris contacted the employer to inquire why the timesheet had been rejected, he was allegedly informed there had been a system failure and his wages would be held until the following pay cycle.  On an unspecified date, Harris allegedly contacted an unspecified person from the union for further assistance.

On October 1, 2017, Harris filed his second timesheet, which resulted in a “saved” status.  When he contacted the employer, Harris was allegedly unable to determine why he received this status change.  On an unspecified date, Harris allegedly contacted an unspecified person from the union for assistance and was allegedly informed of the grievance process.  On an unidentified date Harris allegedly contacted a second union representative for advice on the matter who determined a grievance was the best option.  Harris allegedly never received formal paperwork describing the legal process of the grievance.

On December 4, 2017, Harris was allegedly terminated by the employer.  On an unspecified date Harris allegedly contacted an unspecified person from the union and requested to have a grievance filed regarding his termination.  Two days later, Harris allegedly contacted another unidentified person from the union to check on the progress of the grievance and was informed there were no notes related to the grievance request, and this person would add a note to the file.

About one week later, Harris allegedly received a call from an unidentified person from the union regarding the grievance and was informed there were no options to appeal the employer’s decision.  When Harris inquired about the grievance that was in process he was informed that a check should be in the mail.

ANALYSIS

Dates and Names of Participants

The rules for contents of a complaint are contained in WAC 391-45-050.  WAC 391-45-050(2) requires the complainant to submit “[c]lear and concise statements of the facts constituting the alleged unfair labor practices, including times, dates, places and participants in occurrences.”

In this case, the amended complaint lacks some dates and does not identify the participants related to the duty of fair representation allegations.  The facts and events described relating to communication with the union make vague allegations and do not include meeting dates or names of participants.  Because the amended complaint lacks dates and names of participants, it is not possible to determine if the case is timely filed.  Thus the complaint is dismissed.

Union Interference – Duty of Fair Representation

Applicable Legal Standard

It is an unfair labor practice for a union to interfere with, restrain, or coerce public employees in the exercise of their rights.  RCW 41.56.150(1).  The Commission explained the legal standard for duty of fair representation in City of Seattle (Seattle Police Officers’ Guild), Decision 11291‑A (PECB, 2012).  The duty of fair representation arises from the rights and privileges held by a union when it is certified or recognized as the exclusive bargaining representative under a collective bargaining statute.  C-TRAN (Amalgamated Transit Union, Local 757), Decision 7087‑B (PECB, 2002), citing City of Seattle, Decision 3199-B (PECB, 1991).  The Commission is vested with authority to ensure that exclusive bargaining representatives safeguard employee rights.  While the Commission does not assert jurisdiction over “breach of duty of fair representation” claims arising exclusively out of the processing of contractual grievances, the Commission does process other types of “breach of duty of fair representation” complaints against unions.  City of Port Townsend (Teamsters Local 589), Decision 6433-B (PECB, 2000).

A union breaches its duty of fair representation when its conduct is arbitrary, discriminatory, or in bad faith.  Vaca v. Sipes, 386 U.S. 171, 177 (1967); City of Seattle (Seattle Police Officers’ Guild), Decision 11291-A.  In rare circumstances, the Commission asserts jurisdiction in duty of fair representation cases.  City of Seattle (Seattle Police Officers’ Guild), Decision 11291-A.  The Commission asserts jurisdiction in duty of fair representation cases when an employee alleges its union aligned itself in interest against employees it represents based on invidious discrimination.  Id.  In such cases, the employee bears the burden of establishing that the union took some action aligning itself against bargaining unit employees on an improper or invidious basis, such as union membership, race, sex, national origin, etc.  Id.

Application of Standard

The amended complaint does not describe allegations that fit within the jurisdiction of the Commission.  The amended complaint alleges that Harris was a member of the union.  Additionally, the amended complaint alleges that Harris requested the union to file a grievance on his behalf based on his termination and alleges the union did not follow through with this request.  The complaint lacks facts as to whether the union took some action aligning itself against Harris on an improper or invidious basis.  Thus the union interference failure of the duty of fair representation allegation is dismissed.

ORDER

The amended 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  2nd  day of May, 2018.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

Emily K. Whitney, 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.