North Thurston School District, Decision 13085 (EDUC, 2019)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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FRANK GREGORY BURLESON,
Complainant,
vs.
NORTH THURSTON SCHOOL DISTRICT,
Respondent.
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CASE 132062-U-19
DECISION 13085 - EDUC
ORDER OF DISMISSAL
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On August 28, 2019, Frank Gregory Burleson (Burleson or complainant) filed a complaint charging unfair labor practices with the Public Employment Relations Commission under chapter 391-45 WAC, naming the North Thurston School District (employer) as respondent. The complaint was reviewed under WAC 391-45-110,[1] and a deficiency notice was issued on September 10, 2019, indicating that it was not possible to conclude that a cause of action existed at that time. Burleson was given a period of 21 days in which to file and serve an amended complaint, or face dismissal of the case.
No further information has been filed by Burleson. The complaint is dismissed for failure to state a cause of action.
BACKGROUND
Frank Gregory Burleson works as a certificated teacher at the North Thurston School District (employer). He is represented for purposes of collective bargaining by the North Thurston Education Association (union). The employer and union are parties to a collective bargaining agreement with a term of September 1, 2018, through August 31, 2019.
Burleson’s complaint against the employer alleges that in July 2009, the employer transferred Burleson from Woodland Elementary. Burleson opposed the transfer. At the time of this transfer, Conni Van Hoose served as the union’s president. In October 2009, Burleson filed a complaint with the employer alleging he had been “subjected to working in an unhealthy environment.” In November 2009, the employer transferred Burleson to Seven Oaks Elementary. Burleson also opposed this transfer.
In December 2009, Burleson allegedly attended a hearing concerning his October 2009 complaint. Burleson alleges that he invoked his contractual grievance rights. During that meeting, the employer presented him with a cease and desist letter pertaining to any matter surrounding his work assignment and transfers. Van Hoose allegedly told Burleson that he could be terminated for insubordination if he did not comply with the cease and desist letter.
In May 2010, Burleson was transferred to Evergreen Forest Elementary. Between 2013 and 2015, Burleson allegedly experienced air quality and breathing issues due to construction. He claims that he felt he could not express concerns about those issues due to the December 2009 cease and desist letter.
In September 2017, Burleson claims he was moved to a new room at Evergreen Forest Elementary. The complaint alleges that the building was damaged and overflow water from the gutter resulted in moisture on the wall and an unrecognizable smell. Burleson allegedly took 81 days of sick leave due to the unhealthy working conditions.
On October 2, 2018, a step 2 grievance was filed where Burleson requested 81 days of sick leave be returned to him due to unhealthy working conditions. On October 11, 2018, the union and employer conducted a step 2 grievance hearing where Burleson discussed his health condition. The complaint also alleges that Burleson was unable to express concerns regarding the building environmental issues due to December 9, 2009, cease and desist directive. The complaint does not explain why the cease and desist directive precluded him from expressing concerns regarding the building’s environmental issues. During the October 22, 2018, meeting, Burleson requested copies of the “signed contracts for Mr. John Wood from 1997-1998 to 2001-2002; and for Ms. Conni Van Hoose from 2002-2003 to 2014-2015.” It appears that the information that Burleson requested concerns release time for the union’s president.
On January 23, 2019, the employer conducted a step 3 grievance hearing where Burleson allegedly presented 123 pages of documentation regarding his working conditions and medical situation. On January 30, the employer responded to the step 3 grievance by allegedly stating that Burleson “[was] afforded the opportunity to communicate [his] concerns and the District did not respond to the issues.” Because the grievance was not resolved to Burleson’s satisfaction, he asked the union to submit the matter to arbitration. On February 7, 2019, the union denied to submit Burleson’s grievance to arbitration.
On February 8, 2019, Burleson learned through his October 22, 2018, information request that “no [employment] contracts were issued to Ms. Van Hoose from September 2003 through 2013.” The complaint alleges that Van Hoose did not have the legitimate right to represent Burleson because the union’s bylaws require members to be contracted employees.
ANALYSIS
Applicable Legal Standard
There is a six-month statute of limitations for unfair labor practice complaints. “[A] complaint shall not be processed for any unfair labor practice occurring more than six months before the filing of the complaint with the commission.” RCW 41.59.150(1). The six-month statute of limitations begins to run when the complainant knows or should know of the violation. City of Bellevue, Decision 9343-A (PECB, 2007), citing City of Bremerton, Decision 7739-A (PECB, 2003). The start of the six-month period, also called the triggering event, occurs when a potential complainant has “actual or constructive notice of” the complained-of action. Emergency Dispatch Center, Decision 3255-B (PECB, 1990).
Application of Standard
Burleson filed his complaint against the employer August 28, 2019. To be timely filed, the facts alleged against the employer must have occurred on or after February 28, 2019. All of the allegations in the complaint that concern the employer occurred before February 8, 2019, and are not timely. This includes allegations that the employer violated the existing collective bargaining agreement and other statutes and laws by not providing Van Hoose an employment contract.[2]
ORDER
The 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 15th day of October, 2019.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
DARIO DE LA ROSA, Unfair Labor Practice Administrator
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.
[1] At this stage of the proceedings, all of the facts alleged in the complaint are assumed to be true and provable. The question at hand is whether, as a matter of law, the complaint states a claim for relief available through unfair labor practice proceedings before the Public Employment Relations Commission.
[2] Even if timely, these allegations failed to state a cause of action that could be redressed by the collective bargaining statutes. See, e.g., South Whidbey School District, Decision 11134 A (EDUC, 2011) citing Tacoma School District, Decision 5722-E (EDUC, 1997) (remedies for contract violations must come through the grievance and arbitration machinery of that contract, or through the superior courts); Lake Washington School District (Lake Washington School District Bargaining Council), Decision 6891 (PECB, 1999) (Commission generally lacks jurisdiction over disputes concerning violations of union constitutions and bylaws).