By Therese Norton
In Lake Washington School District, Examiner Page A. Garcia dismissed the International Brotherhood of Electrical Workers, Local 46’s skimming complaint as untimely under Chapter 41.56 RCW. The examiner concluded that the District provided “clear and unequivocal notice” to IBEW Local 46 in a letter to the union’s business representative, which falls outside of the six-month statute of limitations. Lake Washington School District, Decision 11913 (PECB, 2013)
In general, an unfair labor practice complaint must be filed within six months of the alleged unlawful act. The alleged unlawful act is called the “triggering event.” In this case, the District sent a letter to the union’s business representative on June 6, 2012 about the disputed positions and specifically advised the union it would eliminate the positions on June 29. On June 20, it advertised one of the positions.
The parties subsequently held bargaining sessions throughout the summer to negotiate a successor contract. Then, on August 22, 2012, during one of the contract bargaining session, the District told the union’s business representative that the disputed positions had been filled by non-bargaining unit members.
IBEW Local 46 argued that the “trigger event” for a skimming complaint is when the employer actually transfers bargaining work out of the unit, not when the employer gives notice of its intent to do so. Thus, the union argued, the “triggering event” in this case would be when IBEW Local 46 was told that the disputed positions had been filled.
The examiner rejected the union’s argument stating, “The six-month statute of limitations has to be strictly enforced, even when settlement negotiations are occurring.”
The examiner relied on the testimony of the union’s business representative to determine whether the notice was “clear and unequivocal.” Ultimately, the examiner concluded,
The notice clearly indicated to the union that employees outside of its bargaining unit would be taking over the duties of the union’s bargaining unit members whose positions were being eliminated. There was absolutely no ambiguity in the employer’s June 6, 2012 notice and that is the “triggering event” by which to start the statute of limitations for the union’s skimming complaint.
Because IBEW Local 46’s complaint was not timely, the examiner did not address the merits of its skimming allegation.
In addition to the timeliness issue, the District had also argued that this case should not be decided by a PERC Examiner because the skimming dispute was contractual in nature and should be resolved via the grievance process outlined in the parties’ collective bargaining agreement. Examiner Garcia disregarded the District’s argument that the forum for the skimming dispute was inappropriate because the employer had the opportunity to request a deferral to arbitration in its answer and chose not to make such a request.
