By Chris Casillas and Therese Norton
A ‘triggering event’ signals important deadlines for filing unfair labor practice complaints or else a party may risk losing the opportunity to file a complaint with the Public Employee Relations Commission (PERC). In Lake Washington School District, the Commission found that the Examiner Page A. Garcia erred in dismissing the IBEW Local 46’s skimming complaint as untimely and beyond the statute of limitations. The Commission explained that, in a skimming case, the triggering event for the statute of limitations is when bargaining unit work is assigned to non-bargaining unit employees, and not when the union receives notice of the employer’s intent to transfer the work, as the Examiner had concluded.
This is a unique manner for determining the triggering event, which is generally based on when the party receives notice of the alleged unfair labor practice. PERC regulations state that “[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.” A cause of action accrues, and the statute of limitations begins to run, at the earliest point in time that the complaint concerning the alleged wrong could be filed. 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.”
At an evidentiary hearing, the Examiner dismissed the IBEW, Local 46’s complaint against the School District as untimely. The Examiner had 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). We discussed the Examiner’s decision in a previous blog article
On appeal, the Commission repeated the timeline of relevant events in this case: on June 6, 2012, the employer provided unequivocal notice that it intended to assign bargaining unit work to non-bargaining unit employees effective June 29, 2012. The employer eliminated bargaining unit positions on June 29, 2012. The union filed the complaint on December 14, 2012. The Commission determined that the Examiner erred in determining the ‘triggering event’ for the statute of limitations in a skimming case. The Commission explained that in order for a skimming violation to be sustained, the removal of bargaining work from the bargaining unit must have occurred. The intent to skim bargaining unit work is not sufficient.
The Commission sent the case back to the Examiner to enter findings of fact and conclusions of law related to the union’s skimming charge. The Commission explained that because of the fact intensive nature of the determination, it remanded the matter to the Examiner to determine, on the existing record, whether the employer skimmed bargaining unit work and whether the union waived its bargaining rights.
The Commission cautioned that parties still need to be vigilant of their collective bargaining rights.
This decision should not be read as giving a party license to sit on their rights and not police their bargaining units. Upon notice that an employer intends to remove work from a bargaining unit, as occurred in this case, a union must demand to bargain to protect its rights. A failure to demand bargaining could result in a waiver by inaction of a union’s bargaining rights. If an employer refuses to bargain the decision or effects with the union, the union must allege a refusal to bargain.
See related blog post: PERC Dismissal of Untimely Lake Washington School District ULP Serves as Important Reminder to Pay Close Attention to All Timelines
