City of Quincy, Decision 9048 (PECB, 2005

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
QUINCY POLICE OFFICERS ASSOCIATION	CASE 18906-E-04-2999
Involving certain employees of:	DECISION 9048 - PECB
CITY OF QUINCY	ORDER OF DISMISSAL

Emmal Skalbania and Vinnedge, by Sydney Vinnedge, Attorney at Law, for the petitioner.

Roy Wesley, Labor Consultant, for the employer.

On October 15, 2004, the Quincy Police Officers Association (QPOA filed a representation petition with the Public Employment Relations Commission, seeking certification as exclusive bargaining representative of a bargaining unit limited to two non-commissioned police clerks employed by the City of Quincy (employer . In essence, the QPOA seeks to sever the petitioned-for employees from an existing bargaining unit of non-uniformed employees represented by Teamsters Local 760.[1] The employer contested the propriety of the separate bargaining unit, and a hearing was held on May 27, 2005, before Hearing Officer Terry N. Wilson. The QPOA and the employer filed post-hearing briefs.

The sole issue to be decided in this case is the propriety of the bargaining unit sought by the QPOA. Based on the record as a whole, and the arguments advanced by the parties, the Executive Director finds that the bargaining unit proposed for severance is not an appropriate unit for the purposes of collective bargaining. The petition is DISMISSED.

APPLICABLE LEGAL PRINCIPLES

This case arises under the Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW. The determination and modification of appropriate bargaining units is a function delegated by the Legislature to the Public Employment Relations Commission:

RCW 41.56.060 DETERMINATION OF BARGAINING UNIT - BARGAINING REPRESENTATIVE. The commission, after hearing upon reasonable notice, shall decide in each application for certification as an exclusive bargaining representa­tive the unit appropriate for collective bargaining. In determining, modifying, or combining the bargaining unit, the commission shall consider the duties, skills and working conditions of the public employees; the history of the collective bargaining by the public employees and their bargaining representatives; the extent of organiza­tion among the public employees; and the desire of the public employees.

(emphasis added . Those factors, taken together, are applied to assess whether the employees in a proposed group (bargaining unit have sufficient similarities (community of interest to indicate that they will be able to bargain collectively with their employer. King County, Decision 5910-A (PECB, 1997 . As noted in Benton County, Decision 7651 (PECB, 2002 , no one factor is controlling, and all four factors need not arise in each and every case. In addition, the statute does not require determination of the most appropriate bargaining unit; it is only necessary that the petitioned-for unit be an appropriate unit. City of Winslow, Decision 3520-A (PECB, 1990

The history of bargaining takes on particular significance in cases of the type presented here, because each passing day that a bargaining unit remains in existence adds to a history that is entitled to consideration. In its administration of unit determi­nation principles under the National Labor Relations Act (NLRA that are similar to those set forth in RCW 41.56.060, the National Labor Relations Board (NLRB has severely restricted efforts to divide existing bargaining units into two or more separate bargaining units. In Yelm School District, Decision 704-A (PECB, 1980 , the Commission embraced the reluctance of the NLRB to sever bargaining units, and embraced severance criteria promulgated by the NLRB as follows:

The following areas of inquiry are illustrative of those we deem relevant:

1. Whether or not the proposed unit consists of a distinct and homogeneous group of skilled journeymen craftsmen performing the functions of their craft on a nonrepetitive basis, or of employees constituting a functionally distinct department, working in trades or occupations for which a tradition of separate representa­tion exists.

2. The history of collective bargaining of the employees sought and at the plant involved, and at other plants of the employer, with emphasis on whether the existing patterns of bargaining are productive of stability in labor relations, and whether such stability will be unduly disrupted by the destruction of the existing patterns of representation.

3. The extent to which the employees in the proposed unit have established and maintained their separate identity during the period of inclusion in a broader unit, and the extent of their participation or lack of participation in the establishment and maintenance of the existing pattern of representation and the prior opportu­nities, if any, afforded them to obtain separate repre­sentation.

4. The history and pattern of collective bargaining in the industry involved.

5. The degree of integration of the employer's production processes, including the extent to which the continued normal operation of the production processes is dependent upon the performance of the assigned functions of the employees in the proposed unit.

6. The qualifications of the union seeking to "carve out" a separate unit, including that union's experience in representing employees like those involved in the severance action.

In view of the nature of the issue posed by a petition for severance, the foregoing should not be taken as a hard and fast definition or an inclusive or exclusive listing of the various considerations involved in making unit determinations in this area. No doubt other factors worthy of consideration will appear in the course of litigation. . . . Our determinations will be made only after a weighing of all relevant factors on a case by case basis, and we will apply the same principles and standards to all industries.

Mallinckrodt Chemical Works, 162 NLRB 387 (1966 at pages 397‑398 [footnotes omitted].

ANALYSIS

Duties, Skills, and Working Conditions

The first focus of the severance criteria is on “a distinct and homogenous group of skilled journeymen performing the functions of their craft.” In Spokane County, Decision 7866 (PECB, 2002 and other precedents developed under Yelm School District, Decision 704-A, “skilled journeymen” and “crafts” have been interpreted as limited to groups of employees who have long traditions of separate representation in the private sector (such as carpenters, electricians, and plumbers and attain their status after years of formal apprenticeship. There is no evidence to support a finding that the police clerks at issue in this case have training or skills that equate with journey status in any established craft. While they are experienced, the evidence does not establish that these police clerks underwent any formal apprenticeship of the type required to achieve journey status in any of the traditional crafts. Like other office-clerical employees of this employer, the police clerks perform administrative support functions. Their duties include:

•                     Gathering data and preparing reports

•                     Entering data into various data-entry systems

•                     Preparing letters in response to complaints

•                     Maintaining the police department calendar

•                     Scheduling appointments

•                     Maintaining department personnel records

•                     Transcribing warrants and taped interviews

•                     Documenting expenditures

•                     Relieving the police chief of administrative duties.

Thus, the police clerks do not qualify for journey status as that term is used in Commission precedents.

The QPOA argues that the police clerks have specialized duties which are unique to their positions and are not performed by other employees of the employer. Those distinct duties include:

•                     Performing matron duty to assist police staff

•                     Fingerprinting individuals

•                     Performing some dispatching functions

•                     Storing evidence

•                     Performing pawn detail

According to the QPOA, these functions are highly confidential, they require a background check, they are akin to duties one normally associates with police officers, and some of these functions require specific training. For example, the police clerks must attend classes to learn the skills necessary to properly store evidence and to fingerprint individuals. Those arguments are not compelling, however:

First, it appears some of the police-specific functions cited by the QPOA are only performed on a sporadic or backup basis.[2]

Second, the testimony of Mayor Richard Zimmerman indicates that the police-related functions could be assigned to other city employees if they merely passed the required background check.

Third, all of the employer’s office-clerical employees spend one-third to two-thirds of their work time utilizing video displays and keyboards in office environments.

Fourth, the working conditions among all of its office-clerical employees are generally the same, including that they are all paid under the same salary matrix, they all have the same benefits, and the educational requirements set forth in the class specifications for the police clerks are the same as other office-clerical employees in the existing bargaining unit.[3]

Thus, the distinctions cited by the QPOA do not overcome or obliterate the similarities shared among all of the office-clerical employees.

The QPOA asserts that there are differences in working conditions between the police clerks and other city employees. Bepple testified that the police clerks work on a staggered work schedule, with one of them working a 7:00 a.m. to 4:00 p.m. shift while the other works a 9:00 a.m. to 6:00 p.m. shift. The police clerks do have separate supervision (by the police chief and a sergeant different from that of the other office-clerical employees, and they do work in a separate (and secured area different from the work location of the employer’s other office-clerical employees. Once again, however, the specific differences cited by the union are not compelling when weighed against the history of bargaining and the extent of organization. The differences do not obliterate the many significant similarities shared among the clerks.

The History of Bargaining -

All of the employees of this employer were in a single bargaining unit prior to 1995. The commissioned law enforcement officers were then placed in a separate bargaining unit after the Legislature amended RCW 41.56.030(7 to reduce the population threshold for the interest arbitration process, but both bargaining units continued to be represented by Teamsters Local 760 until 2004.

From the limited evidence in this record and the Commission’s records,[4] the QPOA is understood to be an independent organization which came into existence just prior to its filing of a representa­tion petition seeking certification as exclusive bargaining representative of the employer’s commissioned law enforcement officers. The certification issued for the law enforcement in 2004 is the first record of the organization, and there is no evidence that the QPOA has any experience or particular expertise with representing office-clerical employees.

Extent of Organization -

All of the employees of the employer were in a single bargaining unit until the commissioned law enforcement officers were separated in conformity with Commission precedents eventually codified in WAC 391-35-300. All of the non-uniformed employees of the employer then continued to be represented in what became a “wall-to-wall non-uniformed” bargaining unit.

There is no evidence that the police clerks have ever had separate representation, or that they have maintained their identity (for collective bargaining purposes as a separate group within the “wall-to-wall” or “wall-to-wall non-uniformed” bargaining unit configurations. It has only been since the commissioned law enforcement officers attained new representation that there has been any interest or effort to sever the clerks from the historical unit. The testimony of Police Clerk Lisa Root that she had never met her current Teamsters representative prior to the hearing held in this case is not a sufficient basis to find that Teamsters Local 760 has ignored or mishandled the interests of the police clerks. To the contrary, Police Clerk Bepple testified that Teamsters Local 760 has provided satisfactory representation, and Mayor Zimmerman testified that the Teamsters representative made frequent trips to Quincy city hall.[5]

With a population of approximately 5,100 people, the employer has a very small workforce that is already divided between two bargaining units. The QPOA represents about 10 commissioned law enforcement officers while Teamsters Local 760 represents about 13 non-uniformed employees. Even if represented by the QPOA, the two-person bargaining unit proposed by the QPOA would not be eligible for interest arbitration. The three separate bargaining processes that would result from creation of a separate unit in this case would thus constitute excessive fragmentation of the employer’s workforce and collective bargaining functions.

CONCLUSION

The evidence does not support a conclusion that the severance sought by the petitioner is appropriate. The police clerks have duties and working conditions that are similar to other employees in the existing bargaining unit, they have a long history of inclusion in the existing bargaining unit without maintaining any separate identity, and the proposed severance would unduly fragment the employer’s workforce.

FINDINGS OF FACT

1.                  The City of Quincy is a municipality of the state of Washing­ton and is a public employer within the meaning of RCW 41.56.030(1).

2.                  The Quincy Police Officers Association, a bargaining represen­tative within the meaning of RCW 41.56.030(3 , has filed a timely petition seeking certification as exclusive bargaining representative of a bargaining unit limited to police clerks employed by the City of Quincy.

3.                  Teamsters Local 760, a bargaining representative within the meaning of RCW 41.56.030(3), is the incumbent exclusive bargaining representative of a bargaining unit which includes all non-uniformed employees of the City of Quincy, including the police clerks.

4.                  All of the employees of the City of Quincy were in a single bargaining unit until the commissioned law enforcement officers became eligible for interest arbitration, and all of the non-uniformed employees of the employer have continued to be included in a single bargaining unit since the commissioned law enforcement officers were separated for conformity with Commission rules and precedents.

5.                  The proposed bargaining unit of police clerks does not consist of employees who are a distinct or homogenous group of skilled journeyman craftsmen performing the functions of a traditional trade or craft on an ongoing basis.

6.                  The petitioner in this case is the exclusive bargaining representative of commissioned law enforcement officers employed by the City of Quincy, but there is no evidence that it has any experience or particular qualification to represent office-clerical employees such as the police clerks.

7.                  There is no tradition of separate representation for police clerks in general, and the police clerks at issue in this case have no history of separate representation or collective bargaining activity, so that the creation of the separate bargaining unit of police clerks proposed in this case would unduly fragment the employer’s workforce and collective bargaining relationships.

8.                  While some distinctions exist as to details of assignments and functions, the police clerks generally perform office-clerical work of the same generic type as other office-clerical employees in the existing “wall-to-wall non-uniformed” bargaining unit, and the police clerks continue to have a community of interest with the employees in the existing bargaining unit.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391-25 WAC.

2.                  The two-member bargaining unit proposed for severance in this case is not an appropriate unit for the purposes of collective bargaining under RCW 41.56.060, and no question concerning representation currently exists under Chapter 391-25 WAC.

ORDER

The petition filed by the Quincy Police Officers Association in the above-captioned matter is DISMISSED.

Issued at Olympia, Washington, this 3^rd day of August, 2005.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This order will be the final order of the agency unless a notice of appeal is filed with the Commission under WAC 391-25-660.