Port of Tacoma, Decision 10093 (PORT, 2008)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
PORT OF TACOMA	CASE 21556-E-08-3338
Involving certain employees represented for purposes of collective bargaining by:	DECISION 10093 - PORT
INTERNATIONAL LONGSHORE ANDWAREHOUSE UNION, LOCAL 22	FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Lane Powell PC, by J. Markham Marshall and Karin E. Valaas, Attorneys at Law, for the employer.

Don Clocksin Law Offices, by Don Clocksin, Attorney at Law, for International Longshore and Warehouse Union, Local 22.

Gordon, Thomas, Honeywell, Malanca, Peterson and Daheim, by Lynn Ellsworth, Attorney at Law, for International Longshore and Warehouse Union, Local 23.

On February 27, 2008, the Port of Tacoma (employer or Port) filed a petition concerning the bargaining unit status of employees classified as “railcar coordinators.” The railcar coordinators are part of a bargaining unit of Port employees represented by International Longshore and Warehouse Union, Local 22 (Local 22). International Longshore and Warehouse Union, Local 23 (Local 23) represents private sector longshore and warehouse personnel working in Port of Tacoma facilities and claims jurisdiction of the work performed by the railcar coordinators.

Representation Coordinator Sally Iverson held an investigation conference on March 21, 2008. Two issues remained in dispute at the close of the conference: (1) Local 23 asserts that the Commission does not have jurisdiction in this matter because the underlying dispute involved work assignments rather than a question concerning representation. The employer and Local 22 argue that a question concerning representation exists. (2) Prior to the investigation conference, Local 23 disclaimed interest in all employees represented by Local 22, but maintains that it retains jurisdiction over the work performed by the railcar coordinators. The employer and Local 22 dispute Local 23's work jurisdiction claim.

A hearing was conducted on April 15, 2008, before Hearing Officer Kenneth J. Latsch. The parties submitted post-hearing briefs that were considered.

ISSUES

The issues to be decided by the Executive Director are: (1) whether the Commission has jurisdiction to hear the dispute, and (2) assuming that the Commission has jurisdiction, what is the appropriate bargaining unit placement of the railcar coordinators?

Based upon the record, the applicable statutes, rules and case precedent, the Executive Director rules that the Commission has jurisdiction to hear this matter and that Local 23's effort to resolve the dispute through grievance arbitration does not affect the Commission’s authority to decide bargaining unit determination issues. The Executive Director further rules that the railcar coordinators perform work that shares a community of interest with the bargaining unit of public employees represented by Local 22.

APPLICABLE LEGAL PRINCIPLES

Jurisdiction

The Public Employment Relations Commission has broad jurisdiction to decide union representation disputes involving public employees. Before a detailed analysis of the instant case can be made, it is necessary to deal with the manner in which the dispute has been presented for determination. The employer filed this case as a representation petition, claiming that a question concerning representation exists between Local 22 and Local 23 as to the appropriate bargaining unit status of railcar coordinators. In fact, the issue presented deals with the appropriate allocation of positions between established bargaining units.

Such issues are typically resolved through the filing of a unit clarification petition, pursuant to Chapter 391-35 WAC. However, it would not serve any purpose to have the employer re-file its petition as a unit clarification, because the same issue would be presented for determination. Accordingly, the case will be decided on the basis of whether or not railcar coordinators, and their work, should be part of Local 22's bargaining unit.

There are limits to the Commission’s jurisdiction, and, as noted in Broadway Center for the Performing Arts, Decision 8169 (PECB, 2003), the Commission does not have jurisdiction over private sector employees or employers.

Chapter 53.18 RCW allows the Port of Tacoma, as a municipal corporation, to bargain collectively with its employees. Of particular interest to this case, RCW 53.18.015 provides:

Port districts and their employees shall be covered by the provisions of chapter 41.56 RCW except as provided otherwise in this chapter.

Chapter 53.18 RCW contains very little guidance involving the allocation of positions to a particular bargaining unit placement. RCW 53.18.030 specifies that port employees are to be given “maximum freedom” in selecting a bargaining representative, but does not include any criteria to be considered if a work jurisdic­tion dispute arises. Since Chapter 53.18 RCW does not conflict with the provisions of Chapter 41.56 RCW, case precedent related to the allocation of positions developed under Chapter 41.56 applies to disputes arising under Chapter 53.18 RCW.

While Chapter 41.56 RCW was modeled after the federal National Labor Relations Act (NLRA)that governs private sector employers and employees, there are several important distinctions between the federal and the state legislation. Of particular interest to this matter, Chapter 41.56 RCW does not contain any language similar to Section 10(K) of the NLRA that directs adjudication of a jurisdic­tional dispute underlying an unfair labor practice allegation charged under Section 8(b)(4)(d) of the Act. Thus, this Commission must address jurisdictional disputes through unit clarification or representation cases. In WAC 391-35-020(1)(b), the Commission adopted a rule that recognized the serious nature of jurisdictional disputes, and allowed such cases to be filed as they occur, rather than prescribing a set filing period, such as during the pendency of ongoing negotiations.

The Commission has long defended its authority to determine bargaining units, even where parties to a representation dispute have already submitted the issue to a contractual grievance procedure. In Seattle School District, Decision 5220 (PECB, 1995), the Commission addressed a jurisdictional dispute similar to that presented in this case. In that case one of the competing unions filed to arbitrate its work jurisdiction claim under terms of an existing collective bargaining agreement. The Commission rejected the union’s argument that the dispute should be “deferred” to arbitration stating:

The Commission has exercised a firm hand in the resolu­tion of disputes concerning the scope of bargaining units, and in the allocation of positions where two or more bargaining units have colorable claim to the work of those positions.

. . .

Parties may agree on unit matters, but such agreements are not binding on the Commission. City of Rich­land, 29 Wn.App 599 (Division III, 1981). Arbitrators only draw their authority from the agreements of parties, so the Commission does not defer "unit" matters to arbitrators, and is not bound to consider or accept decisions issued by arbitrators on such matters.

The Commission reached a similar result in Port of Seattle, Decision 6181 (PORT, 1998), where a work jurisdiction dispute had already been submitted to grievance arbitration before the bargaining unit issue was presented to the agency:

[The union] nevertheless argues that the Commission should allow an arbitrator to resolve, based upon the language of its collective bargaining agreement with the employer, whether the cleaning work performed by the harbor specialists is work that belongs to the bargaining unit it represents. The fundamental problem with that argument is that, even if the dispute involves some ‘assignment of work’ issue, it also involves the scope of appropriate bargaining units under RCW 41.56.060.

Arbitrators only draw their authority from the agreements of the parties. In this case, there is no evidence that the employer and both of the competing unions have agreed to submit any work jurisdiction disputes to arbitration, so as to invoke the second sentence of the un-numbered second paragraph of RCW 53.18.030.

The Commission will not delegate its bargaining unit determination authority to grievance arbitrators.

Community of interest

The Commission makes bargaining unit placement determinations on a case-by-case basis. The purpose of unit determination is to group together employees who have sufficient similarities to indicate that they will be able to bargain collectively with their employer. Once bargaining units are established, it is possible to identify bargaining unit work. In City of Tacoma, Decision 6601 (PECB, 1999), the Commission described bargaining unit work as:

[W]ork that has historically been performed by bargain­ing unit employees. Once an employer assigns unit employees to perform a certain body of work, that work attaches to the unit and becomes bargaining unit work.

ANALYSIS

Bargaining Unit History

The Port of Tacoma operates a number of facilities designed for the loading and unloading of ocean-going vessels, and for the transportation of materials to and from Port property. For a number of years dating at least from the 1970's, the employer had a collec­tive bargaining relationship with International Longshore and Warehouse Union, Local 23. Local 23 actually represented two distinct groups of employees working in Port facilities: private sector employees working under terms of a collective bargaining agreement with the Pacific Maritime Association (PMA), referred to as the “Longshore Division,” and public employees employed by the Port in particular work classifications, referred to as the “Port Workers Division.”

The PMA agreement covers stevedoring and warehousing work performed for private sector shipping companies that ship freight into and from the Port’s facilities. The PMA contract also serves as the model for the terms and conditions found in the collective bargaining agreements reached between the Port and Local 23 for the Port’s public employees.

The Port and Local 23 entered into a successor collective bargain­ing agreement from April 1, 2005, through March 31, 2008, that described the public sector bargaining unit as:

The Port of Tacoma, hereinafter referred to as the Employer, recognizes ILWU Local 23, hereinafter called the Union, as the exclusive bargaining agent for all employees employed in the classifications set forth in Appendices A, B, and C, excluding managerial employees, administrative employees, confidential employees, professional employees, security employees and supervi­sors as defined in the Labor-Management Relations Act, as amended.

The appendices listed the following job classifications to be included in the Port Workers Division bargaining unit which became Local 22:

There are approximately 95 employees working in the classifications listed above. The employees work in three general Port facilities: the Port’s main office building, the Port’s maintenance facility, and the North Intermodal Tower. The North Intermodal Yard is the Port’s main shipping facility, where freight is transferred from ships to freight trains.

In 2005, a number of the Port’s employees asked Local 23 to allow them to have a separate local for their negotiations with the Port. Local 23 did not oppose their request, and Local 23 officials contacted the Port, asking for its commitment to recognize a new local as bargaining representative for the Port Workers Division employees. Port officials agreed to recognize the new local in a letter to Local 23 on January 31, 2006. International Longshore and Warehouse Union, Local 22 was chartered by the International Union in March 2006, and the Port entered into collective bargain­ing negotiations for a first contract shortly thereafter. Local 23 continued to represent private sector employees under terms of the PMA agreement, including employees in the classification of “marine clerk.”

The Disputed Position and its Work

The railcar coordinator position has always been part of the Port Workers Division that became Local 22, as listed in the above appendices. The Port Workers Division employees have always been hired directly by the Port, and they are considered to be public employees, whose wages and other benefits are set only by the Port of Tacoma. Port employees are also covered by the Public Employee Retirement System (PERS) for their retirement benefits.

This contrasts with Local 23 members who are private sector employees paid under terms of the PMA contract. While Local 23 members work in Port of Tacoma facilities, they gain employment through a hiring hall process jointly run by Local 23 and the PMA, and they are dispatched directly to their positions from the hiring hall. The Port does not pay their salaries, nor does it control any aspect of their employment relationship. In certain limited situations, the Port may ask Local 23 to provide it a particular person to fill a specific job assignment. In such cases, the Port reimburses the PMA for the work of the Local 23 employee.

The railcar coordinator is responsible for lining up train cars to accept containers being off-loaded from ocean-going vessels. The railcar coordinators perform their work in the North Intermo­dal Tower, and report to Operations Superintendent Agnes Smith. Ms. Smith, in turn, reports to Senior Director of Inland Transportation Jean Beckett. At the time of hearing, there were four railcar coordinators, the same number that existed when the disputed positions were part of the Port Workers Division represented by Local 23.

The coordinators must plan which containers need to be loaded on which rail cars, and then must plan the sequence of the freight cars on each train leaving Port facilities. For example, freight bound for a particular location must be placed together, and the sequence of delivery must be considered as the freight cars are lined up.

Before 2004, the railcar coordinators performed their work by writing out plans that would be changed many times until the freight was finally sorted into the appropriate order. This work involved the use of small paper squares that were constantly moved on a table, with each square representing a different container to be loaded on different freight cars. In 2004, the Port initiated a computer program (called “Spinnaker”) to streamline the planning process so the railcar coordinators could use a computer to plan the sequencing of freight trains, thus saving time and making the entire process less labor-intensive.

Thus, while the Spinnaker system streamlined their work, the railcar coordinators still do the same work they did in the past. The railcar coordinators still have primary responsibility for planning the sequence and loading patterns for freight trains leaving the Port’s facilities. The work at issue has always been done by Port employees and the same individuals performed this work before and after the creation of Local 22 as a bargaining representative.

Once the railcar coordinators finish their work, the plan is forwarded to a marine clerk who is responsible for implementing the loading scheme. The marine clerk, who is a member of Local 23's bargaining unit, works with equipment operators to make sure that the freight containers are loaded in the appropriate sequence. The marine clerks have discretion to make certain limited changes in the plan to accommodate weight and/or height restrictions on a particular railcar, but the clerks do not have authority to modify the general loading order set forth in the railcar coordinator’s plan.

Shortly after Local 22 received its charter, Local 23 notified the Port that it was concerned about work assignments given to the railcar coordinators. Local 23 maintained that the Port improperly removed work that should be assigned to the marine clerks under terms of the PMA contract. Local 23 advanced its concerns about the work issue to an arbitration proceeding which was conducted on March 3, 2008. Arbitrator Randy Vekich ruled that the Port improperly gave the rail car planning work to the railcar coordina­tors, and that the work really belonged to marine clerks repre­sented by Local 23. Local 22 did not participate in the arbitra­tion proceeding.

Discussion

Local 23 characterizes the instant matter as a work jurisdiction dispute that cannot be resolved by the Commission because the Commission does not have jurisdiction over the private sector employees in Local 23's bargaining unit. Local 23's argument relies on a conclusion that the instant dispute involves only work that is supposed to be performed by private sector employees who are beyond the Commission’s jurisdiction. Such a result is not forthcoming.

Local 23 ignores the fact that this dispute actually involves employees who are responsible for performing the disputed work, and there is a real and immediate impact of any jurisdictional decision on employees in the private and public sectors. The Commission is responsible for the formation and modification of collective bargaining units in the public sector.

The Commission has been asked to determine whether the existing bargaining unit configuration is appropriate, in light of Local 23's attempt to have certain work removed to another bargaining unit. Local 23 filed a disclaimer over the railcar coordinator positions, but did not disclaim the work performed by the coordinators. In fact, Local 23 argues that the coordinators’ work must be transferred to marine clerks.

It is clear that marine clerks are private sector employees who are not subject to the Commission’s jurisdiction. Similarly, it is clear that the railcar coordinators are public employees who are subject to Commission jurisdiction. Even before the employer acquiesced to Local 23's request to recognize Local 22 as the representative of a separate bargaining unit of Port employees, the railcar coordinators were part of the Port Workers Division of Local 23, and their collective bargaining relationship was with the Port of Tacoma as a public entity.

The introduction of the Spinnaker computer program in 2004 has not changed the underlying collective bargaining relationships. Although the railcar coordinators may have new ways of doing their work, this change occurred in 2004, two years prior to the formation of Local 22, and their basic functions have not changed. They are still responsible for the assembly of freight trains that haul cargo from the Port’s premises. Local 23's assertions that its marine clerk employees should now be doing the work is simply not supported by the record or by the agreement that railcar coordina­tors who have historically performed the work, are among the agreed-upon classifications put under Local 22's jurisdiction in 2006. The railcar coordinators plan the work and marine clerks implement the plans. While it is important that these two classifications work together, they each perform unique and identifiable duties. Given these facts, there is no reason to tamper with the existing collective bargaining units or the work performed by incumbent employees.

Local 23's attempt to resolve the dispute through grievance arbitration has no bearing on the instant matter. Apart from the fact that Local 22 did not participate in the arbitration hearing, the issue is not appropriate for resolution through a contractual grievance procedure. The issue involves competing claims for the same work, and the Commission must assert its jurisdiction to resolve the dispute through representation case procedures. The railcar coordinators should retain the existing work they have historically performed and must remain part of the bargaining unit represented by Local 22.

The last question to be addressed is how to resolve the petition, as filed. It has been determined that the railcar coordinators have always performed the work of creating the plan for railcar shipment of cargo containers. That work should remain with the railcar coordinators, and those employees are properly in the bargaining unit of public employees represented by Local 22. Accordingly, there is no question concerning representation present in Local 22's bargaining unit. The employer’s petition must be dismissed, but the dismissal is done in recognition of the existing bargaining unit structure and the work being performed by railcar coordinators as part of Local 22's bargaining unit.[1]

FINDINGS OF FACT

1.                  The Port of Tacoma is a port district within the meaning of RCW 53.18.010 and is a public employer within the meaning of RCW 41.56.030(1).

2.                  International Longshore and Warehouse Union, Local 22 is a bargaining representative within the meaning of RCW 41.56.030(3).

3.                  International Longshore and Warehouse Union, Local 23 represents a bargaining unit of private sector employees working at Port of Tacoma facilities, and is not a bargaining repre­sentative within the meaning of RCW 41.56.030(3).

4.                  The position of railcar coordinator is part of a bargaining unit of Port of Tacoma employees represented by Local 22.

5.                  Duties performed by the railcar coordinators have remained essentially the same even with the introduction of computer programs designed to make their work faster and more effi­cient.

6.                  International Longshore and Warehouse Union, Local 23 does not have any factual claim on the work being performed by railcar coordinators in the bargaining unit represented by Interna­tional Longshore and Warehouse Union, Local 22.

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 Public Employment Relations Commission’s determination is not affected by the grievance arbitration award issued by Arbitrator Randy Vekich.

3.                  The position of railcar coordinator is appropriately within to­ the existing bargaining unit of Port of Tacoma employees represented by International Longshore and Warehouse Union, Local 22, and the railcar coordinator position must retain the duties it has historically performed.

4.                  There is no question concerning representation in the bargain­ing unit of Port of Tacoma employees represented by Interna­tional Longshore and Warehouse Union, Local 22, since Local 22 already represents the railcar coordinators, and their work remains in Local 22's unit.

ORDER

International Longshore and Warehouse Union, Local 22 appropriately represents the classification of railcar coordinator in the existing bargaining unit of employees of the Port of Tacoma. The railcar coordinator duties are appropriately allocated to the coordinator position within Local 22's bargaining unit. The Port of Tacoma’s petition seeking resolution of a question concerning representation is hereby DISMISSED.

Issued at Olympia, Washington, this 6^th day of June, 2008.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

CATHLEEN CALLAHAN, Executive Director

This order may be appealed by filing timely objections with the Commission under WAC 391-25-660.