Tacoma School District No. 10, Decision 2250 (PECB, 1985)

Williams and Terry, by John David Terry II, Attorney at Law, appeared on behalf of the petitioner.

Neil O. Hanson, Director of Employee Relations, appeared on behalf of the employer.

Faith Hanna, Attorney at Law, Washington Education Association, appeared on behalf of the intervenor, Tacoma Association of Public School Professional-Technical Employees.

On June 26, 1984, the Tacoma Association of Mid-Management Employees (TAMME) filed a petition with the Public Employment Relations Commission for investigation of a question concerning representation of certain employees of the Tacoma School District. A pre-hearing conference was held on August 28, 1984. A hearing was held in Tacoma, Washington, on September 24, 1984 and on October 17, 1984 before Hearing Officer Ronald L. Meeker. Post-hearing briefs were scheduled to be filed on December 14, 1984 with reply briefs no later than January 4, 1985. At the request of the parties a continuance for the filing of briefs was granted and briefs were filed by March 25, 1985.

ISSUES

Issues in dispute framed at the pre-hearing conference were as follows:

A.            Whether all organizations involved are qualified to act as exclusive bargaining representatives under the statute.

B.            Whether a question concerning representation exists.

C.            Whether the bargaining unit sought by the peti­tioner is appropriate.

D.            Determination as to who is eligible to vote.

The parties stipulated that the Public Employment Relations Commission has jurisdiction in this matter and that there is no question concerning the timeliness of the petition. At the opening of the hearing, the parties stipulated that all organizations are qualified to act as representatives under the statute.

BACKGROUND

Tacoma School District No. 10 (employer) is located in Pierce County, Washington. The district has a student enrollment of nearly 27, 000 and has in excess of 2, 500 employees. The employer has collective bargaining relationships with a number of organizations under both Chapter 41.56 RCW and Chapter 41.59 RCW.

The Tacoma Association of Public School Professional-Technical Employees (the P-T Association) has been the recognized exclusive bargaining representative of a unit composed of a variety of professional, technical and supervisory "classified" employees of the district, pursuant to Chapter 41.56 RCW. The P-T Association and the Tacoma School District have had labor agreements over the past 14 years, and were parties to a labor agreement effective from September 1, 1981 through August 31, 1984.

When the members of the P-T Association decided to affiliate with the Tacoma Association of Classroom Teachers (TACT), certain employees within the unit perceived a potential for a conflict of interest between their duty to represent the employer as supervi­sors and what the teachers union would expect if they were affiliated. They formed the Tacoma Association of Mid-­Management Employees (TAMME), and filed this petition seeking to create a separate unit of supervisors.

A routine inquiry was directed to the employer, seeking a list of employees pursuant to WAC 391-25-130. Although the employer's letter covering transmittal of a list of employees represents that the list included all of the employees of the type described in the petition, the list itself was a computer printout under a heading "Professional-Technical Employees".

POSITIONS OF THE PARTIES

The petitioner contends that the individuals affected by the petition are "supervisors" who wish to be severed from the P-T Association bargaining unit; and that the affected individuals desire to be represented in a unit of supervisors by a bargaining representative of their own choosing. Petitioner further contends the P-T Association unit is an inappropriate unit, as many of the individuals were known supervisors. The petitioner moved for an accelerated judgment under WAC 391-08-230.

The P-T Association was granted intervention in the proceedings on the basis of its status as the incumbent exclusive bargaining representative of petitioned-for employees under a collective bargaining agreement expiring August 31, 1984. It contends that there is a 14-year history of bargaining in the present unit with no change of circumstances, and that severance of the disputed individuals from the unit would constitute an unnecessary fragmen­tation of bargaining units among the employees of the district.

The employer views the issue as one to be resolved between employees and not between union and employer. The employer indicated that it will negotiate with any unit determined by the Commission to be appropriate.

DISCUSSION

Although three issues nominally remain to be decided, the parties actually present two relatively distinct problems for decision: The first is whether the disputed positions are supervisory. The second is whether, given the 14-year history of bargaining, an appropriate separate unit (and therefore a question concerning representation) can be found to exist. The parties have devoted most of their energy to the first question. It is nevertheless concluded that the unit issue must be addressed first and that the record is insufficient to make such a determination.

In making a decision as to whether a unit is appropriate for the purposes of collective bargaining, the Commission is required to follow the criteria set forth in RCW 41.56.060:

. . . the duties, skills and working condi­tions of the public employees, the history of collective bargaining by the public employees and their bargaining representatives; the extent of organization among the employers; and the desire of the employees.

Supervisors are public employees within the meaning of Chapter 41.56 RCW, METRO v. L&I, 88 Wn.2d 925 (1977; City of Tacoma, Decision 95-A (PECB, 1977. Due to the potential for conflicts of interest, supervisors are generally excluded from the bargaining units which include their subordinates. City of Richland, Decision 279-A (PECB, 1978, aff. 29 Wn.App. 599 (1981, cert. den. , 96 Wn.2d 1004 (1981. Supervisors may appropriately be included in separate bargaining units of supervisors. City of Spokane, Decision 514 (PECB, 1978; Tacoma-Pierce County Law Enforcement Support Agency, Decision 537 (PECB, 1978); METRO, Decision958 (PECB, 1980; Spokane Transit Authority, Decision 1642 (PECB, 1983). It follows, at least in theory, that the history of bargaining would not preclude the severance of any persons found to be supervisors from the P-T unit IF the petitioned-for unit of supervisors is appropriate. On the other hand, the petitioner does not have standing to "clarify" the existing unit, so that there is no need to make determinations on the supervisory issues if there is no appropriate unit to receive them.

The proposed bargaining unit was described in the petition as:

Included- All classified supervisors of the Tacoma School District.

Excluded- All non-supervisory employees.

Nevertheless, the petitioner's focus of attention throughout the proceedings would appear to have been narrower than the unit described in the petition. In its pre-hearing brief, for example, the petitioner described the issue as: "Should supervisors in a mixed unit of supervisors and non-supervisory employees be severed from the unit . . . At the conclusion of its post-­hearing brief, the petitioner states ". . . the disputed employees should be severed from the Professional-Technical Unit.” The intervenor, too, seems to have taken a narrow focus on its own historical unit, as its post-hearing brief opens with a statement which limits attention to severance of positions from the historical unit. The employer did not take a formal position on the unit question, but appears to have fallen into the same trap as the other parties when it used a narrow focus in developing the list of employees.

The P-T unit existed long before the Public Employment Relations Commission was created or the current policies were established concerning supervisors and supervisor units. The propriety of that unit must be evaluated against current standards, and the history is not binding on the Commission. City of Richland, supra. The decision in METRO, Decision 958 (PECB, 1980suggests the gap in the present record: The petition in this case nominally seeks (and may have to seek, if it is to be an appropriate unit) a district-wide unit described by the generic term "supervisor". However, the record in the present case is inadequate to determine whether all classified employees of the Tacoma School District who would properly fall into such a generic bargaining unit of "supervisors" were previously included in the P-T unit. On the contrary, it appears that the proceedings have been artificially narrowed to an existing unit description of questionable value under current legal standards.

NOW, THEREFORE, it is

ORDERED

1.                  Tacoma School District No. 10 is directed to file with the Commission and serve on the other parties a list containing the names and job titles (or classifications) of ALLof its classified employees who:

a.                   Are not presently included in any bargaining unit. (Persons claimed to be excludable as "confidential" employees, as "non-supervisory" or otherwise are to be identified, with indication of the claimed basis for exclusion from the petitioned-for bargaining unit.

b.                  Are presently included in a bargaining unit but are claimed by the employer to be supervisors. (As to each such person, the identity of the bargaining unit in which they are presently included and the identity of the exclusive bargaining representative of that unit shall be indicated. Except for per­sons heretofore in the P-T unit, a copy of any collective bargaining agreement in effect on June 26, 1984 shall be supplied. In addition, a copy of this Order and a copy of the list shall be served by the employer on each such exclusive bargaining representative other than the intervenor, so that they might evaluate their need to move for inter­vention in this proceeding.

The list is to be filed and served within fourteen (14days following the date of this Order.

2.                  Within fourteen (14days after service of the list required of the employer in paragraph 1 of this Order, the petitioner and the intervenor in this proceeding are to file with the Commission and serve on other parties their written statements of position as to the list supplied by the employer pursuant to this Order.

3.                  Additional potential intervenors affected by paragraph l. b. of this Order will be allowed a period of fourteen (14days after service of the list required by paragraph 1 of this Order to file and serve a motion for intervention in this proceeding.

DATED at Olympia, Washington, this 5th day of July, 1985.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director