St. John School District, Decision 7533 (PECB, 2001)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
PUBLIC SCHOOL EMPLOYEES OFWASHINGTON	CASE 15667-E-01-2608
Involving certain employees of:	DECISION 7533 – PECB
ST. JOHN SCHOOL DISTRICT	DIRECTION OF ELECTION
In the matter of the petition of:
PUBLIC SCHOOL EMPLOYEES OFWASHINGTON	CASE 15668-E-01-2609
Involving certain employees of:	DECISION 7534 – PECB
ENDICOTT SCHOOL DISTRICT	DIRECTION OF ELECTION

Eric T. Nordlof, Attorney at Law, for Public School Employees of Washington.

Winston, Stevens, Clay and Hansen, PSC, by Rockie U. Hansen, Attorney at Law, for the St. John School District and for the Endicott School District.

On March 5, 2001, Public School Employees of Washington (union filed two petitions with the Public Employment Relations Commission under Chapter 391-25 WAC. Separate cases were docketed, as follows:

•                     In Case 15667-E-01-2608, the union sought certification as exclusive bargaining representative of instructional aides employed by the St. John School District; and

•                     In Case 15668-E-01-2609, the union sought certification as exclusive bargaining representative of instructional aides employed by the Endicott School District.

During and following the investigation conferences held in April 2001, the union asserted that a joint-employer bargaining unit encompassing all of the employees involved in both cases was appropriate, while the employers asserted that two separate units were needed. A hearing was held May 30, 2001, before Hearing Officer J. Martin Smith. The parties filed post-hearing briefs.

BACKGROUND

The communities of Endicott and St. John, in Whitman County, are separated by a distance of about 14 miles. The Endicott School District operates an elementary school, and an “Endicott - St. John Middle School” serving students from both communities. The St. John School District operates an elementary school, and a “St. John / Endicott High School” serving students from both communities.

The petitioned-for instructional assistants in St. John (six in number are supervised by the high school principal, Tim Nootenboom. The petitioned-for instructional assistants in Endicott (three in number are supervised by the building princi­pal, Suzanne Schmick. There are two basic job descriptions for the instructional assistants, depending on whether they work on “remediation” or “preschool” assignments. Typical duties are:

•                     Make short range plans for remedial mathematics and reading;

•                     Provide for individual differences in the learning needs of students;

•                     Cooperate with the classroom teacher in formulation of student assignments;

•                     Provide climate in classroom based on mutual respect;

•                     Effectively handle student discipline; and

•                     Administer achievement tests.

The employees working in “preschool” assignments are also expected to assist young students by storytelling and music activities, by maintaining a sanitary work environment, and by monitoring the grooming habits of pupils. During 2000-2001 school year, the instructional assistants in both school districts were paid at a minimum rate of $9. 25 per hour, up to $10. 17 per hour with 15 years of experience.

Beginning in 1987, these two school districts implemented the provisions of Chapter 28A. 340 RCW, whereby the state Superintendent of Public Instruction approves the formation of cooperative systems involving small, rural school districts. Endicott and St. John each retained their own five-member school boards, while a third governing body was formed consisting of all 10 school board members elected from the two communities. On a cooperative basis, Endicott and St. John adopt a joint policy manual, and hire a superintendent with responsibility for the operations in all four schools and related programs. Mark Mansell is superintendent under a contract that specifies his actions are reviewable by the Endicott and St. John boards, as well as by the cooperative board. Exhibit 4.

There is no history of bargaining for classified employees at either Endicott or St. John. The certificated employees at Endicott and St. John are organized in separate bargaining units under Chapter 41. 59 RCW.

POSITIONS OF THE PARTIES

The union urges that creation of one bargaining unit encompassing the instructional assistants of both of these school districts is the most appropriate configuration. It contends that any other arrangement will diminish the bargaining rights of the employees.

Endicott and St. John urge that two separate bargaining units are appropriate, reflecting the work locations. It points out that the instructional assistants are supervised separately, by the school principals and teachers in their respective locations.

DISCUSSION

Applicable Standards

The duty to bargain under the Public Employees’ Collective Bargaining Act, Chapter 41. 56 RCW, exists in the context of “appropriate” bargaining units. See Clark County, Decision 7233 (PECB, 2000; Skagit County Public Hospital District 2, Decision 7240 (PECB, 2000, and cases cited therein. 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. That statute specifies:

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 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. . . .

Those factors are applied to identify a “community of interests” among employees who are grouped together for the purposes of collective bargaining. Caution is indicated in the unit determina­tion process, because the configurations implemented often outlast the individuals who participate in their creation. At the same time, Commission precedent recognizes the need to alter unit configurations on the basis of changed circumstances, and Chapter 391‑35 WAC establishes procedures for such situations. The community of interests criteria then serve as a guide to determine whether subsequently-created or changed positions should be included in or excluded from the bargaining unit. City of Seattle, Decision 6145 (PECB, 1998.

Collective bargaining relationships generally exist between a particular employer and a union having majority support among employees of that particular employer. Multi-party collective bargaining can exist, such as where two or more separate employers band together to bargain with one union or where two or more separate bargaining units band together to bargain with one employer, but such arrangements are by consent of all parties involved. Spokane Public Library, Decision 7231 (PECB, 2000. An exception to that general rule occurs where two or more public entities have banded together to form joint operations separate and apart from the workforces and operations of the participating entities, and the Commission has created separate bargaining units which give effect to the realities of such situations. See City of Lacey, Decision 396 (PECB, 1978[joint animal control operation formed by a county and several included cities]; SnoIsle Vocational Skills Center, Decision 841 (EDUC, 1980 and Kitsap Peninsula Vocational Skills Center, Decision 838-A (EDUC, 1981 [vocational education operations formed by neighboring school districts]; and Clark County, Decision 7233 (PECB, 2000 [making reference to the certification of a unit for a historically-separate joint operation in Clark County, Decision 6151-A (PECB, 1997].

Application of the Standards

Identity of Employer -

The record in this case falls short of establishing the existence of a joint operation warranting the creation of a single bargaining unit reflecting an employer structure. School districts are municipal corporations of the state of Washington, and the evidence in this record supports a conclusion that the Endicott School District and the St. John School District have retained their separate corporate structures.

The record certainly fails to establish an actual merger or consolidation of these school districts. In contrast, there was evidence that school districts which once existed separately in the nearby “Ewan” and “Pine City” communities have actually disappeared as the result of being merged into one of the corporate entities involved in this case.

The Endicott and St. John school boards typically hold brief separate meetings on the same evening when the joint board meets. The statute titled “Small High School Cooperative Projects” provides, at RCW 28A. 340. 010: “Eligible school districts . . . are encouraged to establish cooperative projects with a primary purpose to increase curriculum programs and opportunities among the participating districts . . . .” RCW 28A. 340. 040 provides:

School districts participating in a coopera­tive project . . . may adopt identical salary schedules following compliance with Chapter 41. 59 RCW: PROVIDED, That if the districts participating in a cooperative project adopt identical salary schedules, the participating districts shall be considered a single school district for purposes of establishing compli­ance with the salary limitations of RCW 28A. 400. 200(3(b but not for the purposes of allocation of state funds.

(emphasis added.

Thus, the legislature was wary of compelling school districts to forfeit their autonomy under a cooperative effort.

Beyond the swapping of students implied by the names of the secondary schools they operate, Endicott and St. John maintain some support operations independent of one another. One notable example disclosed in this record concerns their separate school bus operations: A bus from Endicott and a bus from St. John meet at a gravel pit between the two communities each morning and afternoon when school is in session, to exchange pupils traveling to or from middle school or high school in the opposite community. If these entities were actually consolidated, one would expect an arrange­ment that paid less attention to the geographic border between the school districts and did not require students to disembark from one school bus in a gravel pit and in any and all weather conditions, just to board another school bus in getting to and from school.

The record indicates that collective bargaining negotiations with certificated employees under the Educational Employment Relations Act, Chapter 41. 59 RCW, are conducted separately at Endicott and St. John. The certificated employees are organized into two separate bargaining units, and the organizations representing those units meet separately to bargain their respective contracts. The resulting collective bargaining agreements are ratified separately, by the respective five-member school boards. Although a common school calendar was agreed upon this past year, each school board separately approved the starting date and calendar for the school year. [1]

Community of Interests Analysis –

There is no dispute here as to the propriety of the instructional assistants organizing separately from other classified employees of these school districts. [2] However, the record in this case fails to establish the existence of a single community of interest so compelling as to warrant disregard of the separate corporate structures at Endicott and St. John. Thus:

The duties, skills and working conditions of the instructional assistants cannot be assessed solely on the basis of their having similar job descriptions. Other testimony and the wage history, taken as a whole, support creating separate bargaining units.

Separate units are supported by the separate supervision of employees at Endicott and St. John. The school board in Endicott emphasizes the K-8 school and program, while the school board at St. John divides its emphasis between an elementary school program and a high school program. The employees at Endicott and St. John have separate immediate supervisors.

Comparison of the salary schedules discloses “dishwasher,” “custodian” and “secretary” classifications used at St. John are not used at Endicott. Those appear to reflect the differences of facilities, and the additional positions needed to support the high school program at St. John. Conversely, the existence of an “accounts payable” position at Endicott reflects that the administrative needs of a smaller school district do not warrant having a “business manager” position. The Commission must take these organizations as it finds them. Even if other cooperating school districts have consolidated additional activities, such as a cooperative food service program at Garfield-Palouse for schools located three miles apart, the distance between Endicott and St. John has evidently been accompanied by different results.

There is no history of bargaining for any of the instructional assistants at issue in these cases. While there was reference to classified employees at St. John raising some work and pay issues with Principal Nootenboom in 2000 (just prior to the arrival of Superintendent Mansell, there was neither a recognition or certification of an “exclusive bargaining representative” nor “collective bargaining” as those terms are defined in Chapter 41. 56 RCW. Although the classified employees were thereafter given a “stepped” salary schedule and a general wage increase, that appears to have been a unilateral action by the school board at St. John, after preparation and consideration of comparisons of Whitman County and statewide wage levels.[3]

The fact that Endicott and St. John negotiate separate collective bargaining agreements with their certificated employees provides evidence of bargaining history generally, albeit not for the petitioned-for employees. There is no evidence that the historical separation of certificated employee bargaining has been dysfunctional.

The extent of organization compares the unit sought in a particular case to the whole of that employer's workforce. Where sheer numbers (i. e. , the size and complexity of the employer's workforce or operations would frustrate attempts to organize an "all employees" unit, smaller divisions may be necessary if employees are to implement their statutory collective bargaining rights. Conversely, Commission precedents point to concerns about avoiding “excessive” fragmentation in establishing appropriate units.

The union argues in its brief that the petitioned-for unit at Endicott would be “isolated” and/or “stranded” and that “It would take a resolutely, perhaps irrationally, optimistic individual to predict that such a small unit would be successful over the long term. ”However, the only “minimum” size of bargaining unit uniformly enforced by the Commission is the prohibition of “one-person” bargaining units in WAC 391-35-330. The petitioned-for units of instructional assistants at Endicott and St. John contain three and six employees, respectively, so no employee would be “stranded” without bargaining rights as that term is used in Commission precedents. [4]Thus, the “extent of organization” is not fatal to the creation of two separate units reflecting the separate corporate structures. RCW 41. 56. 040, 41. 56. 140(1 and 41. 56. 150(1 protect all of these employees from interference and discrimina­tion. Whether a unit has “semantics” or significant bargaining power depends on the competency of its negotiators, the union’s readiness to honor its duty of fair representation, and the good faith of each member of the bargaining unit.

The desires of the employees are assessed where application of the other statutory criteria indicates that two or more appropriate bargaining unit structures are being sought by organizations under Chapter 391-25 WAC.[5] In this case, the preference of a single union for representing a larger bargaining unit encompassing the employees of two employers does not provide basis to overrule or ignore the existence of the separate corporate structures. Indeed, conducting a unit determination election under these circumstances would be tantamount to giving the employees authority to compel multi-unit bargaining regardless of employer objections to such an arrangement. See Spokane Public Library, supra.

Eligibility Issues

Media Library Specialists –

The parties stipulated to the inclusion of two employees, one each at Endicott and St. John, working in library positions. At the time of the hearing, those employees were Barbara Strader and Kay Riehle. Since there is no evidence in the record which contra-indicates that stipulation, they will be eligible voters in the elections directed in this decision.

Payroll Officer -

Barbara Anderson serves as an instructional assistant at Endicott on a part-time basis, but also serves as payroll officer for that employer on a part-time basis. The employer offered to prove that Anderson has access to all personnel records and documents used in collective bargaining for the certificated employees. The parties stipulated that Anderson was, and continues to be, a confidential employee excluded from the bargaining unit(s of instructional assistants. Since there is no evidence in the record which contra-indicates that stipulation, Anderson will not be an eligible voter in the elections directed in this decision.

FINDINGS OF FACT

1.                  [Case 15667-E-01-2608; Decision 7533 - PECB]The St. John School District is a municipal corporation of the State of Washington operated under Title 28A RCW, and is a public employer within the meaning of RCW 41. 56. 020 and 41. 56. 030(1.

2.                  [Case 15668-E-01-2609; Decision 7534 - PECB] The Endicott School District is a municipal corporation of the State of Washington operated under Title 28A RCW, and is a public employer within the meaning of RCW 41. 56. 020 and 41. 56. 030(1.

3.                  Public School Employees of Washington, a bargaining represen­tative within the meaning of RCW 41. 56. 030(3, has filed timely and properly-supported petitions under Chapter 391-25 WAC, seeking certification as exclusive bargaining representa­tive of classified employees working as instructional assis­tants for the Endicott School District and for the St. John School District.

4.                  The Endicott School District and the St. John School District have entered into cooperative arrangements under Chapter 28A. 340 RCW, by which the Endicott School District operates a middle school serving students from both communities, and the St. John School District operates a high school serving students from both communities. The two school districts jointly hire Mark Mansell as superintendent of schools for both school districts.

5.                  Notwithstanding the cooperative functions described in paragraph 4 of these findings of fact, other functions of the Endicott School District and St. John School District continue to be operated separately, and the school boards of the respective school districts continue to meet and act sepa­rately on matters relating to their separate operations. Even though similar pay rates are maintained for employees in similar classifications, certain classified positions exist at St. John which are not used at Endicott, and at least an accounts payable position existing at Endicott is not used at St. John.

6.                  Certificated employees of the Endicott School District and of the St. John School District are represented separately for purposes of collective bargaining under Chapter 41. 59 RCW, and separate collective bargaining agreements are signed for the two school districts.

7.                  Instructional assistants at Endicott and St. John are sepa­rately supervised, by the middle school principal at Endicott and by the high school principal at St. John.

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 evidence in this proceeding does not support a conclusion that the Endicott School District and the St. John School District have been consolidated under the provisions of Title 28A RCW, so as to constitute a single employer for purposes of collective bargaining under RCW 41. 56. 020 and 41. 56. 030(1.

3.                  [Case 15667-E-01-2608; Decision 7533 - PECB]In the St. John School District, a question concerning representation exists in an appropriate bargaining unit described as:

All full-time and regular part-time instructional assistants employed by the St. John School District, excluding confidential employees and super­visors.

4.                  [Case 15668-E-01-2609; Decision 7534 - PECB]In the Endicott School District, a question concerning representation exists in an appropriate bargaining unit described as:

All full-time and regular part-time instructional assistants employed by the Endicott School Dis­trict, excluding confidential employees and super­visors.

DIRECTION OF ELECTION - CASE 15667-E-012608

A representation election shall be conducted by secret ballot, under the direction of the Public Employment Relations Commission, in the appropriate bargaining unit of St. John School District employees described in paragraph 3 of the foregoing conclusions of law, for the purpose of determining whether a majority of the employees in that unit desire to be represented for the purposes of collective bargaining by Public School Employees of Washington or by no representative.

DIRECTION OF ELECTION - CASE 15668-E-01-2609

A representation election shall be conducted by secret ballot, under the direction of the Public Employment Relations Commission, in the appropriate bargaining unit of Endicott School District employees described in paragraph 4 of the foregoing conclusions of law, for the purpose of determining whether a majority of the employees in that unit desire to be represented for the purposes of collective bargaining by Public School Employees of Washington or by no representative.

Issued at Olympia, Washington, on the 18^th day of October, 2001.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This order may be appealed by filing timely objections with the Commission pursuant to WAC 391-25-590.