Eastern Washington University, Decision 9950 (PSRA, 2008)

Garrettson, Goldberg, Fenrich & Makler, P.C., by Sean Lemoine, Attorney at Law, for the petitioner.

Rob McKenna, Attorney General, by Patricia A. Thompson, Assistant Attorney General, for the employer.

Younglove Lyman & Coker, P.L.L.C., by Edward Younglove, Attorney at Law, for the incumbent intervenor.

On March 12, 2007, the Eastern Washington University Police Guild (petitioner) petitioned to sever a group of police officers, detectives, and sergeants from two bargaining units at Eastern Washington University (employer) and to become their exclusive bargaining representative. The incumbent union is the Washington Federation of State Employees (incumbent). A hearing was held before Hearing Officer Guy Otilio Coss on June 6, 2007, in Cheney, Washington. The parties submitted post-hearing briefs which were considered.

At the hearing, the Hearing Officer granted the petitioner’s motion to amend its petition to include the newly created position of police corporal to the description of the petitioned-for bargaining unit. The employer and the incumbent stipulated that the police corporal position was a nonsupervisory position. The parties also stipulated that the Eastern Washington University Police Guild is a qualified labor organization.

Following the hearing, on July 27, 2007, the petitioner filed a motion to amend its petition to split the proposed bargaining unit and create two bargaining units: one a rank-and-file unit consist­ing of police officers, detectives and corporals and the other a supervisors unit consisting of police sergeants. Because the petition for severance of a police unit from the incumbent’s wall-to-wall unit is dismissed, the petitioner’s motion to create a supervisory bargaining unit is also dismissed.

The incumbent union currently represents the petitioned-for employees in two bargaining units. The police officers, detec­tives, and the newly created position of corporal are included in a wall-to-wall bargaining unit of nonsupervisory classified staff. The police sergeants are included in a wall-to-wall unit of classified supervisory employees.

ISSUE PRESENTED

Is it appropriate to sever the rank-and-file police officers, detectives, corporals, and sergeants from their respective existing wall-to-wall bargaining units?

Based on the evidence and Commission precedents, the Executive Director rules that the proposed severance is inappropriate. The petition is dismissed.

Applicable Standards

A bargaining unit consisting of all of the employees of an employer, such as the incumbent’s existing unit, “is inherently an appropriate unit” because “all such employees clearly share a community of interest in dealing with their common employer.” Federal Way Water and Sewer District, Decision 3228 (PECB, 1989). Such a “wall-to-wall” unit is “normally . . . thought of as an appropriate unit, if not ‘the most appropriate’ bargaining unit structure.” Raymond School District, Decision 3202 (PECB, 1989).

The determination of what is an appropriate bargaining unit is a function delegated by the Legislature to the Commission. RCW 41.80.070(1) states that:

In determining the new units or modifications of existing units, the commission shall consider: The duties, skills, and working conditions of the employees; the history of collective bargaining; the extent of organization among the employees; the desires of the employees; and the avoidance of excessive fragmentation.

However, Commission precedents impose a stricter scrutiny on “severance” petitions than may be applied in the initial organiza­tion of bargaining units. Cowlitz County, Decision 4960 (PECB, 1995). Thus, where a petitioner seeks to “sever” a sub-group of employees from a long‑established bargaining relationship, the Commission looks to the principles enunciated by the National Labor Relations Board in Mallinckrodt Chemical Works, 162 NLRB 387 (1966). Those standards were adopted by the Commission in Yelm School District, Decision 704‑A (PECB, 1980), and an analysis of the Yelm/Mallinckrodt standards are enumerated and discussed below.

Application of the Yelm/Mallinckrodt Standards

The first standard is:

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 no repetitive basis, or of employees constituting a functionally distinct department, working in trades or operations for which a tradition of separate representation exists.

The union’s proposed unit of police officers share common duties, skills and working conditions and as an initial organizing effort the unit may have been found appropriate. However, applying the strict scrutiny enunciated in Cowlitz County, Decision 4960 (PECB, 1995), the proposed unit does not meet this test -- it does consist of a distinct and homogeneous group of skilled employees; however, it does not meet the standard of “employees constituting a functionally distinct department . . . for which a tradition of separate representation exists.” In this case, no tradition of separate representation for the proposed unit exists for this employer or for like employers in state government.

The second Yelm/Mallinckrodt test more specifically addresses the history of bargaining:

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.

In severance cases, “the ‘history of bargaining’ criteria . . . [is] a matter of substantial weight in a workforce which has been organized for some time.” Grant County, Decision 3350 (PECB, 1989). This second test can cause rejection of a unit that could have been found appropriate in initial organizing. Yelm School District, Decision 704‑A (PECB, 1980). “Where a bargaining relationship has been in existence, the ‘history of bargaining’ weighs against its disruption by severing the unit into two or more components.” Cowlitz County, Decision 4960 (PECB, 1995).

Undisputed testimony shows that the incumbent union has been the exclusive bargaining representative of these employees since at least 1973, a period of 34 years. Given the length of this bargaining relationship, the Commission's admonition concerning disrupting a 20-year bargaining relationship is particularly relevant:

The reasons for disturbing such a long-established relationship and resulting collective bargaining agree­ment would have to be compelling.

Vancouver School District, Decision 4022‑A (PECB, 1993). This record demonstrates that the employer and the incumbent have had a stable bargaining relationship since 1973. Removing the disputed positions from the units represented by the incumbent union would be inconsistent with the history of labor relations at Eastern Washington University, would disturb a 34‑year bargaining relation­ship, and unduly disrupt a long and stable pattern of representation.

The third Yelm/Mallinckrodt test reflects an integration standard:

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.

As stated above, there is no history of the petitioned for employees having an identity separate and apart from the two existing wall-to-wall bargaining units with this employer. The fact that a member of the university police force held the position of vice president of one of the bargaining units at Eastern Washington University establishes their participation and mainte­nance of the current wall-to-wall bargaining unit.

The next Yelm/Mallinckrodt standard is:

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

With the exception of police bargaining units in local government that are required to be in separate bargaining units because they are statutorily eligible for interest arbitration, no evidence was presented that a tradition of separate representation exists for police officers in general nor for university police officers specifically. There is nothing in Commission case law that indicates that employer wide units in state employment that include uniformed police officers are improper. In fact, such units have been approved by the Commission in local governments under Chapter 41.56 RCW in the past. For example, see Wahkiakum County, Decision 1876 (PECB, 1984), where an election was directed in a unit of all county employees, including deputy sheriffs.[1]

The next Yelm/Mallinckrodt standard is:

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.

All of the employees of Eastern Washington University are assumed to work in a coordinated effort to fulfill the mission of the employer. The petitioned-for uniformed police officers work with other employees of the institution and are thus considered part of an integrated operation which depends upon the performance of their duties as part of the larger organization. Severance in this case could unnecessarily interfere with the continued normal operation of the employer’s primary educational function and unnecessarily fragment the long standing bargaining units.

The final Yelm/Mallinckrodt standard is:

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.

The petitioning union presented evidence concerning the quality of representation provided by the incumbent. The Commission has held that "[t]he quality of representation is, however, not one of the criteria for making a unit determination." Auburn School District No. 408, Decision 2710‑A (PECB, 1987).[2] The only quality of representation issue in a severance case concerns the qualifica­tions of the union seeking to "carve out" the separate unit. The record indicates that the Eastern Washington University Police Guild was formed to initiate this proceeding. Thus, it has no basis to claim special expertise in representing uniformed police officers. Even if this were the case, the weight of the other Yelm/Mallinckrodt factors require a dismissal of this severance petition.

Conclusion

The moving party in a severance case has a difficult burden to meet when there has been a long established bargaining relationship. In this case, that burden has not been met. The petitioned for bargaining unit does not consist of a functionally distinct department for which a tradition of separate representation exists as the employer and incumbent union have had a stable bargaining relationship since 1973. Granting severance of the positions from the units represented by the incumbent would be inconsistent with the history of labor relations at Eastern Washington University, would disturb a 34‑year bargaining relationship, and would unduly disrupt and fragment a long and stable pattern of representation. Applying the Yelm/Mallinckrodt analysis and statutory standards to the facts of this case, the Executive Director finds that severance of the petitioned-for employees from their existing bargaining relationship is not appropriate.

FINDINGS OF FACT

1.                  Eastern Washington University is a state institution of higher education within the meaning of RCW 41.80.005(10).

2.                  The incumbent union, the Washington Federation of State Employees, is a bargaining representative within the meaning of RCW 41.80.005(7).

3.                  The incumbent represents police officers, detectives and corporals in Bargaining Unit 1, a wall-to-wall bargaining unit of nonsupervisory classified staff at Eastern Washington University and has done so since at least 1973.

4.                  The incumbent represents sergeants in Bargaining Unit 2, a wall-to-wall bargaining unit of supervisory classified staff at Eastern Washington University and has done so since at least 1973.

5.                  The Eastern Washington University Police Guild is a bargaining representative within the meaning of RCW 41.80.005(7).

6.                  On March 12, 2007, the Eastern Washington University Police Guild filed a petition for investigation of a question concerning representation with the Commission under Chapter 391‑25 WAC, seeking to sever police officers, detectives and sergeants from a bargaining unit represented by incumbent union and to become their exclusive bargaining representative.

7.                  On June 6, 2007, the Eastern Washington University Police Guild amended its petition for investigation of a question concerning representation to include the newly created position of corporal.

8.                  The parties stipulated that the newly created corporal position was nonsupervisory.

9.                  The proposed bargaining unit does not constitute a function­ally distinct department for which a tradition of separate representation exists.

10.              There is no history of a separate identity of the petitioned for employees separate and apart from the two existing Washington Federation of State Employees’ wall-to-wall bargaining units at Eastern Washington University.

11.              It has not been established that there is a tradition of separate representation for police officers in state universities.

12.              The petitioned for employees are part of the employer’s integrated operation which depends upon the proper performance of the petitioned for employees as part of the larger organization.

13.              The Eastern Washington University Police Guild was formed in connection with the filing of the petition to initiate this proceeding, and it has never represented any employees for the purposes of collective bargaining.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.80 RCW and Chapter 391-25 WAC.

2.                  The proposed severance of police officers, detectives, corporals, and sergeants from the existing units historically represented by the Washington Federation of State Employees is not appropriate.

ORDER

Based upon the foregoing and the record as a whole, the petition for investigation of a question concerning representation and the petitioner’s motion to amend its petition are DENIED.

ISSUED at Olympia, Washington, this 9th day of January, 2008.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

CATHLEEN CALLAHAN, 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.