Cowlitz County, Decision 2229 (PECB, 1985)

Dick Anderson, Personnel Director, appeared on behalf of Cowlitz County.

Kathleen Schmidtke, Staff Representative, appeared on behalf of Washington State Council of County and City Employees.

On January 31, 1985, Washington State Council of County and City Employees (hereafter the union) filed a petition with the Public Employment Relations Commission seeking clarification of a bargaining unit of employees of Cowlitz County (hereafter the employer). The petition sought to clarify the bargaining unit status of the position of "accountant/auditor's office".

A hearing on the petition was held on April 11, 1985, before Susan K. Schreurs, Hearing Officer. At the hearing, the employer contended the petition was untimely. The parties stipulated to evidence on the procedural issue. Post‑hearing briefs were filed.

BACKGROUND

The union represents a unit of office clerical and related employees in a variety of county departments. The parties had a collective bargaining agreement effective from January 1, 1981 until December 31, 1983. The recognition article of that contract purported to specifically exclude employees listed on Appendix B to the contract. Appendix B was a 'list of departments and specific classifications within departments, and concluded with the following:

The Union has not necessarily agreed to the above list of exclusions and has given notice that the issues will be addressed through the unit clarification process.

Should any new position be created, the issue of whether or not such position should be included in or excluded from the bargaining unit will be discussed by the Labor/Management Committee. If agreement is reached, the position will be treated accordingly. If there is no agreement, either party may seek a determination through PERC.

In December of 1983, the county commission approved creation of the position of chief accountant in the county auditor's office. That is the position now in issue. Upon the expiration of the 1981‑83 contract, the parties continued negotiations toward a subsequent agreement. Meanwhile, the employer and the union agreed to extend the provisions of the expired contract until either an agreement or an impasse was reached.

The position now in dispute was not posted pursuant to provisions in the parties' contract, but was advertised by the employer in February, 1984. The union did not grieve the creation of the position or the lack of posting. The position was filled on April 9, 1984.

Negotiations broke down in September, 1984. In November, 1984, the employer implemented changes from the 1981‑83 contract's provisions. Bargaining commenced again in December, 1984, culminating in an agreement executed and effective on December 24, 1984. The new contract contains a recognition clause which specifically excludes positions listed on an Appendix B. The position of chief accountant in the county auditor's office is listed on Appendix B. The appendix no longer contains paragraphs such as those quoted above from the 1981‑83 contract.

The petition in the instant case was filed on January 31, 1985, approximately five weeks after the new contract was signed.

POSITIONS OF THE PARTIES

The employer maintains that since the parties' 1984‑85 contract specifically excludes the disputed position from the bargaining unit, the union's petition is untimely under Toppenish School District, Decision 1143‑A (PECB, 1931).

The union contends that its petition is timely, as the position has undergone substantial changes of circumstances since its creation sufficient to warrant its inclusion in the bargaining unit.

DISCUSSION

Determination of whether the union's petition is timely is governed by the decision of the Commission in Toppenish School District, Decision 1143‑A (PECB, 1981). In that case the Commission dismissed a petition for clarification of a bargaining unit on the grounds that the parties had agreed to place the affected position under the existing collective bargaining agreement and there was no evidence of changes in circumstances justifying the exclusion of the position. In this regard the Commission stated:

A mid‑term unit clarification is available to exclude individuals from a bargaining unit covered by an existing collective bargaining agreement if:

a) The petitioner can offer specific evidence of substantial changed circumstances that would warrant such an exclusion,

or

b) The petitioner can demonstrate that, although it signed a collective bargaining agreement covering the disputed position, it put the other party on notice that it would contest the inclusion via the unit clarification procedure and filed a petition for unit clarification with the Commission prior to the conclusion of negotiations.

These principles were made equally applicable to union‑filed petitions in Sedro Woolley School District, Decision 1351 (PECB, 1982). The union in this case does not contend that it fulfilled the notice requirement set out in paragraph "b" of the Toppenish test. In fact, the union had ample time to examine the duties of the chief accountant during eight months prior to execution of the contract.

The union maintains, however, that after negotiations over the parties' 1984‑85 contract had concluded, and the climate of labor relations at the county had begun to return to normal, the union began comparing the proposed job duties of the chief accountant to the position's actual duties. Finding what it believed to be significant differences, the union filed the instant petition. In Toppenish the Commission dismissed the petition because the petition had not been filed prior to signing the collective bargaining agreement and there was insufficient evidence of changed circumstances subsequent to signing the contract to justify unit clarification. Likewise, in Whatcom County, Decision 1433‑A (PECB, 1983), unit clarification was not warranted where circumstances concerning the position at issue had not sufficiently changed after the collective bargaining agreement had been signed and before the petition for clarification had been filed. From these cases it is clear that changed circumstances arising after the execution of the contract are the focus for any examination, rather than changed circumstances subsequent to the creation of the position. Limitation of review to changes after contract execution is consistent with the purpose of the Toppenish rule, as it avoids adjudication of whether the unit issue had been waived or settled at the bargaining table.

By waiting to analyze the actual responsibilities of the position until after the contract excluding the position from the bargaining unit had been executed, the union has lost its opportunity to question whether the position's actual responsibilities are different from the duties intended at its inception. While the union is precluded from raising changes of circumstances which occurred prior to the execution of the parties' 1984‑85 contract, it is not precluded from presenting evidence of changed circumstances concerning the position subsequent to signing the contract. Very little time passed between the execution of the contract and the filing of the instant petition, but changes of duties or responsibilities can sometimes be made by the stroke of a pen. If the union can, in good faith, make a claim of a significant change of circumstances occurring between December 24, 1984 and January 31, 1985, then a hearing may be held in this case.

NOW, THEREFORE it is

ORDERED

A hearing shall be held in this matter upon a request filed by the union within 14 days following the date of this order. Any such hearing shall be limited to evidence of changes in the position of chief accountant after December 24, 1984.

DATED at Olympia, Washington, this 6th day of June, 1985.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director