University of Washington, Decision 9466 (PSRA, 2006)

Douglas, Drachler & McKee, by Martha Barron, Attorney At Law, for the union.

Rob McKenna, Attorney General by Paul Olsen, Assistant Attorney General, for the employer.

On January 20, 2006, Service Employees International Union, Local 925 (union) filed a unit clarification petition seeking accretion of certain unrepresented employees into an existing bargaining unit of supervisors represented by the union at the University of Washington (employer). The employer and the union filed written stipulations on June 23, 2006, and waived their right to a hearing.

ISSUE

The sole issue currently before the Executive Director in this case is: Should the parties’ stipulation to accrete the employees into the historical bargaining unit be accepted? The Executive Director rules that the stipulations submitted by the parties do not satisfy the requirements set forth in WAC 391-35-020. The proposed accretion is denied and the petition is dismissed.

APPLICABLE LEGAL PRINCIPLES

State law gives state civil service employees a right to voice and vote on their representation, if any, for the purposes of collective bargaining under the Personnel System Reform Act of 2002, Chapter 41.80 RCW (PSRA). RCW 41.80.050. Rather than by individual actions, those rights are effected by majority vote of the employees in an appropriate bargaining unit.

The determination and modification of appropriate bargaining units under the PSRA is a function delegated by the Legislature to the Commission, as follows:

RCW 41.80.070 BARGAINING UNITS -- CERTIFICATION. (1) A bargaining unit of employees covered by this chapter existing on June 13, 2002, shall be considered an appropriate unit, unless the unit does not meet the requirements of (a) and (b) of this subsection. The commission, after hearing upon reasonable notice to all interested parties, shall decide, in each application for certification as an exclusive bargaining representative, the unit appropriate for certification. 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, a unit is not appropriate if it includes:

(a) Both supervisors and nonsupervisory employees. A unit that includes only supervisors may be considered appropriate if a majority of the supervisory employees indicates by vote that they desire to be included in such a unit; or

(b) More than one institution of higher education. For the purposes of this section, any branch or regional campus of an institution of higher education is part of that institution of higher education.

(2) The exclusive bargaining representatives certified to represent the bargaining units existing on June 13, 2002, shall continue as the exclusive bargaining representative without the necessity of an election.

(3) If a single employee organization is the exclusive bargaining representative for two or more units, upon petition by the employee organization, the units may be consolidated into a single larger unit if the commission considers the larger unit to be appropriate. If consolidation is appropriate, the commission shall certify the employee organization as the exclusive bargaining representative of the new unit.

Laws of 2002, ch. 354, § 308. The Commission adopted WAC 391-35-026 as a rule permitting employers and unions to “perfect” fragmentary PSRA bargaining units during a transition period that ended with the effective date of the election provisions in RCW 41.80.080, but the petition in this case was filed long after July 1, 2004.

Long-established Commission and judicial precedent limits the rights of labor and management in regard to bargaining units:

Absent a change of circumstances warranting a change of the unit status of individuals or classifications, the unit status of those previously included in or excluded from an appropriate unit by agreement of the parties or by certification will not be disturbed. However, both accretions and exclusions can be accomplished through unit clarification in appropriate circumstances. If, as contended by the employer and found by the authorized agent, the agreed unit is found by intervening decisions of the Commission or the Courts to be inappropriate, it may be clarified at any time. This rule is consistent with the NLRB policies on the subject.

City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981). The limited circumstances where accretions are appropriate were further explained in Kitsap Transit Authority, Decision 3104 (PECB, 1989).

The policies enunciated in Richland, Kitsap Transit, and numerous other Commission precedents were subsequently codified in the Commission’s rules, as follows:

WAC 391-35-020 TIME FOR FILING PETITION -- LIMITATIONS ON RESULTS OF PROCEEDINGS.

. . .

(4) Employees or positions may be added to an existing bargaining unit in a unit clarification proceeding:

(a) Where a petition is filed within a reasonable time period after a change of circumstances altering the community of interest of the employees or positions; or

(b) Where the existing bargaining unit is the only appropriate unit for the employees or positions.

(5) Except as provided under subsection (4) of this section, a question concerning representation will exist under chapter 391-25 WAC, and an order clarifying bargaining unit will not be issued under chapter 391-35 WAC:

(a) Where a unit clarification petition is not filed within a reasonable time period after creation of new positions.

(b) Where employees or positions have been excluded from a bargaining unit by agreement of the parties or by a certification, and a unit clarification petition is not filed within a reasonable time period after a change of circumstances.

(c) Where addition of employees or positions to a bargaining unit would create a doubt as to the ongoing majority status of the exclusive bargaining representative.

Each passing day while employees or positions are excluded from a bargaining unit builds history that weighs heavily against their subsequent accretion to that bargaining unit. An employer that encourages (or at least tolerates) fragmentary organization of its workforce runs the risk of added expense of additional bargaining relationships if the stranded employees organize with a different union. See City of Vancouver, Decision 3160 (PECB, 1989). A union that limits its organizing focus to its extent of organization and/or fails to move on changed circumstances in a timely manner must use a two-step process to acquire representation rights for employees left out of the bargaining unit: First organizing a separate unit of the omitted employees; then seeking a merger of bargaining units. For PSRA bargaining units, RCW 41.80.070(3) specifically authorizes unit mergers and WAC 391-25-426 eases the process by omitting a requirement for unit determination elections in the units proposed for merger.

ANALYSIS

The parties stipulate that the “maintenance specialist 5" classification in the employer’s workforce has historically been without union representation. At this time, at least three incumbents in that classification exercise supervisory authority over other civil service employees.

The union represents a bargaining unit of supervisors that encompasses about 400 employees in a broad array of departments, but an “employer-wide” characterization is misleading.[1] That bargaining unit does include the “maintenance specialist 4" and “maintenance specialist 2" classifications. The stipulations submitted by the employer and union in this case included:

1.         The bargaining unit the union wishes to modify is comprised of more than 400 supervisory employees from different areas of the University of Washington.

2.         Current bargaining unit members and the position at issue share many of the same supervisory duties and skills.

3.         Both maintenance specialist 4 and maintenance specialist 5 supervise lower staff including a variety of journey trades-workers.

4.         Both maintenance specialist 4 and maintenance specialist 5 positions assist in the development of the departmental budget, participate in employee discipline, evaluate employees, and aid in the overseeing of craft supervisors in construction and maintenance.

5.         Minimum qualifications for specialist 4 and specialist 5 positions include a job element examination, ability to supervise, and work experience in plant operations.

6.         Maintenance 5 specialist employees work in the same plant as 20 other workers who are presently represented by the union.

The fact that the employer and union would now agree on the propriety of the requested accretion is not binding on the Commission. City of Richland, Decision 279-A.

There is no claim or evidence here of changed circumstances. The parties’ agreement would thus ignore or negate the statutory rights of the employees involved. Accreting employees into an existing bargaining unit is an exception to the general rule of employee free choice. City of Auburn, Decision 4880-A (PECB, 1995); King County, Decision 5820 (PECB, 1997).

The Commission may dispense with a hearing when parties submit stipulations that do not contravene applicable statutes or rules. Benton County, Decision 2221 (PECB, 1985). In this case, the Executive Director discerns problems with the parties’ stipulations that are fatal to their request. Since the stipulations do not satisfy the requirements set forth in WAC 391-35-020, the requested accretion must be denied and the petition must be dismissed.

FINDINGS OF FACT

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

2.         Service Employees International Union, Local 925, an employee organization within the meaning of RCW 41.80.005(7), is the exclusive bargaining representative of a bargaining unit of supervisory classified employees of the employer.

3.         The parties stipulate that the bargaining unit represented by the union currently encompasses approximately 430 supervisory employees who work in a variety of areas and departments throughout the university, including employees in the “maintenance specialist 4" and “maintenance specialist 2" classifications.

4.         The parties stipulate that the three employees in the “maintenance specialist 5" classification have historically been excluded from union representation.

5.         Although the parties acknowledge the jurisdiction of the Commission to determine and modify appropriate bargaining units, and the parties have stipulated in this proceeding that the employees in the “maintenance specialist 5" position work in the employer’s Facilities and Physical Plant operations with 20 employees who are currently in the bargaining unit of supervisors represented by the union, the parties have not offered any claim, stipulation, or evidence in this proceeding of any relevant change of circumstances warranting a change of the bargaining unit status of the employees in the “maintenance specialist 5" classification.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.80 RCW and Chapter 391-35 WAC.

2.         The stipulation of the parties to accrete the “maintenance specialist 5" job classification into the supervisory bargaining unit represented by the union contravenes WAC 391-35-020(4).

ORDER

The petition for clarification of an existing bargaining unit filed in the above-captioned proceeding is DISMISSED.

Issued at Olympia, Washington, on this 25^th day of October, 2006.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This order will be the final order of the agency unless a notice of appeal is filed with the Commission under WAC 391-35-210.