City of Vancouver, Decision 10148 (PECB, 2008)

Reid, Pedersen, McCarthy & Ballew, L.L.P., by Kenneth J. Pedersen, for the Teamsters.

Audrey B. Eide, General Counsel, for the Washington State Council of County and City Employees.

Debra Quinn, Assistant City Attorney, for the employer.

On April 16, 2007, Teamsters Local 58 (Teamsters) filed a petition with the Public Employment Relations Commission (Commission) seeking clarification of a bargaining unit of employees of the City of Vancouver (employer). The petition concerned eleven positions created as part of the newly-formed Greenway and Sensitive Lands Team. On May 2, 2007, the Washington State Council of County and City Employees, Council 2, AFSCME, Local 307-VC (WSCCCE) intervened in the clarification petition.

On June 6, 2007, WSCCCE filed a petition seeking certification as the exclusive bargaining representative for the same group of employees.

Both the Teamsters and WSCCCE are members of the Joint Labor Coalition, which has a collective bargaining agreement with the employer, dated January 1, 2006 through December 31, 2008. Under that agreement, the Teamsters represent about 30 employees in the Grounds Maintenance Division in the Public Works Department. WSCCCE represents about 140 employees of the Water, Streets, Drainage, Traffic, Warehouse, and Dispatch Divisions in the Public Works Department.

Since both petitions involved the same group of employees, Hearing Officer Lisa A. Hartrich issued a notice of consolidated hearing on July 23, 2007, and set hearing dates for August 21-22, 2007.[1] Prior to the hearing, the parties stipulated that the positions at issue belonged in either the existing Teamster unit or the existing WSCCCE unit. The parties also stipulated that the newly-created positions of Greenway and Sensitive Lands public works supervisor and Greenway public works lead were appropriately included in the unit.[2]

The parties submitted post-hearing briefs. On March 4, 2008, the Executive Director sent a letter to the parties requesting additional information concerning the appropriateness of the existing units currently represented by the Teamsters and WSCCCE. All parties responded to the request in writing.

ISSUES

1.         Should the employees of the newly-created Greenway and Sensitive Lands Team be accreted into one of the existing bargaining units?

2.         Is the petitioned-for unit of Greenway employees an appropri­ate bargaining unit?

Based upon the record, applicable statutes, rules, and case precedent, the Executive Director rules that there is insufficient evidence to conclude that the Greenway and Sensitive Lands employees belong in either of the existing Teamsters or WSCCCE units. The unit clarification petition filed by the Teamsters is dismissed. A separate unit of Greenway employees is an appropriate bargaining unit under RCW 41.56.060. Therefore, an election is directed under Commission rules.

Issue 1: The Existing Bargaining Units

The authority to determine appropriate bargaining units has been delegated by the Legislature to the Commission. In determining, modifying, or combining the bargaining unit, the Commission considers (1) the duties, skills, and working conditions of the public employees; (2) the history of collective bargaining by the public employees and their bargaining representatives; (3) the extent of organization among the public employees; and (4) the desire of the public employees. RCW 41.56.060.

The Commission makes unit determinations on a case-by-case basis. Among the four factors listed above, no one factor is overriding or controlling. Bremerton School District, Decision 527 (PECB, 1979). Additionally, all four factors need not arise in each and every case.

The purpose of unit determination is to group together employees who have sufficient similarities (community of interest) to indicate that they will be able to bargain collectively with their employer. Particular concern is applied to avoid stranding individual employees by unit configurations that preclude exercise of their statutory collective bargaining rights. City of Blaine, Decision 6619 (PECB, 1999). The Commission also seeks to avoid the proliferation of multiple bargaining structures and conflicting work jurisdiction claims. City of Auburn, Decision 4880-A (PECB, 1995); Ben Franklin Transit, Decision 2357-A (PECB, 1986).

An “employer-wide” bargaining unit draws its community of interest from all employees of the same employer, while a “vertical” unit encompasses all of employees in some separate branch or division of an employer. A “horizontal” unit groups together all employees within a generic occupational type. SeeCity of Winslow, Decision 3520-A (PECB, 1990); Educational Service District 113, Decision 7361-A (PECB, 2002).

Bargaining History

Teamsters Local 58 was created around 1976 as the result of a merger with Teamsters Local 501. Local 501 represented the parks division employees as far back as 1969.[3] Teamsters Local 58 came to represent employees of the grounds maintenance division as a result of an employer reorganization, when the employer moved grounds maintenance from the parks division to its current home in the Public Works Department.

WSCCCE was certified by the Washington State Department of Labor and Industries in 1967, as the representative for employees of the employer’s street maintenance, traffic sign, water-sewer, and cemetery divisions.

Since the early 1970s, the Teamsters and WSCCCE have been members of the Joint Labor Coalition with the employer, which also includes the International Association of Machinists, District Lodge 24 and the Plumbers and Steamfitters, Local 290.

Both the Teamsters and WSCCCE bargaining units are “vertical” units. A bargaining unit with a vertical structure is one that draws its community of interest from grouping together employees who work in the same department or division. For example, the parties’ agreement describes the Teamsters unit as “All employees of the Grounds Maintenance Division . . . of the Public Works Department which are assigned to the maintenance of parks.” The WSCCCE unit is described as “All employees . . . of the Water, Water Distribution and Quality, Waste Water, Streets, Drainage Facility Maintenance, Traffic Signal, Traffic Sign, Warehouse and Dispatch Divisions of the Public Works Department.”

Vertical units create an ongoing potential for unit determination disputes any time the employer attempts to restructure the organization of the work. In this case, there are several instances of blurred jurisdictional lines between the positions in the current Teamsters unit and the work of the WSCCCE unit. For example, employees may cross-train in grounds, streets, traffic, and wastewater so that later they can be temporarily loaned to other divisions if there is a big project or an emergency. An employee in the streets division might clear vegetation, prune, pick up litter, or engage in weed control, while a grounds employee may do the same.

Both the Teamsters and WSCCCE have historically represented positions in the classification of public works supervisor, lead maintenance worker, and maintenance worker I and II. While the positions have the same titles, they are differentiated based on the division where the employees are located. The result is that a maintenance I worker in the grounds division belongs to the Teamster bargaining unit, while a maintenance I worker in streets or traffic belongs to WSCCCE.

Over the years, as the employer has occasionally reorganized the structure of the workforce, the parties have resolved jurisdic­tional problems by agreement. For example, in 1999, the employer, WSCCCE and the Teamsters agreed to transfer the position of cemetery supervisor from the WSCCCE unit to the Teamsters unit. However, in the present case, the parties could not agree which unit the Greenway employees should be placed in, and so have deferred the decision to the Commission.

Accretion

The Greenway and Sensitive Lands Team is comprised of eleven positions: a public works supervisor, two public works leads, two grounds specialists, and six maintenance worker II positions.[4] The unit clarification petition filed by the Teamsters seeks to accrete the Greenway employees into its existing grounds maintenance bargaining unit. That request is governed by WAC 391-35-020, which states that employees or positions may be added to an existing unit where the existing unit is the only appropriate place for those employees. However, if positions could logically be claimed by two or more bargaining units, accretion cannot be ordered. This is precisely the issue that has arisen in this case.

Employees are ordinarily permitted to vote on their choice of exclusive bargaining representative. Accretions are exceptions to the norm, and will be ordered only where changed circumstances lead to the presence of positions that logically belong only in one particular existing bargaining unit, so that those positions can neither stand on their own as a separate unit nor be logically accreted to any other existing unit. Kitsap Transit Authority, Decision 3104 (PECB, 1989). Because an accretion is accomplished without giving the affected employees an opportunity to vote, the party proposing the accretion has the burden to show that the conditions for an accretion are present. Kitsap Transit Authority, Decision 3104; City of Vancouver, Decision 9469 (PECB, 2006).

Neither the Teamsters unit nor the WSCCCE unit were certified by the Commission. In fact, the units were formed before the Commission existed. If the Commission were presented with these unit configurations anew, they would likely be deemed inappropriate because of the overlap of work jurisdiction among the bargaining units. However, given the forty-year history of these units, the likely disturbance to the employees caused by a reconfiguration of the underlying units, and in the interest of preserving labor peace, the Executive Director declines to disrupt the existing unit structure. Furthermore, the Teamsters, WSCCCE and the employer have a history of maintaining these units as distinct entities, and none of the parties has challenged the existing unit structure.

This does not mean the Teamsters took inappropriate action in filing the unit clarification petition. In fact, it was not unreasonable for the Teamsters to conclude that the Greenway and Sensitive Lands employees be included in its unit, nor was it unreasonable for WSCCCE to reach the same conclusion and intervene in the unit clarification proceeding. Under WAC 391-35-020(1)(b), a petition with regard to disputes concerning the allocation of employees or positions claimed by two or more bargaining units may be filed at any time. Additionally, WSCCCE properly filed a timely representation petition because neither a contract bar nor a certification bar existed. WAC 391-25-030(3).

The Executive Director concludes that the Greenway and Sensitive Lands employees cannot be accreted into either existing bargaining unit because neither union established that its unit is the only appropriate place for the Greenway employees. Thus, the unit clarification petition is dismissed.

Issue 2: The Greenway and Sensitive Lands Employees

Since the Greenway employees cannot be accreted into either existing bargaining unit, their viability as a stand-alone unit must be examined. As noted above, the Commission seeks to group together employees with a “community of interest” when assessing an appropriate bargaining unit.

The Greenway and Sensitive Lands Team is responsible for work activities related to the employer’s Burnt Bridge Creek project. The objective of the project is to develop a natural, self-regulating, integrated ecological system in the Greenway to act as a natural buffer for flood water. The project aims to establish a fully functioning wetland to improve water quality, enhance wildlife habitat, and create an educational resource for the community.

The Greenway jobs require skills that go beyond the scope of work previously done by other public works employees. For example, it is important for the Greenway employees to have knowledge of ecosystems, botany, and hydraulics. The employees are required to hold erosion control certification as part of their job descrip­tions, which is not required for any other public works employees. Greenway employees are also equipped with laptops and GPS naviga­tion devices so they can access necessary data while out in the field. They create flood control ponds, provide habitat for wildlife, and plant and maintain vegetation native to the eco-system.

Some of the Greenway work overlaps with work in other divisions. For example, many employees in various divisions prune vegetation. But while an employee in grounds uses a hedge trimmer to make a shrub look square, a Greenway employee considers factors such as potential damage to habitat when pruning a tree. Both engage in mowing, although for different purposes: Grounds for aesthetic reasons, and Greenway “rough mowing” to keep vegetation low to prevent fires.

The unique nature of the Greenway work justifies the finding that the Greenway and Sensitive Lands Team is an appropriate bargaining unit. Therefore, the Executive Director directs an election. However, neither the Teamsters nor WSCCCE erred by first asserting that the Greenway employees belonged in their respective units. Subsequently, WSCCCE properly filed its election petition. Under these unusual circumstances, it would be unfair to order an election where the Teamsters did not have an opportunity to participate. Therefore, the Executive Director will allow a 30-day period from the issuance of this decision for the Teamsters to properly intervene in the election.[5] Thereafter, an election will be conducted in accordance with procedures set forth in WAC 391-25.

FINDINGS OF FACT

1.         The City of Vancouver is a public employer within the meaning of RCW 41.56.030(1).

2.         Teamsters Local 58 is a bargaining representative within the meaning of RCW 41.56.030(3). Under the parties’ agreement, the City of Vancouver recognizes the Teamsters as the exclu­sive bargaining representative of the employer’s Grounds Maintenance Division of the Public Works Department assigned to the maintenance of parks.

3.         The Washington State Council of County and City Employees, Council 2, AFSCME, Local 307-VC (WSCCCE), is a bargaining representative within the meaning of RCW 41.56.030(3). Under the parties’ agreement, the City of Vancouver recognizes WSCCCE as the exclusive bargaining representative of all employees of the Water, Water Distribution and Quality, Waste Water, Streets, Drainage Facility Maintenance, Traffic Signal, Traffic Sign, Warehouse, and Dispatch Divisions of the Public Works Department.

4.         Both the Teamsters and WSCCCE are members of the Joint Labor Coalition, which has a collective bargaining agreement with the City of Vancouver dated January 1, 2006 through December 21, 2008.

5.         The Greenway and Sensitive Lands Team is a newly-created division in the Public Works Department, which at the time of the hearing consisted of eleven positions.

6.         The Teamsters and WSCCCE both currently represent positions titled public works supervisor, lead maintenance worker, and maintenance worker I and II. These positions also exist in the Greenway and Sensitive Lands Division.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter under RCW 41.56, and Chapters 391-25 and 391-35 WAC.

2.         The unit clarification petition filed by Teamsters Local 58 in Case 21018-C-07-1302 is dismissed.

3.         In relation to the representation petition filed by WSCCCE in Case 21097-E-07-3268, the unit described in paragraph 5 of the foregoing Findings of Fact shares a community of interest and constitutes and appropriate bargaining unit.

4.         In the event that it is able to comply with the provisions set forth in WAC 391-25-190(1) within 30 days of the issuance of this decision, Teamsters Local 58 shall be allowed to inter­vene in Case 21097-E-07-3268.

DIRECTION OF ELECTION

A representation election shall be conducted by secret ballot, under the direction of the Public Employment Relations Commission among:

All full-time and regular part-time employees of the Greenway and Sensitive Lands Division of the of the City of Vancouver’s Public Works Department, excluding supervisors, confidential employees and all other employees,

to determine whether a majority of the employees in that unit desire to be represented for the purposes of collective bargaining by Teamsters Local 58, provided they qualify as an intervenor; or by the Washington State Council of County and City Employees, Council 2, AFSCME, Local 307-VC; or by no representative.

Issued at Olympia, Washington, on the 31^st day of July, 2008.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

CATHLEEN CALLAHAN, Executive Director

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