DECISIONS

Pierce Transit, Decision 10161 (PECB, 2008)

Schroeter Goldmark Bender, by Martin S. Garfinkel, Attorney at Law, for the union.

Summit Law Group, by Bruce L. Schroeder and Elizabeth R. Kennar, Attorneys at Law, for the employer.

On June 20, 2008, Amalgamated Transit Union, Local 758 (union) filed a unit clarification petition with the Public Employment Relations Commission under Chapter 391-35 WAC. The petition involves a new classification, Transit Security Officer, created by Pierce Transit (employer). The employer proposes to exclude 24 positions in the new classification, while the union believes the positions should be included in the existing bargaining unit, a wall-to-wall unit of transit operators, dispatchers, clerical support, maintenance, custodial and warehouse employees.[1] Hearing Officer Claire Nickleberry was assigned to the case.

On March 28, 2008, the Hearing Officer held a pre-hearing confer­ence call with the parties. During the call it was revealed that positions in the new classification had not been filled, and the duties these positions will actually perform had not been estab­lished. These facts raised the question as to whether the petition was filed prematurely.

On June 6, 2008, the Hearing Officer issued a show cause directive to the parties requesting information as to why this case should not be dismissed since:

PERC case law precedent requires that inclusion or exclusion of positions in a bargaining unit be determined by evidence of actual duties performed by the employees involved, rather than speculation about what the duties might be in the future. Under that precedent, the filing of this petition is premature and should be dismissed.

On June 23, 2008, the employer submitted a response indicating that the hearing should be held because the employer currently contracts this work through a third-party contractor and the duties and responsibilities are known.[2] The employer further asserted that these employees would not share a community of interest with other employees in the existing bargaining unit. The employer also expressed concern that delaying the hearing would pose an undue hardship on the employer because it would delay recruitment and hiring of these positions.

This Commission has long held that when determining bargaining units or unit placement, it will not consider speculation, but only duties that are actually performed. State - Natural Resources, Decision 8458-B (PSRA, 2005); City of Redmond, Decision 7814-B (PECB, 2004). The fact that contracted employees may do certain work for the employer is not dispositive. In this case, the employees are merely prospective employees. They have not yet been hired. Thus, they cannot be organized or accreted, nor can their inclusion in or exclusion from an existing bargaining unit be determined.

Accordingly, the instant petitions are both dismissed. Pursuant to WAC 391-35-020, a unit clarification may be entertained within a reasonable time after new employees are hired by the employer. In the alternative, any labor organization may wish to organize newly hired employees under the provisions set forth in WAC 391-25.

Dated at Olympia, Washington, this 14^th day of August, 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.