Mead School District, Decision 7183-A (2001, PECB

Gary Ferney, Assistant Superintendent, appeared for the employer.

Faith Hanna, Attorney at Law, for both Mead Educational Support Personnel/WEA and Mead Classified Public Employ­ees Association/WEA.

This case comes before the Commission on a notice of appeal filed by the unions, seeking to overturn a decision issued by Executive Director Marvin L.  Schurke. [1]We affirm.

BACKGROUND

The facts are fully detailed in the decision issued by the Executive Director and are only addressed here in relevant part.

The Mead School District (employer) operates common schools near Spokane, Washington. The employer maintains a warehouse where foods, commodities, mail, and packages are received from vendors and distributed to the various schools by the position at issue in this case. Since June 1999, Jeff Dailing has been responsible for both these delivery tasks and custodial duties at the employer’s administrative office.

On May 14, 1999, Mead Educational Support Personnel #1/WEA (MESP) filed a petition for clarification of an existing bargaining unit of the employer’s classified employees, under Chapter 391-35 WAC.  The petition indicated that Mead Classified Public Employees Association/WEA (CPEA) also claimed the position at issue and that union was granted intervention.

The MESP and CPEA have a joint history.  In Mead School District, Decision 3301 (PECB, 1989), the CPEA prevailed in an election and run-off election involving the entire bargaining unit previously represented by another organization and was certified as exclusive bargaining representative of a bargaining unit described as:

All full-time and regular part-time custodial, maintenance and mechanic employees of Mead School District; excluding supervisors, confi­dential employees, and all other employees of the district.

Since 1995, that bargaining unit has purportedly been separated into two bargaining units represented by local organizations affiliated with the Washington Education Association (WEA):The MESP purports to represent the mechanics, maintenance, computer, and warehouse employees; the CPEA purports to represent only the custodians.  The split of the bargaining unit apparently resulted from a unilateral action by the CPEA; there is no evidence that the employer agreed to or consented to the split.

A notice of hearing was issued on September 15, 1999; an amended notice of hearing was issued on November 29, 1999; and a second amended notice of hearing was issued on December 9, 1999. Hearing Officer J.  Martin Smith conducted a hearing on December 14, 1999. The two unions chose to stipulate documents and state their positions, but did not offer sworn testimony or file briefs.  The employer did not take an active role in the hearing and did not state a position on the unit placement of the disputed work.

The Executive Director faulted the purported separation of the certified bargaining unit and declined to decide the unit placement of the disputed position in the context of the purportedly divided units.  MESP filed a notice of appeal on October 12, 2000, bringing this case before the Commission.  The unions later requested an extension of time to file briefs and that request was granted.  The unions then filed a joint appeal brief on January 16, 2001.  

POSITIONS OF THE PARTIES

The unions argue that, on its face, RCW 41. 56. 060 gives the Commission authority to determine bargaining units in “representa­tion” cases, not in “unit clarification” proceedings. The unions assert that they agreed to an informal procedure to decide the unit placement of a single position and that they did not get a statutory “hearing upon reasonable notice” on the underlying unit configuration issue found determinative by the Executive Director. The unions insist that RCW 41. 56. 060 requires the Commission to consider all of the factors listed and that the Commission could not have done this because the parties did not provide a full account of all factors to be considered. The unions argue that unit clarification proceedings, unlike representation cases, do not provide a valid way to determine the “desires of the public employees. ”They note that a unit clarification proceeding is not available when a question concerning representation exists and maintain that the Executive Director should have dismissed the case to allow resolution of the dispute in a subsequent representation proceeding in which they would have had the opportunity to present arguments about what possible units might be appropriate. The unions also argue that their due process rights were infringed by the scope of the Executive Director’s order.

Consistent with its silence in the proceedings before the Hearing Officer and Executive Director, the employer did not take a position on the issue to be determined in this appeal.

DISCUSSION

There are two issues before the Commission: (1) Whether the Executive Director can find both bargaining units inappropriate, when a unit clarification petition is filed to determine the allocation of a position between two units, and find a previously-certified unit is appropriate; and (2) whether the unions’ due process rights were violated when they choose to focus at the hearing on the employee’s allocation, as opposed to the propriety of the two units.

Controlling Legal Principles

RCW 41. 56. 050 gives the Commission authority to intervene whenever there is a disagreement as to the selection of a bargaining representative. The creation, modification and termination of bargaining relationships are regulated by RCW 41. 56. 050 through RCW 41. 56. 080. Pierce County, Decision 7018-A (PECB, 2001). Thus, although parties may agree on units, their agreement does not guarantee that the unit agreed upon is or will continue to be appropriate. City of Richland, Decision 279-A (PECB, 1978), aff’d 29 Wn.  App.  599 (1981), review denied 96 Wn. 2d 1004 (1981). See also Spokane School District, Decision 718 (EDUC, 1979). In other words, unit determination questions are within the authority of the Commission to decide, not matters for unions to divide up among themselves, and the Commission need not give any weight or deference to agreements between parties. Kent School District, Decision 127 (PECB, 1976).

The Commission’s rules implement the exclusive jurisdiction conferred by Chapter 41. 56 RCW. The Commission conducts represen­tation proceedings under Chapter 391-25 WAC; the Commission has set forth a somewhat simplified procedure in Chapter 391-35 WAC to process proposed “modifications” of existing bargaining units. In representation cases, the parties are specifically called upon to stipulate or litigate the question of whether the proposed bargaining unit is appropriate; the propriety of an existing bargaining unit is inherently before the Commission in unit clarification proceedings, even if it is sometimes assumed (rather than stipulated or litigated) by the parties. Under both sets of rules, the standards applied are those in RCW 41. 56. 060.

Application of Standards

The Existing Units Were At Issue -

We hold that the Executive Director can find bargaining units inappropriate when a unit clarification petition is filed to determine the allocation of a position between two or more units. Many of the unions’ arguments are misplaced. Rather than determin­ing a new appropriate bargaining unit in this case, the Executive Director merely held that the purported division of the bargaining unit certified by the Commission in 1989 had resulted in the creation of a unit configuration that is inappropriate under RCW 41. 56. 060.

The unions correctly note that, in making unit determinations under Chapter 391-25 WAC, the Commission applies the community of interest criteria set forth in RCW 41. 56. 060, as follows:

RCW 41. 56. 060 DETERMINATION OF BARGAINING UNIT-BARGAINING REPRESEN­TATIVE.  The commis­sion, after hearing upon reasonable notice, shall decide in each application for certifi­cation as an exclusive bargaining representa­tive, the unit appropriate for the purpose of collective bargaining. In determining, modi­fying, or combining the bargaining unit, the commission shall consider the duties, skills, and working conditions of the public employ­ees; the history of collective bargaining by the public employees and their bargaining representatives; the extent of organization among the public employees; and the desire of the public employees.  .  .  .

(emphasis added).

The unions also correctly note that none of the unit determination criteria set forth in the statute prevails over the others. Pierce County, Decision 7018-A, supra (citing Franklin County, Decision 3193 (PECB, 1989)). Further, the unions correctly note that the “desires of employees” cannot be assessed in a unit clarification proceeding under Chapter 391-35 WAC, but can be assessed in a representation proceeding. [2]That said, the unions still err in failing to recognize the proper application of “duties, skills and working conditions,” “history of bargaining,” and “extent of organization” criteria in proceedings under Chapter 391-35 WAC.

Under 391-35-020, a unit clarification petition may be filed at any time regarding disputes concerning the allocation of employees claimed by two or more bargaining units. There does not need to be a change of circumstances. However, an exclusive bargaining representative that seeks to have a particular position or group of employees accreted into an existing bargaining unit must establish that the bargaining unit involved constitutes the only appropriate unit for the employee(s) at issue. Pierce County, Decision 6051-A (PECB, 1998) (citing Kitsap Transit Authority, Decision 3104 (PECB, 1989)). Thus, even if the unions did not recognize or act upon it, the nature of the controversy placed before the Commission by the petition in this case imposed a burden upon each of the unions involved to prove the propriety of the unit it purports to represent.

The unions cite South Kitsap School District, Decision 1541 (PECB, 1983) for the proposition that a representation proceeding is required to determine the appropriate unit(s) involved in this case. The unions’ reliance is misplaced. In South Kitsap, a unit clarification petition was filed to determine the allocation of a position between two bargaining units that had entirely separate origins. The Executive Director determined that both units were inappropriate and dismissed the petition, leaving the unit determination for a subsequent representation proceeding, but these unions ignore a critical distinction between the situations Different from the fractured history in South Kitsap, the last operative order of the Commission concerning the classified employees in the Mead School District was the certification of a single bargaining unit issued in 1989.

The unions correctly argue that a dispute cannot be resolved through the unit clarification procedure if a question concerning representation is raised by the facts of the particular controversy and that all issues concerning the description of the bargaining unit must then be resolved through the representation procedure. WAC 391-35-110(1);Pierce County, Decision 7018-A, supra (citing see King County, Decision 5820 (PECB, 1997). The unions again err, however, in disregarding the certification of a single unit of classified employees that was issued in 1989. If one or both of these WEA affiliates desires to seek status as exclusive bargaining representative of a bargaining unit smaller than the unit certified in 1989, it can file a representation petition under Chapter 391-25 WAC. To be successful, the organization filing such a petition would need to satisfy the “severance” criteria under Yelm School District, Decision 704-A (PECB, 1980). The WEA did not seek or obtain a “severance” in 1989, and it is not entitled to impose a severance by the actions or agreement in 1995. See Kent School District, supra.

The Unions Were Not Deprived of Due Process -

We hold that the unions were given reasonable notice of the issues in the case and were not deprived of their due process rights. Based on the statutes, rules, and case law, both unions knew or should have known that a union seeking an accretion must meet the “only appropriate unit” test and that the Commission would exercise its jurisdiction to determine if the units were appropriate before deciding to allocate the position at issue. See Pierce County, Decision 6051-A, supra; Kitsap Transit, supra.

The Commission is an "agency" within the meaning of RCW 34. 05. 010­(2), and thus comes under the coverage of the Administrative Procedure Act (APA), Chapter 34. 05 RCW. Hearings conducted by the Commission in unit clarification cases under Chapter 391-35 WAC are always “formal” inasmuch as these are adjudicative proceedings governed by the APA and Chapter 10-08 WAC, as well as by Chapters 391-08 and 391-35 WAC. Under 34. 05. 434, the Commission is to give all parties notice of hearing; notice may be limited to a copy of the initiating document, which the MESP filed in this case.

The scope of a hearing on a unit clarification petition filed under Chapter 391-35 WAC is determined by Chapter 41. 56 RCW and Chapter 34. 05 RCW, as well as by the Commission’s rules and precedents. It was the responsibility of the parties to build a record in this statutory proceeding. [3]This is not a grievance arbitration conducted by the consent of the parties. Compare Chapter 391-65 WAC. Parties do not have authority to narrow the scope of unit clarification proceedings by agreeing to limit the type or amount of evidence submitted. Kent School District, supra.

Clarification of Future Relationships -

The unions state that the Executive Director’s order raised questions about the validity of collective bargaining agreements by holding the current configuration was “invalid,” and they ask the Commission to clarify the order. We respond by pointing out that, while the Executive Director held the separation of the certified bargaining unit into two separate units was null and void, he did not expressly invalidate the collective bargaining agreements. Although the WEA may need to alter internal union structures to move forward, the WEA still represents all of the employees in the bargaining unit certified in 1989. The parties’ contracts mark some or all of the status quo; the employer has a duty to bargain about any changes from that status quo, as well as about the terms of any successor contract.

NOW, THEREFORE, it is

ORDERED

The findings of fact, conclusions of law, and order clarifying bargaining unit issued by Executive Director Marvin L.  Schurke are AFFIRMED and adopted by the Commission.

Issued at Olympia, Washington, on the9thday of October, 2001.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SUGNED]

MARILYN GLENN SAYAN, Chairperson

[SIGNED]

SAM KINVILLE, Commissioner

[SIGNED]

JOSEPH W.  DUFFY, Commissioner