Western Washington University, Decision 8704 (PSRA, 2004)

Attorney General Christine O. Gregoire, by Wendy Bohlke, Senior Counsel, for the employer.

Eric T. Nordlof, General Counsel, for Public School Employees of Washington.

Parr, Younglove, Lyman & Coker, PLLC, by Edward Earl Younglove, III, Attorney at Law, for the Washington Federation of State Employees.

Western Washington University (employer) filed a unit clarification petition on June 22, 2004, seeking reallocation of positions among four bargaining units currently existing among its employees. In essence, the employer would have the Commission abolish two bargaining units represented by Public School Employees of Washington (PSE), and would have the employees historically included in those bargaining units transferred to two bargaining units represented by the Washington Federation of State Employees (WFSE). A notice was issued on July 30, 2004, setting a hearing to be held on September 9, 2004. PSE filed a motion for summary judgment on August 5, 2004, and the WFSE joined that motion on August 11, 2004. The employer filed a response to the motion on August 19, 2004, and filed an amended response on August 20, 2004.

The Executive Director has considered the matter and concludes the motion(s) for summary judgment must be DENIED.

ANALYSIS

Applicable Legal Principles

Summary judgments are authorized by the Model Rules of Procedure, Chapter 10-08 WAC, at WAC 10-08-135. The Public Employment Relations Commission has not adopted rules which encourage motion practice, and has issued decisions that impose a high standard on summary judgments. See State - General Administration, Decision 8087-B (PSRA, 2004). In evaluating a motion for summary judgment, all facts and inferences must be taken in the light most favorable to the party against whom a summary judgment is sought.

This case arises under the Personnel System Reform Act of 2002 (PSRA), which includes:

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.

The Commission’s rules regulating the filing and processing of unit clarification petitions include:

WAC 391‑35‑020 TIME FOR FILING PETITION ‑‑ LIMITA-TIONS ON RESULTS OF PROCEEDINGS.

TIMELINESS OF PETITION

(1) A unit clarification petition may be filed at any time, with regard to:

(a) Disputes concerning positions which have been newly created by an employer.

(b) Disputes concerning the allocation of employees or positions claimed by two or more bargaining units.

(c) Disputes under WAC 391‑35‑300 concerning a requirement for a professional education certificate.

(d) Disputes under WAC 391‑35‑310 concerning eligibility for interest arbitration.

(e) Disputes under WAC 391‑35‑320 concerning status as a confidential employee.

(f) Disputes under WAC 391‑35‑330 concerning one‑person bargaining units.

(2) A unit clarification petition concerning status as a supervisor under WAC 391‑35‑340, or status as a regular part‑time or casual employee under WAC 391‑35‑350, is subject to the following conditions:

(a) The signing of a collective bargaining agreement will not bar the processing of a petition filed by a party to the agreement, if the petitioner can demonstrate that it put the other party on notice during negotiations that it would contest the inclusion or exclusion of the position or class through a unit clarification proceed­ing, and it filed the petition prior to signing the current collective bargaining agreement.

(b) Except as provided under subsection (2)(a) of this section, the existence of a valid written and signed collective bargaining agreement will bar the processing of a petition filed by a party to the agreement unless the petitioner can demonstrate, by specific evidence, substantial changed circumstances during the term of the agreement which warrant a modification of the bargaining unit by inclusion or exclusion of a position or class.

LIMITATIONS ON RESULTS OF PROCEEDINGS

(3) Employees or positions may be removed from an existing bargaining unit in a unit clarification proceed­ing filed within a reasonable time period after a change of circumstances altering the community of interest of the employees or positions.

(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.

(emphasis added). That rule is a codification of principles that date back to City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn. App. 599 (1981), review denied, 96 Wn. 2d 1004 (1981).

ANALYSIS

PSE has been the exclusive bargaining representative of employees of this employer since 2000. In a “division” order issued under WAC 391-35-026, Western Washington University, Decision 8634 (PSRA, 2004), the bargaining unit represented by PSE (historically known as “bargaining unit D”) was divided into two bargaining units, as follows:

Non-supervisory civil service employees . . . who oversee student workers performing office clerical and adminis­trative support functions, excluding confidential employees, internal auditors, supervisors, employees in other bargaining units, and employees historically excluded by orders of the Washington Personnel resources Board.

and

Supervisory civil service employees . . . who supervise civil service employees performing office-clerical and administrative support functions, excluding confidential employees, internal auditors, non-supervisory employees, employees in other bargaining units, and employees historically excluded by orders of the Washington Personnel Resources Board or its predecessors.

The Commission’s docket records for that proceeding indicate there were about 70 employees in the non-supervisory unit and about 45 employees in the supervisory unit.

The employer now proposes to transfer all of the employees in the non-supervisory bargaining unit represented by PSE into a bargain­ing unit of office-clerical employees (historically known as “bargaining unit A”) represented by the WFSE, and it proposes to transfer all of the employees in the supervisory bargaining unit represented by PSE into a bargaining unit of supervisors (histori­cally known as “bargaining unit E”) represented by the WFSE. PSE and the WFSE argue that Chapter 41. 80 RCW protects their status as the incumbent exclusive bargaining representatives of their respective bargaining units. The employer counters that the unit historically represented by PSE was inappropriate under RCW 41. 80. 070 (1), and that the separate units now represented by PSE did not come into existence until Decision 8634 was issued in June 2004, so that the status of PSE is not protected by RCW 41. 80. 070 (1) or (2).

The Commission makes unit determinations on a case-by-case basis, and all unit proceedings are necessarily fact-intensive. To grant a summary judgment at this time, the Executive Director would need to be satisfied that there is no way that a bargaining unit created under prior law could ever become inappropriate under the PSRA. Without precluding that from the range of results that may be possible following a full evidentiary record and legal argument in this case, a summary judgment here would fly in the face of two fundamental principles underlying Chapter 391-35 WAC:

First, employer workforces and bargaining unit configurations are not fixed and immutable, so that there is an ongoing possibil­ity of modification (clarification) of bargaining units upon changes of circumstances. Similar to the situation at hand, City of Richland, Decision 279-A grew out of a controversy that arose before the Commission had jurisdiction in the matter. Efforts to prevent the Commission from holding a hearing and making a determination were rejected by both a court and the Commission in that case. [1] Changed circumstances (up to and including changes that render an entire unit configuration inappropriate) are the primary reason for granting a change of bargaining unit status of employees or classifications.

Second, unit clarification proceedings under Chapter 391-35 WAC provide an orderly forum for resolution of unit determination controversies that are not a subject for bargaining in the usual mandatory/permissive/illegal sense. City Richland, Decision 279-A. Thus, a party is neither entitled to shut down bargaining pending the resolution of a unit determination issue by the Commission, nor entitled to insist to impasse in bargaining on a unit determination issue. The summary judgment requested in this case would thus deprive these parties of a forum to resolve their controversy.

Summary judgment is only appropriate in very limited situations, such as where parties that fail or refuse to enter into stipula­tions on the limited issues open to resolution in a unit determina­tion case also fail to raise any contested issues of fact. City of Long Beach, Decision 1051 (PECB, 1980); Eastern Washington University, Decision 8678 (FCBA, 2004). No such circumstances exist in this case.

NOW, THEREFORE, it is

ORDERED

1.         The motion for summary judgment made by Public School Employ­ees of Washington (and joined in by the Washington Federation of State Employees) is DENIED.

2.         The matter is remanded to Hearing Officer J. Martin Smith for further proceedings under Chapter 391-35 WAC.

Issued at Olympia, Washington, on the 1^st day of September, 2004.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director