State - Natural Resources, Decision 9389-A (PSRA, 2006)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
WASHINGTON PUBLIC EMPLOYEES ASSOCIATION, UFCW LOCAL 365
	CASE 20260-C-06-1261
For clarification of an existing bargaining unit of employees of:	DECISION 9389-A - PSRA
INTERIM ORDER WASHINGTON STATE – NATURAL RESOURCES

Herb Harris, Organizer, for the union.

Roger Theine, Assistant Human Resources Division Manager, for the agency.

The Washington Public Employees Association, UFCW Local 365 (WPEA) filed a unit clarification petition involving certain supervisors employed by the State of Washington (employer) at the Department of Natural Resources (agency). The petition followed a change of job classifications under the State Civil Service Law, Chapter 41.06 RCW. The agency and union filed a stipulation.

ISSUE

The issues to be determined in this case are:

1.         Should the parties’ stipulation on the non-effect of a change of classification titles be accepted?

2.         How should the bargaining unit be described?

The Executive Director accepts the parties’ stipulation only to the extent that the change of civil service classification titles does not alter who is included in or excluded from this bargaining unit, and remands the case to the Hearing Officer with direction to:

1.         Join the Washington Federation of State Employees (WFSE) as a party to this proceeding, based on its status as exclusive bargaining representative of a residual unit of supervisory employees at the agency; and

2.         Conduct further proceedings to ascertain appropriate descriptions for both bargaining units of supervisory employees.

APPLICABLE LEGAL PRINCIPLES

The determination and modification of appropriate bargaining units of state civil service employees is a function delegated by the Legislature to the Commission under the Personnel System Reform Act of 2002 (PSRA). The unit determination criteria are 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; . . .

(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.

(emphasis added). The clauses set forth here in italics are known collectively as the community of interest criteria.

Bargaining units must be appropriate under the statutory criteria. Western Washington University, Decision 8704-A (PSRA, 2005) summarizes precedents defining bargaining units.

The PSRA neither confines the Commission to certifying “the most appropriate unit” or “the only appropriate unit” in each case. . . . It is thus similar to . . . Chapter 41.56 RCW. [Footnote omitted] As noted in City of Centralia, Decision 3495‑A (PECB, 1990) . . . :

All of the employees of an employer inherently share some community of interest in dealing with their common employer. Thus, when sought by a petitioning union, employer‑wide bargaining units have been viewed as presumptively appropriate.

Units smaller than employer‑wide may also be appropriate, especially in larger workforces. The employees in a separate department or division may share a community of interest separate and apart from other employees of the employer, based on their commonality of functions, duties, skills and supervision. Consequently, departmental (vertical) units have sometimes been found appropriate when sought by a petitioning union. Alternatively, employees of a separate occupational type may share a community of interest based on their commonality of duties and skills, without regard to the employer’s organizational structure. Thus, occupational (horizontal) units have also been found appropriate, on occasion, when sought by a petitioning union.

Concerns about “fragmentation” of bargaining units arise from time to time. One very real concern is that employees not directly involved in an organizational effort will be deprived of their statutory bargaining rights by being left “stranded” alone or in a unit that is too small to bargain effectively. Another concern is that the establishment of a bargaining relationship gives rise to a scope of “bargaining unit work”, and a duty on the part of the employer to give notice to the exclusive bargaining representative and provide opportunity for bargaining prior to transfer of bargaining unit work to employees outside of the bargaining unit. Thus, decisions have required that fringe groups be incorporated into the bargaining units to which they logically relate, and have rejected unit configurations that Balkanize departments or occupational groups into units that can be explained only on the basis of “extent of organization” (footnote omitted).

Thus, it is only necessary for a PSRA bargaining unit to be “an appropriate” unit, and the fact that there may be other groupings of employees which could also be appropriate (or even more appropriate), is not a basis to label a unit as inappropriate.

An “existing units inappropriate” situation occurred in South Kitsap School District, Decision 1541 (PECB, 1983), where bar-gaining units represented by two different unions had overlapping work jurisdictions. Both units were found inappropriate and those bargaining relationships were terminated by operation of law. The resulting upset of parties’ rights and relationships warrants taking great care, and imposing a high burden of proof, before putting an “inappropriate” label on any bargaining unit.

Commission orders describe all state bargaining units under the PSRA. As noted in Community College District 3 (Olympic), Decision 8960‑C (PSRA, 2005), Chapter 41.80 RCW does not contain the tolerance of “voluntary recognition” which can be gleaned (by reverse implication) from RCW 41.56.050. Instead, RCW 41.80.005(9) limits “exclusive bargaining representative” status to organizations certified under the statute. Any and all certifications, modifications, or decertifications of bargaining units under Chapter 41.80 RCW must be accomplished by formal, written orders issued under the authority of the Commission.[1]

Use of generic terms in unit descriptions is preferred in Commission precedents. In a case where all of the employees in a unit of supervisors had “department director” titles, the Commission wrote:

[S]upervisor bargaining units were described as “All full‑time and regular part‑time supervisor(s) . . .” in Tacoma School District, Decision 2250‑A (PECB, 1986); King County, Decision 4004 (PECB, 1992); and King County Fire District, Decision 4928 (PECB, 1994).

If we were to limit the unit description to “department directors” in this case, the situation would be ripe for future conflict. For example, the employer could develop a position with similar duties, but call it something other than a “department director”. Alternatively, a position given a “department director” title, but which does not exercise authority over subordinate employees, could be automatically (and inappropriately) included in this bargaining unit simply because of the job title.

The use of a generic phrase to describe a supervisory bargaining unit does create the possibility that other positions could eventually qualify for inclusion. The Public Employment Relations Commission retains the authority . . . to determine whether positions share a community of interest with others in a bargaining unit. We see no problem with the potential inclusion of other supervisors who share a community of interest with “department directors”. We do see a potential for mischief and confusion under the collective bargaining law were we to deviate from our preference for generic terms in unit descriptions.

City of Milton, Decision 5202-B (PECB, 1995).

The Executive Director recognizes that the Commission’s policy differs from the practices of the WPRB and its predecessors.[2] However, the third word represented by the PSRA acronym is a “reform” that brought the state’s workforce into a new world of collective bargaining administered by this agency. In turn, this Commission operates under a legislative directive to provide “uniform” administration of collective bargaining laws. RCW 41.58.005(1).

The ultimate focus is on defining the scope of work performed by the employees in a bargaining unit, implementing the “duties” and “skills” components of the statutory unit determination criteria. In South Kitsap School District, Decision 472 (PECB, 1978) and numerous subsequent cases up to and including University of Washington, Decision 9410 (PSRA, 2006), the Commission has ruled that an employer must fulfill its bargaining obligations before transferring bargaining unit work to its own employees outside of the bargaining unit (termed, “skimming”) or to employees of another employer (termed, “contracting out”). Thus, a unit description must be unique to the bargaining unit involved, and should communicate the work jurisdiction to those who have occasion to come into contact with the bargaining relationship in the future. An ideal unit description will unambiguously provide ongoing criteria to discern the borderlines between adjacent bargaining units as well as to distinguish between represented and unrepresented employees.

Restructuring of the state’s classification system is a function delegated by the PSRA to the Washington Personnel Resources Board (WPRB) and Department of Personnel (DOP), in RCW 41.06.139. The civil service rules provide a framework for that implementation:

WAC 357‑10‑010 CLASSIFICATION PLAN -– FRAMEWORK AND GENERAL DIRECTION. (1) Beginning January 1, 2005, the director [of the DOP] must implement a comprehensive classification plan that includes allocation and reallocation of positions. The plan must support state government’s efforts to deliver effective and efficient services to the citizens of the state. To achieve this goal, the classification plan, and any modifications to it, shall be designed in accordance with the following goals for the state:

(a) The plan shall be modern, simple, and streamlined, with the number of job classifications and administrative processes kept to a reasonable minimum;

. . . .

The plan called for in that rule decreases the number of job classes and broadens the general descriptions of remaining classifications.

ANALYSIS

The bargaining unit involved in this case was part of a larger bargaining unit of 800 or more employees that existed on June 13, 2002, and so was protected by RCW 41.80.070(1). See Western Washington University, Decision 8704-A. Any “agencywide” label formally or informally attached to it was a misnomer, however. As detailed below, numerous supervisory positions had been excluded from the historical bargaining unit by actions of the WPRB or its predecessors.

The historical bargaining unit included a mix of supervisors and nonsupervisory employees. It was divided into separate units con-forming with RCW 41.80.070(1), based on stipulations in proceedings conducted under WAC 391-35-026(1). On February 4, 2004, the supervisory bargaining unit involved in this case was described as:

All supervisory civil service employees of the Washington State Department of Natural Resources, excluding confidential employees, internal auditors, non‑supervisory employees, Washington Management Service employees (on and after July 1, 2004), employees in other bargaining units and employees historically excluded from the unit by orders of the Washington Personnel Resources Board or its predecessors.

State - Natural Resources, Decision 8310-A (PSRA, 2004). The absence of specific job titles from that unit description was con-sistent with Commission policy and practice, as described above.[3]

ISSUE 1 - STIPULATED NON-EFFECT OF THE CROSSWALK

Following what has been described as a “crosswalk” to job titles remaining in existence under the new classification system, the parties filed a stipulation in this proceeding, as follows:

The Department of Personnel classification consolidation plan implementation, that includes allocation and re-allocation of positions in the Department of Natural Resources, does not change the bargaining unit status of any employee of the Department of Natural Resources. As positions “crosswalk” to the new classification plan, the union certified to represent incumbents before and after reallocation of positions to new consolidated classifications retains its representation rights as existed prior to the classification “crosswalk”.

Terms like “job classification” and “title” are notably absent from the unit determination criteria set forth in RCW 41.80.070 and other collective bargaining laws administered by the Commission. A change of classification titles is irrelevant to the bargaining unit status of employees who continue to perform the same work.

The conclusion on Issue 1 is that the parties’ stipulation can be, and is, accepted to the extent that they agree on the non-effect of a change of job titles on bargaining unit status.

ISSUE 2 - HOW SHOULD THE BARGAINING UNIT BE DESCRIBED?

Review of events both before and after June 13, 2002, provides cause for concern that the unit description set forth in State - Natural Resources, Decision 8310-A (PECB, 2004), is already ambiguous, and will not serve its intended purpose of communicating the scope of bargaining unit work to the employer, the incumbent union, and any other union that may have an interest in organizing (or already represents) other employees of the employer.

The “all supervisory civil service employees” was misleading when Decision 8310-A was issued. While something on the order of 100 employees were allocated to the supervisory unit after the division proceedings, we now know that there was an even larger number of supervisors excluded from that unit.

The “employees historically excluded from the unit” was ambiguous when Decision 8310-A was issued, or at least required access to external information that is not readily available.[4] Review of the unit history file transferred to the Commission by the Department of Personnel under RCW 41.80.901 indicates that numerous positions had been excluded from the historical bargaining unit by action of the WPRB or its predecessors.[5]

This unit was not perfected under WAC 391-35-026(2). That rule took advantage of the delayed effective date of the PSRA “rights” and “elections” provisions in RCW 41.80.050 and .080, respectively, to allow accretions to historical units during the transition period that existed from June 13, 2002, through June 30, 2004.[6] The incumbent unions were able to round out historical bargaining units that were amoeba-shaped or had holes giving them the appearance of Swiss cheese, to bring them into conformity with the employer-wide unit (wall-to-wall), vertical unit (grouping employees according to the branch of the employer’s table of organization in which they work), or horizontal unit (grouping employees according to their generic occupational type) configurations endorsed by Commission precedents. By failing to perfect the historical unit, the WPEA perpetuated a risk of challenges to its work jurisdiction.

Concern about the clarity of the unit description was heightened by the events that actually occurred after February 4, 2004. On September 9, 2004, the WFSE was certified as exclusive bargaining representative of a bargaining unit described as:

All supervisory employees of the Washington State Department of Natural Resources covered under [Chapter] 41.80 [RCW], excluding confidential employees, [Washington Management Service] employees and employees in existing bargaining units.

State - Natural Resources, Decision 8711 (PSRA, 2004). At that time, the residual unit of supervisors encompassed approximately 148 employees, making it about half-again larger than the supervisory unit represented by the WPEA. Upon its certification, the WFSE acquired a claim of work jurisdiction for the unit it represents.

Moving beyond the accepted non-effect of the change of job classifications, the Executive Director discerns several problems with the stipulation filed by the parties in this case:

•           The stipulation conflicts with the statutory unit determination criteria to the extent that it would make “current union membership” the ongoing criteria for sorting out bargaining unit membership.[7]

•           There is an ongoing potential for work jurisdiction conflicts, given that the border between the supervisory unit represented by the WPEA and the supervisory unit represented by the WFSE is no better than a wriggling line.

•           The employer’s efforts to respect the work jurisdiction claims of both unions will likely be confounded by the reduction in the number of state civil service classifications, which inherently increases the potential for the same classification to appear in both bargaining units.

•           The language in the stipulation stating, “the union certified to represent incumbents before and after reallocation of positions to new consolidated classifications retains its representation rights” potentially addresses employees beyond the scope of the WPEA unit.

•           The employer and both unions will have an ongoing need for criteria to sort out unit work claims as to any new work which might be added to the agency’s responsibilities.

•           Because of the potential for infringement on the bargaining unit it represents, WAC 391-35-050(3) entitled the WFSE to notice and intervention in this unit clarification case.

For all those reasons, the case is remanded to the Hearing Officer for further proceedings giving all of the interested parties an opportunity to provide stipulations and/or present evidence sufficient to properly describe both of the affected supervisory bargaining units.

NOW, THEREFORE, it is

ORDERED

1.         The Executive Director accepts the stipulation of the WPEA and the agency that changes of job classifications to implement a new classification system under RCW 41.06.139 have no effect on bargaining unit composition, conditioned upon framing an appropriate description of the bargaining unit.

2.         This case is remanded to Hearing Officer Sally B. Carpenter with instructions to:

A.        Notify the Washington Federation of State Employees of the potential for infringement upon the residual bargaining unit of supervisory employees at the Department of Natural Resources, for which it was certified in State - Natural Resources, Decision 8711 (PSRA, 2004), and make that organization a party to this proceeding.

B.        Conduct further proceedings to ascertain unique and appropriate descriptions for the separate bargaining units of employees represented by the WPEA and WFSE at the Department of Natural Resources, to provide ongoing criteria for the allocation of employees and work between those bargaining units.

Issued at Olympia, Washington, on the 19^th day of September, 2006.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director