APPEARANCES:

MR. HERB FULLER, Attorney At Law, appeared on behalf of the Petitioner.

MS. SYMONE SCALES, Attorney At Law, appeared on behalf of the Intervenor, Clover Park Education Association.

No appearances were made on behalf of the Employer.

Clover Park School District No. 400 is organized and operated under the provisions of RCW 28A. The Employer has heretofore recognized the Clover Park Education Association, WEA, NEA as the representative of its certificated educational employees. The Washington Federation of Teachers, AFT, AFL-CIO filed a petition with the Commission on April 26, 1977 seeking a representation election among employees of Clover Park Vocational-Technical Institute. The petition was timely filed and was supported by an adequate showing of interest. A pre-hearing conference held on June 20, 1977 resulted in stipulation as to the identities of all parties and as to the status of both the petitioner and intervenor as "employee organizations" within the meaning of the Act. The hearing was held on June 28, 1977, September 19, 1977 and September 20, 1977 before Rex L. Lacy, Hearing Officer.

POSITIONS OF THE PARTIES

The Petitioner contends that the duties, skills, and working conditions of the vocational employees are sufficiently different from the K-12 educational employees to warrant severance of the vocational faculty from the existing bargaining unit; that the interests of the employees would best be served by permitting the vocational employees to select a bargaining representative of their own choice; and that the history of bargaining between the Employer and the Clover Park Education Association is not sufficient to disallow the creation of a separate bargaining unit.

The Intervenor contends that the petitioned-for unit is inappropriate because RCW 41.59.080(6) allows for a separate unit of vocational-technical employees "only" in circumstances when the history of bargaining so justifies. The Clover Park Education Association has heretofore represented all certificated "educational employees" of the Clover Park School District, including vocational-technical employees, and asserts that a severance of the vocational-technical employees would result in unnecessary fragmentation of the existing collective bargaining unit.

STATUTORY AUTHORITY

RCW 41.59.020(4) defines "employee" and "educational employee" to mean any certificated employee of a school district except the chief executive officer of the employer, the chief administrative officers of the employer, confidential employees, supervisors and principals. RCW 41.59.020(8) defines "non-supervisory" employees as meaning all educational employees other than principals, assistant principals and supervisors.

RCW 41.59.080 controls unit determination under the Act:

"41.59.080 Determination of bargaining unit—Standards. The commission, upon proper application for certification as an exclusive bargaining representative or upon petition for change of unit definition by the employer or any employee organization within the time limits specified in RCW 41.59.070(3) and after hearing upon reasonable notice, shall determine 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 educational employees; the history of collective bargaining; the extent of organization among the educational employees; and the desire of the educational employees; except that:

(1) A unit including non-supervisory educational employees shall not be considered appropriate unless it includes all such non-supervisory educational employees of the employer; and

(2) A unit that includes only supervisors may be considered appropriate if a majority of the employees in such category indicate by vote that they desire to be included in such a unit; and

(3) A unit that includes only principals and assistant principals may be considered appropriate if a majority of such employees indicate by vote that they desire to be included in such a unit; and

(4) A unit that includes both principals and assistant principals and other supervisory employees may be considered appropriate if a majority of the employees in each category indicate by vote that they desire to be included in such a unit; and

(5) A unit that includes supervisors and/or principals and assistant principals and nonsupervisory educational employees may be considered appropriate if a majority of the employees in each category indicate by vote that they desire to be included in such a unit; and

(6) A unit that includes only employees in vocational-technical institutes or occupational skill centers may be considered to constitute an appropriate bargaining unit if the history of bargaining in any such school district so justifies; and

(7) Notwithstanding the definition of collective bargaining, a unit that contains only supervisors and/or principals and assistant principals shall be limited in scope of bargaining to compensation, hours of work, and the number of days of work in the annual employment contracts. (1975 1st ex. s. c 288 § 9.)

UNIT DETERMINATION STANDARDS FOR VOCATIONAL FACULTY UNITS

RCW 41.59.080 both confers and delimits the Commission's unit determination authority under the Educational Employment Relations Act. The first paragraph of the Section grants broad unit determination powers in line with relatively conventional factors. Sub-prargraph (1) takes away almost all of the flexibility implied by the general grant of authority which it follows.

RCW 41.59.080(2), (3), (4), (5) and (7) deal with groups of individuals who are not even employees within the meaning of the Act under RCW 41.59.-020(4) until they have voted to create units and to become employees under the procedures established in those sub-sections. As to principals and supervisors, the "desires of the employees" are controlling and there is no room for application of the "duties, skills and working conditions", "history of bargaining" and "extent of organization" criteria.

Non-supervisory employees in vocational-technical institutes and occupational skill centers do not need to vote or take other action to be considered "employees" within the meaning of the Act. Sub-paragraph (6) clearly contemplates (without expressly denominating it as such) an exception to the general rule of RCW 41.59.080(1). Did the legislature intend to call forth for vocational faculties the full scope of unit determination authority set forth in the first paragraph of the section?

The legislature can be presumed to have known that vocational faculties already existed when it enacted this legislation, and can also be presumed to have known that the predecessor statute precluded multiple units within school districts, so that vocational faculties had theretofore been included in District-wide teacher units. Among the four unit definition criteria, "history of bargaining" alone is referenced in RCW 41.59.080(6), and that section is interpreted as indicating that the "duties, skills and working conditions" criteria is presumptively fulfilled in favor of severance in the case of vocational faculties. While extent of organization could be a factor in a completely new field, this legislation was enacted in the context of a 10 year old organizational environment in which all of the affected school districts had been organized under the prior law. Therefore, I am also persuaded that the legislature intended to preclude consideration of the extent of organization in the vocational faculty cases.

The legislature does not enact nullities, and could not have meant that the mere inclusion of vocational faculties in district-wide units under the prior law would be controlling. The prior law provided for "meet, confer and negotiate" relationships, and a technical argument might thus be made that those activities were not and did not create a history of "bargaining". That interpretation would also nullify the legislation, and the language of RCW 41.59.080(6) must be given meaning if it is possible.

The focus of the inquiry in the discussion which follows is at two levels. The first is whether there is a viable relationship between the Employer and an active organization recognized as the representative in the district-wide teacher unit. Absent such a relationship, there would be a serious question as to the existence of any relevant "history of bargaining". The second is whether the incumbent representative in the historical district-wide unit has actively represented individual members of the vocational faculty, and the vocational faculty as a whole, in both "interest" and "rights" issues such that the vocational faculty has been integrated into the district-wide organization and its negotiations under the "meet and confer" law and/or under the provisions of RCW 41.59 prior to the filing of the petition raising the question concerning representation in the potential vocational unit.

The term "may be considered appropriate" takes on a far different meaning in sub-paragraph (6) from that which it must be given in subparagraphs (2) thru (5) of RCW 41.59.080. Had the legislature intended to give vocational faculties a right of self-determination with respect to their unit placement, it could easily have established a voting procedure similar to that provided for supervisors and principals or could have made the desires of employees at least co-equal with history of bargaining. The use of the term "may" in sub-paragraph (6) opens the possibility of an election to determine the desires of employees, as provided by the NLRB in Globe Machine and Stamping Co., 3 NLRB 294 (1937), where two units are found to be equally appropriate under the "history of bargaining" criteria.

For the reasons set forth above, much evidence and argument relating to the duties, skills, working conditions, extent of organization, desires of employees and various NLRB "severance" criteria are inapposite.

FACTS AND ANALYSIS

The Employer operates numerous schools for the education of students in the kindergarten through twelfth grades, as well as the Clover Park Vocational Technical Institute (CPVTI).

CPVTI serves students over sixteen (16) years of age having varying educational backgrounds, including high school graduates. Its curriculum is geared to prepare students for entry into a specific occupation. Additionally, CPVTI provides basic education and recreational classes for adults. CPVTI has a central campus located at Lakewood Center, Washington and has approximately 30 satellite locations.

The K-12 and CPVTI programs have separate funding and statutory arrangements. The K-12 program is regulated by Title 28A RCW, while the CPVTI is regulated by Title 28C RCW.

It is undisputed that CPEA has an active and viable relationship with the District. The CPEA has been recognized as the representative of the District's educational employees since the advent of the "Professional Negotiations Act" of 1965. The CPVTI faculty was eligible to vote in the secret ballot election which led to that recognition. The CPEA and the District negotiated under the "meet and confer" provisions of repealed RCW 28A.72 from 1965 to 1973, with all agreements between the parties being reflected in the District Policies and Administrative Regulations. In 1973 and 1975 written agreements were negotiated between the CPEA and the District covering all certificated employees. The 1977 collective bargaining agreement between the District and the CPEA references these proceedings, and the District has continued to operate under the terms of the 1975 agreement for CPVTI faculty.

During negotiations, from 1969 through 1975, CPVTI has been represented on the CPEA Bargaining Committee and CPVTI employees have held elective positions within the CPEA. The number of representatives has been controlled in the CPEA by-laws by standards uniformly applicable to all schools within the District for the allocation of representatives on various committees. CPEA membership was not required by the terms of the collective bargaining agreement, and a low number of CPVTI "seats" in CPEA activities can be attributed to low membership figures among the CPVTI faculty.

Terms and conditions of all negotiated agreements since 1965 have generally been uniformly applied to all faculty. Some contractual obligations are noted which specifically apply only to K-12 or only to CPVTI, but the terms and conditions critical to establishment of a history of bargaining have been subjects of negotiations. Those agreements have provided for salary placement and schedules for CPVTI faculty, grievance resolution, layoff and recall, assignment and transfer, employee rights, dues checkoff and "conduct of negotiations" procedures since 1973.

Grievances have been processed by CPEA, individually and collectively, on behalf of CPVTI employees. George Blood, UniServ Director, testified to processing grievances and the filing of a lawsuit on behalf of CPVTI employees since his employment in 1970. Included in the grievances filed on behalf of CPVTI employees was one dealing with amnesty for employees who observed and/or participated in a strike against the District in 1975. Other grievances have involved salary, leaves of absence, and placement on the CPVTI salary schedule contained in the collective bargaining agreement.

CPEA Newsletters and informational materials are provided to all faculty, and meeting notices are routinely posted at all District facilities.

District medical and dental insurance programs are applicable to all faculty, including CPVTI faculty. Employee voluntary contributions are applicable to all faculty as are all voluntary payroll deductions.

FINDINGS OF FACT

1.                  Clover Park School District No. 400 is an employer within the meaning of RCW 41.59.020(5). Among other programs, Clover Park School District No. 400 operates a vocational-technical institute or occupational skill center known as Clover Park Vocational-Technical Institute.

2.                  Washington Federation of Teachers, WFT-AFT, AFL-CI0 is an employee organization.

3.                  Clover Park Education Association, WEA-NEA, is an employee organization.

4.                  Washington Federation of Teachers, WFT-AFT, AFL-CI0 timely filed a petition for investigation of a question concerning representation of employees of Clover Park Vocational-Technical Institute.

5.                  Clover Park School District No. 400 recognized Clover Park Education Association, WEA-NEA, as the bargaining representative of its certificated employees under provisions of repealed RCW 28A.72; the certificated employees of Clover Park Vocational-Technical Institute were within the scope of that recognition; and a history of collective bargaining was developed under which employees of Clover Park Vocational-Technical Institute were members of and actively represented by Clover Park Education Association.

6.                  Clover Park School District No. 400 continued recognition of Clover Park Education Association as the exclusive bargaining representative of its non-supervisory certificated employees under the provisions of RCW 41.59. Such recognition continued to encompass employees of Clover Park Vocational-Technical Institute until the petition was filed with the Commission on or about April 26, 1977 in the instant proceedings; and Clover Park Education Association has not abandoned or disclaimed representation of the non-supervisory certificated employees of Clover Park Vocational-Technical Institute.

7.                  A history of bargaining exists indicating that the Clover Park Education Association has actively represented individual members of the Clover Park Vocational-Technical Institute faculty and the Clover Park Vocational-Technical Institute faculty as a whole in both contract negotiations and in grievance resolution under the provision of RCW 41.59.

CONCLUSIONS OF LAW

1.                  A bargaining unit composed of non-supervisory educational employees of Clover Park School District No. 400 employed by Clover Park Vocational-Technical Institute would not constitute an appropriate bargaining unit within the meaning of RCW 41.59.080(6).

2.                  No question concerning representation presently exists in an appropriate unit of educational employees.

NOW, THEREFORE, it is

ORDERED

The petition for investigation of a question concerning representation filed by Washington Federation of Teachers, AFL-CI0 is dismissed.

Dated at Olympia, Washington this 6^th day of March, 1978.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, EXECUTIVE DIRECTOR