APPEARANCES

Gail P. Sessions, Assistant Executive Director and General Counsel, appearing on behalf of Petitioner

Margaret Berry, Director of Personnel, appearing on behalf of Employer

Michael McGrorey, Research Director, appearing on behalf of Intervenor,

School Employees Union Local 114, an affiliate of Service Employees International Union

On April 21, 1978, Public School Employees of Bremerton School District -Maintenance, an affiliate of Public School Employees of Washington (hereinafter "PSE") filed a petition with the Public Employment Relations Commission for investigation of a question concerning representation of certain employees of Bremerton School District No. 100-C (hereinafter "District"). School Employees Union Local 114, an affiliate of Service Employees International Union (hereinafter "SEIU") notified the Commission that it was the incumbent bargaining representative of the petitioned-for employees and as such it wished to intervene in any proceedings concerning them. A hearing was conducted on July 14, 1978, before Willard G. Olson, Hearing Officer.

BACKGROUND

The SEIU has had a continuous collective bargaining relationship with the District since 1946. The 1946-47 contract defined the bargaining unit as:

"The Employer agrees to recognize the Union #114 as the bargaining agent for all non-certificated regular employees usually employed as full or part-time workers engaged in maintenance and operation of the school buildings, grounds, transportation system and cafeterias, in regards to wages, hours, vacations and working conditions. "

The bargaining unit has remained basically unchanged for thirty-two (32) years. The current "Working Agreement" defines the unit as follows:

“Exclusive Bargaining Agent

The Employer agrees to recognize the School Employees Union, Local #114 of Service Employees International Union as the bargaining agent for all classified workers engaged in the following categories in regard to wages, hours, annual leave and working conditions.

1.                                 Transportation

2.                                 Maintenance, Warehousing and Distribution, and District Motor Pool

3.                                 Food Services

4.                                 Operations"

The "maintenance" unit sought by PSE consists of sixteen employees in the following classifications: Mechanic/locksmith (1), cabinetmaker/carpenter (1), carpenter (1), painter (2), mail man/general helper (1), general helper (3), groundskeeper (1), electrician (1), audio-visual technician (1), grounds foreman (1), craft leadman (1), and bus mechanic (2). The petitioner made it clear at the hearing that it did not wish to include the warehouseman, delivery-man or heavy duty truck driver classifications.

The bus mechanics report to the District's supervisor of transportation and are considered part of the transportation department. The other fourteen employees involved, together with the occupants of the warehouseman, delivery-man and heavy duty truck driver classifications, comprise the District's maintenance department, reporting to the supervisor of maintenance.

The District has separate bus garage and warehouse facilities. [1] The bus mechanics work at the bus garage, while the rest of the employees involved are based at the warehouse. The mechanic/locksmith and the cabinetmaker/ carpenter have shops in the warehouse. The remainder of the employees are dispatched to jobs in the several school buildings operated by the District.

The general helpers assist the journeyman craftsmen and the groundskeeper. The general helpers also assist the heavy duty truck driver and warehousemen. Building custodians, who are under the supervision of the various building principals rather than under either the supervisor of maintenance or the supervisor of transportation, assist the journeyman craftsmen in the same manner as the general helpers. The custodians also perform some maintenance work, such as repairing of broken windows and doorknobs. Three "steady" bus drivers who work eight-hour days twelve months a year are assigned during their non-driving hours to perform minor maintenance work on the buses and to assist the bus mechanics.

Under the terms of the collective bargaining agreement between the District and the Intervenor, employees have the right to bid for any job opening within the bargaining unit. Seniority rights prevail, and the record discloses that three of the employees presently working in the maintenance department bid for those positions and were transferred from other departments. Seniority rights also prevail with respect to assignment of summer work to employees holding otherwise "nine-month" jobs. For the past three to four years, employees ordinarily assigned during the school year to work as bus drivers or as food service workers have been assigned to work during the summer months in the maintenance department.

POSITION OF THE PETITIONER

The petitioner places emphasis on the "right of public employees to join labor organizations of their own choosing" language of RCW 41. 56. 010, and to its unanimous support among the employees in the bargaining unit it seeks. While acknowledging that the general helpers are not skilled employees, the petitioner contends that all of the others sought are skilled craftsmen and that a separate bargaining unit would be appropriate based on their duties, skills and working conditions. The petitioner points out that the Commission no longer has a Washington Administrative Code rule dealing specifically with severance cases, and seeks a unit determination under RCW 41. 56. 060 with special consideration to the freedom of choice language of RCW 41. 56. 010.

POSITION OF THE INTERVENOR

The intervenor argues that the petitioned-for bargaining unit is not appropriate, pointing to the facts concerning departmental structure, supervision, skills, interaction with and commonality of benefits and working conditions with other unit employees, and its history of bargaining in the overall unit.

POSITION OF THE EMPLOYER

The employer took no position on the matter.

DISCUSSION

The "severance" rule referred to by the petitioner was first adopted by the predecessor to the Public Employment Relations Commission, the Washington State Department of Labor and Industries, as WAC 296-132-145. The same rule was adopted by the Commission for some time as emergency rule WAC 391-20-145. That emergency rule was permitted to expire on the effective date of the Commission's present rules, Chapter 391-21 WAC.

The petitioner herein is familiar with the problems attendant to the severance of "maintenance" or "skilled" employees from a pre-existing overall

unit of school district classified employees, as it was the incumbent labor organization in at least one case where the Department of Labor and Industries denied such a severance. See: Lake Washington School District, Case No. 0-1152, (unpublished decision of Director of Department of Labor and Industries dated January 29, 1973). The Director therein cited the decision of the National Labor Relations Board in Mallinckrodt Chemical Works, 162 NLRB 387 (1966). The citation of Mallinckrodt is significant in two respects. First, careful examination of the factors enumerated in the Mallinckrodt decision (162 NLRB 387, 397) in comparison with WAC 296-132-145 and WAC 391-20-145 readily yields the conclusion that the rule may have done little else than to codify decisional policies of the NLRB. Second, and more important, is the language which follows those criteria:

"In view of the nature of the issue posed by a petition for severance, the foregoing should not be taken as a hard and fast definition or an inclusive or exclusive 1isting of the various considerations involved in making unit determinations in this area. No doubt other factors worthy of consideration will appear in the course of litigation. We emphasize the foregoing to demonstrate our intention to free ourselves from the restrictive effect of rigid and inflexible rules in making our unit determinations. Our determinations will be made only after a weighing of all relevant factors on a case-by-case basis, and we will apply the same principles and standards to all industries. " (162 NLRB 387, 398);

which suggests that the omission of the former L&I and PERC rule on severance merely brings Washington State into conformity with the NLRB approach. The deletion of the rule is not taken to be an opening of the floodgates to severance petitions.

The employee right of choice relied upon by the petitioner is implemented by the guarantee of secret ballot election and cross-check procedures for determining questions concerning representation, and by the inclusion of the "desires of employees" among the criteria set forth in RCW 41. 56. 060 for unit determinations. The determination of units is a function delegated by the legislature to the Commission, and neither employers nor employees nor labor organizations have the ability to bind the Commission by their agreements or desires. City of Richland, Decision 279-A (PECB, 1978). The "desires of employees" are a factor to be considered by the Commission, but are not the primary or an otherwise dominant factor.

The only common factor that can be identified with respect to the employees in the bargaining unit claimed appropriate by the petitioner is that each of those employees have expressed a desire to be represented by the petitioner. It is clear, on the other hand, that the petitioned-for bargaining unit cuts across lines of departmental organization and supervisory structure within the employer's organization, fails to include all of the employees of the

employer's "maintenance department", is not limited to skilled craftsmen, and does not include all of the employees performing skilled work. There has been no history of separate representation for the proposed unit, and there is a long history of co-mingling and interchange of rights, work and benefits. As we are dealing with a severance from an existing unit without any additions to the overall group of organized employees, there would be no change in the extent of organization among the employer's employees.

FINDINGS OF FACT

1.                  Bremerton School District No. 100-C is a school district organized under Title 28-A, RCW and is a public employer within the meaning of RCW 41. 56. 030(1).

2.                  Public School Employees of Washington, a labor organization and a bargaining representative within the meaning of RCW 41. 56, timely filed a petition for investigation of a question concerning representation of certain employees of Bremerton School District No. 100-C in a bargaining unit described as: "Building maintenance, grounds maintenance and vehicle maintenance". The bargaining unit claimed appropriate consists of sixteen employees.

3.                  School Employees Union Local 114, SEIU, AFL-CIO, a labor organization and a bargaining representative within the meaning of RCW 41. 56, timely moved for intervention in the matter on the basis of its status as the recognized exclusive bargaining representative of employees of Bremerton School District No. 100-C in a larger bargaining unit which includes all of the employees claimed by the petitioner herein. Such recognition has been in effect since 1946, and Local 114 was party to a collective bargaining agreement with the District for the period July 1, 1976, through June 30, 1978.

4.                  The bargaining unit proposed by the petitioner includes employees in two different departments of the District (maintenance and transportation), and there is no common supervision of the employees in the proposed unit.

5.                  The bargaining unit proposed by the petitioner includes both skilled and unskilled employees. Said bargaining unit does not include all of the employees of the employer engaged in the performance of skilled work.

6.                  The employees in the bargaining unit proposed by the petitioner have historically had similar working conditions and fringe benefits to those enjoyed by other employees in the larger bargaining unit from which severance is proposed. Seniority has been recognized and exercised on a unit-wide basis in the previously existing unit.

7.                  There has been no history of separate representation of the petitioned-for employees, nor has there been any showing of a tradition of separate representation for the type of employees in the proposed unit. The intervenor continues to be a viable organization and has a continued interest in representing the employees in the petitioned-for bargaining unit.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to RCW 41. 56.

2.                  The petitioned-for bargaining unit of building maintenance, grounds maintenance and vehicle maintenance employees of Bremerton School District No. 100-C is not an appropriate unit for the purposes of collective bargaining within the meaning of RCW 41. 56. 060, and no question concerning representation presently exists.

ORDER

The petition for investigation of a question concerning representation filed by Public School Employees of Washington shall be, and hereby is, dismissed.

DATED at Olympia, Washington this day of 1978.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director