On November 24, 1987, the Municipality of Metropolitan Seattle (METRO) filed two separate petitions with the Public Employment Relations Commission. Case No. 7152-E-87-1236 purports to be a representation petition under Chapter 391-25 WAC. Case No. 7153-C-87-382 purports to be a unit clarification petition under Chapter 391-35 WAC. There are multiple reasons for dismissal of these petitions at this time, as indicated below.

Representation Petition Lacks Required Affidavit

WAC 391-25-090 requires that an employer which seeks to question the status of an incumbent exclusive bargaining representative support its petition with:

… such affidavits and other documentation as may be available to it to demonstrate the existence of a good faith doubt concerning the representation of its employees.

No such affidavit or documentation was supplied with the petition in Case No. 7152-E-87-1236. Instead, an attachment to the petition filed by METRO recites METRO's claim that the employees are properly within a bargaining unit represented by Amalgamated Transit Union, Local 587. While naming Local 587 as the "incumbent organization" in its petition, METRO acknowledged that:

… International Federation of Professional and Technical Engineers, AFL-CIO, Local 17, has or may have representational status of the employees in this unit …

The same attachment to the petition relates portions of a history that dates back to 1984, when METRO took over a "commuter pool" operation from the City of Seattle and commenced a course of litigation questioning the status of Local 17 as the exclusive bargaining representative of the commuter pool employees. Nothing in the attachment in any way indicates abandonment of the claim of representation by Local 17, or a loss of support by Local 17 among the employees in the bargaining unit. The petition in Case No. 7152-E-87-1236 was thus insufficient when filed.

Representation Petition Blocked By Unfair Labor Practices

The Executive Director withheld processing of the representation petition in Case No. 7152-E-87-1236 pursuant to WAC 391-25-370, in light of unfair labor practice charges concerning the "commuter pool" operation that were then pending before the Commission in Case No. 5661-U-85-1037.

Subsequently, an Examiner and this Commission have ruled that METRO committed "refusal to bargain" unfair labor practices, in violation of RCW 41.56.140, by refusing to recognize and bargain with Local 17 as the exclusive bargaining representative of the employees in the "commuter pool" operation, and by making unilateral changes affecting the wages, hours and working conditions of such employees without giving notice to and bargaining with Local 17. METRO has petitioned for judicial review and this Commission has authorized the Attorney General to cross-petition for enforcement of its Order. It has long been established that representation proceedings filed during the pendency of unfair labor practice proceedings will be subject to dismissal if an unfair labor practice violation is found and a bargaining order is issued, in order to create the climate for good faith bargaining which should have existed but for the unfair labor practice violation. Lewis County, Decision 645 (PECB, 1979). In the situation at hand, METRO has been ordered to bargain with Local 17 and, if necessary, to submit unresolved issues to final and binding interest arbitration in order to remedy the effects of METRO's persistent refusal to bargain with Local 17. METRO's petition in Case No. 7152-E-87-1236 must be dismissed under Lewis County as untimely.

Unit Clarification Petition Procedurally Insufficient

WAC 391-35-010 precludes the processing of a unit clarification petition where a question concerning representation exists. Thus, METRO's simultaneous filing of both representation and unit clarification petitions presented an oxymoron under which the filing of the representation petition inherently blocked the processing of the unit clarification petition.

Unit Clarification Relies Upon Unlawful Acts

At a hearing in Case No. 5472-C-84-274 in February, 1985, METRO established in support of its unit clarification petition in that case that it had made no changes since taking over the "commuter pool" operation from the City of Seattle, but that it contemplated making such changes in the future. Local 17 filed the unfair labor practice complaint in Case No. 5661-U-85-1037 on the day of the hearing in Case No. 5472-C-84-274. The unit clarification petition in Case No. 7153-C-87-382 is based on a claim of changes implemented by the employer since it took over the "commuter pool" operation. The Commission's decision in Case No. 5661-U-85-1037 has found those changes to have been unlawfully implemented, and has ordered reinstatement of the status quo ante which existed at and immediately following the transfer of the commuter pool operation from the City of Seattle to METRO. Compliance with that order will eliminate the basis for the petition.

NOW, THEREFORE, it is

ORDERED

The petition for investigation of a question concerning representation in Case No. 7152-E-87-1236 and the petition for clarification of an existing bargaining unit in Case No. 7153-C-87-382 are DISMISSED.

Dated at Olympia, Washington, the 12th day of August, 1988.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JANE R. WILKINSON, Chairman

[SIGNED]

MARK C. ENDRESEN, Commissioner

[SIGNED]

JOSEPH F. QUINN, Commissioner