Enrique Cantu, President, and Ken Irwin for the petitioning organization.

Christine 0. Gregoire, Attorney General, by Carol A. Smith, Assistant Attorney General, for the employer.

Will Aitchison, Labor Consultant, for the incumbent intervenor, Washington State Patrol Troopers Association.

On August 4, 1995, Washington State Patrol Lieutenants Association (WSPLA) filed a petition for investigation of a question concerning representation with the Public Employment Relations Commission under Chapter 3 91-25 WAC, seeking severance of sergeants from an existing bargaining unit of Washington State Patrol troopers and sergeants represented by the Washington State Patrol Troopers Association (WSPTA). The WSPTA was accorded status as an intervenor, pursuant to WAC 391-25-170. In routine correspondence issued on August 14, 1995, the employer was asked to post notices (pursuant to WAC 391-25-140) , and to supply a list (pursuant to WAC 391-25-130) of the employees currently on its payroll in positions of the type described in the petition. The employer furnished a list of employees on August 23, 1995, and the showing of interest filed in support of the petition was administratively determined to be sufficient. On August 28, 1995, the parties were notified that further proceedings on the matter would be conducted by means of a telephonic prehearing conference.

The prehearing conference was conducted on September 7, 1995, but the parties did not resolve the conditions precedent to determination of a question concerning representation.

On September 15, 1995, the WSPTA filed a letter with the Commission in which it asserted that the petition seeking severance of the sergeants was inappropriate under Commission rules and case law precedent. The WSPTA argued that a unit clarification petition, rather than a representation petition, was the proper vehicle for such a situation. The WSPTA also contended that, as a matter of law, the Commission did not need to hold a hearing to resolve the issues arising out of the prehearing on this matter. That letter is being treated as a motion for summary judgment.

BACKGROUND

Employees of the Washington State Patrol were added to the coverage of the Public Employees' Collective Bargaining Act, Chapter 41.56 RCW, by chapter 135, Laws of 1987. The WSPTA filed a representa­tion petition on August 20, 1987, seeking certification as exclu­sive bargaining representative of a bargaining unit of troopers and sergeants. A dispute concerning the eligibility of sergeants for inclusion in such a bargaining unit was reserved for post-election determination. The results of an election held in November of 1987 indicated a majority of the eligible and challenged voters favored representation by the WSPTA, and an interim certification was issued. A hearing held on the reserved issue in December of 1987 led to the decision in Washington State Patrol, Decision 2806-B (PECB, 1988), where the Commission affirmed a ruling by the Hearing Officer that the sergeants were non-supervisory employees properly included in the same bargaining unit with the troopers. The employer petitioned for judicial review but did not pursue that litigation, so the Commission's decision was left to stand as the final resolution of that matter.

DISCUSSION:

The Propriety of a Representation Proceeding

The scope of issues which can be determined in representation proceedings under Chapter 391-25 WAC is much broader than can be determined in unit clarification proceedings under Chapter 391-35 WAC. Further, it is important to note that: (1) unit clarifica­tion proceedings can only be initiated under WAC 391-35-010 by the employer and/or the incumbent exclusive bargaining representative; and (2) unit clarification petition cannot be processed under WAC 391-35-010 where a question concerning representation exists.

Under City of Richland, Decision 279-A (PECB, 1978), affirmed 29 Wn. App. 599 (Division III, 1981), review denied 96 Wn.2d 1004 (1981), the Commission routinely removes "supervisors" from units containing their rank-and-file subordinates, in order to avoid a potential for conflicts of interest which could otherwise arise within a mixed unit. Had the employer been the moving party here on a claim that the sergeants were now supervisors, it could properly have filed a unit clarification petition. Only the employer and the WSPTA would have been parties to that proceeding. An interest on the part of the WSPLA would only have arisen if the sergeants were excluded from the historical bargaining unit. Those are not the facts, however.

The WSPLA is the moving party in this proceeding. It could not have filed a unit clarification petition under Chapter 391-35 WAC, and it properly filed a representation petition under Chapter 391-25 WAC to seek a "severance" from the existing bargaining unit.

Res Judicata

Given that the parties have not stipulated the propriety of the severance sought by the WSPLA, a hearing on and disposition of the

"appropriate bargaining unit" issue would normally be a condition precedent to any representation election or cross-check in this case. To prevail on a motion for summary judgment, the WSPTA must show that there is no genuine issue of a material fact and that it is entitled to judgment as a matter of law.

Where a final order has been disposed as the result of adjudicative proceedings before an administrative agency, that is conclusive of rights of the parties and their agents in all points and matters determined in the case. See: City of Yakima v. International Association of Fire Fighters and PERC, 117 Wn. 2nd 46 655 (1991), affirming City of Yakima, Decision 3503-A (PECB, 1990). Certifications of exclusive representatives are final administrative orders which are not subject to collateral attack in subsequent administrative proceedings. Shelton School District, Decision 2084 (PECB, 1984).

Another key unit determination policy emanating from City of Richland, supra, is that the status of positions included in an appropriate bargaining unit by agreement of the parties or by certification will not be disturbed in the absence of a change of circumstances. Thus, if the petition in this case merely seeks to re-litigate the issue that was decided by the Commission in 1988, it can be dismissed by a summary judgment under WAC 391-08-230.

At the prehearing conference, both the employer and the WSPTA objected to the severance of the sergeants as being inappropriate, based on the Commission's previous ruling that the sergeants were not supervisors and were appropriately in the bargaining unit with the troopers. The employer and WSPTA state that there has not been any change in the duties or job description of the sergeants since the issuance of the Commission's decision. The WSPLA acknowledged that there has not been a change of duties, and asserted only that facts were misrepresented in the previous case and should be heard again.

It is clear from its own statements at the prehearing conference that the petitioner merely seeks to re-litigate the issue of whether the sergeants are properly included in the existing bargaining unit. The principle of res judicata applies here. Washington State Patrol, Decision 2806-B (PECB, 1988) determined the same issue in regard to the same employer and employees. In the absence of any claim of changed circumstances, the petition must be dismissed as a matter of law.

NOW THEREFORE, it is

ORDERED

The petition for investigation of a question concerning representation filed in the above-captioned matter is DISMISSED.

ISSUED at Olympia, Washington, this 6th day of October, 1995.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARWN L. SCHURKE, Executive Director

This order will be the final order of the agency unless appealed by filing a petition for review with the Commission pursuant to WAC 391-25-390(2).