Port of Seattle, Decision 6103 (PECB, 1997)

Duncan Campbell, Representative, appeared for the petitioner.

Herman L. Wacker, Attorney at Law, appeared for the employer.

Schwerin, Burns, Campbell & French, by Dmitri Iglitzin, Attorney at Law, appeared for intervener, International Longshoremen’s & Warehousemen’s Union, Local 9.

On April 10, 1997, the Central Control Dispatch Association filed a petition for investigation of a question concerning representation with the Public Employment Relations Commission under Chapter 391-25 WAC, seeking certification as exclusive bargaining representative of certain employees of the Port of Seattle. International Longshoremen’s and Warehousemen’s Union, Local 9 was granted intervention in the proceedings, based on its status as the incumbent exclusive bargaining representative of the petitioned-for employees. A hearing was held on July 1, 1997, before Hearing Officer Rex L. Lacy. No briefs were filed.

BACKGROUND

The Port of Seattle (employer) was created pursuant to Title 53 RCW, to provide marine and air transportation facilities throughout King County, Washington. A five-member board of elected commissioners sets policy for the employer and selects its director. The employer’s organization is divided into four distinct “lines of business”, and this case concerns only the employer’s air terminal operations. Kenneth Lyles is the manager of the Central Control operation at the air terminal.

The Central Control unit has approximately 35 employees in four job classifications: X-Ray ramp controllers, access controllers, senior ramp controllers, and senior operations controllers. Some Central Control employees work at the various gates to the facility; some work at the various ramps for ingress and egress of passengers and cargo; some are assigned to monitor security locations. The senior operations controllers dispatch security employees to locations where they are needed.

International Longshoremen’s and Warehousemen’s Union, Local 9 (ILWU), is the incumbent exclusive bargaining representative of all non-supervisory employees of the Central Control unit, including the senior operations controllers.

The Central Control Dispatchers Association (CCDA) was recently organized by employees who work at the Central Control facility at the air terminal. It seeks a unit limited to approximately 11 senior operations controllers.

The History of Bargaining

The early history of the Central Control operation is detailed in Port of Seattle, Decision 3421 (PECB, 1990). Briefly summarized: Work of this type had been contracted out until about 1986, when the employer began hiring its own employees under titles of “ramp controller” and “senior ramp controller”; there was an attempt to accrete the new employees to a bargaining unit represented by another union, but that arrangement was terminated by a decertification vote in a representation election conducted by the Commission in 1990.

The ILWU acquired status as exclusive bargaining representative of Central Control employees through a series of certifications, issued in 1992 and 1993, for units described by classification titles.[1] Those units appear to have been established along lines of “extent of organization”.

After signing separate contracts covering the various units, the employer and the ILWU signed a single contract which was effective for the period from April 1, 1995 through February 13, 1997, and which merged the separately-created bargaining units into one unit. The merger of units was initially suggested by the employer, in January of 1995. In February of 1995, the union presented the merger proposition to the individual bargaining units, and then presented the merger proposition at a joint meeting held pursuant to a written notice which announced that the union’s attorney would be present to answer questions. Initial approvals were given, and each of the units designated representatives to participate in joint negotiations. A tentative agreement was reached on a merged contract, and copies were distributed to the employees. On September 25, 1995, the union gave written notice of a ratification meeting to be held on September 29, 1995, with a union attorney again in attendance to answer employees’ questions. At that meeting, votes were taken separately in each of the historical units, with the understanding that, “If one unit elected or voted not to ratify the agreement, that unit itself would then be carved out of the bigger group.” Among the 10 senior operations controllers who voted, 7 (70%) voted for the merged agreement. The other units favored the merger by majorities of 5 of 8 (62.5%), 13 of 22 (59.1%), and 5 of 6 (83.3%).

POSITIONS OF THE PARTIES

The CCDA contends that this is the first opportunity the senior operations controllers have had to sever from the combined unit, that they believed they were a separate bargaining unit, and that they desire to have a bargaining unit separate and apart from the other classifications covered by the most recent collective bargaining agreement between the employer and the ILWU.

The employer participated in the hearing in this matter and provided background information, but took no position on the propriety of the severance requested by the petitioner in this proceeding.

The ILWU contends that the single bargaining unit covered by the most recent collective bargaining agreement is the appropriate unit for the disputed classification, that the senior operations controllers voted to be included in the merged unit, and that a severance of the senior operations controllers at this time would cause unnecessary fragmentation of the bargaining unit and employer’s workforce.

DISCUSSION

Decisions on appropriate bargaining units are made by the Commission under criteria set forth in RCW 41.56.060, as follows:

RCW 41.56,060 Determination of bargaining unit--Bargaining Representative. The Commission, after hearing upon reasonable notice, shall decide in each application for certification as an exclusive bargaining representative, the unit appropriate for the purposes of collective bargaining. In determining, modifying, or combining the bargaining unit, the commission shall consider the duties, skills, and working conditions of the public employees; the history of collective bargaining by the public employees and their bargaining representatives; the extent of organization among the public employees; and the desires of the public employees. …

Unit determination is not a subject for bargaining in the usual mandatory/permissive/illegal sense and, although parties may agree on units, their agreement does not guarantee that the unit agreed upon is or will continue to be appropriate. City of Richland, Decision 279-A (PECB, 1978), affirmed 29 Wn.App. 599 (Division III, 1981), review denied 96 Wn.2d 1004 (1981).

Units encompassing “all employees of the employer” who are covered by Chapter 41.56 RCW are generally considered appropriate,[2] as it is generally accepted that all non-supervisory employees will share a community of interest in dealing with their common employer concerning their wages, hours, and working conditions.[3] Units that are less than employer-wide can be found appropriate, particularly if they encompass all of the employees within a generic occupational type (termed a “horizontal” unit), or if they encompass all of the employees with a branch of the employer’s table of organization (termed a “vertical” unit).

Problems sometimes arise from organizing units based upon “extent of organization”, from excessive reliance upon current job titles in unit descriptions, and from mistaking a commonality of representation for a community of interest. For example: In Pierce County, Decision 1039 (PECB, 1980), the group of employees represented by a particular union was found to be an amalgam of separate units, rather than a single unit entitled to be treated as such; in South Kitsap School District, Decision 1541 (PECB, 1983) , two units were both found inappropriate where they bifurcated an employer’s workforce in a manner which led to existing and potential work jurisdiction disputes.

If separately-organized bargaining units are later merged to perfect an appropriate employer-wide unit, horizontal unit, or vertical unit, the resulting unit will be preserved as such in the face of a severance petition. See, Yelm School District, Decision 704-A (PECB, 1978). Thus, the question before the Executive Director in this case is whether the group referred to by the ILWU as the “all Sea-Tac unit” is, indeed, an appropriate bargaining unit or merely an amalgam of separate units.

Mergers of Bargaining Units

Prior to the 1995-1997 collective bargaining agreement between the employer and the ILWU, the employees in each of the four classifications at the Central Control facility had separate bargaining units. That situation clearly invited a “fragmentation” characterization, and inherently posed a potential for ongoing work jurisdiction disputes.[4] Although it has not stepped forward to defend its own proposal in this proceeding, it is clear that the employer had a legitimate interest, rooted in reducing the potential for problems created by the historical structure, in proposing to combine the units into one unit. The union proceeded with the consent of all four units to negotiate a merged contract with the employer,[5] and there was indication that the union and employees both benefitted from preserving the most favorable provisions of each of the separate contracts.

The merger of units was addressed in Mount Vernon School District, Decision 1629 (PECB, 1983), where it was concluded that such transactions require the affirmative vote of the employees in each of the merging bargaining units. Once a tentative agreement was reached in this case, the union gave notice to all employees and held a meeting for employees to discuss the proposition. The union then proceeded in the same manner that the Commission would have used in a representation proceeding: Votes were taken separately in each bargaining unit to determine the desires of the employees on creation of one larger unit, with the understanding that a negative vote from any bargaining unit would result in its exclusion from the merged unit. Nothing in this record supports a conclusion that any unit was misled in that process.

The claim of the CCDA that this is its first opportunity to challenge the merger is without merit, and the decision in Pasco School District, Decision 3217 (PECB, 1989) must be distinguished on the facts. An election was directed for a separate unit of school bus drivers in Pasco, upon a conclusion that the larger unit which was claimed to include them was actually created by an agreement of their employer and union made after the employees ratified a contract. In contrast to the absence of an employee vote in Pasco, a clear majority of the employees in the “senior operations controller” classification voted in favor of the merged contract at the Port of Seattle.

As a result of their joint negotiations and separate ratification votes, the employer and the four bargaining units which historically existed within the Central Control function have created a single unit that is an appropriate “vertical” unit grouping together all of the non-supervisory employees of the Central Control function. The merged unit is greater than the sum of its parts, because the creation of such a unit reduces or altogether eliminates the potential for work jurisdiction conflicts and bargaining obligations concerning transfers of unit work which existed among the four separate units.

Severance From Existing Bargaining Units

Efforts to “sever” groups from existing bargaining units into two or more units have been before the Commission in numerous cases. The “history of bargaining” aspect of the unit determination criteria set forth in RCW 41.56.060 weighs heavily against breaking up an existing bargaining unit. Accordingly, such efforts have generally met with little success.[6]

In Yelm School District, Decision 704-A (PECB, 1979), the Commission rejected a proposed severance of school bus drivers from a bargaining unit that included all of the classified employees of the employer other than office-clerical employees. The existing unit was described as:

[A] n integrated support operation essential to the overall discharge by the district of its primary education function, and therefore … more appropriately dealt with as a unit.

Thus, fragmentation of that bargaining unit was rejected by the Commission with citation of the “severance criteria” set forth in Mallinckrodt Chemical. 162 NLRB 387 (1966). Those criteria require a showing that the unit proposed for severance consist of a distinct and homogeneous group of skilled journeymen craftsmen performing the functions of their craft on a non-repetitive basis, or a showing of a “tradition of separate representation”. As in Yelm, the existing bargaining unit in this case is fairly described as an “integrated support operation”.

The CCDA argues that there are differences of view among or between the various groups now encompassed in the “all Sea-Tac unit”. However, in Okanogan County, Decision 2800 (PECB, 1988) and Grays Harbor County, Decision 3067 (PECB, 1988), the Commission held that a party will not prevail on a “severance” by arguing the existence of such differences. The employees are not crafts journeymen, and their separate representation from 1993 to 1995 does not establish a tradition. Rejection of the severance proposed by the CCDA will promote stability in the workforce and labor relations of this employer, and will also enhance the rights of individual employees through the promotion provisions the employer and ILWU included in their collective bargaining agreement for the merged unit.

FINDINGS OF FACT

1.   The Port of Seattle, a municipal corporation of the state of Washington organized pursuant to Title 53 RCW, is an “employer” within the meaning of Chapter 53.18 RCW, and a “public employer” within the meaning of RCW 41.56.030(1).

2.         The Central Control Dispatch Association, an “employee organization” within the meaning of RCW 53.18.010 and a “bargaining representative” within the meaning of RCW 41.56.030(3), is a newly-created organization which has filed a timely and properly supported petition for investigation of a question concerning representation seeking certification as exclusive bargaining representative of a bargaining unit limited to employees of the Port of Seattle in the “senior operations controller” classification.

3.   International Longshoremen’s and Warehousemen’s Union, Local 9 (ILWU), an “employee organization” within the meaning of RCW 53.18.010 and a “bargaining representative” within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of a bargaining unit Port of Seattle employees in the classifications of: X-Ray controller, access controller, senior ramp controller, and senior operations controller.

4.   In early 1995, the employer proposed that four historically separate units represented by the ILWU within the Central Control function at the employer’s Seattle-Tacoma International Airport be consolidated into one bargaining unit. Those units had been created on a classification-by-classification basis during 1992 and 1993, and had been the subject of separate negotiations since their creation.

5.   The ILWU consulted the members of each of the historical bargaining units, to assess the feasibility of the employer’s proposal to consolidate the units. The units have initial approval, and the ILWU notified the employer on March 14, 1995, that it was ready to commence negotiations for a collective bargaining agreement for a merged unit.

6.   On September 25, 1995, the employer and ILWU reached a tentative agreement on a merged contract. During the negotiations leading to that agreement, the union sought to preserve the most favorable provisions from the four predecessor contracts, and those parties agreed upon a promotion ladder for members of the enlarged bargaining unit.

7.   On September 29, 1995, pursuant to notice issued to all affected employees, the ILWU held a meeting concerning ratification of the tentative agreement and made its attorney available to answer questions. The ILWU conducted separate ratification votes in each of the four historical units, with the understanding that any unit which rejected the merger would remain a separate unit. All of the units ratified the merged contract, among which the senior operations controllers approved the contract by a vote of seven to three.

8.         The collective bargaining agreement covering the merged unit remained in effect, according to its terms, from April 1, 1995 through February 13, 1997, and the ILWU remains a viable organization which has indicated its intention to continue as the exclusive bargaining representative of the merged unit.

9.         The merger created an “integrated support operation” essential to the overall discharge of the employer’s business function, and is appropriately dealt with as a unit.

10.       The senior operations controllers provide security dispatching services within the Central Control function at the airport. Although they receive the highest wage rates in the merged bargaining unit and appear to be at the top of the promotional ladder, this record would not support a conclusion that they are supervisors whose exclusion from the bargaining unit is warranted under Commission precedent, due to a potential for conflicts of interest.

CONCLUSIONS OF LAW

1.         Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW, Chapter 53.18 RCW, and Chapter 391-35 WAC.

2.         The existing bargaining unit consisting of all full-time and regular part-time non-supervisory employees of the Central Control function at the Seattle-Tacoma International Airport resulted from a merger approved by vote of a majority of the employees in separately-certified bargaining units of access controllers, x-ray ramp controllers, senior ramp controllers, and senior operations controllers, using the procedure outlined in Commission precedent, so that there is no evident conflict with RCW 41.56.070 or RCW 41.56.080.

3.         The existing bargaining unit consisting of all full-time and regular part-time non-supervisory employees of the Central Control function at the Seattle-Tacoma International Airport, excluding elected officials, officials appointed for a fixed term of office, confidential employees, supervisors, and all other employees of the employer, is an appropriate unit for the purposes of collective bargaining under RCW 41.56.060.

4.         A severance of the classification of senior operations controller from the existing bargaining unit described in paragraphs 2 and 3 of these conclusions of law would disrupt and fragment labor relations within the employer’s workforce, and would not constitute an appropriate unit under RCW 41.56.060, so that the petition filed in this proceeding does not raise any question concerning representation.

ORDER

The petition of the Central Control Dispatch Association for severance from the existing bargaining unit is DISMISSED.

Issued at Olympia, Washington, on the 31^st day of October, 1997.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN 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).