Donald G. MacPherson, International Representative, appeared on behalf of the petitioner.

David T. Flodstrom, City Manager, appeared on behalf of the employer.

Mary L. Brown, Staff Representative, appeared on behalf of the intervenor: Washington State Council of County and City Employees, Local No. 1619.

On February 25, 1982, International Brotherhood of Electrical Workers, Local 997, filed a petition with the Public Employment Relations Commission for investigation of a question concerning representation involving certain employees of the City of Port Angeles. The petitioner seeks to represent employees in the employer's Light Department who are alleged to be unrepresented. The Washington State Council of County and City Employees, Local 1619, moved for intervention in the proceedings based on its claim to represent two of the positions (electrical draftsman and engineering operations clerk-typist) at issue. A pre-hearing conference was held on April 14, 1982, at which time it was agreed that six persons then working under titles of "energy analyst" and "engineering aide" could properly be included in a separate bargaining unit. Disputes remained as to the two employees in positions claimed by Local 1619. Processing of the case was delayed while efforts were made to find alternative solutions or procedures. A hearing was then held on March 2, 1983 before Jack T. Cowan, Hearing Officer. The petitioner and the intervenor filed post-hearing briefs.

BACKGROUND

The petitioner currently represents employees in the Light Department who are engaged in the operation and maintenance of electrical transmission and distribution facilities. The petitioned-for separate unit includes all of the other employees in the Light Department, with the exception of a custodian mentioned in the collective bargaining agreement between the employer and Local 1619.

The intervenor currently represents employees in a number of city departments. The January 1, 1981 to December 31, 1983 collective bargaining agreement between the city and Local 1619 contains the following recognition clause:

ARTICLE II - RECOGNITION AND BARGAINING UNIT

The city agrees to recognize the union as the sole collective bargaining agent for all full-time, permanent, budgeted employees and temporary employees as defined in Article V, Section 6.B, except employees of the Police and Fire Departments, City Light Department, Equipment Rental Department and the employees excluded pursuant to RCW Chapter 41.56.122 and 41.56.030. (Emphasis added).

Appendix "A" to the same agreement lists all covered classifications, including "custodian" and "clerk-typist" classifications at the Light Department. A "draftsman" classification is listed in Appendix "A" under another department, but not under the Light Department. Examination of contract documents going back to 1978 discloses internal inconsistencies at least since that time, such that the specific listings of covered classifications have included Light Department employees, the language of the recognition clause notwithstanding. The agreement contains a union shop provision which requires that all bargaining unit employees become and retain members of the union.

The evidence adduced at hearing indicates that the disputed clerk-typist position was created on January 12, 1981, following the conclusion of bargaining between the employer and Local 1619. Creation of the position at that time met needs within the Light Department and also saved an employee from layoff. The first incumbent of the position became a member of Local 1619 in April, 1981. She was replaced in December, 1981 by the current incumbent of the position, a Local 1619 member who transferred from another position in the bargaining unit represented by Local 1619. While performing some clerical work unique to or specifically aligned with the electric utility functions of the Light Department, the clerk-typist performs numerous generalized clerical duties. The job description for the position does not require either education or experience with electric utility or engineering functions.

The position of draftsman has existed in the Light Department for some two to three years. There has been no history of bargaining concerning that specific position.

POSITIONS OF THE PARTIES

Claiming that the Light Department is a separate and identifiable entity with its own organizational structure and a separate, self-generated operational fund (as opposed to funding from general tax collections), the petitioner maintains that the common interests of all employees in the working conditions and specialized nature of the electric utility function justify the exclusion of the disputed positions from other bargaining units and their allocation instead to a departmental unit. The petition filed in this matter expressly indicated exclusion of employees represented by Local 1619 from the petitioned-for unit, but the petitioner initially based its argument on the exclusionary language contained in the recognition clause of the collective bargaining agreement between the city and Local 1619. The petitioner now urges that the unique titles, duties and specialized work of the two disputed positions would in any case justify their inclusion in a separate bargaining unit.

The city indicates that it is not opposed to either of the disputed employees being represented for the purposes of collective bargaining, but it strongly opposes splitting of classes such that persons having similar job classifications will be placed in more than one bargaining unit. The city now contends that both of the disputed classes are included in the bargaining unit represented by Local 1619.

The intervenor asserts that the positions in question have been and currently are included in its bargaining unit, as specified in the appendix to the collective bargaining agreement, and it opposes severance of the positions to the separate bargaining unit sought by the petitioner. The intervenor particularly relies on the fact that the previous and present incumbents of the clerk-typist position have been dues paying members of Local 1619 and have continuously received all wages and benefits negotiated by that local. Additionally, the intervenor contends that both of the employees in question have interests, duties and skills which are similar to those of other city employees working in similar positions or classifications in city departments other than the Light Department.

DISCUSSIONS

Although the issues litigated at hearing were narrow, they must be decided in the context of the broader bargaining unit in which they arise. Extracting current job titles from the 1983 organization chart for the Light Department which is in evidence as Exhibit #2 in this proceeding, the petitioned-for bargaining unit will at least consist of persons working under the titles of "conservation aide" and "residential energy analyst" in the Conservation Division of the Light Department and under the title of "engineering specialist" in the Engineering Section of the Engineering and Operations Division of the Light Department. The disputed clerk-typist position reports to the manager of the Engineering and Operations Division. The disputed "draftsman" position is listed on the organization chart as an "engineering aide" in the Engineering Section.

There is no indication of any design on the part of the city or the intevenor to mislead either the employees affected, the petitioner or the Commission. Rather, it appears that a simple oversight on the part of both the city and Local 1619 permitted obsolete exclusionary language to continue in their recognition clause long after bargaining unit positions had been created in the Light Department and specific reference to those positions had been made in the wage appendices of their collective bargaining agreements. In the resolution of ambiguous contract language, the more specific language will prevail over the more general. The evidence clearly establishes that it is the recognition clause rather than the wage appendix which is in error as to the clerk-typist position. The parties to that contract evidently did not note the existence of the conflict until the issue was raised in this proceeding. They should, of course, correct the problem as soon as possible.

Given the conclusion that the clerk-typist position was and is in the bargaining unit represented by Local 1619, there are a number of reasons why that position cannot be included in the petitioned-for unit. The Public Employment Relations Commission has recognized the propriety of a separate unit of office clerical employees, and has allowed severance of such a unit from a unit which includes the operations and maintenance employees of the employer. See: Franklin Pierce School District, Decision 78-B, 78-D (PECB, 1977). However, the situation at hand is not a severance of clerical employees from an "all employees" unit. Rather, it is an attempt to sever the clerical workforce of one department from the bargaining unit which has historically included all of the office clerical employees of the employer. In City of Tacoma, Decision 204 (PECB, 1977), a petition for a separate bargaining unit of clerical employees in a city utilities department was dismissed. Similarly, in Port of Seattle, Decision 890 (PECB, 1980), a bargaining unit consisting of clerical employees of certain employer departments was found inappropriate, and an employer-wide office clerical emloyee bargaining unit was preferred. Both the Tacoma and Port of Seattle decisions support the positions taken by the employer and Local 1619 in this case. Further, a "contract bar" exists under RCW 41.56.070 and WAC 391-25-030(1) which will preclude the petitioner or any other labor organization from raising a question concerning representation in the whole or any part of the Local 1619 bargaining unit until the "window" period preceding the expiration of the current collective bargaining agreement.

The disputed "draftsman" position raises different issues, as there has not been a history of bargaining as to that position. While it is relatively easy, with the benefit of hindsight, to identify the error or omission made by the employer and Local 1619 in perpetuating obsolete language in the recognition clause of their collective bargaining agreement, the evidence is at best fragmentary as to the draftsman position. Further, the situation appears to have changed over the course of processing of the case.

The wage appendix to the 1981-83 collective bargaining agreement between the employer and Local 1619 makes reference to "engineer specialist", "draftsman" and three different "engineering aide" classifications. Shortly after the petition was filed in this matter, a routine inquiry was directed to the employer to obtain a list of employees as provided in WAC 391-25-130. In a letter dated March 4, 1982, the employer indicated that the "engineering specialist" classification had an incumbent in the Public Works Department, but none in the Light Department. The "engineering aide" and "draftsman" classifications then had incumbents in both the Light Department and the Public Works Department. Both of the Light Department employees were described by the employer at that time as being unrepresented. At the prehearing conference held in this matter, the city proposed to re-title the "engineering aide" at the Light Department to avoid dividing a class between two different bargaining units. By the time of the hearing, the term "engineering aide" was being used interchangeably with "draftsman" at the Light Department, and references to the disputed employee by name (Gail) were suggestive of the individual who was termed "draftsman" in the March 4, 1982 list of employees. In addition, the "engineering specialist" title which was not used at the Light Department in March of 1982 appears on the Light Department organization chart for 1983.

There is no evidence in the record that the engineering section employees at the Light Department have been included in the Local 1619 bargaining unit. In the absence of specific listing in Appendix "A" to the contract between the employer and Local 1619, there is a contractual basis to conclude that the engineering section employees have never been in the bargaining unit. Confirming that conclusion is that the engineering section positions have been in existence for some time with no evidence of membership or activity by the incumbents in Local 1619.

The alternatives available at this juncture are to accrete the "draftsman" position to the Local 1619 unit on the basis of similarity of job title (with the result that the engineering section of the Light Department will be split between two different bargaining units) or to allocate the "draftsman" position to the petitioned-for bargaining unit on the basis of similarity of supervision (with the result that the city will at least temporarily have "draftsmen" in two different bargaining units). Arguments can be made on both sides that neither arrangement makes any sense. Ultimately, however, established precedent controls the situation. An accretion will be ordered where a newly created position is logically aligned with only one existing bargaining unit and creation of a new separate bargaining unit would not be appropriate under the unit determination provisions of the statute. See: Oak Harbor School District, Decision 1319 (PECB, 1981). An accretion is not appropriate, and a unit clarification petition will be dismissed as raising a question concerning representation, where an organization merely seeks to pick up a position which has been in existence for a long time outside of the bargaining unit, where the contested position or class of employees can stand alone as a separate bargaining unit or where disputed positions can also be allocated to some other bargaining unit. See City of Anacortes, Decision 452 (PECB, 1978); City of Dayton, Decision 1432 (PECB, 1982). In the situation at hand, an attempt by Local 1619 to pick up the Light Department engineering section employees through a unit clarification proceeding might well have met with difficulties in light of the history. Given the filing of the petition which is now before the Commission in this case and the agreement of the parties to allocate the other engineering section position to the petitioned-for bargaining unit, it is concluded that a question concerning representation exists. The policies of both the Public Employment Relations Commission and of the National Labor Relations Board have long permitted organization of "an" appropriate bargaining unit, without necessity of showing that the proposed unit is the most appropriate or only appropriate unit. As noted above, some fragmentation is inherent in either of the unit structures supported by the parties. The city has previously evidenced a willingness, however, to revise a job title at the Light Department to avoid splitting of a city-wide classification between bargaining units, and there was reference at the hearing to steps already taken to revise the job description of the disputed draftsman. Taking all of the circumstances into account, it does not appear that labor relations will be unduly burdensome if custodial and clerical support services for the Light Department are provided by employees assigned to city-wide bargaining units while technical and operations and maintenance employees of the Light Department are assigned to departmental units. The draftsman will be an eligible voter in the election directed in the accompanying order.

FINDINGS OF FACT

1.                  The City of Port Angeles, Washington, is a political subdivision and municipal corporation of the State of Washington and is a public employer within the meaning of RCW 41.56.020 and 41.56.030(1).

2.                  International Brotherhood of Electrical Workers, Local 997, is a bargaining representative within the meaning of RCW 41.56.030(3) which has filed a timely petition and adequate showing of interest, seeking certification as the exclusive bargaining representative for unrepresented positions within the Light Department of the City of Port Angeles. Local 997 presently represents a separate bargaining unit of operations and maintenance employees within the Light Department.

3.                  Washington State Council of County and City Employees, Local 1619, is a bargaining representative within the meaning of RCW 41.56.030(3) which presently represents certain employees of the City of Port Angeles in departments other than the Police Department, Fire Department and Equipment Rental Department. Local 1619 and the employer are parties to a collective bargaining agreement effective for the period from January 1, 1981 through December 31, 1983. Local 1619 has been permitted intervention in this proceeding for the limited purpose of asserting its claim of jurisdiction over "clerk-typist" and "draftsman" positions in the Light Department.

4.                  The Light Department was formerly entirely excluded from the bargaining unit represented by Local 1619. Since approximately 1978, specific Light Department positions have been listed in the collective bargaining agreements between Local 1619 and the employer.

5.                  The position of clerk-typist in the Light Department is an office clerical position in the bargaining unit represented by Local 1619 and specifically referred to in the collective bargaining agreement between Local 1619 and the employer.

6.                  The position of draftsman in the Light Department is not specifically referred to in the collective bargaining agreement between Local 1619 and the employer, and there is no history of membership in, activity on behalf of or representation by Local 1619 of the draftsman and other engineering section personnel at the Light Department. References in said collective bargaining agreement to "draftsman" are limited to the employer's Public Works Department.

7.                  With the exception of the positions in dispute, Local 997 seeks in this proceeding, and the employer has acknowledged the propriety of, a bargaining unit which includes all of the technical employees of the Light Department. Exclusion of the disputed "draftsman" position from the petitioned-for bargaining unit would have the effect of fragmenting the technical emloyees in the engineering section of the Operations and Engineering Division of the Light Department between two different bargaining units.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW.

2.                  A contract bar exists under RCW 41.56.070 and WAC 391-25-030(1), which precludes raising of a question concerning representation with respect to the clerk-typist position at the Light Department of the City of Port Angeles.

3.                  The position of "draftsman" at the Light Department of the City of Port Angeles may be properly allocated to either a city-wide bargaining unit which includes technical engineering-support employees or to a departmental bargaining unit at the Light Department which includes technical employees of that department, and a question concerning representation exists as to such position under RCW 41.56.070.

4.                  A bargaining unit comprised of:

All full-time and regular part-time technical employees of the Light Department of the City of Port Angeles, excluding elected officials, appointed officials, confidential employees, supervisors, operations and maintenance employees of the Light Department, clerical and custodial employees of the Light Department and all other employees of the City of Port Angeles

is an appropriate unit for the purposes of collective bargaining within the meaning of RCW 41.56.060, and a question concerning representation exists in said unit.

DIRECTION OF ELECTION

A representation election by secret ballot shall be held under the direction of the Public Employment Relations Commission in the bargaining unit described in paragraph 4 of the foregoing conclusions of law, to determine whether a majority of those emloyees desire to be represented for the purposes of collective bargaining by International Brotherhood of Electrical Workers, Local 997, or by no representative.

DATED at Olympia, Washington this 22nd, day of August, 1983.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGN]

MARVIN L. SCHURKE, Executive Director