STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 2829	CASE NO. 3435-E-81-667
Involving certain employees of:	DECISION NO. 1367-A - PECB
CITY OF REDMOND	CERTIFICATION OF REPRESENTATIVE

Ogden, Ogden & Murphy, by Douglas E. Albright and Larry C. Martin, Attorneys at Law, appeared for the employer.

James L. Hill, Seventh District Vice-President, IAFF, and Michael J. McGovern, Representative, filed the brief on behalf of the union. Durning, Webster & Lonnquist, by James Webster, Attorney at Law, made oral argument on behalf of the union.

On March 4, 1981, Redmond Firefighters Union, Local 2829, IAFF, filed a petition with the Public Employment Relations Commission for investigation of a question concerning representation involving certain employees of the City of Redmond. A hearing was held on July 1, 1981 before Katrina I. Boedecker, Hearing Officer. On February 26, 1982, nearly a year after the representation petition was filed, Executive Director Marvin L. Schurke issued his Direction of Cross-Check (Decision 1367-PECB), wherein he ruled on certain eligibility issues and directed that the question concerning representation be determined under RCW 41.56.060 and WAC 391-25-391 by a cross-check of records. The cross-check was conducted on March 15, 1982 and a tally was issued indicating that the union had presented valid authorization cards from 26 of the 30 employees in the bargaining unit. On March 22, 1982, the employer timely filed objections pursuant to WAC 391-25-590(2). Both parties filed briefs for consideration by the Commission and the parties were afforded an opportunity for oral argument at the June 11, 1982 public meeting of the Commission.

THE ISSUES:

The issues raised are:

1.                Whether the Executive Director satisfied the substantive and procedural requirements of statute and Commission regulations when ordering a cross-check, including:

a)         whether formal "findings" based upon a record made during a contested case hearing under RCW 34.04 were required; and

b)         whether the circumstances of this case were appropriate for a cross-check.

2.                Whether certain persons enjoying the title of "supervisor" should be included in or excluded from a bargaining unit that is described as excluding "supervisors".

3.                Whether the Executive Director's exclusion of a non-uniformed employee should have affected any uniformed personnel who might later fill that position.

4.                Whether the fact that the same staff member conducted both the hearing and pre-hearing conference violated the appearance of fairness doctrine.

DISCUSSION:

I. The Cross-Check Order

RCW 41.56.060 provides, in relevant part:

"…The commission shall determine the bargaining representative by (1) examination of organization membership rolls, (2) comparison of signatures on organization bargaining authorization cards, or (3) by conducting an election specifically therefor."

RCW 41.56.070 begins with the words:

"In the event the commission elects to conduct an election to ascertain the exclusive bargaining representative…".

The Executive Director's authority to use the cross-check procedure is set forth in WAC 391-25-391:

"WAC 391-25-391 SPECIAL PROVISION--PUBLIC EMPLOYEES. Where only one organization is seeking certification as the representative of unrepresented employees, and the showing of interest submitted in support of the petition indicates that such organization has been authorized by a substantial majority of the employees to act as their representative for the purposes of collective bargaining, and the executive director finds that the conduct of an election would unnecessarily and unduly delay the determination of the question concerning representation with little likelihood of altering the outcome, the executive director may issue a direction of cross-check. The direction of cross-check and any accompanying rulings shall not be subject to review by the commission except upon objections timely filed under WAC 391-25-590."

a. Requirement for "Findings" and Record under WAC 391-25-391

WAC 391-25-391 contains wording similar to that found in former WAC 296-132-215, which was administered by the Washington State Department of Labor and Industries. The discretionary authority of that agency to conduct a crosscheck was affirmed in King County Public Hospital District No. 1 d/b/a Evergreen General Hospital, King County Superior Court, Cause Nos. 826332 and 826192, decided July 20, 1978, WPERR CD-47; aff. 24 Wn.App. 64, WPERR CD-52 (Division I, 1979). Paragraph 40 of the Superior Court decision is instructive here:

"40. The Department of Labor and Industries (now the Public Employment Relations Commission) properly maintains the confidentiality of the bargaining authorization cards in administratively determining the showing of interest and the majority status in the case of a card check. Maintenance of the secrecy is essential to protecting the free choice of the employeees involved. NLRB v. Savair Manufacturing Co., 414 U.S. 270, 287, footnote 6 (1973).

In response to contentions on appeal in that case that findings had been based on evidence not in the administrative record, the Court of Appeals stated:

"The determination of whether a union has majority support is not an APA "contested case" as no hearing is required. RCW 34.04.010(3); RCW 41.56.060. Findings of fact must be based on the record only in "contested cases". RCW 34.04.090(6)."

The employer contends that WAC 391-25-391, supra, requires findings based on an administrative record. We do not believe that the language "executive director finds" in our rule was either intended, or sufficient, in the context of Evergreen, supra, to make such determinations "an APA contested case" where they are not a contested case by statute or constitutional right.[1]

b. Appropriateness of Cross-Check in This Case

The employer contends that a cross-check is inappropriate in this case because of the period of time that elapsed between the submission of the union authorization cards to PERC and the order directing a cross-check, noting that there may exist evidence now that the union no longer enjoys the support it did at the inception of this proceeding. The union argues that the delay was caused by the fact the employer would not consent to an election prior to a hearing and determination of eligibility issues, and such delays are typical of forces that can erode union support in a bargaining unit. The employer responds by noting that it has the right to have those issues determined, and was never under any legal obligation to consent to an election prior to the determination of the eligibility issues.

We agree with the employer's position that it has the right to a hearing and determination on eligibility issues, and has no obligation to consent to an election when offered the opportunity to do so. We also find merit to the union's sentiment. The solution, however, is not that proposed by the employer, nor is it embodied in the Executive Director's action. We find that, under the facts of this case, it would have been most appropriate for the Executive Director to have ordered a cross-check and certification of the union immediately, that is, prior to the determination of the eligibility issues.

Our conclusion is based on the language of the statute, RCW 41.56.060, as well as considerations of efficiency. RCW 41.56.060 clearly provides three methods for determining a bargaining representative, and does not suggest a legislative preference for any particular method. Contrary to the employer's suggestion, the statute does not prefer the election procedure to other methods. RCW 41.56.070 sets forth election procedures to be used "in the event the commission elects to conduct an election…" (emphasis added). This again recognizes the options available to the commission, which have been left to the discretion of the agency to exercise.[2]

The cross-check has the advantage of being a more efficient procedure than an election, requiring less utilization of this agency's scarce resources. On the other hand, an election accurately reflects whether any employees who signed authorization cards have changed their minds between the time they signed the card and the election, and would also give the union time to garner further support. Our rule, WAC 391-25-391, weighs the advantages and disadvantages of the two approaches, and resolves the matter by allowing a cross-check when the showing of interest indicates that the union has been authorized as the bargaining representative by a "substantial majority of the employees". It also must appear to the Executive Director that conducting an election would "unnecessarily and unduly delay the determination of the question concerning representation with little likelihood of altering the outcome".

It follows that where the bargaining unit can be described, but there are outstanding eligibility issues, the Executive Director should determine whether the resolution of those issues in a manner unfavorable to the union would affect its majority support. If it appears that the union would enjoy majority support even under a "worst case" analysis, it necessarily follows that the delay for an election would be undue, unnecessary and unlikely to alter the outcome. Therefore, the Executive Director should order the crosscheck.

Turning to the facts of the case at hand, we observe that at the outset, the authorization cards showed that well in excess of 70% of the employees in the bargaining unit (including potentially ineligible employees) supported the union. The description of the bargaining unit was never an issue, being "all non-supervisory uniformed firefighter employees of the City of Redmond", with appropriate exclusions for "supervisors" and others excluded under the statute. There were approximately 21 employees who were indisputably eligible for inclusion in that bargaining unit. Nine additional positions were disputed. If the employer were to prevail on all nine of the disputed positions, the union still enjoyed the support of more than 70% of the employees remaining (21) in the bargaining unit.

Under such circumstances, holding an election, at any time either before or after the eligibility determination - would cause an undue and unnecessary delay precisely because, given the overwhelming support the union enjoyed, an election would be unlikely to alter the outcome. Consequently considerations of efficiency should prevail under these circumstances, and the Executive Director should have ordered a cross-check within a reasonable time after the showing of interest was assessed and the description of the bargaining unit established. We, therefore, affirm the Executive Director's cross-check order, but emphasize that it should have taken place as described above.

II. Eligibility - Supervisors

The employer seeks our review of certain determinations as to the eligibility of allegedly supervisory positions.

In footnote 2 of his decision, the Executive Director noted that copies of correspondence received by the Commission indicated that reorganization had taken place subsequent to the hearing. However, inasmuch as neither party had requested a reopening of the hearing, his decision was based upon the record made at the hearing. After the Executive Director's decision was issued, a letter from the employer confirmed that the department has been substantially reorganized. No motion was made for reopening the hearing.

Given the reorganizaiton of the department, it appears that the contentions concerning the disputed positions have become moot. If the employer has concerns under its new organization, it has the right to seek a unit clarification under WAC 391-35. We, therefore, will not review the determinations regarding "supervisors".

III. Uniformed Personnel

Our unit determination policies preclude inclusion of employees who are not "uniformed personnel" within the meaning of RCW 41.56.030(6) in the same unit with persons who are "uniformed personnel" within the meaning of that statute. City of Seattle, Decision 689-A (PECB, 1979). The incumbent of an "inspector" position at issue early in the proceedings was not "uniformed" within the meaning of the cited definition. The parties stipulated the exclusion of that position from the bargaining unit. Accepting the stipulation of the parties only in part, the Executive Director addressed the problem by a blanket exclusion of all non-uniformed personnel from the firefighter bargaining unit. The employer objects, indicating that it wants the position excluded so that it would be outside the bargaining unit if filled with a "uniformed" employee at some time in the future. The objection is without merit. The Executive Director did what was necessary to resolve the matter at issue in this case, and the employee is excluded from the unit. Should there be a change of incumbents in the future, the procedures of Chapter 391-35 WAC (clarification of an existing bargaining unit) will be available to the employer to obtain a ruling on the bargaining unit status of that position under the changed circumstances. Any other ruling in this case would, in fact, be premature.

IV. Appearance of Fairness

The employer contends that the same hearing officer should not have conducted the pre-hearing conference and hearing. So far as it appears from the record and from the employer's brief on appeal, the employer never raised an issue of "appearance of fairness" with the Hearing Officer or with the Executive Director, nor did it request a substitution of a different Hearing Officer. No mention of an "appearance of fairness" claim is made in the objections, and the time for filing objections had long-since passed by the time the employer filed its appeal brief. Representation cases are of an investigatory, rather than adversary, nature. It is and always has been our standard practice to have the pre-hearing conference in such matters conducted by the same staff member who conducts the hearing. Our rules require the Executive Director to consider the entire record in such cases. The objection is untimely and without merit.

FINDINGS OF FACT

1.                  The above-named petitioner timely filed with the Commission a petition for investigation of a question concerning representation of employees of the above-named employer; said petition was accompanied by a showing of interest in which a substantial majority of employees authorized petitioner to act as their bargaining representative; and the employer declined voluntarily to extend recognition to the petitioner as the exclusive bargaining representative of its employees.

2.                  These representation proceedings have been conducted by the Commission in the bargaining unit described as:

All non-supervisory uniformed firefighter employees of the City of Redmond, excluding elected officials, officials appointed for fixed terms, confidential employees, supervisors and all other employees of the employer.

3.                  All proceedings were conducted under the supervision of the Commission in a manner designed to afford the affected employees a free choice in the selection of their bargaining representative, if any; a tally of the results was previously furnished to the parties and is attached hereto; and no meritorious objections have been filed with respect to these proceedings.

4.                  Following the close of the hearing in this matter, reorganization by the employer of its fire department has resulted in the creation of new or changed issues concerning the eligibility of certain public employees for inclusion in the bargaining unit described above.

5.                  No other union has petitioned or intervened claiming to be the exclusive bargaining representaive of the unit described in Finding of Fact No. 2, above.

6.                  The Executive Director felt obliged to resolve eligibility issues prior to resolving the representation issue. After determining the eligibility issue, the Executive Director ordered a cross-check and certified petitioner as exclusive bargaining representative.

7.                  Had the representation issue been assessed prior to the determination of the eligibility issues, the Executive Director should have found that conducting an election would cause undue and unnecessary delay, inasmuch as an election, even after resolving eligibility issues favorable to the employer, would be unlikely to affect the outcome, given the substantial majority support enjoyed by the petitioner.

8.                  An election, under the circumstances of this case, would cause the inefficient use of the scarce resources of the Commission.

9.                  At the time of the hearing, a disputed "inspector" position was held by an employee who was not a "uniformed" employee within the meaning of RCW 41.56.030(6).

10.              The hearing on this matter was conducted by a member of the Commission staff who also conducted pre-hearing proceedings. The employer first objected to this fact in its appeal brief to the Commission.

CONCLUSIONS OF LAW

1.                  The unit described in finding of fact number 3 is an appropriate unit for the purposes of collective bargaining within the meaning of RCW 41.56.060; there is no dispute between the parties that such a unit exists.

2.                  The petitioner is entitled to be certified as exclusive bargaining representative of the unit described in finding of fact number 2.

3.                  Any issues concerning eligibility of public employees for inclusion in the aforesaid bargaining unit, may be resolved in subsequent proceedings.

4.                  It is premature to consider the exclusion from the bargaining unit of uniformed personnel who may in the future hold the inspector positions referred to in findings of fact number 9.

5.                  The hearing and pre-hearing proceedings in the matter did not violate the appearance of fairness doctrine.

NOW, THEREFORE, it is

CERTIFIED

The majority of the employees of the above named employer in the appropriate bargaining unit described in finding of fact number 2 have chosen:

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 2829

as their representative for the purposes of collective bargaining with their employer with respect to wages, hours and conditions of employment.

Issued at Olympia, Washington, this 27th day of August, 1982.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

JANE R. WILKINSON, Chairman

[SIGNED]

R. J. WILLIAMS, Commissioner

[SIGNED]

MARK C. ENDRESEN, Commissioner