Davies, Roberts, Reid and Wacker, by Kenneth J. Pedersen, attorney at Law, appeared on behalf of petitioner.

Douglas N. Jewett, City Attorney, by Rodney N. Eng, Assistant City Attorney, appeared on behalf of the employer.

Pamela G. Bradburn, Attorney at Law, appeared on behalf of intervenor Washington State Council of County and City Employees.

On June 26, 1986, Teamsters, Local 174 filed a petition for investigation of a question concerning representation with the Public Employment Relations Commission. The petitioner initially sought to sever approximately 30 employees (solid waste drivers and scale attendants) from an existing bargaining unit of employees of the City of Seattle described as:

Truck driver, heavy; truck driver, radio dispatch; scale attendant; animal control officer I and II in the departments of engineering, parks and recreation, water and city light.

The existing unit includes approximately 136 employees.

The Washington State Council of City and County Employees, Local 21 was granted intervention as the incumbent exclusive bargaining representative of the existing unit.

A pre-hearing was conducted on August 25, 1986, at which the employer objected to the severance of truck drivers in one of three departments from the existing multi-department unit of truck drivers. The intervenor moved for summary judgment based on Commission precedent. A hearing on the propriety of the petitioned-for bargaining unit originally scheduled for September 23, 1986, was subsequently rescheduled to October 27, 1986, and then to December 15, 1986.

On December 11, 1986, the petitioner moved to amend the petition to seek the entire existing bargaining unit, accompanying its motion with a sufficient showing of interest. The hearing set for December 15, 1986, was continued pending a ruling on the motion. The parties simultaneously filed written arguments on the motion on January 9, 1987.

BACKGROUND

The collective bargaining relationship between the employer and the intervenor dates from 1962 when the intervenor became the exclusive bargaining representative of a bargaining unit of truck drivers. Since that time, the unit has grown to its present composition through voluntary recognition and accretion. Currently, the members of the existing bargaining unit are distributed, by department and classification, as follows:

The employer and the intervenor were parties to a collective bargaining agreement effective through August 31, 1986.

DISCUSSION

The Motion For Summary Judgment

The intervenor points out that the petitioned-for severance would disrupt a bargaining relationship of 24 years duration. It argues that, in view of long-standing PERC precedent on severance, the original petition to separate 29 employees (including 21 truck drivers) from a bargaining unit containing a total of 136 employees (including 98 truck drivers) is, on its face, "classically defective". The intervenor reasons that the petition could be dismissed by the Executive Director without hearing by adapting the summary judgment procedures contained in WAC 391-08-230 to administratively determine cases where Commission precedent overwhelmingly indicates dismissal. The intervenor claims that the Executive Director's refusal to give routine processing to representation petitions identical to those previously dismissed in City of Bellingham, Decision 792 (PECB, 1979) and City of Wenatchee, Decision 911 (PECB, 1980) provides support to the use of summary procedures here.

RCW 41.56.060 specifically calls for a hearing prior to the making of a unit determination. The intervenor thus urges the elimination of a statutory right through use of an administrative rule. Such a procedure would, in effect, amend the statute and would not be legally defensible.

Even if summary judgment were available, the intervenor assumes that a petition for an inappropriate unit is a defective petition. The terms are neither interchangeable nor encompassing. The fact that the unit sought may be inappropriate does not make the petition itself defective ab initio. The right to be represented by an organization of choice is a fundamental right under Chapter 41.56 RCW. The petitioner complied with the procedural requirements of the statute filing its petition within the contract bar "window" period of RCW 41.56.070 and supporting its petition with a sufficient showing of interest. Whether the substantive right of employees to choose a bargaining representative is available in the petitioned-for unit is dependent on whether the petitioned-for bargaining unit is appropriate under RCW 41.56.060. In addition to the specific command of the statute, due process requires a full evidentiary hearing to make such a determination. Goldberg v. Kelly, 397 U.S. 254 (1970). It would be a novel approach to deprive litigants of their statutory right to a hearing on the basis of precedent to which they were not parties.

The Bellingham and Wenatchee situations relied upon by the intervenor are distinguishable and inapposite. The units had been determined in earlier decisions after hearings. When the same petitioners filed new petitions raising the same issues, they were asked to explain why the principles of res judicata and collateral estoppel should not bar relitigation. The distinguishing fact is that there has been no previous ruling by the Commission on the bargaining unit involved or the serverance issue raised in the instant case. The intervenor's argument here incorrectly characterizes Commission precedent as res judicata when, in fact, such decisions at most may serve as stare decisis if the facts of the precedents are similar to the controversy at issue. It would not be appropriate to apply precedent unless and until an evidentiary hearing is held to ascertain the facts on which to compare. RCW 41.56.060 calls upon the Commission to consider a variety of factors. The intervenor's argument prejudges these factors, selectively emphasising the bargaining history and ignoring the other criteria. The petitioner is entitled to offer evidence on why the severence of a department might be appropriate in bargaining unit whose history is marked by accretion and voluntary recognition, and no opinion can be expressed here on the merits of such evidence or the petitioner's arguments favoring its proposed unit. The intervenor's motion for summary judgment is denied.

The Motion To Amend

The original petition in this case was timely filed under RCW 41.56.070 and WAC 391-25-030 during the "contract bar window" which preceded the August 31, 1986 expiration of the latest contract between the parties. It is clear that the petitioner was then barred by "contract bar" principles from amending its petition during the last 60 days the contract was in effect. We now have a motion to amend filed after the expiration of the contract.

The intervenor resists the proposed amendment of the petition. Although the motion to amend was made and supported by a sufficient showing of interest after the expiration of the collective bargaining agreement between the employer and the intervenor (i.e., seemingly free of any contract bar), the intervenor submits what seems to be an argument based on equity. Specifically, it contends that the petitioner used the original petition for an inappropriate unit to buy the time necessary to organize the remainder of the unit. Put another way, the intervenor complains that the petitioner used the petition "to prop open the window" in order to gain six more months to collect a sufficient showing of interest to support the amendment. Thus, the intervenor reasons that grant of the motion to amend would subvert statutory procedural protections intended to assure freedom of choice while maintaining labor stability.

Citing Yelm School District, Decision 704, 704-A (PECB, 1980) as authority, the intervenor argues that when the petition was filed, the city and the intervenor had no legal option but to cease contract negotiations. The argument is not persuasive. The intervenor's reliance on Yelm School District is entirely convoluted and misplaced. The holding of that case is precisely the opposite of what intervenor claims. Rejecting arguments made by counsel on behalf of another WSCCCE local, it was held in Yelm that a petition to sever did not disable negotiations between the incumbent and the employer for a successor contract for the remainder of the bargaining unit. Bargaining must be suspended only as to the part of an existing unit which is actually covered by a "severance" petition. Under its ongoing authority to negotiate, the intervenor could have demanded bargaining for those employees not covered by the petition in the instant case, and could have reached an agreement on a successor contract. Had it done so, the agreement would act to bar the proposed amendment of the petition.

WAC 391-25-150 permits the amendment of representation petitions under such conditions the agency may impose. Where a petitioner moves to amend its petition to seek a broader unit, and the employer and incumbent have adequate notice, the amendment will be allowed. Kitsap County, Decision 2116 (PECB, 1984). In the instant case, the original petition was not procedurally defective. Intervenor was entitled to bargain but did not exercise its right to do so. Local 174's motion to amend its petition is properly supported by a showing of interest and is granted.

DATED at Olympia, Washington, this 5th day of March, 1987.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This Order may be appealed by filing post-election objections with the Commission pursuant to WAC 391-25-590.