STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
WASHINGTON STATE COUNCIL OF COUNTY AND CITY EMPLOYEES	CASE 7675-E-88-1316
Involving certain employees of:	DECISION 3228 - PECB
FEDERAL WAY WATER AND SEWER DISTRICT	ORDER OF DISMISSAL

Pamela G. Bradburn, General Counsel, appeared for the union.

Robert Hirstel, Labor Relations Consultant, and Bocek and Pritchett, by Steven H. Pritchett, Attorney at Law, appeared for the employer.

On November 16, 1988, the Washington State Council of County and City Employees filed a petition with the Public Employment Relations Commission, seeking certification as exclusive bargaining representative of certain employees of the Federal Way Water and Sewer District. A pre-hearing conference was held on January 4, 1989, and a statement of results of pre-hearing conference was issued on January 13, 1989. A hearing was held in Federal Way, Washington, on February 13, and March 1, 1989, before Hearing Officer Katrina I. Boedecker. Post-hearing briefs were submitted until April 20, 1989.

BACKGROUND

The Federal Way Water and Sewer District was created in October of 1985, when area residents voted to merge King County Water District 124 and the Lakehaven Sewer District. An announced purpose of the merger was to provide cost savings to the residents by coordination of activities. The merged entity now has approximately 22,000 water customers, 17,000 sewer customers and 11,00 street light customers. Included in these figures are about 2,000 commercial sewer customers who are billed based on their water usage, and about 20 sewer customers who do not get water from the employer. A Board of Commissioners sets policy and hires the general manager.[1] James Miller has been general manager since January 1, 1986.

Approximately one year after becoming general manager, Miller instituted an organization plan calling for four primary divisions which report directly to the general manager: Finance and customer service, engineering and technical services, water operations, and sewer operations.

Currently, the employer's "main building" houses the general manager's office and the finance/customer service and engineering divisions. The water division is headquartered in a separate building across a parking lot from the main building. The employer has two sewage treatment facilities. The Lakota Plant is located approximately three miles from the main building, while the Redondo Plant is located in a different direction about three miles from the main building. It takes about 10 minutes to drive between the two sewer plants.

The employer is not a taxing district. The revenue for its operations comes exclusively from service charges, connection charges, permits, water applications and capital facility charges. The merger did not change the source of revenue.[2] Expenditures are charged to a "water account" or "sewer account" based on whether they are related to the employer's water function or its sewer function, and those disbursements form the basis for the setting of water and sewer rates. The costs associated with the finance/customer service and engineering divisions are essentially divided equally between the water account and the sewer account.

The employer now has 93 employees: 2 in administration; 16 in engineering and technical services; 22 in finance and customer services; 28 in sewer operations; and 25 in water operations. The merger did not cause the layoff of any employees or any change in their work locations. Even prior to the merger, the predecessor entities had used identical employee policy manuals. By January of 1987, employees began to see district-wide policies and memos concerning working conditions, such as vacation time and sick leave, which applied to all employees. Currently, all of the employees are on one pay plan containing 23 pay ranges,[3] and all of the employees are offered the same insurance benefit plans. The employer observes the same holidays for all of its employees. All of the employees are covered by the state Public Employees Retirement System. The employer has adopted hiring and promotion practices which call for consideration being given initially to existing employees and, if applicant qualifications are equal, for a preference being given to present employees. For the past two years, the water division and sewer division employees have had similar work hours, using a schedule of four ten-hour days during the summer months and a schedule of five eight-hour days during the winter.[4] Both water division and sewer division employees have been permitted to take water quality classes at Green River Community College.

The sewer division is regulated by the Washington State Department of Ecology (DOE), which establishes guidelines governing waste water treatment plants and requires that certain testing be performed on waste water. The DOE issues certifications for waste water treatment plant operators.

The DOE and the Washington State Department of Social and Health Services (DSHS) both regulate the water division. DSHS regulates the certification of water division employees who are managers, as well as those who work with the cross-connections in the supply system.

POSITIONS OF THE PARTIES

The union seeks a bargaining unit of employees in the sewer division only. It contends that the sewer division is a coherent, separate department, whose employees perform an identifiable body of work and share a community of interest. The union asserts that it need not propose the most appropriate unit, but simply an appropriate unit. The union seeks to distinguish this situation from those where rival labor organizations are proposing different unit configurations, and contends that the employer "has no standing to propose a bargaining unit".

Hence, it claims that the Commission need not scrutinize the alternatives for their relative propriety, and that an election must be directed if the petitioned-for unit is appropriate. Alternatively, the union submits that the employer's concerns are outside the unit determination criteria established by the statute and that, although a legitimate issue in a "severance" case, fragmentation is not a concern in the initial formation of bargaining units. Responding to the employer's claim that Bernard Stump is a supervisor who should be excluded from the bargaining unit, the union claims that his duties do not require such an exclusion.

The employer contends that the appropriate bargaining unit should consist of all employees of the employer who are responsible to its general manager, excluding confidential employees, supervisors, employees at or above pay level 14, and temporary employees. The employer bases its contention on what it characterizes as job commonalities, interdependence, co-operation, and uniform personnel policies. The employer advances that its operations are comparable to those of other municipal entities that have "wall-to-wall" bargaining units. It claims that Bernard Stump is a supervisor who should be excluded from the bargaining unit.

DISCUSSION

The effectiveness of the collective bargaining process depends, in large part, on the propriety of the bargaining unit(s) in which bargaining is conducted. Accordingly, employees are grouped together for the purposes of collective bargaining according to the "community of interests" they share in dealing with their employer. Thurston County, Decision 2574 (PECB, 1986). In determining and modifying appropriate bargaining units, the Commission is directed by RCW 41.56.060 to:

[C]onsider 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 desire of the public employees....

The notion of an "appropriate bargaining unit" found in RCW 41.56.060 is pivotal to status as an exclusive bargaining representative under RCW 41.56.080, and to the existence of a duty to bargain under RCW 41.56.030(4), 41.56.140(4) and 41.56.150(4). South Kitsap School District, Decision 1541 (PECB, 1983). A union petitioning for status as exclusive bargaining representative under Chapter 391-25 WAC must show that the bargaining unit it seeks would be appropriate for purposes of collective bargaining.

The employer is a party in representation proceedings under Chapter 41.56 RCW and Chapter 391-25 WAC, with standing and voice on all issues including the description of the bargaining unit. A bargaining unit consisting of "all of the employees of the employer", as proposed by the employer here, is inherently an appropriate unit. All such employees clearly share a community of interests in dealing with their common employer. The propriety of such a unit was affirmed in Wahkiakum County, Decision 1876 (PECB, 1984), where another affiliate of the Washington State Council of County and City Employees won certification for a "wall-to-wall" unit of county employees, excluding only a clearly explainable group engaged in the operation of a ferry on an interstate route.

Duties, Skills and Working Conditions

The union particularly cites in support of its argument the facts that the sewer division has its own separate budget; that sewer division employees do not work with employees of other divisions in the ordinary course of events; and that the sewer division employees' technical skills are not transferable to the employer's other divisions.[5] The union also relies on the monitoring of the sewer division by a state agency different than the agency(-ies) which monitor the water division, and the premerger history of the Lakehaven Sewer District as an independent entity.

The general functions of the sewer division are the treatment of waste water, the maintenance of the collection lines and pumping stations, and the analysis of waste water effluent. The superintendent of sewer operations is William Martin. Bernard Stump is classified as a "waste water treatment plant foreman". He reports to Gene Yoder, who is the "maintenance supervisor" for the sewer division. Yoder reports directly to Superintendent Martin. Stump, who holds the only "foreman" title in the employer's operation, coordinates with the chief operators of the Redondo and Lakota Plants to perform all the maintenance work.

There are three functional groups doing maintenance work within the division: The treatment plant maintenance employees are stationed at the Redondo facility; the pump operations maintenance employees are based at the Lakota Plant; and the employees who handle pipe cleaning and inspections are also based at the Lakota Plant.[6] General maintenance personnel who do work for the sewer division are located at the administration building. Three job titles that occur in the sewer division are also found in other divisions: Maintenance Person III; Maintenance Person II and Secretary II.[7]

The sewer division has one full-time secretary and one part-time secretary. The full-time secretary works at the Redondo plant two days and the Lakota Plant three days each week. She interacts with people in the administration division on a daily basis. Occasionally, the part-time secretary will fill in for the general manager's secretary. The employer holds meetings of all of its office-clerical staff at times throughout the year, to standardize clerical roles and make individuals more readily able to fill in for someone in another division.

Prior to the merger, sewer inspectors worked for the sewer district entity. They are now in the engineering division. Once or twice a year, sewer maintenance people will fill in for engineering technicians to do sewer inspections.

Meter readers are in the water division. Their readings determine some sewer billings, however, since sewer bills for commercial accounts are based on water consumption. They also read the sewer meters for customers who do not receive water from this employer.

Janitors assigned to the sewer division are based out of the Lakota Plant, but they provide services for other divisions, working two days a week in the administration building, two days a week at Lakota and one day at Redondo. They are supervised by a treatment plant operator who works at Lakota.

The sewer pump stations have cross-connection devices to ensure that the water and sewer systems do not interconnect. Prior to the merger, the cross-connection testing required by the state was contracted out. Around the time of the merger, some sewer department employees were performing the testing. Since the merger, the cross-connection testing for sewer facilities has been done by water division employees, because of their expertise.

There have been temporary shifts of employees from the sewer division and the water division to assist engineering personnel in construction inspection. Employees have been shifted between the sewer and water divisions to cover inspections in cases where employees have been absent because of illness or vacation, or when one of the divisions had a heavy workload. A sewer treatment plant operator has permanently transferred into the water division as a meter reader.

The finance and engineering divisions "borrow" employees from one another at least once a month, and one such employee went to the sewer division for a time in 1988. Radio communications for all divisions are handled from the water division office. There are centralized billing and purchasing functions for the entire operation.

The employer's 1989 budget included provision for two positions to do grounds maintenance for both the sewer division and water division pump station facilities. Temporary employees assigned to the water division have maintained the grounds around the main building used by the administrative, finance, and engineering divisions, as well as the water division grounds. Ground maintenance for the treatment plants and sewer pump stations has been handled by temporary employees assigned to the sewer division.

The new budget also contemplates addition of a new electrician/instrumentation position in 1989. The employee would be assigned to the sewer division, but would do work on the water pump stations as well as electrical work for all divisions of the employer. Currently, that work is contracted out.

Prior to the merger, extra equipment needed for sewer operations would have been rented. Since the merger, such equipment is generally obtained by borrowing it from the water division. There is joint use of emergency equipment, such as generators, lighting for night work and flagging supplies. Emergency generators are being designed for use in both water and sewer pump stations. The generators have been moved from the Lakota treatment plant to the water division facility, because of the more central location.

The employer has only one vehicle mechanic. Although he is assigned to the water division, he provides all of the vehicle maintenance which is performed by the employer. Sewer vehicles are brought to the water division facility to be serviced. The gas pump for the entire operation is at the water facility.

The employer encourages cross-training between all of its divisions, and employees can apply to learn another part of the employer's operations. The request for cross-training is subject to the availability of someone in the other division wanting to exchange positions. In 1987, one finance employee was cross-trained in sewer operations. That cross-training counted toward requirements for a class the employee was taking at the time. The sewer and water divisions have worked together to train for safety measures relative to the field crew. Each of the divisions has a safety officer. The officers rotate the responsibility of leading the safety meetings which are held jointly.

In emergency situations, employees from the sewer and water divisions have been called upon to work together. In 1987, some dead birds were found in a water tank. To alleviate concerns of water source contamination, two sewer division employees with laboratory testing skills were called upon to work with water division employees for about six hours. In early 1988, a break in a main sewer line was remedied by personnel from the water, sewer and engineering divisions.

In summary, the union attempts to diminish some points that are found to be pivotal. There is a consistent pattern of interchange between the employees of the sewer division and employees of other divisions of the employer: Cross-division assignments occur during times of heavy workloads; the sewer division borrows equipment from other divisions; cross-connection testing for sewers is done by water division employees; there is central vehicle maintenance; there is central radio dispatch; some sewer billing is based on water meter readings; sewer and water operations have joint safety meetings; there are employer-wide secretarial meetings; janitors assigned to the sewer division do work for other divisions as well; there are common personnel policies; and emergencies are responded to jointly. Thus, the facts establish that less isolationism exists than the union asserts. The existence of some different duties among employees in the sewer division is not so sufficiently distinct to justify a finding of a separate community of interest for employees in the proposed unit. A high degree of interaction exists -- even up to a daily basis for some employees -- between the petitioned-for employees and the rest of the employer's employees, as well as there being a functional integration among the divisions. The clerical, maintenance and manual labor employees in the proposed unit share skills and generic types of duties with other divisions' employees, so that it is easy to conceive of major work jurisdiction battles if the sewer division was allowed its own bargaining unit.

History of Bargaining

A search of the Commission's docket records discloses that there has been previous organizing activity among employees of this employer. Teamsters Local 117 was certified as exclusive bargaining representative of a bargaining unit described as:

All full-time and regular part-time office-clerical employees of the district, including cashiers, accounts receivable clerks, accounts payable clerks, payroll clerks, and junior accountants, excluding supervisors, confidentials, and all other employees.

Federal Way Water & Sewer District, Decision 1261 (PECB, 1981)[8]

Thus, it can be seen that the employer has a history of districtwide, as opposed to departmental bargaining units, which even pre-dates the official merger.[9]

Had the petitioned-for employees acted to organize a separate unit of Lakehaven Sewer District employees prior to the merger of the two employer entities, they would have come into the merger with a history of bargaining and a whole set of "successorship" considerations would have come to bear against upset of such a bargaining relationship. Such were not the facts, however, and the union argues only from the severely-weakened premise that the sewer division was once a separate employer. One can envision that the merger was accomplished to eliminate duplication and inefficiency. The history does not support creation of a separate bargaining unit.

The Extent of Organization

It seems evident that the employees of the sewer division constitute the extent of the group in which the union now enjoys support. The "extent of organization" is one of the unit determination criteria set forth in the statute, but it is not exclusive or overwhelming. In Bremerton School District, Decision 527 (PECB, 1978), a representation petition was dismissed upon a conclusion that the proposed unit cut across supervisory lines, cut across lines of generic employee types, was not limited to skilled craftsmen, and did not include all employees who were performing skilled or similar work, so as to be subject to description only along lines of the union's extent of organization.

The employees in the proposed bargaining unit constitute all of the employees, below the title of supervisor, of only one division of the employer. The union advances that the Commission has held that some departmental, or "vertical" bargaining units are appropriate, citing King County, Decision 1480 (PECB, 1984); Cowlitz County, Decision 1652-A (PECB, 1984); and City of Kent, Decision 1846 (PECB, 1984).

...[t]he propriety of such units under RCW 41.56.060, particularly relies on the community of interest among all employees subordinate to a common manager within a single department or division of the employer.

Cowlitz County, Decision 1652 (PECB, 1983).

The union sees the sewer division as a separate operational unit of the employer within the dictates of Cowlitz; all the employees in the sewer division are subordinate to Sewer Division Superintendent William Martin, and he is responsible only to the employer's general manager.

Interestingly, each of the cases relied upon by the union expounded upon the dangers of a departmental, or "vertical", bargaining units. In King County, it was noted:

This case presents difficult "second generation" unit determination problems.... Had the inspection functions never been fragmented between two bargaining units, we would not have the current problem to deal with ... There is no doubt that there are some similarities, and that they once were (and could now be) placed in a single employee-generic bargaining unit. But, the communities of employee interest have been divided along the lines of management's organization.

It was noted in Cowlitz County, Decision 1652-A, that:

The [unit determination question] at hand is a predictable consequence of organization of bargaining units along lines of employer-orientation rather than according to employee types. A "departmental" bargaining unit can be an appropriate bargaining unit within the meaning of RCW 41.56.060, but the parties to such a bargaining unit structure should expect to encounter some bargaining obligations and some unit determination problems at any time the employer finds it necessary or desirable to alter its table of organization.

It was commented in City of Kent that bargaining units organized along the lines of the employer's table of organization can be a source of:

"[S]econd generation" unit determination problems and/or bargaining obligations and unfair labor practice disputes where the employer finds it necessary or desirable to alter its table of organization.

The unit structure urged by the union in Kent was found inappropriate.

The employer in the instant case is a relatively new entity, at least in a legal sense. It is quite possible that it may desire in the future to further change its organization to call for even more interaction among the employees in its divisions. The record already establishes that there is a current trend toward standardization of equipment among the pump stations.

The union's argument that fragmentation is not a legitimate issue in the initial formation of bargaining units is not persuasive. To the contrary, fragmentation problems are often created and perpetuated because of histories of bargaining that necessarily date back to initial organization of fragmentary units. Carried to their extreme, fragmentation of bargaining units created in the course of initial organizing can be fatal to the bargaining relationships.[10] Both parties submitted evidence of bargaining units of other water and sewer service providers. Some of those have "wall-to-wall" bargaining units, while others admittedly use a departmental approach. The specifics of such situations must be closely examined,[11] with the basic premise that the agreements made by parties are not binding on the Commission. In City of Centralia, Decision 2940 (PECB, 1988), a petition for a bargaining unit of employees in the water division of that employer's Water and Wastewater Utility Department was dismissed, based upon a conclusion that the water division employees did not share a unique community of interest which would warrant the creation of a separate bargaining unit. From the record, it appears that at least the City of Everett, the Alderwood Water District,[12] and the City of Kelso also have both water and sewer employees in the same bargaining unit.

Desires of Employees

The "desires of the employees" is another of the criteria found in RCW 41.56.060, but it has also been rejected as being the primary or dominant factor in unit determination. Thurston County, Decision 2574 (PECB, 1986). There is no occasion to conduct a unit determination election to assess the desires of the employees involved in this case where the petitioned-for choice is not an appropriate bargaining unit. Clark County, Decision 290-A (PECB, 1978).

Conclusions

The union has not petitioned for an appropriate bargaining unit, and its petition must be dismissed. The dismissal of this petition does not bar the union from returning at any future time to petition the Commission for representation rights in an appropriate bargaining unit of employees of this employer.[13]

Since the petition is being dismissed, it is not necessary to rule on whether Bernard Stump is a supervisor.[14]

FINDINGS OF FACT

1.                  Federal Way Water and Sewer District is a public employer within the meaning of RCW 41.56.030(1).

2.                  Washington State Council of County and City Employees, a bargaining representative within the meaning of RCW 41.56.030(3), seeks to represent a bargaining unit limited to employees in the sewer division of the Federal Way Water and Sewer District.

3.                  There is a bargaining history among employees of the employer for an employer-wide bargaining unit of office-clerical and related classifications, some of which are within the bargaining unit petitioned-for in this case.

4.                  The employees in the sewer division share similar wages, hours and working conditions with other employees of the employer and do not have a community of interest solely among themselves.

5.                  The petitioned-for bargaining unit cuts across generic employee types, including within its scope classifications such as Maintenance Person III, Maintenance Person II and Secretary II which appear in other divisions of the employer, while separating groups of employees who have regular contact with one another in the course of their employment.

CONCLUSIONS OF LAW

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

2.                  The petitioned-for bargaining unit of employees of the sewer division of the Federal Way Water and Sewer District is not an appropriate unit for the purposes of collective bargaining within the meaning of RCW 41.56.060, and no question concerning representation presently exists.

ORDER

The petition for investigation of a question concerning representation filed in this matter is hereby DISMISSED.

DATED at Olympia, Washington, this 19th day of June, 1989.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This Order may be appealed by filing a petition for review with the Commission pursuant to WAC 391-25-390(2).