STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 77	CASE NO. 6916-E-87-1194
Involving certain employees of:	DECISION 2894 - PECB
SOUTH COLUMBIA BASIN IRRIGATION DISTRICT	DIRECTION OF ELECTION

Ray D. Warren, Representative, appeared on behalf of the petitioner.

Daniel S. Smolen, Labor Relations Representative, and Merle Gibbens, Secretary/Manager, appeared on behalf of the employer.

Wesley H. LeMay, Representative, appeared on behalf of the intervenor, Columbia Basin Irrigation Council.

On June 19, 1987, International Brotherhood of Electrical Workers, Local 77 (petitioner) filed a petition with the Public Employment Relations Commission, seeking investigation of a question concerning representation involving certain employees of the South Columbia Basin Irrigation District. The Columbia Basin Irrigation Council moved for intervention in the proceedings, claiming to be the incumbent exclusive bargaining representative of the employees involved. A pre-hearing conference was conducted on October 21, 1987, at which time certain issues were identified as being in dispute between the parties. A hearing was conducted on November 23, 1987 by Walter M. Stuteville, Hearing Officer. The parties submitted post-hearing briefs.

BACKGROUND

Three irrigation districts were formed as municipal corporations of the State of Washington when the federal government turned over the operation of the Grand Coulee irrigation project to local authorities. They were the Quincy - Columbia Basin Irrigation District, the East Columbia Basin Irrigation District, and the employer in the instant case, the South Columbia Basin Irrigation District. At the time of their creation, the sole purpose of these employers was to maintain and operate a system of canals that distributed water throughout the Columbia River basin.

On April 14, 1969, the Columbia Basin Trades Council was certified as the exclusive bargaining representative of the non-supervisory employees of the employer.[1]

In 1980, the Columbia Basin Trades Council formed a subdivision, known as the Columbia Basin Irrigation Council, to carry on collective bargaining relations with the several irrigation districts. The Columbia Basin Irrigation Council includes: International Association of Machinists and Aerospace Workers; Public Service and Industrial Employees, Local 1239, affiliated with the Labor's International Union of North America; International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 760; and International Union of Operating Engineers, Local 280. The Columbia Basin Irrigation Council has negotiated and administered a series of collective bargaining agreements with this employer. Pertinent provisions of the 1986 - 1987 agreement between the Council and the employer include:

LABOR AGREEMENT between SOUTH COLUMBIA BASIN IRRIGATION DISTRICT and COLUMBIA BASIN IRRIGATION COUNCIL

January 1, 1986 through December 31, 1987

ARTICLE I - GENERAL PROVISIONS

Section 1.1 - Employees Covered.

The employees covered by this Agreement shall be all regular DISTRICT employees except supervisory employees, and other employees specifically excluded by agreement, and those whose duty as Deputy, Administrative Assistant or Secretary necessarily implies a confidential relationship to the Executive Head of the District.

A regular employee for bargaining unit purposes is an employee whose employment with the DISTRICT exceeds one hundred twenty (120) consecutive calendar days.

* * *

Section 1.6 - COUNCIL Solicitation and Agency Shop Provisions.

* * *

Agency Shop - Employees covered by work classifications listed in Exhibit "A" of this Agreement and who complete one hundred twenty (120) days of continuous employment shall be subject to sharing the cost of operating the COUNCIL as their collective bargaining agent. All such employees must as a condition of employment either be a member of a union affiliated with the COUNCIL and pay union dues, or pay an agency fee to the COUNCIL, but not both. Agency fees shall not exceed regular and Customary dues. Basic dues are those monies, excluding initiation fees, paid monthly by any other regular member in similar work classifications.

These provisions in no way bind an employee to become a member of any Union or COUNCIL affiliate.

* * *

In the event that an employee does not comply with the requirements above, the COUNCIL may request that the employee be terminated. In making such request for termination the COUNCIL accepts all responsibility, legal and otherwise, for the actions of the DISTRICT made in compliance with the COUNCIL'S request.

* * *

ARTICLE 2 - GENERAL WORKING RULES.

Section 2.2 - Established Headquarters.

(a) Established Headquarters may be any water master field office or regular place of business established by the DISTRICT for the purpose of operation, construction, or maintenance of Project facilities.

* * *

ARTICLE 3 - EMPLOYEE BENEFITS.

Section 3.12 - Weed Sprayer Bonus.

The DISTRICT will pay the qualified personnel while spraying an additional fifty-five cents per hour. Commencing January 1, 1987 the spray bonus shall be increased to sixty five cents per hour.

* * *

EXHIBIT "A"

Group 1

Ditchrider and Canal Maintenanceman

Journeyman

Training Steps

* * *

Group 2

Heavy Equipment Operator, Mechanic, Electric and Repairman

Journeyman

Training Steps

* * *

Technician, Electrical, or Mechanical Journeyman (1)

* * *

GROUP 1 - Ditchrider and Canal Maintenanceman

GROUP 2 - Heavy Equipment Operators (Dragline, Crane, Backhoe, Gradall), Mechanics, Electricians, Building Repairmen, Pump Repairmen, Pump Mechanics. Welders, Radio Technicians

* * *

OPERATION OF EQUIPMENT - Motor Grader, Track Type Tractor, Loader, Loader-Backhoe combination, Rod-Pipe Cleaner, Hi-Pressure Pipe Cleaner, Ditcher and Wheel Tractor

Shop stewards have been designated by the union at each of the employer's eight irrigation field offices.

In 1982, all three of the above-mentioned irrigation districts began developing and implementing a plan that harnessed the water in the irrigation canals to produce electric power. This was accomplished by constructing a series of dams along the canals. At the inception of the power generation program, only two South Columbia Basin Irrigation District employees were involved in the power generation function.

By May of 1983, the power generation operation had grown enough to warrant the dividing of administrative functions into two divisions. Russell Smith was named as Secretary/Manager of the power generation division, and Merle Gibbens was named as the Secretary/Manager of the irrigation and drainage division. Both men reported to the board of directors of the employer. The two divisions were, however, housed in separate offices and were separately funded, with the power generation operation funded by monies received from power purchasers.

Gradually, the number of power generation dams has increased and the number of employees involved in the production of electricity has increased accordingly. At the date of the hearing, 15 non-supervisory employees were employed in the power generation division of the employer, while approximately 64 employees were employed in the irrigation division.

From the inception of the power generation facilities at each of the three irrigation districts, there has been a "master plan" to transfer the various power generation operations to a single entity to be known as the Grand Coulee Project Hydroelectric Authority. Such a merger has involved on-going negotiations with the federal authorities and, therefore, has taken many years. The plan had been to effect the transfer by January 1, 1988, but the power generation function at issue in this proceeding remained an operation of the South Columbia Basin Irrigation District at the time of the hearing.

There is no evidence that the wages, hours and working conditions of the power generation employees have been a subject of collective bargaining between the employer and the Columbia Basin Irrigation Council. There are no contract provisions which mention or are specifically geared to those employees. There are no shop stewards designated to represent any of the power division employees, and there is no evidence of any contract administration on behalf of the power generation employees. In fact, it appears that there had been an affirmative decision by the Columbia Basin Irrigation Council to refrain from enforcing the union security provisions of its collective bargaining agreement with respect to the employees in the power generation operation.

In 1987, however, the Columbia Basin Irrigation Council commenced an exchange of correspondence with the employer relating to the power generation employees. A May 6, 1987 letter addressed to Gibbens and Smith by Council President Roger Elber stated:

As per our conversation of today I believe that we do agree that the employees of the Power Generation Division as described in Article I, Section 1.1 should be included and recognized as being part of the council.

Please add your signature of concurrence to this letter and return one copy to our office. Thank you for your cooperation in this matter.

A second letter dated May 6, 1987 from Elber to Gibbens stated:

Please be advised that as the President of the Columbia Basin Irrigation Council and in compliance with the Labor Agreement now in force between the South Columbia Basin Irrigation District and the Columbia Basin Irrigation Council that we now stand ready to meet and negotiate wages for the Power Generation Division employees of the District.

The Power Generation Division under Article 1, Section 1.1 is part of the bargaining unit and wages for this classification need be negotiated and included in this agreement.

Please take notice that no other organization now represents the above-mentioned unit and you are hereby cautioned against entering into any and all negotiations, support, or contact of any other organization presuming to act as agent for or on behalf of any such employees.

In June, 1987, the Columbia Basin Irrigation Council sent letters to the employees in the power generation division, informing them that they were considered by the council to be part of the bargaining unit represented by the council, and that they must pay membership dues or make an equivalent donation to an agreed upon charity as a condition of employment. One such letter, addressed to employee Dennis Britten, demanded back dues for two months, and indicated that failure to pay the back dues could result in a request from the Council for his termination.[2]

IBEW Local 77 filed the petition to initiate these proceedings on June 19, 1987. A delay in the processing of the case was allowed at the request of the Columbia Basin Irrigation Council, in order to allow it to pursue remedies under the AFL-CIO constitution and intra-union procedures.[3]

On July 15, 1987, Elber again wrote to the employer on behalf of the Council:

I have sent a letter out of our office today to the Power Generation Division employees of the South Columbia Basin Irrigation District informing them that until the I.B.E.W. question of representation is resolved the Council will not request termination.

My records reflect that sometime in or around April or May 4 more were hired by the District. Upon completion of their 120 days I trust the District will inform me of their names and locations.

Thank you for your cooperation in this matter.

The processing of this representation proceeding was resumed in the absence of withdrawal. The Columbia Basin Irrigation Council moved for intervention only as incumbent exclusive bargaining representative under WAC 391-25-170, and has not filed authorization cards or made an alternative motion for intervention under WAC 391-25-190.

POSITIONS OF THE PARTIES

Local 77 alleges that the power generation function has been separate from irrigation operations, both administratively and in regards to collective bargaining, ever since its creation. Further, the petitioner contends that the current contract between the council and the employer does not now, and never did, include power generation employees so as to constitute a contract bar prohibiting employees working for the employer's power generation function from organizing separately.

The Columbia Basin Irrigation Council argues that no question concerning representation can exist, because all non-supervisory employees of the district, including both the irrigation division and the power generation division, are covered by the existing labor agreement. The council alleges that the petition filed in June, 1987, was untimely, i.e., that the collective bargaining agreement barred issues of representation except during the statutory contract bar "window" period, which did not open until October 2, 1987.

The employer was represented at the hearing, but took no position on the issues in dispute.

DISCUSSION

The History of Bargaining

The power generation function did not exist and the power generation employees were not a part of the employer's workforce at the time the organization moving here for intervention became the exclusive bargaining representative of certain employees of this employer. The evidence indicates that the organization claiming to be the incumbent has done little or nothing to include the power generation employees in the bargaining unit since they became part of the employer's workforce.

As the incumbent exclusive bargaining representative of a broad unit of the employer's employees, the council had at least two options available to it as new employees were hired for the new power generation operation.

First, it could have asserted a claim to be the exclusive bargaining representative of the power generation employees by requesting voluntary recognition from the employer. No specific instance of such a request for voluntary recognition was cited, however.

Second, if the employer had refused a request for voluntary recognition, the council could have filed a unit clarification with the Public Employment Relations Commission under Chapter 391-35 WAC, seeking to have the classifications in the new division included in the existing bargaining unit by "accretion". No such petition was filed.[4]

The council argues that it "assumed" the role of bargaining agent over the course of time, but the evidence does not support that claim. There are specific references in the collective bargaining agreement to wages and working conditions of irrigation division employees in ARTICLE 2 and ARTICLE 3 and in EXHIBIT A. By contrast, the contract language does not contain provisions addressing the power generation employees. The only possible reference to power generation employees is in EXHIBIT "A", GROUP 2 where "electricians" are listed. However, according to testimony provided by the employer, that term refers to employees of the irrigation division who maintain over two hundred electrically operated irrigation pumps. There was no evidence to show that any part of the council contract had ever been administered on behalf of the power generation employees.

The only evidence of a direct involvement of the Columbia Basin Irrigation Council in the affairs of the power generation employees seems to have been in connection with the representation case filed in 1983 and in connection with the current case. The recent effort by the council, through a series of letters, to enforce an otherwise exception-free union security clause for the first time as regards the power generation employees undermines, rather than reinforces, a claim of a history of bargaining going back to 1982. The timing of the letters instead suggests an inference that the proposed intervenor was merely attempting to establish evidence of representation in the face of an imminent challenge by the petitioner.

Accretion

Even if this were a unit clarification proceeding initiated by the Columbia Basin Irrigation Council in a timely manner following the creation of the power generation operation, there is substantial doubt as to whether an accretion could be granted. The National labor Relations Board enunciated standards for the accretion of a group of employees into a bargaining unit in Weatherite Co, Inc. and Roofers Local 174, 261 NLRB 95 (1982), as follows:

... the Board has followed a restrictive policy in finding an accretion because it forecloses the employee's basic right to select their bargaining representative ... Thus the Board has found no accretion where there was an absence or infrequency of interchange among employees in the new and existing groups, where there was a lack of common supervision, where there was a lack of physical, functional and administrative integration of the groups of employees; where there were different skills and functions in the two groups; where there was a history of exclusion of these new employees from the unit.

In San Juan County, Decision 358 (PECB, 1978), a group of employees was accreted to an existing bargaining unit, but the divisions involved there were under common supervision, the duties, skills, and working conditions of the employees were comparable, and both groups of employees shared a community of interest.

In the present case there was no showing that irrigation division and power generation division employees were ever interchanged. There was little evidence of common supervision.[5] There is no physical, functional or administrative integration of the two divisions. Different skills and functions are required of the two groups of employees. There has been a history of exclusion of the power generation employees from the existing bargaining unit. From its initial creation, the employer has kept the two divisions as separate as possible, and all of these distinctions are completely in concert with the long term plan of the employer to merge its power generation operation with the power generation operations of the other two irrigation districts, and to thus create a new and separate entity whose sole function is to generate electric power.

The Motion For Intervention

The conclusion that the power generation division employees are not included in the bargaining unit represented by the Columbia Basin Irrigation Council leads, at one and the same time, to the rejection of the council's motion for intervention made under WAC 391-25-170 and to the direction of an election in which the power generation employees are to be deemed eligible voters. Since the Columbia Basin Irrigation Council has not supported a motion for intervention with current authorization cards under WAC 391-25-190, only the petitioner will be on the election ballot.

FINDINGS OF FACT

1.                  South Columbia Basin Irrigation District, a municipal corporation of the State of Washington and a public employer within the meaning of RCW 41.56.030(1), has created a power generation operation as a separate division within its overall operation and has employed a number of employees in that division.

2.                  International Brotherhood of Electrical Workers, Local 77, a labor organization and bargaining representative within the meaning of RCW 41.56.030(3), filed a petition for investigation of a question concerning representation, seeking certification as the exclusive bargaining representative of all full-time and regular part-time employees of the power generation division of the South Columbia Basin Irrigation District, excluding supervisors and confidential employees.

3.                  The Columbia Basin Irrigation Council, a labor organization and bargaining representative within the meaning of RCW 41.56.030(3), timely moved for intervention in the matter, claiming to be the incumbent exclusive bargaining representative of the petitioned-for employees. The council is the exclusive bargaining representative of non-supervisory employees in the employer's irrigation division.

4.                  The petitioned-for employees were added to the employer's workforce after the creation of the bargaining unit represented by the proposed intervenor.

5.                  There is no history of bargaining between the employer and the proposed intervenor which includes the petitioned-for employees, and they have not been covered by the provisions of the collective bargaining agreement between the employer and the Columbia Basin Irrigation Council.

6.                  The power generation employees work independently and separately from the irrigation division employees represented by the Columbia Basin Irrigation Council.

7.                  The power generation division employees are supervised separately from the irrigation division employees. The managers of the divisions normally report separately to the employer's board of directors.

CONCLUSIONS OF LAW

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

2.                  The motion of the Columbia Basin Irrigation Council for intervention under WAC 391-25-170 must be denied in the absence of evidence that said organization has actually served as exclusive bargaining representative of the employees in the period immediately preceding the filing of the petition.

3.                  A unit composed of all full-time and regular part-time employees of the power generation division of the South Columbia Basin Irrigation District, excluding supervisors and confidential employees, and all other employees of the employer is an appropriate unit for purposes of collective bargaining within the meaning of RCW 41.56.060; and a question concerning representation presently exists within that unit.

DIRECTION OF ELECTION

An election by secret ballot shall be conducted by the Public Employment Relations Commission among all full-time and regular part-time employees of the power generation division of South Columbia Basin Irrigation District who are employed on the date of this order and remain so employed on the date of the election, excluding supervisors, confidential employees and all other employees of the employer, for the purpose of determining whether a majority of those employees desire to be represented for the purposes of collective bargaining by International Brotherhood of Electrical Workers, Local 77.

DATED at Olympia, Washington, this 12th day of April, 1988.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

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