STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 8	CASE 10005-E-92-1639
	DECISION 4385 - PECB
Involving certain employees of:
SEATTLE HOUSING AUTHORITY	DIRECTION OF ELECTION

Webster, Mrak & Blumberg, by Christine Mrak, appeared on behalf of the petitioner.

Williams, Kastner & Gibbs, by Ronald J. Knox, appeared on behalf of the employer.

On September 14, 1992, Office and Professional Employees International Union, Local 8 (union), filed a petition for investigation of a question concerning representation with the Public Employment Relations Commission, seeking certification as exclusive bargaining representative of certain employees of the Seattle Housing Authority (employer). A pre-hearing conference was held on October 15, 1992. The statement of results of the pre-hearing conference reflects that the parties were able to stipulate certain matters related to the processing of the case, but that a dispute was framed concerning the scope and composition of the bargaining unit. The determination of the question concerning representation was delayed,[1] and a hearing was held before Hearing Officer Walter M. Stuteville on December 7, 8, and 15, 1992. Both parties filed post-hearing briefs, on February 24, 1992.

BACKGROUND

The Seattle Housing Authority owns and leases approximately 12,000 housing units throughout the City of Seattle. The employer administers two federal housing programs and one non-federal public housing program. It operates housing units in "high-rise" configurations and in what it terms "garden communities", as well as "single family" dwellings. In addition to serving the needs of low income persons, the employer also provides housing for disabled and elderly persons.[2]

The employer is governed by a board of commissioners appointed by the mayor of Seattle. The commissioners have appointed an executive director, Harry Thomas, who is responsible for the employer's overall operations. Executive Director Thomas has delegated the administration of major functions to directors heading five administrative departments within the employer's organization: Executive Department, Planning and Budget Department, Housing Management Department, Maintenance and Construction Department, and Administrative Services Department. Each of those departments maintains some autonomy with respect to its budget and functions, as well as with regard to the assignment and supervision of personnel.

The employer has approximately 500 employees in its five departments. All of them are covered by some common personnel policies and procedures, and the hiring and training functions for all departments are performed by the personnel section of the Executive Department. With the exception of building trades craft employees in the Maintenance and Construction Department, all of these employees are covered by a uniform and centrally controlled salary schedule and benefit package.

Each of the employer's five departments has some employees who perform traditional "office-clerical" duties, and some job titles, such as "administrative support assistant", are used in several departments. Other job titles are unique to a specific department, and employee functions and duties in the various departments are quite different from one another. Employees are not cross-trained between departments, nor do they routinely "float" between departments. The record does contain some examples of employees transferring from one of the employer's departments to another.

Two bargaining units are already in place at the Seattle Housing Authority:

            * The employer's maintenance employees are represented by the Seattle / King County Building & Construction Trades Council;

            * Certain employees in the Housing Management Department are represented by the Teamsters Union, Local 117.[3]

This case concerns the employer's Housing Management Department, which is responsible for much of the on-site administration of the employer's low-income housing programs. Director Ron Oldham has approximately 135 subordinate employees, including administrative staff and clerical staff. The bargaining unit initially sought by the union consisted of the remaining unorganized employees of the Housing Management Department, and was described in the union's petition as follows:

All nonexempt employees in the Housing Management Department with the exception of those covered by a collective bargaining agreement, temporary employees, supervisors and confidential employees.

The unit proposed by the union would include approximately 62 employees with the following job titles:

Management Aide I

Management Aide II

Management Aide III

Intake Specialist

Housing Inspector

Support / Office Assistant

Housing Services Coordinator

Screening Technician

Evictions Specialist

A majority of the positions in the proposed bargaining unit (48) are in the positions using the three "management aide" titles.

Only employees of the Housing Management Department work on the first floor of the employer's central office building. Some of the petitioned-for employees work there, but approximately two-thirds of the petitioned-for employees spend a majority of their work time in the field.

Responsibilities of the petitioned-for employees include: Leasing and occupancy; administration of federal, state, and local housing regulations and laws; coordination of ongoing maintenance of physical structures with the Maintenance and Construction Department; and providing social service programs for residents.

The "management aide" employees -

The job description for the "management aide I" title lists the following as examples of work:

1. Assists in conducting interviews with applicants / residents to determine eligibility for public housing programs. Assists in showing housing units and processes routine documentation.

2. Assists in coordinating and providing program information to residents, staff, and agencies, and makes appropriate referrals .

3. Assists in maintaining files and accounts. Composes, types, and edits correspondence and reports.

4. Answers telephones and schedules appointment.

5. Performs related duties as assigned.

The job description for "management aide II" increases both the responsibility of the assigned duties and the level of skills required to complete the job:

1. Conducts interviews of applicants / residents; determines eligibility; shows housing units and processes leasing documentation. Initiates and completes correspondence to verify applicant / resident eligibility of low-income housing.

2. Schedules and completes annual reviews, including verifying income, rent, and determining eligibility. Monitors rent collection and prepares reports and records relating to collection statute. Serves and processes eviction notices and processes vacate paperwork. Maintains occupancy files.

3. Develops and maintains files of resident / applicant information.

4. Conducts inspections and reinspection of housing units according to established policies and procedures. Makes home visits as necessary.

5. Receives applicant / resident complaints about problems and initiates action to resolve or refer complaints as appropriate. Places work orders.

6. Interacts with public, both individuals and agencies, to present program information. Maintains and provides up-to-date information about program policies and procedures.

7. Performs related duties as assigned.

In turn, the job description for the "management aide III" class further increases the responsibility, by adding the following examples to the "management aide II" list:

-  Assists in the coordination of building upkeep with maintenance.

-  Assists in preparing routine and special reports and answering correspondence.

-  Assists in documentation and preparation for evictions, commitments, and grievances .

-  Acts in Manager's absence in delegated ares of responsibility.

The "housing inspector" classification -

The six persons working under the "housing inspector" title spend a majority of their work time in the field. They do initial inspections and reinspections of potential "Section 8" housing, as well as inspections and reinspections concerning complaints and damage incidents.

The "administrative support" classification -

Four "administrative support assistants" or "office assistants" included in the petitioned-for bargaining unit perform basic office-clerical functions.

The "intake specialist" classification -

Two "application intake specialist" positions included in the proposed bargaining unit provide more specialized office-clerical functions for the employer.

Other classifications -

The remainder of the positions in the proposed bargaining unit are single-occupant classifications:

            * The "housing services coordinator" and "advanced screening technician" each work with persons who might not qualify for housing in the facilities operated by the employer, to assist them in getting accepted.

            * The "evictions specialist" works on removing individuals from the employer's housing units for various reasons.

POSITIONS OF THE PARTIES

The union argues that the petitioned-for unit is an appropriate unit for the purposes of collective bargaining. It notes that the employer has a history of bargaining in units structured on a departmental basis, and it points out that the proposed unit is contained within a single department.

The employer argues that it has a "fully integrated" operation, and that interdependence among the five departments results in the existence of similar functions, duties and responsibilities throughout the entire organization. It alleges that all non-supervisory employees throughout its workforce have a community of interest, and that creation of anything less than a wall-to-wall unit would create a fragmented (and therefore inappropriate) bargaining structure. The employer thus opposes the bargaining unit configuration sought by the union in this case, and supports creation of a "wall-to-wall" unit which would include approximately 106 employees in 22 classifications spread throughout its five departments.[4]

DISCUSSION

The Legislature has delegated responsibility to the Public Employment Relations Commission to determine the bargaining unit(s) which are appropriate for the purposes of collective bargaining:

    RCW 41.56.060 DETERMINATION OF BARGAINING UNIT — BARGAINING REPRESENTATIVE. The commission, after hearing upon reasonable notice, shall decide in each application for certification as an exclusive bargaining representative, the unit appropriate for the purpose of collective bargaining. In determining, modifying, or combining the bargaining unit, the commission shall consider 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 ...

[Emphasis by bold supplied.]

The Commission has described its role under RCW 41.56.060 in the following terms:

... [T]he purpose [of unit determination] is to group together employees who have sufficient similarities (community of interest) to indicate that they will be able to bargain collectively with their employer. The statute does not require determination of the "most" appropriate bargaining unit. It is only necessary that the petitioned-for unit be an appropriate unit. Thus, the fact that there may be other groupings of employees which would also be appropriate, or even more appropriate, does not require setting aside a unit determination.

City of Winslow, Decision 3520-A (PECB, 1990). [Emphasis by underline in original; emphasis by bold supplied.]

The Commission has found units consisting of "all of the employees of the employer" to be appropriate under RCW 41.56.060.[5] Other Commission decisions have affirmed the propriety of subdividing an employer's workforce into two or more bargaining units:

Units smaller than employer-wide may also be appropriate, especially in larger work forces. The employees in a separate department or division may share a community of interest separate and apart from other employees of the employer, based upon their commonality of function, duties, skills and supervision. Consequently, departmental (vertical) units have sometimes been found appropriate when sought by a petitioning union. [Footnote omitted.] Alternately, employees of a separate occupational type may share a community of interest based on their commonality of duties and skills, without regard to the employer's organizational structure. Thus, occupational (horizontal) bargaining units have also been found appropriate, on occasion, when sought by a petitioning union.

City of Centralia, Decision 3495-A (PECB, 1990). [Emphasis by bold supplied.]

The commonality between the "vertical" and "horizontal" unit structures described by the Commission in Centralia is that the unit is sought by a petitioning union, and that is the starting point for any unit determination. Nevertheless, the employer argues in this case for a unit configuration that is the "most appropriate", or at least "more appropriate", than the unit sought by the union.

There have been instances where a bargaining unit configuration sought by a petitioning union has been rejected by the Commission. In City of Vancouver. Decision 3160 (PECB, 1989), the petitioned-for unit would have had the effect of stranding certain employees in units too small for them to ever implement their statutory bargaining rights, and was therefore deemed inappropriate. In Forks Community Hospital. Decision 4187 (PECB, 1992), a proposed clerical/service/maintenance/technical unit in a relatively small health care facility was found inappropriate, because it would have cut across several of the units detailed by rules of the National Labor Relations Board for hospitals under its jurisdiction, but would still have stranded some "technical" positions. In Port of Seattle, Decision 890 (PECB, 1980), a petitioned-for unit of office-clerical employees in two departments was neither "vertical" nor "horizontal", particularly in light of the existence of office-clerical employees in other departments, and so was found to be inappropriate. When confronted with an inappropriate unit that cannot be rehabilitated by a minor adjustment, the Commission must dismiss the representation petition. Similarly, where a petitioning union indicates that it does not desire to represent employees who would necessarily be included in an appropriate unit, the Executive Director has no alternative except to dismiss the case.

Statutory Analysis

In the instant case, the union seeks a "vertical" unit limited to employees working within the Housing Management Department. The propriety of that unit must be tested against the statutory criteria and precedents cited above.

Duties. Skills and Working Conditions -

As argued by the union, the duties, skills and working conditions of the Housing Management employees are unique to that department. The "management aide" employees, who comprise a majority of the petitioned-for bargaining unit, perform relatively unique tasks within the employer's overall operation. Their field work (i.e., direct contacts with potential and actual tenants) and social service activities (i.e., related to physical and/or mental disabilities found among the population in public housing) are examples of unique duties. Those assignments require experience and knowledge regarding federal, state and local public housing policies and procedures.

The existence of separate supervision is clearly established, and the record also indicates a lack of cross-utilization of personnel among the employer's five departments. In terms of daily contact with other employees of the Seattle Housing Authority, employees in the petitioned-for unit most often interact with the maintenance employees, who are already organized in a separate bargaining unit.

It is true that the employer has published a personnel policy manual which applies to all of its departments. The employer's focus on the uniformity of its existing wage and benefit structure has been considered, but is not found persuasive. The logical extension of the employer's argument is that no "horizontal" or "vertical" bargaining unit configuration could ever be approved if the employer had "uniform" wages, benefits or working conditions in place prior to the organizational effort. As affirmed by the Supreme Court of the State of Washington in City of Pasco v. PERC, 119 Wn.2d 504 (1992), it is the nature of the collective bargaining process that employees in a particular bargaining unit have a right to seek to differentiate their wages, hours and working conditions from those of other employees of the same employer.

It is also true that some of the more basic responsibilities of the "management aide" classes, together with some duties of the office-clerical positions in the petitioned-for bargaining unit, compare closely with the responsibilities of employees in other departments.[6] This is not a case in which the petitioned-for employees are completely off in a separate work environment. It is to be expected, however, that some office-clerical job duties will be comparable when looking at positions in several departments. The majority of the proposed bargaining unit (48 of 62) are in the "management aide" positions that have similar responsibilities indicative of a community of interest.[7] It is not difficult to envision that a "horizontal" bargaining unit encompassing all of the employer's office-clerical employees might be found appropriate if sought by a petitioning union. There is no such petition before the Commission, however. City of Centralia, supra.

Some degree of integration and mobility between departments within the same employer is expected, and does not negate the concept of separate bargaining units.[8] Even the employer acknowledged exceptions to its claim that other employees in its workforce have contact with the public that is similar to the petitioned-for employees. The arguments advanced by the employer are not conclusive. It is particularly difficult to ignore the employer's own table of organization, in light of the cited Commission precedents.

Extent of Organization -

The "extent of organization" aspect of the statutory unit determination criteria compares the unit sought in a particular case to the whole of the employer's workforce. This particularly comes into operation where sheer numbers (i.e.. the size and complexity of an employer's workforce or operations) would frustrate attempts to organize an "all employees" unit, a "vertical" unit, or a "horizontal" unit. Thus, even smaller subdivisions of a workforce may be necessary if employees are to implement their statutory bargaining rights:

The principal purpose of the Act was and is to protect workers who want to organize for collective bargaining.

NLRB v. Res-Care, Inc. d/b/a Hillview Health Care Center. 705 F.2d 1469 (1983).

The Commission has rejected units, however, where justified on "extent of organization" grounds and no other logical basis. Bremerton School District, Decision 527 (PECB, 1978).

In the instant case, the petitioned-for unit encompasses all of the unrepresented employees in an entire branch of the employer's table of organization. The unit proposed by the union would not result in the stranding of employees without the ability to organize. It thus raises none of the problems noted in cases like Vancouver and Forks, cited above.

The employer argues that integration and interaction between its departments justify finding an employer-wide community of interest in a broader, more inclusive, bargaining unit. It is noted, however, that many of the "inter-departmental transfers" cited by the employer appear to involve employees making a career change (e.g.. from "data entry" to "housing management" roles, or from "custodian" to "housing management" roles). Additionally, it appeared that some of the "inter-departmental transfers" were to entry-level jobs in the petitioned-for bargaining unit. Migration of these types is certainly less compelling than would be evidence of established career paths which necessarily cross departmental lines.

The employer argues that allowing development of bargaining unit structures on a department-by-department basis would result in fragmentation. It foresees that, if employees in the Housing Management Department are allowed a separate bargaining unit here, then similar or parallel positions in other departments would also be allowed separate bargaining units in future cases. Following that line of analysis, the employer hypothesizes that it could end up with a separate bargaining unit of the six to eight currently unrepresented office-clerical employees in its Maintenance and Construction Department. It then opines that such a unit would be too small to effectively bargain collectively, citing South Kitsap School District, Decision 1541 (PECB, 1983) and Wapato School District. Decision 2227 (PECB, 1985). The cited precedents are inapposite, however. South Kitsap involved dividing an office-clerical workforce in a manner that gave rise to work jurisdiction conflicts between the two bargaining units. Wapato involved dividing an office-clerical workforce without benefit of departmental lines. In this case, however, the union has organized strictly along departmental lines originally created by the employer. Moreover, the unit determination in the instant case cannot be controlled by prognostication about what might or could be done in the future.[9]

History of Bargaining -

The existing bargaining unit of "building trades crafts" employees is of long standing.[10] The propriety of the existing bargaining unit encompassing approximately 61 "resident managers and assistants" in the Housing Management Department was stipulated by the employer in an election agreement filed in that proceeding.[11]

Neither the petitioned-for employees, nor any of the other employees which the employer would have added to the petitioned-for bargaining unit, have ever been organized for collective bargaining. Thus, while the "history of bargaining" aspect of the statutory unit determination criteria is of substantial importance in cases where a "severance" of employees from a larger bargaining unit is proposed, it has little applicability in a situation such as this case.

Desires of the Employees -

RCW 41.56.040 protects the rights of employee choice in the selection of an exclusive bargaining representative. Where application of other unit determination criteria indicates that any of two or more different unit configurations could be appropriate, the Commission assesses the "desires of employees" on the unit determination issue, by conducting a unit determination election. The employees involved are thus given an opportunity to express their desires on their unit placement under the protection of a secret ballot, and there is no need for employees to give sworn testimony or be subjected to cross-examination on such a sensitive issue. The unit determination election procedure is inapplicable, however, unless all of the choices submitted to the employees are otherwise appropriate under RCW 41.56.060. Clark County, Decision 290-A (PECB, 1977).

In this case, the only petition before the Commission is that filed by Local 8. No other organization has stepped forward with a petition and the showing of interest necessary to raise a question concerning representation in some other appropriate bargaining unit. Thus, there is no occasion to conduct a unit determination election here.

Conclusion on "Community of Interest"

The question before the Executive Director in this case is limited to whether the petitioned-for unit is "an" appropriate unit. City of Centralia, supra. The step-by-step application of the statutory unit determination criteria has not produced distinctions sufficient to support a conclusion that the bargaining unit configuration sought by the petitioning union is inappropriate.

FINDINGS OF FACT

1.         The Seattle Housing Authority is a "public employer" within the meaning of RCW 41.56.030(1). The employer has divided its organization into five departments: Executive Department, Administrative Services, Housing Management, Maintenance and Construction, and Planning and Budget. The directors of those departments report to the employer's Executive Director.

2.         Office and Professional Employees International Union, Local 8, a "bargaining representative" within the meaning of RCW 41.56.030(3), has filed a timely and properly supported petition with the Public Employment Relations Commission, seeking certification as exclusive bargaining representative of all of the currently unrepresented employees in the employer's Housing Management Department.

3.         The petitioned-for employees, together with some other employees of the employer, are covered by a wage and benefit plan and certain personnel procedures which are administered by the employer's personnel department. While there is some history of migration of employees between job classifications and departments within the employer's workforce, employees are not cross-trained for routine transfers or cross-utilization between the employer's departments.

4.         The Housing Management Department is administered by Ron Oldham, and currently employs approximately 135 persons. Apart from the approximately 62 employees in the bargaining unit sought in this proceeding, approximately 61 department employees are represented by another organization in a bargaining unit created by stipulation of the employer in proceedings before the Commission. The petitioned-for employees are under separate supervision from the employees in other departments, and have different duties, skills and working conditions associated with their assignment to a separate department of the employer.

5.         The work of the petitioned-for employees in the Housing Management Department involves interviewing, screening and taking applications from potential tenants; reviewing applicant income and eligibility requirements; collecting rents; resolving tenant complaints; inspection of properties; and related clerical functions. Some of their tasks are unique to the Housing Management Department, including working exclusively with residents in social service activities.

6.         The petitioned-for employees have no history of collective bargaining.

7.         Other bargaining units existing within the employer's workforce are organized on a departmental basis.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391-25 WAC.

2.         The petitioned-for "vertical" bargaining unit encompassing all of the currently and historically unrepresented employees in the Housing Management Department of the Seattle Housing Authority is an appropriate unit for the purposes of collective bargaining under RCW 41.56.060.

3.         A question concerning representation presently exists in the appropriate bargaining unit consisting of:

All full-time and regular part-time employees of the Housing Management Department of the Seattle Housing Authority, excluding the department head, confidential employees, supervisors, and employees included in another bargaining unit.

DIRECTION OF ELECTION

A representation election shall be conducted by secret ballot, under the direction of the Public Employment Relations Commission, in the appropriate bargaining unit described in paragraph 3 of the foregoing conclusions of law, for the purpose of determining whether a majority of the employees in that unit desire to be represented for the purposes of collective bargaining by Office and Professional Employees International Union, Local 8, or by no representative.

Issued at Olympia, Washington, on the 13th day of May, 1993.

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 391-25-590(2).