DECISIONS

Energy Northwest, Decision 11198 (PECB, 2011)

 

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

In the matter of the petition of:   International Brotherhood of Electrical Workers, Local 77   Involving certain employees of:   Energy Northwest

CASE 23763-E-11-3625   DECISION 11198 - PECB     ORDER OF DISMISSAL

 

 

 

Robblee Detwiler & Black, PLLP, by Jacob H. Black, Attorney at Law, for the union.

 

Summit Law Group, PLLC, by Otto G. Klein, III, Attorney at Law, for the employer.

 

 

On January 26, 2011, the International Brotherhood of Electrical Workers, Local 77 (union) filed a petition to represent a bargaining unit of Network Operations^[1] employees (Mark Dickson and John Reed) at Energy Northwest (employer).  On February 28, 2011, Representation Coordinator Sally Iverson held an investigation conference.  The parties disagreed about the appropriateness of the petitioned-for bargaining unit.

 

On April 19, 2011, the union amended its petition to request a self-determination election under WAC 391-25-440 to include the same two Network Operations employees, Dickson and Reed, in the existing Nuclear Bargaining Unit (NBU).  Hearing Officer Jessica Bradley conducted a hearing on May 4, June 1 and 3, and July 1, 2011.  The parties submitted post-hearing briefs on July 29, 2011, which were considered.

 

 

ISSUE

 

Should the petitioned-for IT Architecture Analysts who perform network operations work be permitted to vote, pursuant to WAC 391-25-440, to be included in the existing Nuclear Bargaining Unit?

 

Based on the record, the Executive Director finds that including the petitioned-for employees into the existing bargaining unit would not be appropriate and dismisses the union’s petition. 

 

APPLICABLE LEGAL PRINCIPLES

 

WAC 391-25-440 provides a procedure for a union to add unrepresented employees to a bargaining unit it already represents:

 

  (1) Where only one employee organization seeks to add an employee or group of previously unrepresented employees to an appropriate bargaining unit, which it already represents, under this chapter and the relevant statute, the organization may petition for a self-determination election to ascertain the employees’ desire to be included in its existing bargaining unit.

  (2) In order to invoke the self-determination election procedures under this section, the petitioning organization shall:

  (a) Demonstrate that it has the support of at least thirty percent or more of the unrepresented employees to be included in the appropriate existing unit;

  (b) Affirmatively state on the petition filed under WAC 391-25-070 that it requests a self-determination election to add the petitioned-for employees into an existing appropriate bargaining unit;

  (c) Provide an accurate description of the existing bargaining unit that the petitioning organization seeks to merge the unrepresented employees into; and

  (d) Demonstrate that the resulting bargaining unit is appropriate under the appropriate statute.

  (i) If the propriety of the proposed resulting unit is disputed, the executive director or his or her designee shall make a determination following a hearing.

 

If the resulting bargaining unit is determined to be appropriate, this agency conducts a self-determination election for the petitioned-for employees to determine whether they desire to become part of the existing unit.  If the resulting unit is determined not to be appropriate, the Executive Director dismisses the petition.  WAC 391-25-440.

The determination of appropriate bargaining units is a function delegated by the Legislature to this agency.  City of Richland, Decision 279-A (PECB, 1978), aff’d, IAFF Local 1052 v. Public Employment Relations Commission, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).  When making unit determinations under Chapter 41.56 RCW, the agency's goal is to group together employees who have sufficient similarities (community of interest) to indicate that they will be able to bargain effectively with their employer.  Quincy School District, Decision 3962-A (PECB, 1993).  In making such determinations, the agency must 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.”  RCW 41.56.060(1).  This agency has never applied the criteria on a strictly mathematical basis.  King County, Decision 5910-A (PECB, 1997).  Not all of the factors will arise in every case, and where they do exist, any one factor could be more important than another, depending on the facts.  The history of bargaining is not binding upon this Commission when the bargaining unit was not established by this Commission.  Renton School District, Decision 379-A (EDUC, 1978), aff’d, Renton Education Association v. Public Employment Relations Commission, 101 Wn.2d 435 (1984). 

 

Unit determinations are made on a case-by-case basis, and the starting point for any unit determination analysis is the configuration sought by the petitioning organization.  King County, Decision 5910-A (PECB, 1997).  The statute does not require determination of the “most” appropriate unit; it is only necessary that a petitioned-for unit be an appropriate unit.  City of Winslow, Decision 3520-A (PECB, 1990).

 

ANALYSIS

 

The employer operates a nuclear power facility commonly known as the Hanford nuclear plant. The employer employs a regular workforce of approximately 1200 employees.

 

In support of its operations, the employer has an Information Services Department (ISD).  This department is responsible for computers and other telecommunications equipment such as phones, radios, and pagers.  Erin Gilmour is the ISD’s Chief Information Officer and is responsible for overseeing ISD operations.  The approximately 54 employees in the ISD are divided into five work groups:  Technical Systems, Business Applications, Business Integration, IT Infrastructure Operations, and IT Communications.   

 

The employer’s workforce is comprised of seven different bargaining units.  The union represents five bargaining units at the employer’s facility including the NBU.  The NBU is comprised of 250-300 employees in the classifications of:  I & C Technician, Relay Technician, Electrician, Mechanic and General Mechanic, Painter, Reactor Operator, Equipment Operator, Telecommunications Technician, Health Physics Technician, Chemistry Technician, Operations and Maintenance Services Technician, Storekeeper, Tool & Test Equipment Room Attendant I and II, Laborer, Calibration Laboratory Specialist, and Scaffolder.  Pursuant to RCW 41.56.496, the employees in the NBU are eligible for interest arbitration.  The NBU was not certified by this agency.

 

The Telecommunications Technicians are the only ISD employees represented for the purposes of collective bargaining.  The five Telecommunications Technicians are included in the NBU and report to Fuller.  The other 49 employees in the ISD are not represented by any labor organization.^[2]

 

The union petitioned to allow Dickson and Reed, who are classified as IT Architecture Analysts II & III, to vote on whether to be included in the NBU.  Eleven other ISD employees are classified as IT Architecture Analysts I-IV (Architecture Analysts).  The union asserts that, although Dickson and Reed are only two of the eleven employees in the Architecture Analyst classification, they share a community of interest with the Telecommunications Technicians in the NBU.  The eleven Architecture Analysts are assigned to three separate work groups and report to three different supervisors:  Dean Kovacs, Technical Systems; Michael Chunn, IT Infrastructure Operations; or Jacque Fuller, IT Communications.

The eleven employees in the IT Architecture Analysts I-IV job classification series configure network switches; maintain the firewall; design cable routes; maintain servers, e-mail, messaging, and antivirus software; monitor internet usage; maintain printing and copying infrastructure; and are responsible for communications systems, among other duties.  According to Gilmour, Architecture Analysts are not always interchangeable because each individual position has specific knowledge and performs different duties, including providing some back up duties for other Architecture Analysts.  When the employer needs to hire an Architecture Analyst, the supervisor drafts a job announcement that includes the specific skills, abilities, and system experience for the specific position.  The designation within the range of I-IV is based on the knowledge, skill, experience, and tenure within the classification.  Thus, an Architecture Analyst I might receive more oversight, while an Architecture Analyst IV might be asked to lead a project.

 

Duties, Skills, and Working Conditions

Dickson and Reed – Mark Dickson and John Reed are primarily responsible for the employer’s telecommunications network infrastructure.  They configure and maintain network routers and switches that are typically located in communications closets and provide connectivity to computers.  Dickson and Reed order new network devices.  When a device arrives, Dickson and Reed pick-up the device, test the device, configure the device, install the appropriate operating system, and prepare the device to be installed in the field.  Dickson and Reed are also responsible for network problems with the voice over internet protocol (VOIP) phones.  If there is a problem with a network switch, and if the device has network connectivity, Dickson and Reed can correct the problem remotely.  If the device does not have network connectivity, they must go to the device to reconfigure it.  Dickson and Reed troubleshoot equipment that is not functioning properly. 

 

Dickson and Reed help the employer plan the placement of network devices by “walking down” future jobs.  Walking down a job entails going into the field and determining where network cables will run and where related network devices will be placed.  The record contains several examples of Dickson and Reed walking down jobs to determine what temporary internet and phone connectivity is needed to support employees performing maintenance during an outage.^[3]  The record also contains examples of Dickson and Reed performing an occasional walk down for placing new equipment in the nuclear facility.  On some occasions, Dickson or Reed walk down jobs with Telecommunications Technicians, who are responsible for the physical installation of network cables. 

 

The employer uses two conferencing systems:  Polycom and video conferencing.  For the Polycom system, Dickson and Reed are responsible for the end device and the system.  For the video conference system, Dickson and Reed make sure the video conferencing camera is working. 

The employer uses a variety of cameras to monitor operations in its facilities.  Dickson and Reed install and configure cameras.  The cameras are not network devices because they do not run on the network.  Dickson and Reed are the only employees who repair network or camera-related issues.

 

Duties Specific to Reed – Reed works approximately fifty percent of time on network security.  Reed is responsible for the firewall, network security, and has some back-up duties for Architecture Analyst Craig Conner.  Reed’s network security duties entail reviewing nightly MARS system reports for anomalies; maintaining the Websense program, which blocks employee access to inappropriate internet websites; generating and investigating reports indicating whether an employee has accessed a certain website or inappropriately used the internet or computer.

 

All ISD employees not represented by the union are required to be part of the employer’s Emergency Response Organization (ERO) and may be called by the employer in the event of an emergency at the plant.  Participation in the ERO is not a job requirement for the Telecommunications Technicians.

 

During the initial part of the 2011 outage, Dickson and Reed attended the Telecommunications Technicians shift turnover meetings.  During the outage, Dickson and Reed’s duties essentially remained the same, but their workload increased prior to the outage.  For example, Dickson and Reed provide a wireless network infrastructure for telephones for the additional workers.

 

Dickson explained that during a regular work day he spends about an hour at his desk and works in the field or participates in meetings the remainder of the day. Reed spends approximately half of his time working in the field. 

 

Duties of Other Architecture Analysts

Brian Burke – Brian Burke is an IT Architecture Analyst IV, who reports to Jacque Fuller.  The employer hired Burke to replace Steve Heath in anticipation of Heath’s retirement.  At the time of the hearing, Heath had not yet retired, and was responsible for the communications systems.  Burke’s duties focus on infrastructure-based technologies, including wiring for telephones and public address systems, network issues, and routing new fiber and copper wires between buildings as the network or infrastructure grows to support new services.  Burke and Health design cable routes using AutoCAD, access drawings for reference, and modify existing drawings. 

 

Burke and Heath research systems for new technologies and decide how to use and implement them.  They also evaluate and learn how to use new equipment and may involve the people within the organization who are most knowledgeable about the technology.  Once equipment is ready for installation, they give it to the employees responsible for installation or further testing.

 

Burke interacts with Telecommunications Technicians almost daily and goes on walk downs with Telecommunications Technicians weekly.  Burke works with the Telecommunications Technicians on how wires travel to the servers.  If a system fails, the Telecommunications Technicians ask Burke and Heath for assistance.  

 

Craig Conner – Craig Conner is an IT Architecture Analyst II.  Conner’s primary duties involve the employer’s messaging systems, which includes Microsoft Exchange and Outlook e-mail; Office Communicator instant messaging; Blackberry mobile phones; remote access of multi-fax; corporate antivirus; and back up for Citrix, the application for remote connectivity.  Conner can perform most of his work remotely from his desk. 

 

Conner performs back up duties for Architecture Analysts Dave Briggs and Lyle Homer.  Conner worked with Homer on the Exchange servers.  Homer is the Windows server administrator.  Homer sets up virtual hard drives for servers that allow data to be stored in one location.  Homer is able to troubleshoot almost any problem the employer has with the Windows server. 

 

Conner works with Dickson and Reed about every two weeks.  Specifically, Conner worked with Dickson to troubleshoot an issue with Exchange, and Conner’s antivirus duties required him to interact with Reed.  If the firewall blocks access to necessary information on the internet, Conner will ask Reed to help provide access outside the firewall.

 

Telecommunications Technicians Job Duties

Telecommunications Technicians – Telecommunications Technicians install cabling and wiring; install and maintain telephone switches; and install and maintain telephones, radios, sirens, PAs, and card readers.  The Telecommunications Technicians are also responsible for installation of the physical layer, the copper cable and fiber optic cable, to the point of the switch.  At the switch, the responsibility shifts to the Architecture Analyst positions held by Dickson and Reed.

 

In preparation of the 2011 outage, the Telecommunications Technicians set up temporary trailers and installed communication between the network and the phone systems, computers, wireless, and cameras.  The Telecommunications Technicians maintain all of the cables and devices they install. 

 

The maintenance duties of the Telecommunications Technicians can, at times, involve Dickson and Reed.  If a Telecommunications Technician determines that the problem is in the switch, they involve Dickson and Reed.

 

 

 

Dickson and Reed’s Interaction with Telecommunications Technicians

Dickson and Reed’s duties require some interaction with the Telecommunications Technicians.  This interaction is not unique to Dickson and Reed.  For example, Telecommunications Technician Dave McCullough worked with Burke, Heath, and Jessica Crisp, a Customer Solutions Specialist in ISD.

 

Telecommunications Technicians can determine that a switch is functioning, but the switch might not work.  When Telecommunications Technicians troubleshoot an issue at the switch, the Telecommunications Technicians determine if the device is physically present and then use a testing device called a pinger to verify whether they can obtain an IP address or MAC address off the network switch.  If the issue is in the switch, the Telecommunications Technicians involve Dickson and Reed in troubleshooting as Dickson and Reed are responsible for switches.

 

Dickson described one instance when he worked with a Telecommunications Technician to repair a camera in the field.  The two gathered the materials they needed, deployed the camera, and ran the cable.  Once the system was powered up, Dickson verified that everything was functioning properly.  

 

McCullough provided another example of interaction between Telecommunications Technicians and Dickson and Reed.  McCullough sometimes works with Dickson and Reed installing cameras.  According to McCullough, Dickson determined what the job required, including the number of cameras and switches and configured them.  The Telecommunications Technicians physically installed the camera and wiring.

 

According to McCullough, Dickson and Reed cannot install a switch without a Telecommunications Technician, and a Telecommunications Technician cannot make a switch work without the assistance of Dickson or Reed.  During the 2011 outage, Dickson and Reed interacted more frequently with Telecommunications Technicians than they do when the plant is operating normally.

 

 

Working Conditions

The ISD employees work in the Kootenai Building.  The Telecommunications Technicians work on the first floor of the building.  Dickson, Reed, and the other Architecture Analysts work on the second floor.  The Telecommunications Technicians also perform work in the nuclear plant.  Dickson and Reed install and configure cameras and switches at the nuclear plant.  According to Dickson, he spends approximately fifty percent of his work time away from his desk, but the record did not reflect how much of the time Dickson spent in the plant.  Dickson and Reed are not the only Architecture Analysts who perform work in the plant.^[4]  Burke also testified that he participates in walk-downs with Telecommunications Technicians.  Dickson and Reed’s working conditions are similar to the working conditions of other ISD employees.  The fact that Dickson and Reed perform some work in the plant is insufficient to find a community of interest with the NBU that distinguishes them from other ISD employees. 

 

History of Collective Bargaining

The Architecture Analysts have never been represented for purposes of collective bargaining.  Furthermore, the work performed by the Telecommunications Technicians has changed over time.  In 1986 or 1987, the employer established the network and used the IBM Token Ring system.  At that time, the Telecommunications Technicians installed the infrastructure, the network cabling, the fiber optic back telephones, and the switches.  In the early 2000s, the employer switched from IBM Token Ring to an Ethernet system.  At the time of the change, the Telecommunications Technicians in the NBU were not trained to work on the Ethernet; rather, the employer assigned the Ethernet switch configuration work to an employee who was not in the bargaining unit.  Since that change, the work on the Ethernet switches has consistently been performed by non-bargaining unit personnel. 

 

Extent of Organization

The union is petitioning to represent two employees in a classification in which there are eleven total employees.  The union asserts that allowing Dickson and Reed to vote in a self-determination election does not leave any other similarly classified employees behind and that the work Dickson and Reed perform is distinct from the other unrepresented personnel in ISD.  This case is similar to Central Washington University, Decision 10336 (PECB, 2009), aff’d, Decision 10336-A (PECB, 2009).  In Central Washington University, the union sought to create a new bargaining unit of ten counselors while excluding approximately 55 other employees performing counseling duties.  In that case, the Executive Director found the proposed bargaining unit to be inappropriate.  The petitioned-for employees’ duties, skills, and working conditions were the same or substantially similar to the other counseling employees. 

 

In this case, the union is seeking to include two Architecture Analysts in the NBU, while excluding nine Architecture Analysts.  Like the counseling employees in Central Washington University, the employees in the Architecture Analyst classification do not perform identical job functions.  The Architecture Analyst positions have the same general education and skills requirements, with the variation depending on what specific systems expertise the employer needs at the time of hiring.  Allowing the petitioned-for employees to vote in a self-determination election without including the other Architecture Analysts would divide the classification. 

 

CONCLUSION

 

The goal of determining an appropriate bargaining unit is to group together employees that the union can effectively represent.  The Commission seeks to avoid creating bargaining units that fragment the employer’s workforce or would lead to work jurisdiction disputes.  The NBU contains a variety of positions performing skill or craft work.  The Telecommunications Technicians are a cohesive group who perform distinct work. 

 

The work performed by the Architecture Analysts is varied.  The Architecture Analysts perform different work within the ISD, but the work is related to designing, planning, and configuring systems within the application layer.  Although no two Architecture Analysts perform exactly the same body of work, the Architecture Analysts do not perform the same work as the Telecommunications Technicians.

 

While Dickson and Reed perform some of the same work as each other, their addition to the NBU would not constitute the addition of a cohesive group.  First, the cyber security duties that Reed performs do not have a nexus to NBU work.  Second, other Architecture Analysts, whose duties require interaction with the Telecommunications Technicians, are not included in the petition.  Finally, the petitioned-for employees perform work similar to other Architecture Analysts not covered by the petition, and distinct from the work of the Telecommunications Technicians.

 

In sum, the union’s petition to allow Dickson and Reed to vote in a self-determination election would create an inappropriate unit.  The petition is dismissed.

 

FINDINGS OF FACT

 

1.                  Energy Northwest is a public employer within the meaning of RCW 41.56.030(13).

 

2.                  The International Brotherhood of Electrical Workers, Local 77 is a bargaining representative within the meaning of RCW 41.56.030(2).

 

3.                  On April 19, 2011, the union amended its petition.  The union requested a self-determination election under WAC 391-25-440 to include two network operations employees, Dickson and Reed, in its existing Nuclear Bargaining Unit. 

 

4.                  The employer’s workforce is comprised of seven different bargaining units. The union represents five bargaining units at the employer’s facility including the NBU.  This agency did not certify the NBU, which was organized in 1978.  The NBU is comprised of 250-300 employees in the classifications of: I & C Technician, Relay Technician, Electrician, Mechanic and General Mechanic, Painter, Reactor Operator, Equipment Operator, Telecommunications Technician, Health Physics Technician, Chemistry Technician, Operations and Maintenance Services Technician, Storekeeper, Tool & Test Equipment Room Attendant I & II, Laborer, Calibration Laboratory Specialist, and Scaffolder.  Pursuant to RCW 41.56.496, the employees in the NBU are eligible for interest arbitration.

5.                  The employer’s Information Services Department (ISD), is responsible for computers and other telecommunications equipment.  Erin Gilmour is the employer’s Chief Information Officer and responsible for overseeing ISD operations.  The approximately 54 employees in ISD are divided into five work groups: Technical Systems, Business Applications, Business Integration, IT Infrastructure Operations, and IT Communications.

 

6.                  All ISD employees work in the Kootenai Building.  The Telecommunications Technicians work on the first floor of the building.  The Architecture Analysts work on the second floor.  The Telecommunications Technicians perform work in the nuclear plant. 

 

7.                  The Telecommunications Technicians are the only employees in the ISD that are represented for purposes of collective bargaining.  The Telecommunications Technicians report to Jacque Fuller, supervisor of IT Communications.

 

8.                  The Telecommunications Technicians install cabling and wiring, install and maintain telephone switches, and have installation and maintenance duties related to the telephones, radios, sirens, public address, and card readers.  The Telecommunications Technicians are responsible for the physical layer, the copper and fiber optic cable, to the point of the switch.

 

9.                  Telecommunications Technicians can determine whether a switch is functioning, but if the problem is in the switch, the Telecommunications Technicians involve Architecture Analysts Dickson and Reed in troubleshooting.

 

10.              The Telecommunications Technicians perform a discreet body of work.  All Telecommunications Technicians perform the same work.

 

11.              In ISD, eleven employees are classified as IT Architecture Analysts I-IV (Architecture Analysts).  The eleven Architecture Analysts are assigned to three separate work groups and report to three different supervisors:  Dean Kovacs, Technical Systems; Michael Chunn, IT Infrastructure Operations; or Jacque Fuller, IT Communications. 

 

12.              The union petitioned to represent two Architecture Analyst positions held by Mark Dickson and John Reed.  Dickson and Reed report to Kovacs.

 

13.              Dickson and Reed configure and maintain the employer’s network switches and routers, monitor the power supply to network switches and routers, walk down future jobs, install cameras, monitor uninterruptible power supply units, replace batteries in the uninterruptible power supply units, fix network problems on the voice over internet protocol (VOIP) phones, ensure the end device and routers work on the Polycom system, ensure the camera is working on the video conference system, and troubleshoot equipment when it is not functioning properly.

 

14.              Reed works approximately fifty percent of time on network security.  Reed is responsible for the employer’s firewall, Websense program, network security, and has back up duties for the employer’s e-mail system.

 

15.              Dickson and Reed are part of the employer’s Emergency Response Organization (ERO).  Participation in the ERO is not a job requirement for the Telecommunications Technicians.

 

16.              IT Architecture Analyst IV Brian Burke reports to Fuller.  Burke is responsible for infrastructure-based technologies, including wiring for phones and P.A. systems, network issues, and routing new fiber and copper between buildings as the network or infrastructure grows.  Burke and Steve Heath, an Architecture Analyst, design cable routes, access drawings for reference, provide drawings to Telecommunications Technicians, and modify existing drawings to reflect new routes. 

 

17.              Craig Conner is an Architecture Analyst reporting to Kovacs.  Conner is responsible for the employer’s messaging, including e-mail, instant messaging, and Blackberry phones.  Conner backs up two Architecture Analysts, David Briggs and Lyle Homer.  Homer is the Windows server administrator.  Conner works with Dickson and Reed about every two weeks.

 

18.              Telecommunications Technicians work with four Architecture Analysts: Burke, Heath, Dickson, and Reed.  The Telecommunications Technicians work with Dickson and Reed installing cameras and network switches.  Burke and Heath provide drawings to the Telecommunications Technicians and coordinate with vendors if something needs to be repaired.

 

19.              The work performed by the Architecture Analysts is not always interchangeable.  Architecture Analysts perform back up duties for other Architecture Analysts.

 

20.              Prior to the early 2000s, the employer used IBM Token Ring.  The Telecommunications Technicians were responsible for installing and maintaining the switches.  In the early 2000s, the employer migrated from IBM Token Ring to the Ethernet.  No Telecommunications Technicians were trained to work on the Ethernet.  The employer assigned the Ethernet switch work to non-bargaining unit personnel; the work has been performed by non-bargaining unit personnel since that time.

 

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 proposed inclusion of the petitioned-for employees in the Nuclear Bargaining Unit, as described in Finding of Fact 3, would not result in an appropriate bargaining unit for the purpose of collective bargaining.

 

 

 

 

ORDER

 

The petition filed in Case 23736-E-11-3625 for a question concerning representation is hereby DISMISSED.

 

Issued at Olympia, Washington, this   12th   day of October, 2011.

 

 

                                                PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

                                                CATHLEEN CALLAHAN, Executive Director

 

This will be the final order of the agency

unless a notice of appeal is filed with the

Commission under WAC 391-25-660.