King County, Decision 11441-A (PECB, 2013)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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In the matter of the petition of:
TEAMSTERS LOCAL Union 117
Involving certain employees of:
KING COUNTY
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CASE 24315-E-11-3672
DECISION 11441-A - PECB
DECISION OF COMMISSION
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Spencer Nathan Thal, General Counsel, for the petitioner, Teamsters, Local Union 117.
Robert S. Railton, Labor Negotiator, for the employer.
Cline & Associates, by Christopher J. Casillas, Attorney at Law, for the intervenor, Technical Employees Association.
On October 5, 2011, Teamsters Local Union 117 (Teamsters) filed a petition to represent a bargaining unit of employees in the Wastewater Treatment Division of the Department of Natural Resources and Parks at King County (employer). The bargaining unit sought by the Teamsters included administrative specialists, administrative staff assistants, and administrators. The Technical Employees Association (TEA) moved to intervene in the proceedings. That motion was granted on the basis that TEA represented some of the petitioned-for employees.
The employer challenged the appropriateness of the petitioned-for unit during the November 2, 2011 Investigation Conference. TEA challenged the appropriateness of the petitioned-for unit, arguing that it was inappropriate to sever the employees from the larger bargaining unit.
At the hearing, the Teamsters amended its petition. The Teamsters sought to include the Administrator 1, but not the Administrator II position, in the bargaining unit. Neither the employer nor the TEA objected to the Teamsters’ amendment. The employer dropped its challenges to the appropriateness of the petitioned-for bargaining unit.
The Executive Director granted the Teamsters’ petition to sever the office-clerical and administrative employees from the TEA bargaining unit.[1] The Executive Director ordered an election. The employees selected the Teamsters as their exclusive bargaining representative.
TEA appealed the Executive Director’s ruling that severance was appropriate. TEA and the Teamsters filed appeal briefs. The employer did not participate in the appeal.
On appeal, TEA argues that the Executive Director’s decision is not supported by substantial evidence. TEA asserts that the Executive Director failed to apply strict scrutiny and misapplied the Yelm School District, Decision 704-A (PECB, 1980) factors. According to TEA, severance is not appropriate because TEA has historically represented the petitioned-for employees, the employer has a history of including administrative employees in the same bargaining unit as professional employees, and the Wastewater Division is organized in distinct work groups in which all employees work together for a common purpose.
The Teamsters argue that the Executive Director’s decision is supported by the record and the law. In King County, Decision 5910-A (PECB, 1997), the Commission held the TEA unit to be inappropriate. The employer voluntarily recognized TEA. The Teamsters argue that the employees were not afforded an opportunity to select a bargaining representative of their own choosing. The Yelm School District factors support severance.
STANDARD OF REVIEW
The Commission reviews conclusions and applications of law, as well as interpretations of statutes, de novo. The Commission reviews findings of fact to determine whether they are supported by substantial evidence, and if so, whether the findings of fact in turn support the conclusions of law. Cowlitz County, Decision 7007-A (PECB, 2000). Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise. Cowlitz County, Decision 7007-A. The rule is based on the notion that the trier of fact is in the best position to decide factual issues. The Commission attaches considerable weight to the factual findings and inferences made by staff. Cowlitz County, Decision 7007-A. The Commission has delegated authority to the Executive Director to make the initial decisions in representation cases, and the Commission defers to the Executive Director’s findings in such matters. City of Bellingham, Decision 7322-B (PECB, 2002).
The Executive Director correctly identified the legal principles and we incorporate those principles here.
ANALYSIS
In order to determine whether the Executive Director properly granted severance, we will apply the Yelm School District factors.
1. Whether or not the proposed unit consists of a distinct and homogeneous group of skilled journeymen craftsmen performing the functions of their craft on a nonrepetitive basis, or of employees constituting a functionally distinct department, working in trades or occupations for which a tradition of separate representation exists;
2. The history of collective bargaining of the employees sought and at the plant involved, and at other plants of the employer, with emphasis on whether the existing patterns of bargaining are productive of stability in labor relations, and whether such stability will be unduly disrupted by the destruction of the existing patterns of representation;
3. The extent to which the employees in the proposed unit have established and maintained their separate identity during the period of inclusion in a broader unit, and the extent of their participation or lack of participation in the establishment and maintenance of the existing pattern of representation and the prior opportunities, if any, afforded them to obtain separate representation;
4. The history and pattern of collective bargaining in the industry involved;
5. The degree of integration of the employer’s production processes, including the extent to which the continued normal operation of the production processes is dependent upon the performance of the assigned functions of the employees in the proposed unit;
6. The qualifications of the union seeking to "carve out" a separate unit, including that union's experience in representing employees like those involved in the severance action.
At issue are factors 1 through 5.
1. Whether or not the proposed unit consists of a distinct and homogeneous group of skilled journeymen craftsmen performing the functions of their craft on a nonrepetitive basis, or of employees constituting a functionally distinct department, working in trades or occupations for which a tradition of separate representation exists.
In applying the first factor, the Executive Director concluded that the question for public sector employees is whether the employees share a distinct community of interest within an identifiable work group enjoying a tradition of separate representation. The Executive Director concluded that the petitioned-for employees shared a distinct community of interest. TEA argued that the petitioned-for employees are not a homogeneous group of employees constituting a functionally distinct department. The Executive Director applied the correct standard when he applied the community of interest factors to determine whether the petitioned-for employees constituted an identifiable work group that enjoys a tradition of separate representation.
The petitioned-for employees are office-clerical and administrative employees. The petitioned-for employees do not perform the same job functions as the professional employees. TEA presented evidence that one petitioned-for employee performs tasks that are performed by a professional level position in the TEA bargaining unit. Teamsters presented evidence that when one of the petitioned-for employees performed duties that were out of her classification, the employee was instructed not to perform those functions. The evidence supports the Executive Director’s conclusion that job duties of the office-clerical employees differ from and do not overlap with the job duties of the professional staff.
TEA argues that a tradition of separate representation does not exist for office-clerical employees. Bargaining units of office-clerical employees are “presumptively appropriate” under National Labor Relations Board precedent. General Electric Company, 107 NLRB 70 (1953); International Smelting and Refining, 106 NLRB 223 (1952); National Cash Register, 95 NLRB 2 (1951). Bargaining units of office-clerical employees have been found to be appropriate by the Commission. City of Tacoma, Decision 204 (PECB, 1977); Spokane County Health District, Decision 3515 (PECB, 1990). Such units are “horizontal” in nature. Spokane County Health District, Decision 3515. Office-clerical employees have also been included in bargaining units with other employee classifications. Chelan County, Decision 7170 (PECB, 2000). At the employer, office-clerical employees have been included in bargaining units containing other classifications.
Petitions to sever office-clerical employees from larger bargaining units have been permitted. Franklin Pierce School District, Decision 78-D (PECB, 1977); Shelton School District, Decision 1609 (PECB, 1983). The exception applies even if the office-clerical employees are “functionally integrated” with other employees. Spokane County Health District, Decision 3515 (PECB, 1990).
A tradition of separate representation exists for office-clerical employees. The Executive Director’s analysis is supported by substantial evidence in the record.
2. The history of collective bargaining of the employees sought and at the plant involved, and at other plants of the employer, with emphasis on whether the existing patterns of bargaining are productive of stability in labor relations, and whether such stability will be unduly disrupted by the destruction of the existing patterns of representation.
The “history of bargaining” factor in a severance petition requires consideration of the length of the bargaining relationship, evaluation of the potential disruption of bargaining stability if the historical unit is disturbed, and concern about fragmentation of bargaining units. Vancouver School District, Decision 4022-A (PECB, 1993).
TEA has represented most of the petitioned-for employees since the employer voluntarily recognized TEA in 2001. TEA has bargained on behalf of the office-clerical and administrative employees. Office-clerical employees have held positions on the TEA board and participated in negotiations.
It is the function of the Commission to determine appropriate bargaining units. RCW 41.56.060(1). When presented with a situation in which the underlying bargaining unit is inappropriate, the Commission does not defer to the parties’ agreements. See Kent School District, Decision 127 (PECB, 1976). Agreements on bargaining unit configurations are not binding on the Commission. City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn. App. 559 (1981), review denied, 96 Wn.2d 1004 (1981). Agreement on a bargaining unit configuration does not indicate that the unit is or will continue to be appropriate. City of Richland, Decision 279-A.
While TEA has established that a history of collective bargaining exists, the underlying bargaining unit is inappropriate. King County, Decision 5910-A. In 1995, TEA petitioned to represent a bargaining unit of employees in the Transit Division and the Department of Natural Resources. The Executive Director dismissed the petition. The Commission affirmed, holding that the petitioned-for bargaining unit was inappropriate. The office-clerical employees did not share a community of interest with the professional employees.
The employer voluntarily recognized TEA as the bargaining representative of the office-clerical and professional employees. The appropriateness of a bargaining unit cannot be transformed from inappropriate to appropriate on the basis of voluntary recognition. The bargaining unit as recognized is the one the Commission found to be inappropriate.
When presented with a situation involving an inappropriate bargaining unit, the Commission is not required to continue to maintain an inappropriate unit. Granting severance, in this case, would not perpetuate the inappropriate underlying unit.
Severing the petitioned-for employees from the TEA bargaining unit does not raise concerns about disruption of bargaining stability for the TEA unit. The employer has insisted on bargaining office-clerical wages with a coalition of bargaining representatives. In order to obtain a wage increase for the office-clerical employees, TEA participated in coalition bargaining. The professional employees in the TEA bargaining unit have been able to bargain effectively with the employer. There is nothing in the record to indicate that TEA’s bargaining ability would be diminished by severing the office-clerical employees.
Severance does not raise issues of fragmentation. Before the Executive Director, the employer did not argue that severing the petitioned-for employees would fragment the employer’s workforce. The employer’s workforce is, already, largely fragmented through certifications and voluntary recognition.
3. The extent to which the employees in the proposed unit have established and maintained their separate identity during the period of inclusion in a broader unit, and the extent of their participation or lack of participation in the establishment and maintenance of the existing pattern of representation and the prior opportunities, if any, afforded them to obtain separate representation.
As noted above, to effectively bargain for the petitioned-for employees, various unions bargained as a coalition with the employer. Office-clerical employees have actively participated in TEA’s bargaining and served as union officers. The petitioned-for employees have not maintained a separate identity.
4. The history and pattern of collective bargaining in the industry involved.
The fourth factor looks to the factual and legal precedents of established unit determination patterns in the industry. King County, Decision 5018 (PECB, 1995). Nothing in the statute, or Commission precedent, precludes office-clerical employees from being included in the same bargaining unit with other employees. Ephrata School District, Decision 4675-A (PECB, 1995).
TEA argues that the history of collective bargaining in the industry does not support severance. TEA asserts that the industry in question is King County. The industry in question is public sector employers. TEA is correct that bargaining units of county and municipal employees have appropriately included clerical employees in bargaining units with other employees. See Chelan County, Decision 7170 (PECB, 2000). Other bargaining units within the employer’s structure contain mixed units. In the public sector, it is not uncommon to include office-clerical employees in larger bargaining units. Under Commission precedent, separate bargaining units of office-clerical employees have been found to be appropriate. City of Tacoma, Decision 204 (PECB, 1977); Spokane County Health District, Decision 3515 (PECB, 1990). Commission precedent has allowed severance of office-clerical employees from larger bargaining units.
5. The degree of integration of the employer’s production processes, including the extent to which the continued normal operation of the production processes is dependent upon the performance of the assigned functions of the employees in the proposed unit.
TEA asserts that the Wastewater Division is highly integrated and operations would be disrupted as a result of severance. The evidence supports the Executive Director’s conclusion that the office-clerical employees are not fully integrated with the professional employees. The office-clerical employees work in sections containing employees represented by TEA, Teamsters, and another union. The office-clerical employees perform duties in support of the section in which they work. TEA presented evidence that a change in employees in the office-clerical positions can disrupt and delay the work of the professional staff. This has been true even when the office-clerical employees have been represented by TEA.
The petitioned-for employees perform distinct work duties that support or augment the work of the section to which they are assigned. The record does not support a conclusion that the petitioned-for employees are so integrated to disfavor severance. Severance of office-clerical employees has been granted even if the office-clerical employees are “functionally integrated” with other employees. Spokane County Health District, Decision 3515. It has been recognized that office-clerical employees share a greater community of interest among themselves than with other employees. Spokane County Health District, Decision 3515.
CONCLUSION
The Executive Director properly granted severance. The decision is supported by substantial evidence. The existing TEA unit is inappropriate. The agreement between the employer and TEA voluntarily recognizing TEA as the bargaining representative of the petitioned-for employees is not binding on the Commission. In this case, the bargaining history between TEA and the employer does not preclude severance. The petitioned-for employees included in the TEA bargaining unit have participated in the bargaining process. However, the employer’s workforce is fragmented and the addition of another bargaining unit will not unduly disrupt the existing patterns of representation.
Office-clerical employees have been appropriately severed from larger bargaining units. Office-clerical employees share a community of interest among themselves. The work of the petitioned-for employees and other employees in the TEA bargaining unit are not so integrated that severance will upset the functioning of the employer’s operation. Severance is not inappropriate in this case.
NOW, THEREFORE, it is
ORDERED
The Findings of Fact, Conclusions of Law, and Order issued by Executive Director Michael P. Sellars are AFFIRMED and adopted as the Findings of Fact, Conclusions of Law, and Order of the Commission.
ISSUED at Olympia, Washington, this 25th day of June, 2013.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
THOMAS W. McLANE, Commissioner