STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
PUBLIC SCHOOL EMPLOYEES OF ARLINGTON,	CASE 8242-U-89-1784
Complainant,	DECISION 3806 - PECB
vs.
ARLINGTON SCHOOL DISTRICT,	FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Respondent.

Caroline Lacey, Legal Counsel, appeared on behalf of the complainant.

Shirley Case, Special Programs Director, appeared on behalf of the respondent.

On October 23, 1989, Public School Employees of Arlington, an affiliate of Public School Employees of Washington (PSE), filed a complaint charging unfair labor practices with the Public Employment Relations Commission. The complaint alleged that the Arlington School District violated RCW 41.56.140(4), by unilaterally removing a position from the bargaining unit. The matter came on for hearing before Examiner Frederick J. Rosenberry on August 22, 1990.

PROCEDURAL BACKGROUND

A “notice of case filing” was issued by the Commission on October 29, 1989, advising the parties that an unfair labor practice case had been opened under the case number specified above, and indicating the names, addresses and telephone numbers of the parties and their principal representatives. The employer’s representative was listed as Robert D. Schmitt, who was identified on the complaint as “superintendent” of the school district. The parties were invited to notify the Commission of any changes of their representatives.

The Executive Director issued a preliminary ruling in this matter on November 14, 1989, in the form of a letter directed to both Superintendent Schmitt and counsel for the union. An additional letter issued by the Executive Director on May 24, 1990, notified the parties of the identity of the Examiner assigned “to conduct further proceedings in the matter pursuant to Chapter 391-45 WAC”.[1]

A notice of hearing was issued by the Examiner on June 13, 1990, setting August 22, 1990 as the date for the hearing in the matter, and setting July 8, 1990 as the deadline for the respondent to file its answer to the allegations. The notice of hearing specified:

An answer filed by a respondent shall specifically admit, deny or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. The failure of a respondent to file an answer or the failure to specifically deny or explain in the answer a fact alleged in the complaint shall, except for good cause shown, be deemed to be an admission that the fact is true as alleged in the complaint, and as a waiver of the respondent of a hearing as to the facts so admitted.

No answer was filed by July 8, 1990, or at any time prior to the opening of the hearing.

The Examiner appeared at Arlington, Washington, on August 22, 1990, at the time and place specified in the notice of hearing. The PSE representatives also appeared at that time and place. A school district receptionist indicated awareness that a Commission hearing was scheduled for the employer’s board room on that day, and a note to that effect was posted adjacent to the room, but the room was in other use at that time. The employer’s “special programs director” arrived shortly thereafter, and claimed that the employer had not received notice of the hearing. The Examiner delayed the start of the hearing by approximately one and one-half hours, to permit the employer’s official to review the situation. At the outset of the hearing, the respondent indicated that it was prepared to answer the allegations, and it requested a waiver of its failure to answer. The employer’s representative reported that Superintendent Schmitt had left the school district on June 30, 1990, that a new superintendent took office on July 1, 1990, and that her search of the employer’s files that morning had failed to disclose any documents regarding this matter. The complainant refused to waive the failure to answer, and moved for default. A number of exhibits were stipulated in evidence and the respondent was allowed to present affirmative defenses. The default issue was deferred for determination as part of the record as a whole.

The complainant and respondent both submitted briefs by September 28, 1990. On October 8, 1990, the complainant filed a letter objecting that the respondent’s brief asserted a number of facts not in evidence, and that it should not be considered.

FACTUAL BACKGROUND

The Arlington School District provides a variety of educational services for local residents. Robert Schmitt was the superintendent at the time of the events giving rise to this dispute.

Public School Employees of Washington represents a bargaining unit of classified employees of the Arlington School District in the job classifications of custodial, educational assistants, food service, maintenance, professional-technical, secretarial-clerical, secretary-assistant, and transportation. The collective bargaining agreement excludes the positions of “administrative secretary-superintendent”, “administrative secretary-assistant superintendent”, “personnel assistant”, “fiscal assistant”, “transportation supervisor”, “maintenance supervisor”, and “custodial supervisor”.

The instant unfair labor practice case deals with the bargaining unit status of a position titled “ECEAP Program Manager”.[2] At some unspecified time in 1987, the employer applied for a grant to establish a program of the “head start” type, for a period of 20 months. The grant application was successful, and the employer created a number of new positions for the ECEAP program. In addition to the position at issue in this proceeding, the ECEAP program staff included employees classified as “ECEAP Teacher”, “ECEAP Aide”, “Project Outreach Worker”, and Project Secretary”. While the titles of several of those positions included the word “teacher”, none of the employees assigned to the ECEAP program were certificated personnel within the meaning or coverage of the Educational Employment Relations Act, Chapter 41.59 RCW. The ECEAP employees were considered to be classified employees, and they were made part of the bargaining unit represented by PSE.

Negotiations took place between PSE and the employer over the wages, hours and working conditions for the ECEAP positions, including the program manager which is the subject of the instant dispute.[3] It appears that some problems were encountered where federal grant requirements mandated a salary level for ECEAP employees different from the salary set forth in the parties’ existing collective bargaining agreement.

On December 22, 1987, the employer posted a job vacancy announcement for the position of “ECEAP Program Manager”. The new position was to report to the employer’s director of special programs. The successful applicant, Susan Cation, had not been an employee of the Arlington School District prior to being given the “ECEAP Program Manager” position.

On March 28, 1988, PSE Field Representative Jay D. Webster sent a letter to Assistant Superintendent Michael Jarboe of the Arlington School District, expressing the union’s point of view concerning the ECEAP program salaries. PSE proposed at that time that the employer should develop a second salary schedule for ECEAP employees, subject to the union’s approval. In the event that one of the positions on the new salary schedule was eliminated, PSE proposed that the affected employee retain their hire date in the professional-technical job classification, but not have “bumping rights” over junior employees already in that classification.

Webster sent a second letter to Jarboe on April 19, 1988, wherein he stated his understanding that the employer had agreed with the union’s March 28, 1988 proposal. Webster suggested that the parties execute a letter of understanding to finalize the matter.

On May 19, 1988, Cation wrote a letter to the president of the local PSE chapter, contending that her position as ECEAP Program Manager was going to be “reclassified”, and that she did not think it was necessary for her to join the union.

On June 3, 1988, PSE prepared a letter of understanding covering the ECEAP employees. The letter was signed by a PSE representative on June 30, 1988, and by a representative of the employer on July 1, 1988. The letter of understanding dealt with the salary schedule, and with the possibility of ECEAP employees becoming part of the professional-technical group within the bargaining unit in the event that their ECEAP position was eliminated.

At approximately the same time period that the parties were discussing the ECEAP matter, they were also engaged in negotiations for a successor collective bargaining agreement. During the course of those negotiations, the employer raised an issue concerning the bargaining unit status of the ECEAP program manager. The employer sought to remove the position from the bargaining unit, but PSE resisted that proposal. Notes from a negotiations session held on August 25, 1988, indicate that the issue concerning the bargaining unit status of the ECEAP Program Manager was still unresolved at that time, and that the employer continued to press for removal of the position from the bargaining unit.

The ECEAP program manager position was not specifically excluded as a result of the parties’ negotiations. [4] The collective bargaining agreement signed by the parties in 1988 added “professional-technical” classifications to the bargaining unit description.

On September 29, 1989, PSE Assistant Executive Director Ben Blackwell sent a letter to Susan Cation, explaining that she was expected to pay dues and initiation fees in accordance with the union security provisions of the collective bargaining agreement.

On October 4, 1989, Assistant Superintendent Jarboe met with PSE Field Representative Tim Busch. During the course of their discussion of several issues, Jarboe advised Busch that the employer wanted to exclude the ECEAP program manager position from the bargaining unit. In a letter to Busch dated October 4, 1989, Jarboe set forth the employer’s reasoning in the following terms:

... Susan Cation is the Director of the ECEAP Program for the Lakewood and Arlington School Districts. The Marysville School District will very shortly become part of the program, also. The ECEAP Program is really not a school district program at all, rather, it is a Snohomish County Health and Human Service Program. Susan is the head of this program and as an administrator is included under the term of the agreement with our administrative group.

Susan has responsibility for developing the budget for ECEAP. In its first biennium the budget was for $287,000.00. In the current biennium, the budget is for $232,000.00. As you know, some reduction of service (through reduction of days and hours) was necessitated due to the approximate reduction of $55,000.00 in State dollars for the program.

Susan has other responsibilities including her involvement with negotiations, parent contacts, student assessments, budgetary and programatic decisions with Snohomish County and day-to-day operations of both the Lakewood and Arlington ECEAP programs. ...

On October 23, 1989, PSE filed the complaint to initiate the instant unfair labor practice proceeding.

POSITIONS OF THE PARTIES

PSE argues that the employer is in default by reason of its failure to answer, and that the allegations of the complaint must be deemed to be true. PSE contends that the employer improperly removed the ECEAP program manager from the existing bargaining unit, in violation of RCW 41.56.140(4). In addition, PSE maintains that the facts presented at the hearing constitute an unfair labor practice, and that the employer improperly removed the disputed position without negotiations.

The respondent argues that default is not appropriate in the instant case. The employer points to a change in several of its key administrative positions, and argues that it should be allowed to defend its actions through legal argument. The employer contends that the disputed position is not part of the bargaining unit, because the ECEAP program manager is “administrative” and “confidential” within the meaning of Clover Park School District, Decision 2243-B (PECB, 1987).

DISCUSSION

The Default

WAC 391-45-210 specifies that a respondent in an unfair labor practice case must file an answer to the complaint within the time period set forth in the notice of hearing. If an answer is not filed, the rule clearly states the result of such a failure:

An answer filed by a respondent shall specifically admit, deny, or explain each of the facts alleged in the complaint, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial. The failure of a respondent to file an answer or the failure to specifically deny or explain in the answer a fact alleged in the complaint shall, except for good cause shown, be deemed to be an admission that the fact is true as alleged in the complaint, and as a waiver of the respondent of a hearing as to the facts so admitted. (Emphasis supplied)

As noted above, that rule was re-stated in the notice of hearing issued by the Examiner in this case.

The employer clearly did not answer the complaint here. Its initial claim of lack of notice was somewhat contradicted by its own receptionist and by the calendar for use of its board room. Its later claim of “good cause” due to a change of certain administrative personnel is not persuasive. As PSE properly notes in its post-hearing brief, such arguments have been rejected in the past. The employer is an ongoing entity with an elected board and officials other than the superintendent, and those that remain have a responsibility for the conduct of the ongoing business affairs of the entity. Given the arguments submitted, the employer has not demonstrated good cause to suspend the application of the “default” provisions set forth in WAC 391-45-210. See, City of Benton City, Decision 436-A (PECB, 1978); Seattle Public Health Hospital, Decision 1871 (PECB, 1983).

The facts alleged in the complaint, as supplemented by the stipulated exhibits, are deemed admitted as true.

Affirmative Defenses

Simply finding a “default” does not conclude analysis of the unfair labor practice complaint. A respondent may present affirmative defenses even after failing to answer. That is to say, the employer in this case may argue that, as a matter of law, no unfair labor practice violation could be found even if all of the facts contained in the complaint are deemed to be true.

In the instant case, the respondent was allowed the opportunity to raise affirmative defenses, but it did not present any credible evidence that such defenses exist in this situation. In its brief, the employer attempted to raise factual issues that should have been raised in a properly filed answer. Beyond those contentions, the respondent has not adequately explained that it acted within the law by removing bargaining unit work.

The Unfair Labor Practice

The determination of bargaining units, including any “eligibility” issues concerning allocation of particular positions to bargaining units, is a matter delegated by the Legislature to the Public Employment Relations Commission. City of Richland, Decision 279-A (PECB, 1978), affirmed 29 Wn.App. 599 (Division III, 1981), review denied 96 Wn.2d 1004 (1981). As such, “unit determination” issues are not a mandatory subject of collective bargaining as to which either a union or employer is entitled to “insist to impasse” or to unilaterally implement any change. Spokane School District, Decision 718 (EDUC, 1979). The employer was not at liberty to remove the ECEAP program manager position from the bargaining unit in October of 1989.

WAC 391-35-020(2) clearly sets forth the procedure which parties are required to follow where there is a desire to change the bargaining unit status of a position historically included in a bargaining unit:[5]

... where there is a valid written and signed collective bargaining agreement in effect, a petition for clarification of the covered bargaining unit will be considered timely only if:

(a) The petitioner can demonstrate, by specific evidence, substantial changed circumstances during the term of the collective bargaining agreement which warrant a modification of the bargaining unit by inclusion or exclusion of a position or class; or

(b) The petitioner can demonstrate that, although it signed the current collective bargaining agreement covering the position or class at issue in the unit clarification proceedings, (i) it put the other party on notice during negotiations that it would contest the inclusion or exclusion of the position or class via the unit clarification procedure, and (ii) it filed the petition for clarification of the existing bargaining unit prior to signing the current collective bargaining agreement.

It appears that the employer took some steps during the parties’ 1988 negotiations towards implementing the foregoing procedure, but that it then stopped short and failed or neglected to file a unit clarification petition prior to signing the new contract. There is no claim or showing of changed circumstances since the 1988 contract was signed. It thus appears that the employer was not even at liberty to file a unit clarification petition on the “administrative” or “supervisory” nature of the ECEAP program manager position in October of 1989.

The reference to “confidential” status made in the employer’s brief was not supported with evidence that the ECEAP program manager position has the “labor nexus”, i.e., access to confidential information concerning the labor relations policies of the employer, that is required to sustain such an exclusion under International Association of Fire Fighters v. City of Yakima, 91 Wa.2d 101 (1978). Even if there were such evidence, it would have been a basis for the employer to file a unit clarification petition with the Commission under WAC 391-35-010(1), not for a unilateral action to remove the position from the bargaining unit.

For all of the reasons indicated, an unfair labor practice violation has occurred in this case.

FINDINGS OF FACT

1.         Arlington School District is a public employer within the meaning of RCW 41.56.030(1).

2.         Public School Employees of Arlington, affiliated with Public School Employees of Washington (PSE), a bargaining representative within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of a unit of classified employees of the Arlington School District who provide custodial, educational assistant, food service, maintenance, professional-technical, secretarial-clerical, and transportation services.

3.         PSE and the Arlington School District were parties to a collective bargaining agreement for the period from September 1, 1985 to August 31, 1988.

4.         At a meeting held on December 14, 1987, the Board of Directors of the Arlington School District announced that the employer had been awarded a federal grant for the sum of $287,557.00, to fund an “Early Childhood Education and Assistance Program” (ECEAP) for a period of 20 months. A number of classified positions were created within the employer’s workforce.

5.         By memorandum dated December 22, 1987, the Arlington School District announced a job opening for the position of “Program Manager - Early Childhood Education and Assistance Program (ECEAP)”. The announcement further stated that the position offered 40 hours of work per week, and that it was a two year project scheduled to terminate in June, 1989.

6.         By letter dated January 27, 1988, Susan Cation was notified that she has been selected on January 25, 1988, to serve as ECEAP program manager.

7.         By letter dated March 28, 1988, PSE Field Representative Jay Webster provided the employer with a union proposal regarding salary levels and seniority for the employees holding the “ECEAP” positions.

8.         By letter dated April 19, 1988, PSE Field Representative Webster confirmed his understanding that the employer had accepted the union’s proposal regarding salary levels and seniority provisions for the employees holding the ECEAP positions for the period from September 1, 1987 to August 31, 1988.

9.         In a letter addressed to PSE under date of May 19, 1988, Susan Cation stated: “My job is going to be reclassified so I will not be required to join P.S.E.”

10.       A letter of agreement was signed by PSE on June 30, 1988, and by the Arlington School District on July 1, 1988, reflecting their agreement to include the ECEAP positions in the bargaining unit and setting rates of pay for positions entitled “Program Manager”, “Community Outreach Worker”, “Parent Educator”, and “Instructors”.

11.       During negotiations for a successor collective bargaining agreement, and at least on August 25, 1988, the employer objected to the continued inclusion of the ECEAP program manager position in the bargaining unit. PSE resisted the exclusion of the position from the bargaining unit.

12.       A successor collective bargaining agreement, effective for the period from September 1, 1988 to August 31, 1991, was signed by PSE on November 3, 1988 and by the Arlington School District on November 8, 1988. That agreement reflected the inclusion of the ECEAP positions in the bargaining unit and further stated that, “Professional-Technical positions not listed will be compensated at a hourly wage rate set in negotiation between the District and Association”.

13.       The parties’ 1988-91 collective bargaining agreement specifically identified seven positions as excluded from the bargaining unit: An administrative secretary, a personnel assistant, a fiscal assistant, a transportation supervisor, a maintenance supervisor, a custodial supervisor, and a community coordinator. No provision of that contract reflected any agreement to exclude the ECEAP program manager position from the bargaining unit.

14.       By letter dated September 28, 1989, PSE Assistant Executive Director Ben B. Blackwell notified Susan Cation of her union security obligation pursuant to the terms of the collective bargaining agreement.

15.       By letter dated October 4, 1989, Assistant Superintendent Michael Jarboe notified PSE Field Representative Tim Busch that it was the employer’s position that Cation, as ECEAP program director, is an administrator “included under the term of the agreement with our administrative group”.

16.       On October 23, 1989, PSE filed the instant complaint charging unfair labor practices with the Public Employment Relations Commission alleging a violation of RCW 41.56.140(4). The statement of facts attached to the complaint stated:

By letter dated October 4, 1989 the Arlington School District unilaterally removed the position of ECEAP director from the bargaining unit described in the current collective bargaining agreement between the Public School Employee (sic) of Arlington and the district. The district removed the position despite the fact that it had unsuccessfully attempted to bargain the position out of the bargaining unit in the Summer, 1989, negotiations that led to the current collective bargaining agreement. Such activity constitutes a refusal to bargain in violation of RCW 41.56.140(4).

17.       On October 29, 1989, a “notice of case filing” was issued by the Commission, advising the parties that an unfair labor practice case had been opened and indicated the names, addresses and telephone numbers of the parties and their principal representatives. The employer’s representative was listed as Robert D. Schmitt, who was identified on the complaint as superintendent of the school district. The parties were invited to notify the Commission of any changes of their representatives.

18.       On November 14, 1989, the Executive Director issued a preliminary ruling in this matter in the form of a letter directed to both Superintendent Schmitt and counsel for the union. Such letter stating:

Assuming for purposes of this ruling that all of the facts alleged in the complaint are true and provable, it appears that an unfair labor practice violation could be found.

19.       By letter dated May 24, 1990, the Executive Director notified Superintendent Schmitt and counsel for the union of the identity of the Examiner assigned “to conduct further proceedings in the matter pursuant to Chapter 391-45 WAC”.

20.       A notice of hearing was issued by the Examiner on June 13, 1990, setting August 22, 1990 as the date for the hearing in the matter, and setting July 8, 1990 as the deadline for the respondent to file its answer to the allegations.

21.       On July 1, 1990, James Mawr replaced Robert Schmidt as superintendent of Arlington School District.

22.       The Arlington School District did not file an answer to the complaint within the time specified in the notice of hearing.

23.       The Examiner appeared at Arlington, Washington, on August 22, 1990, at the time and place specified in the notice of hearing for the purpose of conducting the hearing. The PSE representatives also appeared at that time and place. The employer representative who appeared at that time initially claimed that the employer had not received notice of the hearing, but later claimed that there had been a turnover of certain key personnel of the employer.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter pursuant to RCW 41.56 RCW and Chapter 391-45 WAC.

2.         The Arlington School District has failed to demonstrate good cause for its failure to timely file an answer as required by RCW 41.56.170, and is in default.

3.         By unilaterally removing the position of ECEAP program manager from the bargaining unit represented by Public School Employees of Arlington, and thereafter refusing to bargain with PSE concerning the wages, hours and working conditions of that position, the Arlington School District has committed unfair labor practices under RCW 41.56.140(4) and (1).

ORDER

Arlington School District, its officers and agents, shall immediately take the following actions to remedy its unfair labor practices:

1.         CEASE AND DESIST from:

a.         Refusing to bargain with Public School Employees of Arlington as the exclusive bargaining representative of the “ECEAP program manager” position.

b.         Unilaterally removing bargaining unit work from the bargaining unit represented by PSE, without first giving notice to and, upon request, bargaining collectively with PSE concerning such a decision and its effects.

c.         Unilaterally removing positions from the bargaining unit represented by PSE, without the agreement of PSE or the processing of a unit clarification proceeding before the Public Employment Relations Commission.

d.         In any other manner interfering with, restraining or coercing its employees in their exercise of their collective bargaining rights secured by the laws of the State of Washington.

2.         TAKE THE FOLLOWING AFFIRMATIVE ACTION to effectuate the purposes and policies of Chapter 41.56 RCW:

a.         Upon request, bargain collectively in good faith with PSE concerning the wages, hours and working conditions of the ECEAP program manager for all times since October 4, 1989, and continuing hereafter.

b.         Upon request, enforce the union security provisions of the collective bargaining agreement between PSE and the Arlington School District as to the ECEAP program manager position for all periods when a union security obligation was in effect.

c.         Post, in conspicuous places on the employer’s premises where notices to all employees are usually posted, copies of the notice attached hereto and marked “Appendix”. Such notices shall be duly signed by an authorized representative of the above-named respondent, and shall remain posted for 60 days. Reasonable steps shall be taken by the above-named respondent to ensure that such notices are not removed, altered, defaced, or covered by other material.

d.         Notify the above-named complainant, in writing, within 20 days following the date of this order, as to what steps have been taken to comply with this order, and at the same time provide the above-named complainant with a signed copy of the notice required by the preceding paragraph.

e.         Notify the Executive Director of the Public Employment Relations Commission, in writing, within 20 days following the date of this order, as to what steps have been taken to comply with this order, and at the same time provide the Executive Director with a signed copy of the notice required by this order.

Dated at Kirkland, Washington, this  ______  day of June, 1991.

Issued at Olympia, Washington, this   20th  day of June, 1991.

 

 

PUBLIC EMPLOYMENT

RELATIONS COMMISSION

[SIGNED]

FREDERICK J. ROSENBERRY

Examiner

This order may be appealed by

filing a petition for review

with the Commission pursuant

to WAC 391-45-350.