STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
PUBLIC SCHOOL EMPLOYEES OF PASCO, an affiliate of Public School Employees of Washington,	CASE NO. 6170-U-86-1166
Complainant,	DECISION NO. 2546 - PECB
vs.
PASCO SCHOOL DISTRICT,	FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
Respondent.

Edward A. Hemphill, Legal Counsel, appeared on behalf of the complainant.

Robert D. Schwerdtfeger, Labor Relations Consultant, appeared on behalf of the respondent.

On January 6, 1986, Public School Employees of Pasco, an affiliate of Public School Employees of Washington (complainant) , filed a complaint charging unfair labor practices against Pasco School District (respondent), alleging that the school district had violated RCW 41.56.140(1) and (4) by unilaterally modifying wage rates through the adoption of a new job title. A hearing was conducted in Pasco, Washington, on April 18, 1986. At the close of the hearing, complainant moved for summary judgement. The motion was denied. The parties submitted post-hearing briefs.

BACKGROUND

Located in the "Tri-Cities" area of southeastern Washington, Pasco School District provides educational services to local residents. The school district has a collective bargaining relationship with Public School Employees of Pasco, an affiliate of Public School Employees of Washington.

A collective bargaining agreement in effect from September 1, 1985 through August 31, 1988 describes the bargaining unit represented by the union as:

… all classified employees in the following job descriptions: regular full-time and regular part-time secretaries, clerks, aides, drivers, ticket takers, and cooks. Excluded: Secretary to Superintendent, Secretary to Assistant Superintendent, Secretary to Director of Personnel, and Secretary to Administrative Assistant-Personnel, supervisors and casual substitutes, and all other employees of the Pasco School District. The Payroll Clerk will not participate in any negotiations between the District and Association.

The record indicates that the bargaining unit actually consists of four discrete groups of employees, whose wages, hours and other conditions of employment are established under a single "master" agreement: secretarial/clerical, aides, food service, and transportation. While all of the groups are dealt with in the master contract, not all contractual rights are universal throughout the bargaining unit. For instance, seniority earned in one group cannot be applied if an employee transfers to another work category. The contract sets forth separate salary schedules for each of the four groups. The schedules refer to the four generic work classifications set forth above, and do not mention specific rates to be applied to specific job descriptions within the classifications.

The instant unfair labor practice case deals with the general classifications of "aide" and "secretarial/clerical". The salary schedule for the aide classification consists of five incremental salary steps. The secretarial/clerical salary schedule consists of five wage "levels" as well as five longevity steps.

Negotiations for the current collective bargaining agreement began in the early part of June, 1985. During the course of negotiations, the parties were also involved in an unfair labor practice complaint dealing with an alleged "skimming" of bargaining unit work. Docketed as Pasco School District, Case No. 5470-U-86-995, the complaint alleged that the school district unilaterally removed certain accounting duties from the head secretary at McLoughlin Junior High School, and transferred those responsibilities to an employee outside of the bargaining unit. Shortly before a hearing was to take place on that complaint, the parties settled the issue. As part of the settlement, the school district agreed to return the work to the secretary, and also agreed to provide more assistance to the secretary by having a "library aide" work in the school office for one hour each day.

The parties concluded their negotiations in the latter part of August, 1985, and a contract was signed shortly thereafter. The collective bargaining agreement contains a grievance procedure ending with submission of contractual disputes to the board of directors of the Pasco School District.

In September, 1985, William Leggett, principal of McLoughlin Junior High School, presented district administrators with a proposal to add a new secretarial position at the school. Leggett reasoned that the existing secretarial staff was overworked, even with the limited assistance of the school's library aide. To remedy the problem, Leggett suggested that the school district should hire a full-time secretary, thus allowing the library aide to return to library duties exclusively. District Personnel Director Douglas Kernutt reviewed the proposal and contacted surrounding school districts to find out how similar staffing problems were handled elsewhere. As a result of the survey and analysis of the district's financial condition, Kernutt determined that a secretary could not be hired. As an alternative, a new "Office Aide" position was to be created and filled to address the problem at McLoughlin Junior High School.

On October 24, 1985, the district posted a job notice for the new position titled "School Office Aide". The announcement specified that the new position was to be located at McLoughlin Junior High School, and required the successful applicant to work four hours a day, Monday through Friday. In addition, the announcement listed the following qualifications and duties:

QUALIFICATIONS:

*        High school diploma.

*        Previous school or office experience desirable.

*        Typing skills desirable.

*        Interested in helping children.

*        Able to assume responsibility.

*        Ability to follow supervisory directions and to employ personal initiative when necessary.

*        Ability to maintain proper personal appearance, be punctual and demonstrate an excellent attendance record.

*        Ability to work within the designated bounds of authority and confidentiality.

TYPICAL DUTIES:

*        Assist counselors and secretarial staff.

*        Assist in answering telephones.

*        Maintain student discipline files.

*        Maintain attendance records and works with parents, teachers, administrators, regarding attendance concerns.

*        Supervises the health room.

*        Sorts incoming mail.

*        Assumes other duties as assigned by the building secretary or building principal.

According to terms in the announcement, the "office aide" was to be paid $5.39 per hour, and the successful applicant was expected to start in the new position as soon as possible. Linda Pasco, a bargaining unit employee who was the successful applicant for the new position, began her duties as an office aide at McLoughlin Junior High School on November 13, 1985.

The union's local staff representative, William Herbert, learned of the new position at some unspecified time after the October 24, 1985 posting. Herbert contacted school officials to discuss the matter. Herbert met with Kernutt on November 20, 1985, expressing at that time the union's contention that the new position was actually clerical, and that the salary level should be raised accordingly. Kernutt disagreed, and the meeting ended without resolution of the issue. On the same date, Herbert prepared a memorandum which summarized the union's position on the matter. In pertinent part, the memorandum specified:

…The "office aide" position, as described in the job opportunity announcement, includes those duties which are normally assigned to the Clerk/Typist and Attendance Clerk wage levels of the Secretaries/Clerks salary schedule. The qualifications required or desired are those of a secretarial/clerical position. The employee who was selected for the position is a qualified secretarial/clerical employee.

Herbert went on to demand that the disputed position be included in the secretarial/clerical group, with a commensurate increase in salary.

On November 26, 1985, Kernutt sent Herbert a letter responding to the union's position on the office aide. Kernutt rejected Herbert's contention that the position was actually clerical in nature, and went on to detail the district's use of aides:

… In accord with our conversation, we currently employ aides in a variety of positions including instructional aides, playground aides, crosswalk aides, nurses aides, data aides, computer proctor aides, testing aides, and clerical aides. While I am not sure that the clerical aides and data aides positions were clearly indicated in our dialogue, they nevertheless exist in Pasco School District and have existed for several years.

Kernutt asserted that the school district followed an established past practice in its decision to create the office aide position.

Linda Pasco, the employee holding the disputed position, testified that she generally performs all of the duties outlined in the position announcement. The record indicates that she works under the supervision of the school's head secretary, and assists the school's clerical staff in the course of a typical work day. The union filed the instant unfair labor practice on January 6, 1986. Pasco was still working as an office aide at the time of the hearing in this matter.

POSITIONS OF THE PARTIES

Complainant argues that respondent violated RCW 41.56.140(1) and (4) by establishing an "office aide" position rather than creating a clerical position at McLoughlin Junior High School. Complainant notes that the earlier unfair labor practice was settled with the understanding that respondent would provide extra clerical help at the school, and contends that the creation of an aide position did not fulfill that need. Complainant maintains that the instant case is similar factually to Royal School District, Decision 1419 (PECB, 1982), because respondent negotiated while concealing its intention to create the new classification after bargaining was completed.

Respondent denies that any violation took place. Respondent maintains that the disputed position was created because of district needs, and points out that there are a number of similar specific positions that have never been negotiated. Respondent contends that complainant is using the unfair labor practice procedure to simply upgrade the disputed position's salary placement.

DISCUSSION

Cursory review of the instant unfair labor practice case would indicate inquiry into whether the dispute could be deferred to grievance arbitration. Deferral has been ordered where employer conduct at issue in a "unilateral change" unfair labor practice case is "arguably protected or prohibited" by the collective bargaining agreement between the parties. King County, Decision 2193 (PECB, 1985). Where deferral is ordered, the statutory unfair labor practice adjudication is held in abeyance while the parties obtain interpretation of their contract through an established grievance procedure.

The dispute underlying the instant unfair labor practice case involves the application of salary schedules contained in the existing contract to the list of work duties associated with a new job classification. In this regard, the instant matter is similar to that found in Seattle Housing Authority, Decision 1215 (PECB, 1981), where an individual employee filed a complaint alleging that the employer refused to pay him the appropriate salary rate. As noted in that decision, the Public Employment Relations Commission does not have "violation of contract" unfair labor practice jurisdiction. See, also, City of Walla Walla. Decision 104 (PECB, 1976). Deferral is not automatic, however. Each case must be analyzed in the context of the facts presented. Examination of the collective bargaining agreement in the present case reveals that the parties follow a form of a grievance procedure that does not include final and binding grievance arbitration. The parties would have to go to court to obtain an interpretation of the contract. In such a situation, deferral would be meaningless, and would not further the policies of the Public Employees Collective Bargaining Act. See, City of Seattle, Decision 1667-A (PECB, 1984).

Having concluded that deferral is inappropriate, the examiner must interpret the collective bargaining agreement. Keeping in mind that the Commission lacks jurisdiction to remedy violations of contracts, interpretation of the contract is nevertheless a necessary step to determine whether the employer had a duty to bargain the matter at issue here. The analysis now turns to the series of events leading to the instant case.

The contract covers both "aide" and "secretary" classes. Although the complaint is subject, standing alone, to a first impression that a dispute exists about transfer of unit work outside of the unit, as in South Kitsap School District,, Decision 472 (PECB, 1978), it is clear that the disputed position has been, from the onset, included in the PSE bargaining unit and covered by the contract. The Commission has had occasion to rule on the distinction between school district "aide" and "clerical" employees in the context of unit determination proceedings, as in Shelton School District, Decision 1609-B (PECB, 1984), but the matter at issue here concerns contractual rights within a single bargaining unit.

The contract contains separate provisions for the wages of the "aide" and "secretary" groups. From evidence presented at the hearing, the parties disagree only as to which of two contract provisions on the subject (of the rate of pay for the new position) should be applied. The school district implemented its position on the salary issue, opening the opportunity for PSE to pursue its rights under the contract. Neither party has proposed, and the facts do not suggest, a need for bargaining over something not already provided for by the contract.

The union's contentions about a breach of good faith by the employer are not persuasive. The fact that the office aide is undeniably to be part of the existing bargaining unit (and is thus to enjoy benefits under the collective bargaining agreement) , distinguishes the instant case from the earlier unfair labor practice complaint, wherein this respondent was charged with "skimming" bargaining unit work. The complainant's reliance on Royal School District, Decision 1419 (PECB, 1982) is similarly unpersuasive. In that case, an employer acted to the detriment of bargaining unit employees when it concealed material facts during the bargaining process. The record in the present case indicates that the district did not take active steps to create the disputed position until after the contract negotiations were completed. In addition, the complainant has not demonstrated that the bargaining unit was adversely affected by the creation of the new classification.

Complainant has not demonstrated that it was denied any statutory right when the new position came into effect. Respondent met with complainant. While discussions that could be characterized as salary negotiations took place, complainant failed to prove that respondent acted in a different way concerning the office aide position than it had in the past when it dealt with the contractual rights of other newly created aide job descriptions. Taken together, it must be concluded that the matter is a purely contractual dispute, and that the respondent did not commit an unfair labor practice.

FINDINGS OF FACT

1.                  Pasco School District is a school district created pursuant to Title 28A RCW and is a "public employer" within the meaning of RCW 41.56.030(1).

2.                  Public School Employees of Pasco, an affiliate of Public School Employees of Washington, a "bargaining representative" within the meaning of RCW 41.56.030(3), represents a bargaining unit of employees of Pasco School District.

3.                  The parties negotiate a "master" collective bargaining agreement which covers all of the employees in the bargaining unit. While certain conditions of employment apply universally under the contract, the contract makes reference to generic work classifications such as "aides", "food service", and "secretary/clerical", and each such work classification within the bargaining unit has a separate salary schedule.

4.                  While it negotiates with the union about the wage rates to be paid in the generic work classifications set forth in the collective bargaining agreement, the school district routinely establishes specific job titles within each of the groups.

5.                  Negotiations for the 1985 through 1988 collective bargaining agreement began in June, 1985, and were completed in August of that year. During the course of negotiations, the parties discussed the wage rates that were to apply to the generic work classifications.

6.                  On October 24, 1985, the school district posted a job announcement for the new position of "office aide". The school district had not previously had such a position within its workforce.

7.                  Public School Employees learned of the new position only after it was posted, but then asked to discuss the matter with district officials.

8.                  Representatives of the parties met on November 20, 1985, at which time PSE stated its contention that the new position was actually clerical in nature and should be moved to the "secretarial/clerical" salary schedule. The employer disagreed, and the issue was not resolved.

9.                  Linda Pasco, an employee previously employed within the bargaining unit, was the successful applicant for the new aide position. Pasco continued to be considered to be a member of the bargaining unit while working in the "office aide" position, and continued to receive benefits under terms of the collective bargaining agreement.

CONCLUSIONS OF LAW

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

2.                  The matter at issue concerns only the interpretation or application of existing wage provisions contained in the collective bargaining agreement between the parties.

3.                  By events described in Findings of Fact 3 through 10, above, Pasco School District did not commit unfair labor practices within the meaning of RCW 41.56.140(1) and (4).

ORDER

The complaint charging unfair labor practices filed in the above-entitled matter is hereby DISMISSED.

DATED at Olympia, Washington, this 31st day of October, 1986.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

KENNETH J. LATSCH, Examiner

This order may be appealed by filing a petition for review with the Commission pursuant to WAC 391-45-350.