DECISION ON APPEAL

Lake Washington School District Labor Council, APL-CIO, Teamsters, having, on September 26, 1975, filed a petition with the Washington Department of Labor & Industries for a determination of collective bargaining representative of certain employees of Lake Washington School District No. 4l4; and Public School Employees of Lake Washington School District No. 414 having been permitted to intervene in said proceedings on the basis of its status as the incumbent collective bargaining representative of the employees in the bargaining unit involved; and the Department having conducted an election and a run-off election among the employees in the bargaining unit and having, on December 8, 1975 issued a Certification of Representatives indicating that the majority of the employees had selected the Lake Washington School District Labor Council, APL-CIO, Teamsters, as their bargaining representative; and the Public School Employees of Lake Washington School District No. 4l4 having, on December 12, 1975, filed a notice of appeal with the Director of the Department of Labor & Industries; and the authority for administration of Chapter 41.56 RCW having been transferred, effective January 1, 1976, to the Public Employment Relations Commission; and the Public School Employees of Lake Washington School District No. 4l4 having filed a brief in support of its appeal; and the Lake Washington School District Labor Council, APL-CIO having filed a brief in opposition thereto and having asserted that the appellant had waived its opportunity to appeal from the actions complained of; and the employer having taken no position in the matter on appeal; and the Commission having considered the matter and being satisfied that the appellant has, by its actions and inaction, waived its opportunity to contest the actions complained of in its appeal;

NOW, THEREFORE, the Public Employment Relations Commission makes and enters the following

ORDER

1.         That the appeal filed in the above-entitled matter by Public School Employees of Lake Washington School District No. 4l4 be, and the same hereby is, denied.

2.         That the Lake Washington School District Labor Council, AFL-CIO, Teamsters, be, and the same hereby is, certified as the exclusive collective bargaining representative for all of the employees in the single bargaining unit consisting of all custodial, maintenance, transportation, truck driver, mail messenger, warehousemen and special education teacher assistant employees of Lake Washington School District No. 4l4, excluding dispatchers, field assistants and related workers, site procurement workers, secretaries, clerks and related workers, and supervisors.

DATED at Olympia, Washington, this 25 day of June, 1976.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

PHILIP K. KIENAST, chairman

[SIGNED]

ROBERT B. ARKELL, Commissioner

[SIGNED]

MICHAEL H. BECK, Commissioner

LAKE WASHINGTON SCHOOL DISTRICT NO. 4l4, et al, Case No. 0-2044

MEMORANDUM ACCOMPANYING DECISION ON APPEAL

Background

Prior to any of the events involved in the instant case, the Public School Employee Local Association, an affiliate of the Public School Employees of Washington, was the exclusive bargaining representative in a bargaining unit composed of custodial, maintenance, transportation, truck driver, mail messenger, warehouse and special education teacher assistant employees of Lake Washington School District No. 4l4. The instant proceedings were initiated by a representation petition filed on September 26, 1975 by the “Lake Washington School District Labor Council, APL/CIO, Teamsters”. For reasons which are detailed below, no hearing was held on the matter. An election and a run-off election were held, the results of which indicated that the employees in the bargaining unit selected the Lake Washington School District Labor Council as their collective bargaining representative. Following the issuance of the certification of representatives, the Public School Employees of Washington filed with the Director of the Department of Labor and Industries a notice of appeal. The jurisdiction for the administration of Chapter 41.56 RCW, under which the case arises, was transferred to the Public Employment Relations Commission effective January 1, 1976. The last brief on appeal was filed on January 12, 1976.

Position of the Appellant

The Public School Employees, hereinafter “PSE”, alleges in its brief on appeal and assigns as error that the Department of Labor & Industries failed to make an investigation to determine whether the petitioner in these proceedings was a “labor organization or lawful organization” within the meaning of WAC 296-132-065, which has since been adopted by the Commission on an emergency basis as WAC 391-20-065. PSE states the issue on appeal as being whether the agency may ignore its own regulations and allow an organization which may not comply with the cited rule to act as a bargaining representative. PSE contends that the petitioner herein does not meet the requirements of the rule, and that the agency had an affirmative obligation to seek out information to establish compliance with the rule. PSE claims that such an affirmative obligation upon the agency is necessary because of claimed limited rights of an interested party to request a hearing or investigation. PSE goes on, however, to note that it sees the rules as providing a right to a hearing if a party is “interested in seeing records as to how, when and by whom the petitioning organization was formed”.

Position of the Petitioner

The Lake Washington School District Labor Council, APL-CIO, Teamsters, hereinafter referred to as the Labor Council, alleges in its brief that the question to be determined on appeal is whether the PSE, by its conduct, has waived its right to appeal the actions of the Department of which it now complains. The petitioner points out that there were a number of different transactions and communications between the date on which the petition was filed and the date on which the appeal was filed, including the election and run-off election, and that PSE was notified of or involved in the case almost from its onset. The Labor Council suggests that the action being complained of actually dates back to a letter issued by a Department agent on October 15, 1975, and that the appeal was time barred by the “30-day” rule of WAC 296-132-350 (now WAC 391-20-350) when filed on December 12, 1975. In the alternative, the Labor Council argues that the procedures of WAC 296-132-130 (now WAC 391-20—130) for “Initial Action” were followed properly and that PSE permitted a number of opportunities for a challenge of the status of the Labor Council to pass until PSE had lost the run-off election, so that PSE has waived its right to contest the status of the Labor Council under rule “065”.

Timeliness of the Appeal

Acting pursuant to WAC 296-132-130 (now WAC 391-20-130), the authorized agent of the Department made a number of informal determinations concerning the petition filed on September 26, 1975, and concluded that there were no issues which required the conduct of a hearing. Accordingly, a letter was sent to the employer, the incumbent and the petitioner on October 15, 1975 in which the authorized agent announced that a representation election would be conducted. The rules do not preclude the possibility that issues might arise following an initial determination that a proceeding could be handled without a hearing, and we understand the procedure to be such that any of the parties could have moved the proceedings out of the informal procedure and into the formal hearing procedure by making a timely request for a hearing on any issue on which a disagreement had arisen. Objections made at that time would have led to a change of the procedure followed, and not necessarily to appellate procedures. The many preliminary rulings, together with the results of the run-off election, came together to constitute the basis for the determination made by the authorized agent in the Certification of Representatives issued on December 8, 1975. We deem the appeal filed on December 12, 1975 to be timely within the meaning of the 30-day requirement of WAC 296-132-350 (now WAC 391-20-350).

Extent of Agency Obligations

Has the agency the affirmative obligations which PSE would impose, and is the agency exclusively in a position to obtain the information? The Commission answers both of these questions in the negative. It is the peculiar nature of representation cases that the real result is not determined by the agency but by the affected employees, with the agency acting as the facilitator of decision making rather than as the decision maker. RCW 41.56.050 mandates that the agency “shall be invited to intervene” in a dispute concerning the selection of a bargaining representative, but RCW 4l.56.060, RCW 41.56.070 and WAC 296-132-205 (now WAC 391-20-205) make it very clear that the intervention by the agency is in a neutral capacity, particularly in a situation in which two or more organizations are seeking exclusive representative status among the employees in a bargaining unit. It is clearly the intention of the statutes and rules that the employees make their own choice of bargaining representative, and that the agency is not involved to assist or endorse any of the parties over any of the other parties.

The number of issues to be resolved in a representation case is limited, and representation cases lend themselves, both under our procedures and procedures followed by similar agencies, to some informal processing. The documents contained in the file before the Commission indicate that a number of the potential issues were disposed of informally, and that no objection has been raised either to the determinations so made or the fact that they were made by more expeditious informal procedures. There was, for example, a determination made that the petition filed on September 26, 1975 was not affected by the “contract bar” language of RCW 41.56.070 because there was no collective bargaining agreement in effect at the time the petition was filed. There was a further determination that the petition was supported by a 30% showing of interest as required by RCW 41.56.070. The determination by the authorized agent that the petitioned-for bargaining unit was appropriate must be viewed in the context of records of the Department of Labor & Industries which reveal that the petitioned-for unit was the product of previous litigation in which an effort to fragment that unit was rejected by the Department. Was the authorized agent entitled to rely on the statement made in the petition that the last collective bargaining agreement between the employer and PSE had expired on July 31, 1975? Similarly, was the authorized agent entitled to rely on the statement made in the petition that the number of employees in the bargaining unit was approximately 200? Can the agency rely on a list submitted by an employer ex parte for purposes of checking the sufficiency of a showing of interest filed in support of a petition? Such information is accepted by the agency, subject always to challenge by some other interested party to the proceedings.

The petition in this matter was accompanied when filed by a copy of correspondence directed to the Superintendent of the Lake Washington School District by the “Secretary” of the petitioner. That correspondence was written under a letterhead stating “Lake Washington School District Labor Council” which identified Jon L. Rabine as “President” and Lauren Yogi Bair as “Secretary”. That correspondence concludes with notice to the employer that “this Council” intended to file a representation petition within five days. There is nothing in that correspondence which would, on its face, call for further investigation by the agency as to the existence of the petitioner, and the authorized agent was entitled to draw conclusions therefrom as part of the informal processing of the petition. As with all of the other informal determinations made, any party to the proceedings could have acted on a timely basis to contest the informal determination. We deem it to be significant that PSE acknowledges in i brief that it understands the law and rules to provide it with a right to make inquiry as to the history of formation of the Labor Council.

Given the nature of the representation process, in which agency actions and determinations are merely the prelude to a determination by the employees themselves voting in a secret ballot election, and given the role of the agency as a neutral in the process, the Commission concludes that the authorized agent fulfilled the obligations imposed upon him and upon the agency by the statute. The parties all retain the right and ability to act as advocates for their own positions and to make inquiries, both as a supplement to inquiries made by the agency into the matters uniformly of concern in all representation proceedings and as to other matters which might appropriately be raised in the representation proceedings.

Waiver of Objections

A copy of the authorized agent’s October 15, 1975 letter was sent to a representative of FSE. A representation election was held on November 19, 1975, and the observer sign-in sheet maintained by the agency for that election indicates that PSE had no less than 3 different repesentatives present during the course of a 12-hour election. The election was inconclusive because neither of the competing organizations received a majority of those eligible, and the notations made on the observers sign-in sheet indicate that all parties agreed to a date for a run-off election. A tally of ballots was issued showing that PSE outpolled the Labor Council 96 to 92, and two representatives of PSE acknowledged service of the tally upon them. On November 21, 1975 the authorized agent notified the parties that the run-off election would be held on December 1, 1975. Notices were issued and the election was held, with the PSE again being represented by observers. The tally of ballots indicates that the Labor Council received 98 votes and that PSE received 90 votes, The question of whether the Labor Council was in compliance with WAC 296-132-065 (now 391-20-065) was first raised in a letter from the attorney for PSE to the authorized agent under date of December 3, 1975, in which it is stated that “We recently fortuitously received a flier from Teamsters Local Union No. 763. Enclosed is a photocopy of this flier… This information has lead [sic] us to the tentative conclusion that the Lake Washington School District Labor Council is not a ‘Labor Organization’ or ‘Lawful Organization’, as those terms are defined by WAC 296-132-065.”

The representation of employees through the medium of a labor council is not unique to this case, and the lack of any novelty to the concept is pointed out by the appellant’s own brief. More important, the concept of representation by a labor council cannot be considered novel in public employment or in this particular bargaining unit. In Case No. 0-1152, the Seattle Building and Construction Trades Council filed a petition on April 21, 1972 seeking to be certified as the exclusive bargaining representative in a unit of maintenance craftsmen (glaziers, carpenters, electricians, painters, plumbers and building equipment mechanics) employed by the Lake Washington School District. The authorized agent in that case found that the petitioner therein was a labor organization or lawful organization within the meaning of rule “065” and that the petitioned-for group was an appropriate unit for severance from the over-all unit represented by PSE. The employer appealed on both of those points, but the compliance with rule 065 was not addressed on appeal. Nevertheless, that case brought to the present situation some background of awareness on the part of PSE and the -employer of the existence of rule 065 and its application to representation proceedings. PSE itself had once been found in violation of rule 065 in Franklin Pierce School District, L & I Case 0-240, December 7, 1967 One might expect that, based on such a history, the PSE might have subjected the claim of legitimacy implied by the filing of a petition under the rules of the agency to some closer scrutiny. Even assuming, arguendo, that the PSE could not have elicited some of the information itself, it could have made a specific request of the agency for an investigation as to whether the Labor Council was in complete compliance with rule 065. Further, assuming, arguendo, that an inquiry or objection by PSE would not have thrown the case into the formal hearing procedure, the making of such an inquiry or objection on a timely basis early in the proceedings would have clearly preserved the issue for appeal. The orderly disposition of cases before the agency requires that parties make their objections known on a timely basis and, while the services of the agency and its authorized agents are equally at the disposal of all parties to the proceedings, that availability does not relieve the parties of their responsibility to bring matters to the attention of the authorized agent. We find that, by its participation in the proceedings through the election and run-off election without making any inquiry or objection concerning the legitimacy of the Lake Washington School District Labor Council under WAC 296-132-065, the Public School Employees of Washington has lost its right and opportunity to assert such objection.

Certification of Representatives

The certification of representatives was issued by the authorized agent on December 8, 1975. The notice of appeal was filed with the Director of the Department of Labor & Industries on December 12, 1975. WAC 296-132-350 provides that the notice of appeal shall suspend the action or decision pending a determination of the appeal, unless the stay is rescinded by a discretionary action of the Director of the Department. We note that the Director’s acknowledgement of the notice of appeal contained a statement that “Pending receipt of briefs … the departmental determination as to certification will not be stayed”. However, by the time the last brief has been filed, the case had been transferred to this Commission. The Commission has not acted to extend the effect of the staff order beyond the receipt of briefs, and deems the automatic stay to have been inoperative during the period this matter has been pending before the Commission. The certification of representatives issued on December 8, 1975 is herewith given full force and effect, with the result that the Labor Council will be the exclusive representative of all of the employees in the bargaining unit.

DATED at Olympia, Washington, this 25 day of June, 1976.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

PHILIP K. KIENAST, chairman

[SIGNED]

ROBERT B, ARKELL, Commissioner

[SIGNED]

MICHAEL H. BECK, Commissioner