Gail S. Fujita, Attorney at Law, appeared on behalf of the petitioner.

Ditlevson, Rodgers, Hanson and Jarrett, P.S. by Craig W. Hanson, Attorney at Law, appeared on behalf of the employer.

By a petition filed on August 11, 1983, Tumwater United Public School Employees, an affiliate of the Public School Employees of Washington (petitioner) requested the Public Employment Relations Commission to clarify an existing bargaining unit of employees of Tumwater School District No. 33 (district). At issue is the status of certain "substitute" employees. A hearing was held on April 23, 1984, before William A. Lang, Hearing Officer. The parties filed post-hearing briefs.

BACKGROUND:

The district employs an unspecified number of employees in positions of school bus driver, mechanic, maintenance-custodian, grounds worker and food service worker. These classes include employees who work only during the instructional year. At least during the instructional year, the employer makes provision to assign a substitute employee when an employee regularly scheduled for certain types of work is absent.

The petitioner was certified as the exclusive bargaining representative of a bargaining unit described as:

All full-time and regular part-time transportation, food service, custodial, maintenance, mechanic and grounds employees of the district, excluding supervisors, clerical employees and confidential employees.

Tumwater School District, Decision 1388-A (PECB, 1982)

The direction of election in that case, Decision 1388 (PECB, 1982), indicates that there was a consolidation of previously existing separate bargaining units, ending up with a single bargaining unit which includes essentially all of the "blue collar" employees of the district. No reference is found in the direction of election or in the certification to "substitute" employees, and neither party claims in the current proceeding that the "substitutes" question was raised or ruled upon in the earlier proceeding.

The certification was issued on April 27, 1982. The parties had a collective bargaining agreement effective for the period June 14, 1982 through August 31, 1983, covering a bargaining unit described in terms virtually identical to those contained in the certification.

As early as November 22, 1982, the union submitted to the employer a dues checkoff authorization card signed by a "substitute" employee and asserted, on the basis of the decision in Sedro Woolley School District, Decision 1351-C (PECB, 1982), a claim of bargaining unit status for "substitute" employees who have worked at least thirty days in the last school year. The employer initially did not respond to the union, and it did not initiate dues deduction pursuant to RCW 41.56.110 for the "substitute" employee named in the authorization card submitted. On January 12, 1983, the employer responded to the union by letter, claiming that the agreement of the parties permitted only "regular full-time employees" in the unit and suggesting that the matter be raised during forthcoming contract negotiations.

The union raised the issue of the status of "substitute" employees during collective bargaining in 1983. The parties were unable to resolve their differences, and the petition in the instant case was filed on August 11, 1983. The parties signed a new collective bargaining agreement on January 6, 1984 covering the period September 1, 1983 through August 31, 1985. In that agreement, they described the bargaining unit as:

... all classified employees in the following general job classification: bus driver, food service, mechanics and custodial-maintenance-grounds. Those excluded are the supervisors of maintenance, food service and transportation and clerical employees. ...

Bargaining notes submitted in evidence indicate that the unit determination issue concerning "substitutes" had been referred to this Commission and was set aside from bargaining by August 18, 1983.

The district has formed a personnel cooperative with a number of neighboring school districts. The names of potential substitute employees are obtained initially from applications submitted to the personnel cooperative. Applicants are then interviewed by district personnel, and are placed on the district's call list after a favorable interview. Persons who work as a substitute for the Tumwater district may also be on call as a substitute employee in other districts participating in the personnel cooperative.

Substitute bus drivers must meet the same state certification and training requirements as do regularly scheduled drivers. They are paid at the "first year" rate set forth in the collective bargaining agreement, but do not receive any fringe benefits. Except for kindergarten route assignments, substitutes generally have the same duties and work hours as the scheduled driver being replaced. All of the bus drivers share common supervision. Substitute drivers are not formally evaluated. One such substitute worked for Tumwater approximately 144 days during the 180 day 1982-83 school year.

Substitute food service workers are used as cooks. Both regularly scheduled and substitute cooks share common supervision by the food service supervisor. Substitutes are paid at the first step of a three step salary schedule for cooks. Substitute employees do not receive fringe benefits. One such employee worked for Tumwater approximately 48 days during the 1982-83 school year.

Substitute custodians have the same skills, duties and supervision as regular employees. Substitutes routinely work the same hours and duties as the employee they replace, except that the district has a practice of moving up a swing shift employee to a day shift vacancy in the same school and then using a substitute to fill the swing shift vacancy. At least three individuals worked more than 30 days each as "substitute" custodians in Tumwater during the 1982-83 school year.

The district normally fills its vacancies in regularly scheduled driver, maintenance, custodian, grounds and food service positions from its substitute call list. The decision to hire a particular person to fill a vacancy is based on a variety of factors including availability to work the required hours, ability, prior performance in the position and length of service as a substitute.

DISCUSSION:

Beginning with Everett School District, Decision 268 (PECB, 1977), the term "substitute" has been recognized to be an imprecise term including persons who are both "regular" and "casual" employees in the lexicon of labor-management relations. Applying the somewhat restrictive unit determination provisions of Chapter 41.59 RCW, the Commission has developed a body of case law which divides substitute teachers according to objective tests into two classes and then includes those having a recurrent employment relationship with a particular employer into the same bargaining unit with that district's regularly assigned teachers. See: Columbia School District, et al., Decision 1189-A (PECB, 1981).

The employment situations and personnel practices of school districts concerning non-teaching positions share a number of commonalities with those concerning teachers. The school districts typically conduct their educational programs for a limited number of days per year on pre-ordained dates. Students are assigned to teaching stations and other facilities according to programatic needs, and staff members are assigned to provide the various types of teaching and non-instructional services called for by the program. Neither students, programs or district personnel are easily rearranged to accommodate an absence of an employee, and so the employers routinely make provision to assign a substitute employee in the event of an employee absence, leaving the students and facilities as much as possible to their previously scheduled arrangements. Given these fundamental factual similarities, the question has nevertheless been raised as to whether Chapter 41.56 RCW permits or requires some different treatment of "substitute" employees of school districts who work in non-teaching occupations.

In Sedro Woolley School District, Decision 1351-C (PECB, 1982), persons employed as a "substitute" by the school district for more than 30 days within any 12 month period ending during the current or immediately preceding school year, and who continued to be available for employment as a substitute, were found to be "regular part-time" employees appropriately included in the same bargaining unit with full-time and other part-time employees performing similar non-instructional work. The threshold period of work was similar to that applied by the Commission under Chapter 41.59 RCW, and was designed to differentiate between those who have a reasonable expectancy of continued employment and those who are merely "casual" employees having had one or a few separate periods of transitory employment.

The facts in Sedro Woolley are almost identical to those in the present controversy. As in Sedro Woolley, Tumwater's substitutes, with a few exceptions, possess the same skills, meet identical job requirements, perform parallel duties and work the same hours as the employees they replace. These substitutes are subject to similar supervision and, on days when they work, are fully integrated into the work force. As in Sedro Woolley, Tumwater's substitutes are paid at a lower rate of pay and do not receive fringe benefits. They are similarly on call and may refuse assignment without penalty.

A Separate unit?

The district argues that the "substitute" employees could be in a separate unit, because they do not share a substantial and continuing community of interest with regularly scheduled employees. It follows, according to the district, that a question concerning representation exists barring proceedings under Chapter 391-35 WAC. The district particularly relies on the claim that regularly scheduled bus drivers are exclusively assigned kindergarten routes and are given preference under the collective bargaining contract on "lucrative" special trip assignments. "Lucrative" trips are defined as those over 50 miles in length or overnight. The record, however, does not support the argument.

Kindergarten routes and lucrative trips are bid by seniority. The district does not generally assign either substitute drivers or even newly hired regularly scheduled bus drivers to these routes. Substitute employees have, however, been assigned to kindergarten routes when regularly scheduled employees weren't available. Special trips over 50 miles constitute a small portion of the district's bus runs. The kindergarten routes are also a relatively small part of the transportation operations, which include elementary and secondary grades and special education routes. In short, the district's argument focuses on a small part of the transportation activity, and on its use of a relatively few senior bus drivers in sensitive assignments, as justification for a blanket exclusion of substitute employees who, for the most part, work the same hours and perform the same duties under the same supervision as a majority of the scheduled employees they replace. That there may be some potential for disharmony resulting from competition for special runs between regularly scheduled and substitute employees is not compelling. Aside from a similar potential in Sedro Woolley, a history of mistrust or competition would not seem to be alleviated by a separate unit structure or by no unit at all. In City of Seattle, Decision 781 (PECB, 1979), it was noted that a separate unit with competing interests and overlap of function would exacerbate such problems, while commingling would enhance the potential for avoiding them. A dialogue within the bargaining unit between scheduled employees (some of whom formerly were substitutes) and current substitutes could have a positive effect.

The district also attempts to distinguish substitute employees from scheduled employees by the claim that the substitutes do not possess the same skills in handling students as do regular employees. The evidence shows that skill levels vary even among the scheduled employees. Inexperienced drivers may well be unable to give kindergarten children necessary extra attention while learning the routes and equipment, but the claims of more senior employees to the additional work hours would also seem to have something to do with the practices as they have developed. Experienced drivers are better able to control the children on longer trips, but the facts here again disclose an economic motivation to the practice which favors more senior employees in granting them a preference for "lucrative trips". On the other hand, the evidence shows that at least one substitute had the same skills as regular employees. Differences in skill levels possessed by employees working the same job are commonplace. It would be ludicrous to create two or more bargaining units for the single classification of bus driver based on skill levels gained by experience.

The district argues that the petitioner's bargaining proposal emphasizes the differences by proposing limited contract rights for substitutes. The proposal seeks to cover the substitutes only under the probation, seniority, layoff, grievance and salary provisions. Omitted are provisions relating to hours of work and fringe benefits from which they have been traditionally excluded. The fact that the union has proposed limited rights for substitutes does not necessarily create an inference of different interests. The proposal may have resulted from what the substitutes requested or thought feasible. At any rate, it is not unusual for part-time workers to receive limited fringe benefits.

The district argument is additionally flawed because the transportation department (wherein the claimed distinctions are identified) is only a part of the district's operation. The union also seeks to represent substitute employees involved in food service, custodial and maintenance activities. Other than pointing out that there is a practice of moving swing shift custodians to fill day shift vacancies before utilizing substitutes on the swing shift, no evidence has been offered to support a separate unit for those substitute employees. Importantly, the creation of a separate unit would fragment the employer's workforce, would undo the consolidation of "blue collar" units effected by the representation proceedings in 1982, and would run counter to long-standing Commission policy favoring broad, generic units of school district support personnel. See: Yelm School District, Decision 704-A (PECB, 1980).

Even Farmers Insurance Group, 143 NLRB 240 (1963), which is relied on by the district as authority, acknowledges that the National Labor Relations Board generally includes part-time employees in the same unit with full-time employees when they perform similar work on a regular basis for a sufficient amount of time during an appropriate calendar period to demonstrate a substantial and continuing interest in wages and other condition of employment. The exact amount of time does not control, Greenfield Components, 317 F.2nd 85 (1st Cir., 1963), but must be considered with other factors in order to determine whether an employee has a sufficient community of interest. See also: Tuscarawas Landmark, Inc., 242 NLRB 1294 (1979). Substantial similarities in duties, wages and working conditions outweigh slight differences. The indefinite length of employment does not preclude a finding that the employees in question share a sufficient community of interest. Evergreen Legal Services, 246 NLRB 964 (1977). The district has not been persuasive in distinguishing the facts of this case from those of Sedro Woolley. The few dissimilarities are insufficient to establish a separate community of interest constituting a basis for a separate bargaining unit for substitute employees.

Expectancy of Employment?

The district also seeks to distinguish the instant case from Sedro Woolley on the basis that its substitute employees have only a transitory expectation of continued employment as substitutes, because the district looks to its existing group of substitute employees to fill scheduled positions when vacancies occur. Rather than advancing the cause of the district in the case, the argument supports the inclusion of the substitutes in the unit with the scheduled employees.

"Probationary" employees are routinely included in the same unit with those who have achieved "permanent" status under job security schema. The fact that they may be hired for regularly scheduled work as a result of substitute work would seem to enhance, rather than diminish, the expectation of continued employment. To take the posture that a practice of hiring part-time workers to full-time positions is reason to deny representation rights to the regular part-time employees begs the basic question of their right to union representation. Moreover, there remain "substitute" employees who meet the threshold test, but have not been offered or have not accepted regularly scheduled assignments. Those individuals are employees within the meaning of the Act who have an interest which continues until their circumstances change. The lack of permanency in the employment relationship does not control. The test for inclusion is not whether they seek permanent employment but whether the circumstances of their present employment gives them a community of interest with others. Grubers Supermarket, Inc., 201 NLRB 612 (1973). The regular seasonal employees in the cannery operation in Knapp-Sherril Co., 196 NLRB 1072 (1972), are not unlike the individuals in this case, who continue to work from year to year as substitutes and have a reasonable expectation of obtaining such work.

Improper Procedure?

The employer's protest that a question concerning representation exists bears some scrutiny even though, for reasons indicated above, the employer's arguments based on the notion that a separate unit is possible are rejected. The general rule is that unit clarification procedures are not available to round out jagged edges or otherwise cure defects built into a unit description by the parties at the time the unit was recognized or certified. Such matters generally raise a question concerning representation. See: Mount Vernon School District, Decision 1629 (PECB, 1983). On the other hand, a substantial change in the interpretation of the statute has been found to constitute a change of circumstances of the type which will warrant application of unit clarification procedures. This eventuality is discussed in detail in City of Richland, Decision 279-A (PECB, 1979).

The representation cases which led to the certification of this bargaining unit were filed on June 18 and June 29, 1981. A complicated situation developed involving two organizations seeking separately to unseat a third organization which was then the incumbent in one of the components of what was to become the consolidated unit, as well as the question of merger of units. The case was one of the first impression on the subject of merger of previously separate units, and the proceedings dragged on.

The proceedings which led to Sedro Woolley, Decision 1351-C (PECB, 1982) were commenced in February, 1981, by another affiliate of Public School Employees of Washington. That, too, was a case of first impression. But the proceedings in Sedro Woolley took a detour into dismissal for procedural grounds, a reopening of the record to supplement the evidence, and then finally a decision on the merits issued some two months after the proceedings in Tumwater were closed. Prior to the decision in Sedro Woolley, the substitute employees in that school district were virtually treated as non-persons for purposes of collective bargaining. That the same interpretation might be placed on the facts in Tumwater would not be surprising. Essentially similar positions were taken and rejected in Everett School District, Decision 262 (EDUC, 1977) and Tacoma School District, Decision 655 (EDUC, 1979) with respect to the substitute teachers in those cases. Sedro Woolley School District, Decision 1351-C (PECB, 1982) represented a new interpretation of Chapter 41.56, departing from prior practice and precedent, and giving new meaning to the term "regular part-time." This appears to constitute a change of the type contemplated in City of Richland, supra. The union's demand for recognition made in November, 1982, would seem to have been well-taken.

Inclusion in a bargaining unit by accretion does not confer contractual rights, but rather a maintenance of the status quo on wages, hours and working conditions and a right of the exclusive bargaining representative to bargain on behalf of the employee(s) occupying the accreted position(s). Ironically, access to dues checkoff is one of the few substantive rights which flow from inclusion in a bargaining unit. See: Renton School District, Decision 1501-A (PECB, 1982); Mason County, Decision 1552 (PECB, 1983). The union did not file unfair labor practice charges, and was evidently content to defer the issue for bargaining and to then file a petition for clarification of the existing bargaining unit. The union may have foregone earlier opportunities to pursue its claim as to substitutes, but the evidence does not support a finding that the union agreed to the exclusion of substitutes from the unit after becoming aware of the change of interpretation represented by the decision in Sedro Woolley.

The question remains as to whether the substitutes who meet the threshold test for treatment as "regular part-time employees" should be entitled to a vote on their inclusion in the bargaining unit. They cannot stand alone as a separate bargaining unit, and this is not a case like Tacoma School District, Decision 1908 (PECB, 1984) where a newly created class could appropriately have been included in either of two existing bargaining units. Commission precedent precludes conduct of a unit determination ("Globe") election unless all of the choices made available to the employees are appropriate units. Clark County, Decision 290-A (PECB, 1977). Further, Commission precedent consistent with NLRB precedent precludes permitting employees in a part of an appropriate bargaining unit to vote separately on a question concerning representation. See: City of Seattle, Decision 1229-A, (PECB, 1982). The employer in the present case has not asserted any claim that the accretion sought would place the majority status of the union into question. The tally of ballots incorporated in the certification order in Tumwater School District, Decision 1388-A (PECB, 1982), reflects that PSE received the vote of 51 of the 66 employees eligible to vote in that election. Absent some objective evidence from the employer, there is no reason to anticipate that an accretion now affecting only approximately 10% of the number of employees in the bargaining unit and made in order to reflect current unit determination policies of the statute would place in question the majority status of the union in this case.

FINDINGS OF FACT

1.                  Tumwater School District No. 33 is a school district organized and operated under Title 28A RCW and is a "public employer" within the meaning of RCW 41.56.030(1).

2.                  Tumwater United Public School Employees, an affiliate of Public School Employees of Washington, is a "bargaining representative" within the meaning of RCW 41.56.030(3) which has been certified as the exclusive bargaining representative of all full-time and regular part-time transportation, food service, custodial, maintenance, mechanic and grounds employees of Tumwater School District No. 33, excluding supervisors, clerical employees and confidential employees.

3.                  Most of the classified employees of the district are regularly scheduled for work for varying periods depending on their job classifications.

4.                  Apart from regularly scheduled employees, the district maintains lists of substitute employees in the same general classifications as are listed in the description of the bargaining unit, and calls such persons as needed to fill in when scheduled employees are absent.

5.                  Substitute employees do not work for any specific time but, when employed, perform substantially the same duties, work the same hours and are subject to the same supervision as regularly scheduled employees. Substitutes are paid at the first step of the salary schedule, and do not enjoy seniority rights or receive medical, sick leave or vacation benefits.

6.                  The district gives preference to persons on its substitute lists in filling vacancies in regularly scheduled positions.

7.                  The petition initiating this petition was filed August 11, 1983, following rejection by the district of a demand by the union for recognition as the exclusive bargaining representative of certain substitute employees based on the decision in Sedro Woolley School District, Decision 1351-C (PECB, 1982).

8.                  Certain of the individuals employed by the district as substitutes have accumulated a substantial history of employment in that capacity. Substitute classified employees who are associated with Tumwater School District No. 33 for more than 30 days of work within any 12-month period are regular part-time employees who have a reasonable expectancy of continued employment by the district during the remainder of the school year and during the succeeding school year, except where the employment relationship has been expressly terminated.[1]

9.                  Substitute classified employees who have not been employed for more than 30 days within a 12-month period are casual employees who do not have an expectation of continued employment.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and no question concerning presently representation exists.

2.                  Casual employees are to be excluded from bargaining units, but regular part-time employees, including those described in Finding of Fact No. 8 above, are appropriately included pursuant to RCW 41.56.060 in the existing bargaining unit together with full-time and other regular part-time employees performing similar work.

ORDER

1.                  Substitute classified employees employed sporadically on call as needed and who have not worked at least 30 days during a period of 12 months ending during the current or immediately preceding school year are casual employees who are not included in the existing bargaining unit.

2.                  The bargaining unit described in paragraph 2 of the foregoing findings of fact is clarified to include, as regular part time employees, those individuals who have been employed for more than 30 days of work within any 12 month period ending during the current or immediately preceding school year, and who continue to be available for employment as substitutes.

DATED at Olympia, Washington, this 10th day of January, 1985.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This Order may be appealed by filing a petition for review with the Commission pursuant to WAC 391-25-390(2).