STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
AMALGAMATED TRANSIT UNION, LOCAL 587	CASE 7880-C-89-420
For clarification of an existing bargaining unit of employees of:	DECISION 3563 - PECB
MUNICIPALITY OF METROPOLITAN SEATTLE (METRO)	ORDER CLARIFYING BARGAINING UNIT

Frank & Rosen, by Clifford Freed, Attorney at Law, appeared on behalf of the union.

Philip A. Thompson, Employee and Labor Relations Specialist, appeared on behalf of the employer.

On April 3, 1989, Amalgamated Transit Union, Local 587, filed a petition with the Public Employment Relations Commission, seeking clarification of an existing bargaining unit of employees of the Municipality of Metropolitan Seattle. A hearing was held at Seattle, Washington, on March 20, 1990, before Hearing Officer Jack T. Cowan. The parties filed post-hearing briefs.

BACKGROUND

The Municipality of Metropolitan Seattle (METRO) is a municipal corporation created under Chapter 35.58 RCW. METRO is a dual-function agency that deals with regional wastewater treatment and public transportation in King County, Washington.

METRO has collective bargaining relationships with several labor organizations representing various bargaining units among its approximately 4000 employees: Service Employees International Union, Local 6, represents employees in METRO'S wastewater treatment operation; International Brotherhood of Electrical Workers, Local 77, represents electrical craft employees who work on the overhead wire network used for the operation of trolley buses in METRO'S public transportation operation; International Federation of Professional and Technical Engineers, Local 17, AFLCIO, represents certain "commuter pool" employees in METRO'S public transportation operation;[1] and Amalgamated Transit Union, Local 587, represents approximately 2900 operations and maintenance employees in METRO'S public transportation function.

METRO and Local 587 are parties to a collective bargaining agreement effective November 1, 1987 through October 31, 1990. The recognition provision of that contract reads, in part, as follows:

SECTION 1 - SOLE BARGAINING AGENT

A. METRO recognizes the UNION as the sole bargaining agent for those Employees working in the job classifications listed in Articles XV through XX - III and Exhibit A of this Agreement. Current or future Employees assigned to perform work which has been historically or traditionally bargaining unit work at METRO or its successors, or which is agreed, or legally determined to be, bargaining unit work, shall also be covered by the terms of this AGREEMENT.

Excluded from that unit are managers, secretaries, accountants, and auditors.

The history concerning the work at issue in this proceeding goes back to a time before the creation of METRO, when public transportation in Seattle was provided by Seattle Transit and its predecessors. Maintenance and repair of Seattle Transit's few radios was contracted out to a private company, Ratelco. The radio system was upgraded in late 1971 or early 1972, when General Electric began to maintain and repair the radio system. In 1978 or 1979, Puget Sound Instrument replaced General Electric as the contractor for radio maintenance and repair. Commencing in 1983, METRO began an ambitious program to upgrade its communications system, equipping its entire bus fleet with a two-way radio communications system. That project is still being pursued, although METRO and its contractor reached a parting of the ways in 1988, in a dispute involving the quality of the new system. METRO then created its own radio maintenance shop, and hired a "chief of radio maintenance" and two "radio maintenance equipment specialists" to staff that shop. The employees working under the latter title are at issue in this proceeding.

The title of "radio maintenance equipment specialist" was new in 1988, and is not among the titles listed in the parties' 1987-90 collective bargaining agreement. The basic duties of the "radio maintenance equipment specialist" include the installation, troubleshooting, and repair of fixed, mobile and portable communications equipment, maintenance of repair records, calibration of test equipment, and performing routine preventative maintenance. They work on all communications equipment used by METRO other than telephones. The disputed employees are supervised by the "chief of radio maintenance", who reports to the "supervisor of transit communications". Their primary work station is located on the 12th floor of the Exchange Building, in downtown Seattle. The maximum pay rate for the "radio maintenance equipment specialist" classification is approximately $17.30 per hour.

The title of "electronic technician" appears among approximately 75 METRO job classifications represented by the ATU. The employees in that classification are responsible for maintaining and repairing the electronic devices and equipment used in METRO'S public transportation operation, including some communications equipment. The "electronic technician" employees operate various types of specialized electronic test equipment, such as oscilloscopes, volt-ohm meters, and signal generators. The duties include troubleshooting, removal and replacement of various simple and complex electronic devices on electric-powered and diesel-powered transit coaches and other equipment, repair of faulty and malfunctioning components, maintaining repair records, calibration of test equipment, and routine preventative maintenance. These employees are supervised by a "lead electronic technician" who reports to the "chief" of the Electronics Group. The electronic technicians work primarily at METRO'S Central Maintenance Base. The maximum pay rate for "electronic technician" is $17.44 per hour.

POSITIONS OF THE PARTIES

The union contends that the employees working under the "radio maintenance equipment specialist" title share a community of interest with members of the existing transit bargaining unit, that the duties, skills, and working conditions of the disputed employees are not so dissimilar from other employees in the transit unit as to require that they be excluded from that bargaining unit, that the history of bargaining and extent of organization among METRO'S transit employees require the inclusion of the disputed employees in the existing bargaining unit, and that the desires of the employees are not controlling in this matter.

The employer contends that accretion of the radio maintenance equipment specialists to the existing bargaining unit is not appropriate, because such an action would deny the affected employees the right of self-determination and freedom to choose whom they desire to represent them. The employer argues that the extent of organization among the public employees is not controlling, and that the "radio maintenance equipment specialists" do not share the requisite community of interest with vehicle maintenance employees to warrant their inclusion in the bargaining unit represented by the union.

DISCUSSION

Timeliness of the Petition

The disputed classification was created during the life of the parties' current collective bargaining agreement. The procedural requirements of Toppenish School District, Decision 1143-A (EDUC, 1981) and WAC 391-35-020 appear to have been satisfied by filing of the petition in a timely manner following the change of circumstances giving rise to the dispute. The case is properly before the Commission.

Applicable Legal Principles

The authority of the Public Employment Relations Commission to determine bargaining units is set forth in RCW 41.56.060:

RCW 41.56.060 DETERMINATION OF BARGAINING UNIT -- BARGAINING REPRESENTATIVE. The commission, after hearing upon reasonable notice, shall decide in each application for certification as an exclusive bargaining representative, the unit appropriate for the purpose of collective bargaining. In determining, modifying, or combining the bargaining unit, the commission shall consider the duties, skills, and working conditions of the public employees; the history of collective bargaining by the public employees and their bargaining representatives; the extent of organization among the public employees; and the desire of the public employees....

The case at hand involves a proposed "modification" of the existing bargaining unit. The general rule in such matters was set forth by the Commission in City of Richland, Decision 279-A (PECB, 1978), affirmed 29 Wn.App. 599 (Division III, 1981), review denied 96 Wn.2d 1004 (1981), as follows:

Absent a change of circumstances warranting a change of the unit status of individuals or classifications, the unit status of those previously included in or excluded from an appropriate bargaining unit by agreement of the parties or by certification will not be disturbed. However, both accretions and exclusions can be accomplished through unit clarification in appropriate circumstances.

The claim by Amalgamated Transit Union Local 1599 arises out of the "accretion" doctrine that originated in decisions of the National Labor Relations Board (NLRB). Under that doctrine, employees added to an existing operation may be included in an existing bargaining unit under some circumstances. A pre-existing contract may then be extended to cover the employees in the new operation, and will bar an election in the expanded unit. Great Atlantic & Pacific Tea Co. (A & P Stores), 140 NLRB 1011 (1963); Horn and Hardart Co., 173 NLRB 1077 (1968); Renaissance Center Partnership, 239 NLRB 180 (1979); Panda Terminals, 161 NLRB 1215 (1966).

The Public Employment Relations Commission has embraced and applied the accretion doctrine with some caution. In Kitsap Transit Authority, Decision 3104 (PECB, 1989), it was observed:

Employees ordinarily are permitted to vote on their choice of exclusive bargaining representative. RCW 41.56.040; RCW 41.56.060. Accretions are an exception to the norm, and will be ordered only where changed circumstances lead to the presence of positions which logically belong only in an existing bargaining unit, so that those positions can neither stand on their own as a separate bargaining unit or be logically accreted to any other existing bargaining unit. See, Ben Franklin Transit, Decision 2357-A (PECB, 1986). Since accretion is accomplished without giving the affected employees an opportunity to vote on their representation, the party proposing an accretion has the burden to show that the conditions for an accretion are present.

Accretions have been ordered in some cases. In Oak Harbor School District, Decision 1319 (PECB, 1981), a new classification of traffic safety instructors was at issue. Their function had been performed originally by certificated employees who were members of the school district's teaching staff and corresponding bargaining unit. Later, the traffic safety education program was contracted out to a commercial driver training firm. When the school district once again resumed operation of the driver safety program, the new employees hired held limited certifications from the Superintendent of Public Instruction. They were not deemed to be "certificated" employees within the meaning of Chapter 41.59 RCW, and were, therefore, subject to Chapter 41.56 RCW. An appropriate bargaining unit already existed under Chapter 41.56 RCW, consisting of all of the classified employees of the school district. Against an alternative of "stranding" them, the new traffic safety positions were accreted to the existing collective bargaining unit. San Juan County, Decision 358 (PECB, 1978), involved a newly-created job category of "office engineers". These employees had never bargained separately, and they had a clear community of interest with the remainder of the employees in the employer's Road Department. They were accreted to a pre-existing unit which included all of the other employees of the same department, the alternative being the creation, or potential creation, of a fragmentary separate unit consisting of three employees.

Requested accretions have been denied in other cases. In Kitsap Transit, supra, three separate bargaining units had been organized among the non-supervisory employees of the employer. When a new cadre of "facilities maintenance" employees was added to the employer's workforce, it was concluded that none of the existing bargaining units had a clear claim to the new work, and that each of the three existing bargaining units had some basis to claim the employees at issue. Under those circumstances, the potential for problems stemming from the creation of a fragmentary separate unit consisting of two employees was outweighed by the right of the employees to select their bargaining representative. In City of Vancouver, Decision 3160 (PECB, 1989), a small group of employees sought to organize separately after being "stranded" without collective bargaining representation for a lengthy period of time. The employer resisted creation of another bargaining unit within its workforce and proposed accretion of the petitioned-for employees to an existing bargaining unit, but those arguments were rejected. The employees were permitted to vote on their choice of exclusive bargaining representative.

The record in this case clearly establishes that METRO has expanded its operation, to have its own employees perform work which has not been performed by METRO employees in the past. The work involves maintenance and repair work in support of METRO'S principal public transit operation. There is a bargaining unit in existence which essentially includes all of the other METRO employees who perform maintenance and repair work on the bus equipment and other facilities used by METRO in its public transit operation. The question in this case is whether, upon becoming employees of an expanded METRO operation, the employees in the new "radio maintenance equipment specialist" classification should have been subsumed within the collective bargaining relationship which was already in existence at that time between METRO and the ATU.

Duties, Skills and Working Conditions

It is not surprising that the parties have divergent views regarding application of this portion of the statutory unit determination criteria. The employer considers the "radio maintenance equipment specialist" employees to be a new breed of employees performing duties so mysterious that only they can perform the tasks assigned to them, and it desires that they be kept separate from other METRO employees. The union, on the other hand, considers the newly created classification as merely an extension of the bargaining unit workforce that performs day-to-day maintenance and repair of equipment and facilities used by METRO in its public transportation function, with particular focus on the similarity to the "electronic technician" classification.

The job descriptions for "radio maintenance equipment specialist" and "electronic technician" clearly establish that both classifications repair and maintain "electronic" equipment. The record establishes that any "electronic technician" who possesses the basic education and experience needed for that job could learn either function in a reasonable amount of time. The same would necessarily be true of employees in the disputed classification. Of greater importance, the focus on comparison with the "electronic technician" classification is deemed to be too narrow. The unit determination criteria are not confined to comparing particular classifications within and outside of a bargaining unit. The existing bargaining unit includes a wide variety of employees working in support of METRO'S public transportation function. There is no question that the disputed employees are specialists in a particular type of work, but so also presumably are the employees who repair the diesel engines and brakes of METRO'S bus fleet. METRO could be at greater risk of financial loss for a poorly repaired diesel engine than for a poorly repaired two-way radio, and could be at greater risk of public liability for poorly repaired brakes than for a poorly repaired two-way radio. There is some fundamental appeal to having the disputed employees in the same unit with other employees maintaining and repairing METRO'S bus fleet.

The job description of the disputed positions appears to be somewhat interchangeable with that of the "electronic technician" until the subject of education is mentioned. The "radio maintenance equipment specialists" are nominally required to have an associate degree in "electronics" or the equivalent combination of education and experience, plus three years of experience in the installation, maintenance, troubleshooting and repair of electronic communications or other electronic mechanical instruments and equipment. A Federal Communications Commission radio-telephone operators license is required, and a NABER certificate is desirable. The "electronic technician" is nominally required to have a high school education or GED equivalent, to have completed a two-year college-level electronics program, and to have two years of experience in the troubleshooting and repair of "electronic" equipment. Upon close examination of the facts, however, the record does not support METRO'S contention that the disputed employees have educational requirements or skill levels substantially different from those found within the existing bargaining unit. The record in this matter indicates that none of the current "radio maintenance equipment specialist" employees have the required AA degree, whereas several of the current "electronic technician" employees actually hold AA degrees in electronics.

The employer points to the different work locations of "radio maintenance equipment specialist" and "electronic technician" employees. Both classifications work out of a "shop", and employees from each group travel to other METRO locations to perform their assignments. In fact, the "radio maintenance equipment specialists" do not necessarily report to their shop in the Exchange Building if they are scheduled to travel to other locations. Bargaining unit employees working in other maintenance and repair specialties are assigned in a variety of locations throughout King County. It makes little difference if METRO creates a "shop" for the disputed employees at the top of the Space Needle or any other location, if they routinely travel to the locations where other METRO employees work on the same bus fleet.

The employer claims that the disputed employees have separate and differing amounts of close supervision, more travel requirements, a requirement to carry pagers, and different uniform requirements. Again, however, the employer's focus is artificially narrowed to a comparison with the employees in the "electronic technician" classification. The "radio maintenance equipment specialists" do wear pagers, and are "on call" every other week, but the record does not indicate that they are unique among METRO employees in this regard. The use of pagers and "on call" status appear to relate more to practical job considerations than to fundamental differences of working conditions. In the case of the "electronic technician" classification, employees are on duty 24 hours per day, so that pagers are not necessary. Pagers are a product of modern technology that may allow more efficient utilization of employees, but are not a per se basis for exclusion from a bargaining unit. Similarly, the fact that some employees may be "on call" does not preclude their inclusion in the same bargaining unit with other employees of the same employer.

The most important aspect of vacation accrual, i.e., the annual amount of vacation hours for employees, appears to be the same for the disputed employees and for members of the ATU bargaining unit. The vacation benefit for the "radio maintenance equipment specialist" classification is different from that of bargaining unit employees only in the areas of carrying forward vacation accruals and a requirement to use vacation in one-week increments. The minor difference is primarily explainable on the basis that METRO has treated the disputed employees as "unrepresented" up to this time. In the face of a timely unit clarification petition, neither the union nor the Commission are bound by the bargaining unit status and attendant benefit levels assigned by the employer to a newly created classification.

The differences of work hours relied upon by the employer are similarly not persuasive. The "radio maintenance equipment specialists" have worked up to this time from 7:30 a.m. to 4:00 p.m. The work hours of bargaining unit employees, including the "electronic technician" classification, are governed by the collective bargaining agreement, which permits assignments to day, swing or graveyard shifts. Of greater importance, both the disputed employees and bargaining unit employees have a basic work day of 8 hours and a basic work week of 40 hours, and any approved or assigned work beyond the basic work day or week is paid at the overtime rate.

The "radio maintenance equipment specialist" employees have not been provided with uniforms up to this time. Bargaining unit employees doing maintenance and repair work are provided with uniforms under the collective bargaining agreement between the ATU and METRO. Again, the difference appears to stem largely from METRO'S unilateral assignment of an "unrepresented" status to the disputed employees. Nothing indicates that the wearing of uniforms would be inappropriate for the disputed employees.

In summary, the "radio maintenance equipment specialists" perform somewhat specialized duties, but their work is nevertheless in support of the public transportation function of the employer. The skills and training required are generally at the same level as that of bargaining unit employees doing maintenance and repair work, and there is a relatively close comparability of skills and training between the disputed employees and the "electronic technician" employees in the existing bargaining unit. Many of the working conditions now in effect for the disputed employees are the result of the employer's characterization of them as non-represented employees, and so is not binding on the Commission. Nothing in the record indicates that the disputed employees have working conditions that could, or should, prohibit their inclusion in the existing bargaining unit represented by the ATU.

History of collective bargaining

The disputed classification has existed only for a brief time, and the disputed employees have no history of separate bargaining. No other labor organization has raised a question concerning representation under Chapter 391-25 WAC or has otherwise sought to represent the affected employees.

The ATU has represented transit employees in Seattle since 1912, when the system was initially operated by Seattle Electric Railway. METRO took over operation of the public transit system in 1973, and has continued the bargaining relationship. The union now represents a "vertical" unit consisting of many of METRO'S first-line[2] supervisors, and virtually all of the non-supervisory employees of METRO'S transit department.[3] Such a unit is an appropriate bargaining unit under RCW 41.56.060.

Extent of Organization

Public transportation appears to be the larger of METRO'S dual functions, and Local 587 represents 2900 of the employer's 4000 employees. That extent of organization among the transit employees cannot be overlooked or lightly disregarded. In Yelm School District, Decision 704-A (PECB, 1979), the Commission expressed support for a unit that constituted "an integrated support operation essential to the overall discharge by the [employer] of its primary ... function". Accepting that the primary function of METRO'S transit division is the movement of people, keeping the bus fleet on the road is clearly a "support" function of the type preferred as a unit in Yelm. The radio maintenance shop is not separately managed, as the immediate supervisor of the disputed employees reports to a supervisor of transit communications who, in turn, reports up through the chain of authority in the transit division. A unit that included the disputed employees along with the other "support" employees in the transit division would clearly be an appropriate bargaining unit, while it is equally clear that the result sought by the employer would contradict preservation of an "integrated support operation".

Also weighing against acceptance of the employer's position here is that it would result in at least a temporary "stranding" of two employees. They would not be prevented from organizing for the purposes of collective bargaining in the future, but the viability of a two-person unit in a workforce 2000 times that size must inherently be questioned. There is no evident community of interest on which to align the disputed employees with any other group of METRO employees. It is thus concluded that a separate unit of "radio maintenance equipment specialist" employees could not be appropriate.

Desires of the Employees

For the reasons indicated above, the unit structure proposed by the employer would not be appropriate. There is no occasion to conduct a unit determination election to determine the "desires of the employees where one of the choices offered would be inappropriate. Clark County, Decision 290-A (PECB, 1977).

Accretion

An accretion will be ordered where the group of employees in question cannot stand alone as an appropriate bargaining unit. Tacoma School District, Decision 1908 (PECB, 1984); Lake Washington School District, Decision 1020 (EDUC, 1980). Such is the case here. The recently created classification will be accreted to the existing bargaining unit.

FINDINGS OF FACT

1.                  The Municipality of Metropolitan Seattle (METRO) is a municipal corporation within the meaning of RCW 41.56.020 and a "public employer" within the meaning of RCW 41.56.030(2). METRO provides public transportation and water pollution control services to residents of King County, Washington.

2.                  Amalgamated Transit Union, Local 587, a "bargaining representative" within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of an appropriate bargaining unit of operations and maintenance employees working in the public transportation functions of METRO. That bargaining unit includes employees performing support and maintenance tasks under the title of "electronic technician".

3.                  The union and the employer have negotiated a series of collective bargaining agreements, the latest of which is effective from November 1, 1987 through October 31, 1990.

4.                  During or about 1988, while the parties' current collective bargaining agreement was in effect, the employer created the new classification of "radio maintenance equipment specialist" and hired two employees in that classification. The "radio maintenance equipment specialist" title does not appear in the current collective bargaining agreement between the parties. METRO took the position that the new employees were not within the bargaining unit represented by the ATU, and it established wages, benefits and other working conditions for them in accordance with its policies applicable to non-represented employees.

5.                  The employees in the "radio maintenance equipment specialist" classification perform duties that generally involve support of the employer's primary transportation function, by maintenance of various electronic communications equipment. The tasks involved are generally similar to those of employees working in the bargaining unit classification of "electronic technician".

6.                  The employees in the "radio maintenance equipment specialist" classification are generally called upon to have educational background and skills suitable for skilled maintenance work, and specifically have skills similar to those of employees working in the bargaining unit classification of "electronic technician".

7.                  The employees in the "radio maintenance equipment specialist" classification are assigned to and supervised within METRO'S public transportation department. They are based at a shop in the Exchange Building in downtown Seattle, but travel to other METRO facilities where they interact with other METRO employees working in support of METRO'S transit function. They receive wages, hours and working conditions which are generally similar to those received by other skilled maintenance personnel. Certain differences of benefits existing up to this time are attributable to the employer's application of its personnel policies for non-represented employees to the disputed employees.

8.                  The employees in the "radio maintenance equipment specialist" classification have no separate history of collective bargaining. The history of collective bargaining between the union and METRO dates back to 1973, when METRO took over the public transit function in Seattle. The history of collective bargaining between the union and predecessor employers dates back to 1912.

9.                  The union currently represents virtually all of the operation and maintenance employees in METRO'S transit function, including first-level supervisors. The only exceptions from that bargaining relationship are explainable on "craft" and "historical" grounds. The exclusion of the "radio maintenance equipment specialist" classification from that relationship would fragment the employer's support operation.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and Chapter 391-35 WAC.

2.                  The existing bargaining unit represented by Amalgamated Transit Union, Local 587, consisting of operations and maintenance employees of the transportation division of the Municipality of Metropolitan Seattle, is an appropriate unit for the purposes of collective bargaining under RCW 41.56.060, and no question concerning representation presently exists in that bargaining unit.

3.                  The position of "radio maintenance equipment specialist" is held by individuals who are "public employees" within the meaning of RCW 41.56.060.

4.                  A bargaining unit limited to employees holding the title of "radio maintenance equipment specialist" would not be an appropriate unit for the purposes of collective bargaining under RCW 41.56.060.

5.                  The employees holding the title of "radio maintenance equipment specialist" have a community of interest with the employees in the existing bargaining unit represented by the union, and are properly accreted to that bargaining unit under RCW 41.56.060.

ORDER

The existing bargaining unit of Municipality of Metropolitan Seattle employees represented by Amalgamated Transit Union, Local 587, is clarified to include employees working in the classification of "radio maintenance equipment specialist".

Dated at Olympia, Washington, this 23rd day of August, 1990.

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 391-35-210.