Davies, Roberts & Reid, by David W. Ballew, Attorney at Law, appeared on behalf of the union.

Braun Consulting Group, by Robert R. Braun, Jr. , appeared on behalf of the employer.

On October 10, 1994, Teamsters Union, Local 763, filed a petition for clarification of an existing bargaining unit with the Public Employment Relations Commission under Chapter 391-35 WAC, seeking to have three City of Marysville employees working under the title of "assistant court clerk" included in a bargaining unit represent­ed by the union. A hearing was held at Marysville, Washington, on April 12, 1995, before Hearing Officer Katrina I. Boedecker. The proceedings were tape-recorded, by stipulation of the parties, when the court reporter was unable to appear, and the Executive Director has listened to that tape-recording. The parties filed briefs.

BACKGROUND

The City of Marysville and Teamsters Local 763 have had a bargain­ing relationship dating back to 1973 . The union was certified as exclusive bargaining representative of "all full-time and regular part-time office-clerical employees of the City of Marysville" in City of Marysville, Decision 903 (PECB, 1980). The certification excluded "elected officials, appointed officials, supervisors, confidential employees and employees covered by collective bargaining agreements" without mention of a municipal court.

The employer and union were parties to a collective bargaining agreement effective from January 1, 1991 through December 31, 1993. That contract provided:

1.1 Recognition - The employer recognizes the Union as the sole collective bargaining agent for all employees of the City of Marysville, Washington, Office-Clerical and Public Works Departments, excluding supervisory, confidential and casual em ployees (ninety (90) work days or less in a calendar year). All normal and custom ary duties connected with maintenance and clerical functions that have been as signed to the bargaining unit shall be come and/or remain bargaining unit work performed by bargaining unit members.

            [Emphasis by bold supplied.]

The wage appendix to that contract listed 11 office-clerical job titles, including: "Administrative secretary", "senior accounting clerk", "public works secretary", "systems coordinator", "permit coordinator", "utilities account representative", "account clerk", "planning/compliance secretary", "utilities secretary", "parks secretary", and "receptionist". Those titles appear in various branches of the employer's table of organization.

In February of 1993, the employer advertised for applicants for a part-time "assistant court clerk" position. In July of 1994, the court administrator proposed title and pay changes for various positions in the municipal court,[1] but those would not have changed the fundamental nature of the jobs. In September of 1994, the employer advertised a full-time "assistant court clerk" job. As with the earlier job announcement, this was on the employer's letterhead, described the city as an equal opportunity employer, and called for submission of applications at the city hall.

During negotiations for a successor contract, the union sought inclusion of the "assistant court clerk" classification in the existing bargaining unit. The union filed the petition to initiate this proceeding on October 10, 1994. The parties did not sign a successor contract until January 20, 1995, when they finalized both an agreement extending their 1991-1993 contract through December 31, 1994, and a new collective bargaining agreement covering the period from January 1, 1995 through December 31, 1997.

POSITIONS OF THE PARTIES

The union urges that the employees in the "assistant court clerk" classification perform office-clerical duties, and should be included in the bargaining unit which encompasses all other office-clerical employees of the employer. The union contends that the employer created the disputed positions after the bargaining unit was created, and unilaterally decided to exclude them from the bargaining unit. It cites City of Centralia, Decision 3232 (PECB, 1989) , for the proposition that municipal court clerks are properly included in the same bargaining unit with other city employees.

The employer indicates that its interest in this matter is that the rights of the court clerks be protected to the fullest extent of the law. Noting that they are responsible to the mayor through a separate supervisor (i.e., the judge appointed by the mayor), and that they have never been included in the bargaining unit repre­sented by Local 763, the employer contends they have never made an independent choice regarding a bargaining representative.

DISCUSSION

It is clear that the disputed individuals are employees of the City of Marysville. City of Centralia, supra, RCW 3.46.140 and RCW 3.50.080 establish that municipal court employees are employees of the city for all purposes.

Duties, Skills and Working Conditions

The certification naming the union as exclusive bargaining representative for the office-clerical portion of the existing bargaining unit used customary terms ("confidential employees" and "supervisors") to describe the exclusions, but none of those are applicable in this situation. Similarly, nothing in that order suggests a categorical exclusion of employees working in a municipal court. The "all ... office-clerical employees" used to describe the inclusions in the certification is the type of occupational generic terminology preferred by the Commission in unit descriptions. When new classifications are created or titles are later changed, their unit status is determined on the basis of the generic types included in and excluded from the existing unit.

In this case, the job announcements for the disputed classification describe the duties and required qualifications, as follows:

This position performs non-judicial functions necessary for the operation of the Marysville Municipal Court.

…

Must be able to type 50 wpm; able to communi­cate effectively both orally and in writing; ... must have high school diploma or GED; ...

They thus appear to be within the "office-clerical" scope of the existing bargaining unit. A union witness testified, without contradiction, that the disputed employees receive the same benefits as employees in the existing bargaining unit.

History of Bargaining

There is no evidence that the disputed positions pre-existed the determination of the question concerning representation in 1980, or that they were excluded from the bargaining unit by stipulation of the parties at that time. To the contrary, the record suggests that the disputed positions were created since the bargaining relationship came into existence for the office-clerical group.

It is apparent that the employer made a unilateral decision to exclude the disputed positions from the bargaining unit. The job announcement it issued in 1993 described the position as "non union" . There is no evidence of previous discussion or agreement between the parties on the unit status of this class. The union business representative responsible for this unit testified, without contradiction, he first learned of the disputed position from the job announcement issued in February of 1993. He raised the unit inclusion question during negotiations for a successor contract in the autumn of 1993, and filed this unit clarification case before signing a new contract.

Extent of Organization

The existing bargaining unit is aptly described as a "wall-to-wall" configuration, at least insofar as the office-clerical employees are concerned. The exclusion of the petitioned-for employees from that unit would tend to yield excessive fragmentation of the employer's workforce, since the assistant court clerks would be eligible to form a separate bargaining unit. In the alternative, exclusion of the petitioned-for employees from the existing unit could be viewed as effectively stranding them without opportunity to implement their statutory bargaining rights effectively, because a separate unit limited to three municipal court employees would likely have little or no power in bargaining.

Desires of Employees

The Commission uses the unit determination election procedure to assess the "desires of employees" where any of two or more unit configurations could be appropriate. There is no occasion to invoke that procedure, however, where the application of the other statutory unit determination criteria leads to a conclusion that the choice being proposed would be inappropriate. Clark County, Decision 290-A (PECB, 1977) .

In this case, application of the "duties, skills and working conditions", "history of bargaining" and "extent of organization" criteria result in a conclusion that the office-clerical positions in the municipal court should be accreted to the existing office-clerical bargaining unit, and that a separate unit would not be appropriate. Where the conditions for accretion exist, that is accomplished by order without a vote of the affected employees.

FINDINGS OF FACT

1.         The City of Marysville is a public employer within the meaning of RCW 41.56.030(1).

2.         Teamsters Union, Local 763, a bargaining representative within the meaning of RCW 41.56.030(3), is the certified exclusive bargaining representative of all full-time and      regular part-time office-clerical employees of the City of Marysville.

3.         At an unspecified time, the employer created an "assistant court clerk" classification to perform non-judicial functions in support of the employer's municipal court. The duties performed are within the office-clerical generic occupational type. The minimum qualifications for the positions include a high school diploma or GED certificate and typing skills.

4.         The employer unilaterally excluded the assistant court clerk positions from the       office-clerical bargaining unit. The union first became aware of the existence of the positions in 1993, and it made a timely request for inclusion of the positions in the bargaining unit. It initiated this unit clarification proceeding prior to signing a successor contract.

CONCLUSIONS OF LAW

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

2.         The petition for clarification of an existing bargaining unit in this matter was timely filed under WAC 391-35-020(2) (b) .

3.         The assistant court clerk positions in the municipal court have a community of interest       with, and are properly accreted under RCW 41.56.060 to, the existing appropriate           bargaining unit which includes all of the office-clerical employees of the City of         Marysville.

ORDER CLARIFYING BARGAINING UNIT

The assistant court clerks are included in the existing bargaining unit of office-clerical employees.

Issued at Olympia, Washington, on the 17th day of October, 1995.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This order will be the final order of the agency unless appealed by filing a petition for review with the Commission pursuant to WAC 391-35-210.