Pierce County, Decision 6051 (PECB, 1997)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
TEAMSTERS UNION, LOCAL 599	CASE 12321-C-96-771
For clarification of an existing bargaining unit of employees of :	DECISION 6051- PECB
PIERCE COUNTY	ORDER CLARIFYING BARGAINING UNIT

Schwerin, Campbell and Barnard, by Michelle Mentzer, Attorney at Law, appeared on behalf of the union.

John W. Ladenburg, Prosecuting Attorney, by Denise Greer, Deputy Prosecuting Attorney, appeared on behalf of the employer.

On February 9, 1996, Teamsters Local 599 filed a petition for clarification of an existing bargaining unit with the Public Employment Relations Commission, seeking to have employees in certain job classifications in a newly-merged department included within a bargaining unit of Pierce County employees which it represents and which has historically included other job classifications in the newly-merged department. A hearing was held at Tacoma, Washington, on July 10, 1997, before Hearing Officer Vincent M. Helm. The parties submitted briefs.

BACKGROUND

Pierce County (employer) and Teamsters Local 599 (union) have a long-standing bargaining relationship. The parties’ collective bargaining agreement covering a 1994-1996 period covered approximately 150 employees in various departments or agencies of the employer. Of particular interest in this case, that contract covered employees in the “Office Assistant I” (OA1), “Office Assistant II” (OA2),[1] and “Grants Accountant” (GsA) classifications at an employer entity known as the Area Agency on Aging.[2]

In 1996, the employer formed a Human Services Department which merged the Area Agency on Aging and a “Social Services” entity which had existed within the employer’s table of organization. At the time of the merger: “Aging” had approximately 52 employees (including six in the OA1, OA2 and GsA classes) and an annual budget of about $10 million; “Social Services” had approximately 74 employees (including seven in the OA1, OA2 classes) and an annual budget of $50 million. None of the employees working in “Social Services” had ever been included in any bargaining unit.

Six of the divisions established within the new Human Services Department have employees in the OA1, OA2 and/or GsA classes:[3]

•          A “nurses” division provides services under funding formerly associated with “Aging”. The employer has continued to regard a full-time OA2 position in that division as being in the bargaining unit represented by Local 599. There was some debate about exclusion of a second OA2 position in that division from the bargaining unit on the basis that the employee works part-time (20 hours per week).

•          A “case management” division also provides services under funding formerly associated with “Aging”. The employer has continued to regard three OA2 positions in that division as members of the bargaining unit represented by Local 599, but a dispute has erupted concerning a fourth OA2 position that is now held by an employee who worked at “Social Services” prior to the merger.

•          An “administrative” division merged accounting and other support functions of the former entities.[4] The employer has continued to regard five OA2 positions in that division as members of the bargaining unit represented by Local 599.

•          Three other divisions (Mental Health, Chemical Dependency, and Developmental Disabilities) operate under funding formerly associated with “Social Services”. The employer has asserted that six OA2 positions in those divisions are not represented by Local 599.

All of the OA1, OA2 and GsA positions are regarded as clerical support functions. Together with employees in OA3 positions,[5] all of these individuals are under the common supervision of an Office Assistant IV (OA4) designated as “administrative coordinator” for the entire department. Generic job descriptions cover the OA1 and OA2 positions, and their basic work functions vary only slightly.

They are paid at the same wage rates, regardless of whether they are represented by Local 599 or unrepresented, and all employees receive the same benefits. Except for two former “Social Service” employees, all of the Human Services Department employees work at the same location and share a common lunch area. There is some interchange of job duties in response to absences or work load fluctuations.

POSITIONS OF THE PARTIES

The union contends the previously unrepresented employees should be accreted to the bargaining unit it represents, in view of the supervision, duties, skills, working conditions, work area, and integration of work which they share since the merger. The union contends no self-determination election is required under San Juan County, Decision 358 (PECB, 1978) and South Columbia Basin Irrigation District, Decision 2894 (PECB, 1988). The union also cites City of Marysville, Decision 5312 (PECB, 1995), Tumwater School District, Decision 2043 (PECB, 1985), and North Thurston School District, Decision 2085 (PECB, 1985), for the proposition that an election is appropriate only where there could be more than one appropriate bargaining unit, and may not be utilized where employees compose only a part of an appropriate unit. The union claims the accreted employees would constitute less than 10% of the total number of employees in the bargaining unit represented by the union, and so would not affect the union’s majority status. Finally, the union analogizes this case to severance situations, wherein the question is whether a portion of the employees in an appropriate bargaining unit may seek to have a representation election. Citing Yakima County, Decision 5566 (PECB, 1996) and Cowlitz County, Decision 4960 (PECB, 1995), the union notes that severances are denied where the unit sought to be severed does not constitute an appropriate bargaining unit.

The employer contends accretion is only appropriate where no question concerning representation exists, citing King County, Decision 5820 (PECB, 1997). It notes that accretion is an exception to the norm of providing employees a choice concerning union representation, and can only be utilized where changed circumstances create a situation where the employees involved cannot form a separate unit or be accreted to any other unit. Citing City of Auburn, Decision 5775 (PECB, 1996), the employer notes that accretions have been disallowed where unrepresented positions existed at the time the bargaining unit was created or have existed for a lengthy period. The employer argues that the union has the burden of showing that an accretion has occurred, citing Kitsap Transit Authority, Decision 3104 (PECB, 1989), Seattle School District, Decision 4868 (PECB, 1994), and City of Auburn, Decision 4880-A (PECB, 1995). From the fact that the disputed classifications were in existence at the time Local 599 was certified for the “Aging” group, the employer contends an accretion is precluded by Oak Harbor School District, Decision 1319 (PECB, 1981), King County, supra. and City of Redmond, Decision 2324 (PECB, 1985) . Lastly, the employer cites City of Prosser, Decision 3157 (PECB, 1989), which denied an accretion because the positions existed for a lengthy period, and contends a question concerning representation similarly exists here.

DISCUSSION

The Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, is most often encountered in its regulation of relationships between unions and employers, but it is founded on the right of employees to be represented by organizations of their own choosing. RCW 41.56.040. Unions are certified as exclusive bargaining representatives under RCW 41.56.080 on the basis of “majority rule” in elections conducted by the Commission under RCW 41.56.070 within bargaining units which have been found appropriate by the Commission under RCW 41.56.060.

As indicated in the cases cited by the employer, accretions to bargaining units are an exception from the norm. The addition of job classifications to an existing bargaining unit necessarily infringes upon the rights of the affected employees to designate a bargaining representative of their own choosing. Thus, the Commission will only accrete positions to existing bargaining units if changed circumstances create a situation wherein the employees can only be appropriately placed in an existing bargaining unit and cannot stand alone as a separate unit or logically be accreted to any other existing bargaining unit. King County, Decision 5820 (PECB, 1997). Because accretions are such an exception, the party seeking the accretion does have the burden of proof. Kiona-Benton School District, Decision 3180 (PECB, 1989).

Existence of Changed Circumstances

This is not a case like City of Dayton, Decision 1432 (PECB, 1982), where a union simply sought to gobble up positions that had historically existed outside of its bargaining unit. The merger of the “Aging” and “Social Services” entities and the reorganization of functions within the new department clearly constituted a significant change of circumstances of the type which can give rise to clarification of a bargaining unit under Chapter 391-35 WAC. The existence of a change of circumstances does not, however, guarantee that the union’s accretion request should be granted.

Timeliness of Union’s Request

A common theme running through decisions where accretions have been ordered is that the party seeking the accretion has raised the issue immediately upon or soon following a change of circumstances. See, Oak Harbor School District, Decision 1319 (PECB, 1981). In the absence of timely action, each passing hour or day accumulates as history of bargaining weighing against an accretion. In this case, the union appears to have moved with dispatch upon the merger of the “Aging” and “Social Services” operations being effected by the employer. Again, however, the timely filing of a petition under Chapter 391-35 WAC does not guarantee that the union’s accretion request should be granted.

Community of Interest

For an accretion to be ordered, it must be established that the recent change of circumstances has created a compelling “community of interest” between the existing bargaining unit and the positions proposed for accretion. Such determinations are guided by the unit determination criteria set forth in RCW 41.56.060. The “duties, skills and working conditions” of employees are the first and foremost among the statutory unit determination criteria.

If the inquiry in this case were to be limited to comparison of the former “Aging” employees (whose job titles suggest they were within the office-clerical-accounting generic occupational type) with the petitioned-for former “Social Services” employees (who have similar job titles), there would be a basis to conclude that a community of interest exists.

If the inquiry is broadened to consider all of the employees currently represented by Local 599 (who have job titles implying a wide range of generic occupational types), or to consider the remaining employees formerly in the “Social Services” group (for which this record is largely silent except to suggest they may number 65 or more), then the existence of a community of interest is far less evident.

Effect on Union’s Majority Status

An accretion cannot be ordered where the number of employees to be added is so large as to call into question the union’s majority status in the enlarged unit. If a “tail wags the dog” situation exists, accretion must be denied and the employees will be free to exercise their statutory right to select an exclusive bargaining representative through representation proceedings under Chapter 391-25 WAC.

The “Aging” Clerical to “Social Services” Clerical Ratio –

If the inquiry is limited to comparison of the former “Aging” employees with the former “Social Services” employees, the union is faced with an insurmountable problem. The seven former “Social Services” employees out-number the six former “Aging” employees, which calls into question the union’s majority status among the office-clerical-accounting employees in the Human Services Department. The requested accretion would have to be denied.

The “Local 599” to “Social Services” Ratio -

The union relies upon the weight of numbers provided by the 150 or so employees it represents employer-wide. Under such an approach, the disputed employees would constitute less than 5% of the employees in the enlarged unit, and certainly would not constitute a sufficient addition to call the union’s majority status into question. Serious questions arise, however, about the propriety of counting all of the employees represented by Local 599 for this purpose. Those questions are rooted in the parties’ contract and the history by which the claimed “existing unit” came into being.

Review of the wage appendix to the 1994-1996 collective bargaining agreement readily discloses that classifications are first set forth by department, and then by job title. Only the OA1, OA2 and GsA classes are listed under the “Aging” heading, although there was evidence of a much larger total workforce in that entity. The OA1 and OA2 classes appear again under an “Assessor/Treasurer” heading (along with OA3 and OA4 classes which would apparently be excluded or left for debate at another time in the Human Services Department), under a “Medical Examiner” heading, and under a “Veteran’s Aid Bureau” heading, but do not appear at all under “Building Maintenance”, “Building Mechanics”, “Clerk”, “Facilities Maintenance” or “Parks and Recreation” headings. Among the 47 job titles listed in the contract, only about 14 of them (including duplications of the OA1 and OA2 title on both sides of the equation) suggest the office-clerical-accounting generic occupational type.[6] This exacerbates the problem noted above with regard to the “duties, skills and working conditions” of the employees: The union’s weight of numbers is largely based on widely-dissimilar employees.

Review of the Commission’s docket records and previous decisions involving this employer was indicated in this case. Of particular interest is Pierce County, Decision 1039 (PECB, 1980), where a predecessor to Local 599 filed representation petitions for four bargaining units historically represented by Local 120 of the Washington State Council of County and City Employees. Those included the “Treasurer’s Office” and a “Building Maintenance” entity. Local 120 opposed those petitions on “severance” grounds, but the following observations were made:

Any reasonable reading of the bargaining history in Pierce County dictates a conclusion that the group of county employees represented by Local 120 defies description as a single bargaining unit on any basis other than designation of Local 120 as bargaining representative at some point in time. Selection by two or more dissimilar groups of a common labor organization to represent them cannot be deemed a controlling factor in unit determination, as the statute protects the right of employees to change their designation of an exclusive bargaining representative. There is no way to tie a ribbon of logic or reason around this grouping born of separate recognitions along lines of extent of organization so as to make a conclusion of law that it is a single appropriate bargaining unit within the meaning of RCW 41.56.060. … The parties cannot bind the Commission by their stipulations of issues, and it is concluded that “severance” principles are inapplicable in these cases because there is no “whole” from which to worry about severing fragments or parts.

Applying the same principles to the case now before the Commission, the “unit” now claimed by Local 599 certainly resembles the mixed and fragmented group that had been represented by Local 120. At a minimum, the “Treasurer” and “Building Maintenance” groups listed in the parties’ 1994-1996 contract directly trace their roots to certifications as separate units in the representation proceedings which produced Decision 1039. It follows that, just as it was necessary to reject the contention that the amalgam of units historically represented by Local 120 was a single unit immune from “severance” in Decision 1039, it is necessary to conclude here that the collection of employees now represented by Local 599 is not a single unit for purposes of assessing whether an accretion of the former “Social Services” workforce would call the union’s majority status into question.

Possibility of a Generic Unit -

One final possibility that needs to be considered is whether the group of employees represented by Local 599 has, in fact, come to be an appropriate “all employees of the employer” unit or “occupational” unit by means of a series of separate recognitions and certifications.[7] In this case, however, there is neither claim nor evidence that the employees currently represented by Local 599 constitute an employer-wide unit encompassing all Pierce County employees, or even that they encompass all Pierce County within the office-clerical-accounting generic occupational type. At a minimum, the employees at the “Social Services” entity had remained unrepresented. Further, the Commission’s docket records suggest that Local 120 continues to represent at least some “clerical” employees of Pierce County.[8] Thus, no evidence supports backing into a conclusion that an accretion is the only appropriate way to proceed in this case.

Employer’s Approach Also Inappropriate

The employer has been willing, up to this point, to treat the Human Services Department employees who originated with the “Aging” entity as being represented by Local 599. At the same time, there is indication that the employer has sought to treat Human Services Department positions as unrepresented if they originated with “Social Services” programs or are now held by employees transferred from “Social Services”. With the merger of the two employer entities, employees from both entities are performing essentially the same functions, utilizing the same skills, sharing the same immediate and ultimate supervision, occupying the same general work area, and receiving the same pay rates and benefits. There is also temporary interchange to provide relief on breaks, or to handle work load fluctuations. All of this suggests a high potential for an ongoing legacy of work jurisdiction disputes in the Human Services Department.

Public employers tend to have geographical jurisdictions, so mergers are seemingly less common in the public sector than are encountered by the National Labor Relations Board (NLRB) in the private sector. NLRB precedent was thus sought out for guidance in a case involving a merger of employer departments, and the decision in City of Mount Vernon, Decision 4199-B (PECB, 1992) thus included the following:

In Boston Gas Co., 221 NLRB 628 (1978) , the employer had acquired two other companies in December of 1973. For a time, it had continued to recognize contracts with two separate labor organizations covering the employees of the formerly separate companies. Those agreements expired in March and June of 1975. On January 24, 1975, the employer filed a representation petition that appears to have been timely as to the contract which was to expire in March, but would normally have been untimely under the “contract bar” rule as to the agreement which was due to expire in June. The NLRB held that, since the employees worked side-by-side in similar job classifications and performed like functions under common supervision, the employer had formed a new operation. A question concerning representation was thus found to exist, and the labor agreements were held to not constitute a bar to an election.

In Massachusetts Electric Co., 248 NLRB 155 (1980) , the employer had consolidated service and distribution facilities it formerly operated in three towns, so that only one of those facilities remained. The employer had existing collective bargaining agreements with different unions representing similar groups of employees. The NLRB held that the employer’s newly-integrated operation was an appropriate bargaining unit. The existing contracts were not considered to constitute a bar to the holding of an election.

In Martin Marietta Chemicals, 270 NLRB 821 (1984), the employer had historically operated a facility known as the “north plant”. Another employer operated an immediately adjacent facility known as the “south plant”. Two different labor organizations had historically represented the production and maintenance employees at the different facilities, and both of then evidently wanted to continue representing those units. Collective bargaining agreements for both units were effective through May 31, 1983. On January 29, 1982, Martin Marietta acquired the south plant, hiring the employees of the former operator of that facility. The employer then decided to operate both plants under one central administration. The NLRB held that a new operation had been created, consolidating the two previously separate bargaining units, and that the changed circumstances had “obliterated” the previous separate units. The Board’s policy in such situations places greater emphasis on the right of employees to select their representative than on historical considerations or the vested interests of the labor organizations involved. Thus, the NLRB stated at page 822:

When an employer merges two groups of employees who have been historically represented by different unions, a question concerning representation arises, and the Board will not impose a union by applying its accretion policy where neither group of employees is sufficiently predominant to remove the question concerning overall representation. Boston Gas Co., 221 NLRB 628 (1978).

[Emphasis by bold supplied.]

Citing Massachusetts Electric, supra, the Board went on to state that, even if either of the collective bargaining agreements remained in effect, it would not bar an election. See, also, Pergament United Sales, 296 NLRB 333 (1989).

[Emphasis by bold in Mount Vernon decision.]

Much as the possibility of yet another bargaining unit may seem undesirable within the already-fragmented workforce of Pierce County, the decisions in two related cases speak loudly about the problems which would arise from continuing the situation now in effect within the Pierce County Human Services Department : South Kitsap School District, Decision 472 (PECB, 1978) was the first in a long line of cases which establish that an employer has a duty to bargain transfers of work historically performed within a bargaining unit to its own employees outside of that bargaining unit (often referred to as “skimming of unit work”); South Kitsap School District, Decision 1541 (PECB, 1983) arose when the union involved in the first case and another union which represented an overlapping unit of office-clerical employees became embroiled in work jurisdiction disputes, and resulted in a conclusion that both units were inappropriate. As in the second of the South Kitsap cases, the impropriety of the current situation may come as a surprise to both of the parties to this case, but that does not negate the existence of a problem or mitigate a conclusion that the merger creating the Human Services Department obliterated the bargaining unit which had existed in the former “Aging” entity. The union is, of course, free to organize the employees in the new department, and those employees will be free to choose an exclusive bargaining representative if they so desire.

FINDINGS OF FACT

1.         Pierce County is a “public employer” withing the meaning of RCW 41.56.030 (1) .

2.         Teamsters Union, Local 599, a “bargaining representative within the meaning of RCW 41.56. .030 (3), is the exclusive bargaining representative of certain employees working in various departments or divisions of Pierce County.

3.         The employer and union were parties to a collective bargaining unit effective from 1994 through 1996, covering all of the Pierce County employees represented by Local 599. The history by which all of those employees came to be covered under one contract is not precisely established in this record, but reference to the Commission’s decisions and docket records discloses that at least bargaining units in the office of the Pierce County Treasurer and in a Building Maintenance division were the subject of separate representation proceedings before the Commission in 1980.

4.         Job titles implying work within the office-clerical-accounting generic occupational type constitute a minority of the job titles for which pay rates are established in the parties’ 1994-1996 collective bargaining agreement. The collective bargaining relationship between the employer and Local 599 has not included employees working in office-clerical-accounting occupations in a Social Services entity operated by Pierce County, and those employees were not represented for the purposes of collective bargaining prior to the onset of this controversy. From the record made in this proceeding and by reference to the docket records of the Commission, it appears that other employees working in office-clerical-accounting occupations in other departments of Pierce County are represented for the purposes of collective bargaining by other labor organizations, so that the employees covered by the parties’ collective bargaining unit do not constitute an employer-wide or occupationally generic bargaining unit.

5.         The collective bargaining relationship between the employer and Local 599 historically included employees in the Office Assistant 1, Office Assistant 2 and Grants Accountant classifications in an Area Agency on Aging operated by Pierce County.

6.         In April of 1996, Pierce County merged its former Social Services entity with its Area Agency on Aging, to form a new Human Services Department. Employees from both of the former entities were transferred to the new department. Among the office-clerical-accounting positions in the new department, a majority are traced to the former Social Services entity.

7.         Since the merger described in paragraph 6 of these findings of fact, the employer has continued to recognize Local 599 as exclusive bargaining representative of employees transferred from the Area Agency on Aging, but has declined to recognize the union as exclusive bargaining representative of employees transferred from the Social Services entity.

8.         All of the office-clerical-accounting employees of the new Department of Human Services have upon similar duties, similar skills, common supervision, similar wages and benefits, similar work locations, and interchange in daily operations.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission had jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391-35 WAC.

2.         The employees represented by Teamsters Local 599 under the collective bargaining agreement between that union and Pierce County do not constitute a single appropriate bargaining unit under RCW 41.56.060.

3.         Accretion of the office-clerical-accounting employees of the Pierce County Human Services Department to representation by Teamsters Local 599 on the basis of that union’s historical representation of employees at the Area Agency on Aging would call the union’s majority status in the new department into question, and so would be inappropriate under RCW 41.56.040 and RCW 41.56.080.

4.         The bargaining unit of employees of the Pierce County Area Agency on Aging historically represented by Teamsters Local 599 became inappropriate under RCW 41.56.060, as a result of the merger which created the Pierce County Department of Human Services.

ORDER

The requested accretion of employees in Office Assistant 1, Office Assistant 2 and Grants Accountant classifications in the Pierce County Department of Human Services to representation by Teamsters Union, Local 599 is DENIED.

Issued at Olympia, Washington, this 4th day of November, 1997.

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 391-35-210.