STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
KING COUNTY	CASE 10304-C-93-606
For clarification of existing bargaining units of its employees represented by:	DECISION 4569-A - PECB
TEAMSTERS UNION, LOCAL 174
and
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 3 02	ORDER CLARIFYING BARGAINING UNIT

Norm Maleng, King County Prosecuting Attorney, by Cheryl D. Carlson, Deputy Prosecuting Attorney, appeared on behalf of the employer.

Brad Rayson, Attorney at Law, appeared on behalf of Teamsters Union, Local 174.

Davies Roberts & Reid, by Russell J. Reid, Attorney at Law, appeared on behalf of International Union of Operating Engineers, Local 302.

On March 9, 1993, King County filed a petition for clarification of existing bargaining unit with the Public Employment Relations Commission, seeking a ruling as to whether employees working at a new facility should be accreted to an existing bargaining unit represented by Teamsters Local 174, or to an existing bargaining unit represented by International Union of Operating Engineers Local 302.

On March 25, 1993, Local 174 moved for dismissal of the petition, arguing it was premature because the new facility had not yet opened and that work assignment issues should be determined by an arbitrator. On December 22, 1993, the Executive Director denied the motion, ruling that the issue was timely and that unit determinations are uniquely the Commission's responsibility under the applicable statute. King County, Decision 4569 (PECB, 1993).

A hearing was held in Kirkland, Washington, on March 8, 1994, before Hearing Officer William A. Lang. The parties filed post-hearing briefs on May 9, 1994.

BACKGROUND

King County (employer) encompasses the city of Seattle, and has the highest population in the state of Washington. Among its operations is a Solid Waste Division managed by Rod Hansen. Dennis Trammel is the division's operations manager.

Teamsters Local 174 has historically represented site attendants at transfer stations operated by the Solid Waste Division.[1] When the petition was filed to initiate this proceeding, the employer and Local 174 were parties to a collective bargaining agreement for the period from July 1, 1988 through June 30, 1991. That agreement described the bargaining unit as including the classifications of truck driver I, truck driver II, truck driver III, sign installer, lead sign installer, site attendant, and dispatcher.

International Union of Operating Engineers Local 3 02 has historically represented the heavy equipment operators in several of the employer's operations.[2] Local 302 negotiates with the employer through the Coalition of Construction Craft Unions (CCCU). When the petition in this matter was filed, the employer and the CCCU were parties to a master contract covering the period from January 1, 1992 through December 31, 1994. An appendix to that master contract describes the bargaining unit represented by Local 3 02 as including classifications of equipment operator, oiler equipment service, pump plant operator, spray technician, waste water treatment operator I, landfill gas operator, senior waste water treatment operator, and senior landfill gas operator.

The Landfill Operations

The Solid Waste Division has historically operated landfills, where refuse is buried. Local 3 02 represents employees who operate heavy equipment to compact and cover waste at the landfills. Those employees operate back-hoes, front-end loaders, bulldozers, and refuse compactors. They report ultimately to Trammel, through a series of intermediate supervisors.

The record indicates that the general public can bring garbage directly to landfills for disposal, but the equipment operators at the landfills have relatively little contact with the public.

Transfer Station Operations

The employer has historically operated a number of transfer stations, where solid waste is received from customers, compacted, and transferred into trailers which are hauled to landfills for ultimate disposal. Transfer station operations known as "First Northeast", "Houghton", "Factoria", "Renton", "Algona" and "Bow Lake" date back to at least 1978.[3] Although different garbage-handling methods are used, each of the six transfer stations accomplishes the same basic functions. The specific equipment used at transfer stations varies according to the differing size and complexity of the stations, but site attendants may perform their duties using any of the following equipment: Bulldozers, various models of wheeled compactors; backhoes; wheeled front-end loaders; stationary compactors (also called log loaders); and yard goats.

All of the six transfer stations have been staffed by "site attendants" represented by Local 174, and none of the employees working at those facilities was represented by Local 302. Site attendant duties include: Directing and assisting customers, resolving customer complaints, monitoring waste for acceptability, removing hazardous wastes for proper handling, assuring customer and employee safety, conducting basic equipment checks on a daily basis, controlling and compacting solid waste that customers have dumped, loading the compacted waste into trailers for hauling to the landfills, moving trailers around the transfer station site, and keeping the transfer station and its environs clean. Site attendants may work at different transfer stations, because they are "floaters" or by working overtime. All site attendants report to Trammel through three levels of intermediate supervisors.

The Inter-Union Agreement

On March 8, 1978, Local 174 and Local 302 entered into a written agreement on the subject of their relative work jurisdiction claims to any new transfer stations that might be opened by the employer.[4] Under its terms, Local 3 02 was to represent any compactor operators and Local 174 was to represent any site attendants.

The Enumclaw Transfer Station

The solid waste transfer station at issue in this proceeding is located at Enumclaw, Washington. It was opened on April 5, 1993, the day after an adjacent landfill was closed. While its basic function is the same as the six transfer stations, the Enumclaw facility differs in physical layout and in operational methods:

*          At Enumclaw, garbage is shovelled into a compactor, which forms the garbage into a bale and pushes it into an end-loading trailer, while the other transfer stations funnel the garbage into the hauling trailers and then use a stationary compactor to reach down into the trailers and compress the garbage.[5]

*          The dumping area at Enumclaw is fully-enclosed, while other facilities are completely open or just roofed.

*          The Enumclaw site is large enough to accommodate waiting customers within the property lines, rather than using neighborhood streets as occurs at other facilities.

*          The Enumclaw facility is better-equipped than the other facilities with regard to accepting recyclable items.

Apart from the different compacting procedure, other equipment used at the Enumclaw facility appears to be comparable to equipment used at the six transfer stations. That equipment includes: A yard goat, a wheeled back-hoe, and a wheeled front-end loader.

An interim agreement among the employer, Local 174 and Local 302 permits the Enumclaw transfer station to be staffed during the pendency of this proceeding with site attendants represented by Local 174 and equipment operators represented by Local 302.[6] Working together at Enumclaw, employees represented by the two unions accomplish the same functions that are performed by site attendants alone at the employer's other transfer stations. The record indicates that the Enumclaw employees share most of the duties, although the front-end loader is primarily used by the equipment operators.

POSITIONS OF THE PARTIES

The employer contends the Commission should determine the appropriate unit placement of the employees at the Enumclaw transfer station, but takes no position on what result should be reached by the Commission. The employer argues that the Commission should also determine the unit placement of the newly-created "transfer station lead" classification.

Local 174 asserts that the employees at the Enumclaw facility share common supervision, similar working conditions, and similar duties with other site attendants represented by that organization, and that they should be placed into the bargaining unit it represents. It argues that equipment operators working at the landfills have different working conditions, and that Local 3 02 has never represented employees doing similar work at the other transfer stations. Local 174 contends that the 1978 letter of agreement does not apply, because it does not address any of the statutory criteria relating to appropriate unit, and that placement of the employees into its existing bargaining unit would prevent undue fragmentation. At the same time, Local 174 renewed its earlier claim that the Commission should adopt National Labor Relations Board precedent in ruling that jurisdictional disputes raise contract interpretation issues that are not properly resolved through unit clarification proceedings. Local 174 argues that the "transfer station lead" position cannot be placed in either bargaining unit, because the position is vacant. It asserts that a team approach currently in use has been working, and it views the employer's proposal on the "lead" position as divisive.

Local 302 asserts that it has work jurisdiction over the operation of the front-end loader used at the Enumclaw transfer station, and that the "equipment operator" position is included in the bargaining unit it represents. Local 302 contends that equipment operators perform the vast majority of the front-end loader work at the Enumclaw facility. Local 302 argues that the 1978 letter agreement is a binding contract which requires the Commission to award operation of the front-end loader to its bargaining unit.

DISCUSSION

Effect of the 1978 Letter of Agreement

In 1978, the two unions involved in this dispute purported to settle an issue concerning the allocation of positions to bargaining units. They agreed to abide by the decision of a King County official made at that time, under which the site attendants at the six transfer stations were allocated to the bargaining unit represented by Local 174.[7] They also agreed that the use of the compactor for three to four hours per day at the Bow Lake Transfer Station did not justify assignment of an equipment operator from the bargaining unit represented by Local 302. The 1978 letter of agreement included the following reservation of rights:

It was further agreed that in the event the county opened any transfer sites other than the six listed above, the two organizations would claim the right of representation in accordance with the traditional lines of jurisdiction. In other words, if a new transfer site was opened requiring a compactor operator and a truck driver, [Local 3 02] would claim the right to represent the compactor operator and the truck driver would be represented by [Local 174].

Thus, the parties were purporting to agree on the bargaining unit placement of positions which did not exist.

Even if all the agreement entered into by these parties might be regarded in some forum as binding among themselves, its provisions do not bind the Commission. The determination of appropriate bargaining units is a function delegated by the Legislature to the Commission. RCW 41.56.060. While parties may agree on unit determination matters, they are not a "subject for bargaining" in the usual mandatory/permissive/illegal sense. Moreover, agreements made by parties on unit determination matters are not binding on the Commission. City of Richland, Decision 279-A (PECB, 1978), affirmed 29 Wn.App. 599 (Division III, 1981), review denied 96 Wn.2d 1004 (1981).

From its inception, the Commission has interpreted its statutory authority to determine and modify bargaining units as requiring it to disregard parties' agreements on bargaining unit status, if the resulting unit structure is inappropriate. Skagit County, Decision 3828 (PECB, 1991), and decisions cited therein. While the National Labor Relations Board has chosen to acknowledge the authority of arbitrator in "work jurisdiction" disputes, our Commission has explicitly declined to defer to arbitrators on unit determination matters. City of Yakima, Decision 3564-A (PECB, 1991); Seattle School District, Decision 3979 (PECB, 1992); Port of Seattle, Decision 3421 (PECB, 1990) . The task before the Commission in this proceeding is to examine the statutory factors the Legislature has established in RCW 41.56.060 for making unit determinations.[8]

Appropriate Unit Placement of Enumclaw Employees

The employer intends to have six site attendants at the Enumclaw facility, with three working on each shift. One of those will be in the "lead" position.

Duties, Skills, and Working Conditions –

The duties, skills, and working conditions of the employees at the Enumclaw Transfer Station are virtually identical to those of the site attendants at the other six transfer stations. The Enumclaw employees give traffic directions to customers, monitor the garbage brought in by customers, answer questions, and resolve customer complaints. Like site attendants at the other transfer stations, they use heavy equipment to move garbage away from the pit edge where it is dumped by customers, to shove garbage into the trailers, to relieve hopper blockages, and for clean-up around the transfer station site. The employees at Enumclaw have the same responsibility for compacting garbage as site attendants at the other transfer stations, differing only in the technology used.[9] The Enumclaw employees, like site attendants elsewhere, use yard goats to tow garbage-hauling trailers around the transfer site.

The record establishes that the Enumclaw employees received two weeks of training before the facility opened, but specific information on the content of the training is lacking. The record does indicate that the Enumclaw employees and all other site attendants are trained to recognize hazardous waste, avoid dangerous situations, and handle difficult customers. A comparison of the Enumclaw operating plan to the 1990 version of site attendant operation policies suggests that the two differ only in matters of emphasis and with regard to operation of the garbage-baling compactor (AMFAB Compactor) . This is the only piece of equipment unique to Enumclaw. Although no other transfer station appears to use front-end loaders to move garbage in the dumping area, other transfer stations do use wheeled backhoes.[10]

Like site attendants at other transfer stations, Enumclaw employees work in a facility designed to accept garbage from the public for a fee, reduce its bulk, and transfer it to trailers for hauling to landfills. Although the Enumclaw facility is fully-enclosed and its site is larger, it accomplishes the same functions as the employer's other transfer stations. All transfer stations, including Enumclaw, are open to the public seven days a week, from 8:00 am until 5:30 pm. Like all other full-time site attendants, the employees at Enumclaw work 10-hour shifts for seven straight days, and then have seven days off. All of the Enumclaw employees, whether classified as site attendants or equipment operators, report through the same supervisory structure as do site attendants at the employer's other transfer stations.

The record made on the equipment operators represented by Local 3 02 is meager, though unchallenged. Nevertheless, it indicates that the hours and working conditions of those employees, including those working at landfills, are quite different from those of the site attendants working at the transfer stations. The equipment operators working at the landfills are required to operate 20-ton refuse compactors, and their job description mentions other pieces of equipment that may be relevant here: Backhoe; front-end loader; grader, and bulldozer. While they operate heavy equipment over and in the garbage, and it is reasonable to infer that their purpose is to distribute and further compact the garbage, it is also clear that the equipment operators at the landfills have little interaction with the public.

Comparing wage rates is not conclusive. The collective bargaining agreement in effect between the employer and Local 174 at the time of the hearing included a top hourly wage rate (as of April, 1992) of $18.5387 for site attendants working seven ten-hour shifts in a row, and $16.2246 for site attendants working eight-hour shifts Monday through Friday. The Local 3 02 appendix to the CCCU collective bargaining agreement effective at the time of the hearing included a top hourly wage rate (as of April, 1992) of $18.03 for equipment operators on any of three workweeks.[11] Thus, employees represented by Local 174 may work at rates which are either higher or lower than employees represented by Local 3 02.

History of Collective Bargaining -

The record indicates that persons performing the same receive/ compact/load functions as the employees at the Enumclaw Transfer Station have historically been represented by Local 174, and have never been represented by Local 302. It is true Local 302 historically represented employees who used front-end loaders at the former Enumclaw landfill, but the record also establishes that Teamster-represented site attendants at the other six transfer stations operate similarly-equipped backhoes.

Extent of Organization -

The record clearly establishes that the employer has created two separately functioning subdivisions of its Solid Waste division: transfer stations and landfills. The employees in the two bargaining units report through three entirely different layers of supervision, before those separate chains of command merge at Trammel's position. Including one position at the Enumclaw facility in the bargaining unit represented by Local 302 would, therefore, confuse the existing chain of command and fragment the parties' relationships.

Desire of Employees -

The desires of employees can be expressed through a secret ballot unit determination election within a representation proceeding, where any of two or more competing unit structures could be found appropriate. None of the parties has raised a question concerning representation in this case, and processing of a unit clarification petition is inappropriate where a question concerning representation exists. WAC 391-35-010.

Conclusions on Community of Interest -

Unfortunate as it may be, organizations representing employees in obsolete industries or plants sometimes find themselves losing members while other industries and organizations may be flourishing. What emerges from the evidence in this case is the reality that, with the passage of time, landfill operations are being replaced by the transfer station concept. Local 174 has a clearly established foothold in the employer's transfer station operations, and the employees performing site attendant duties at the new Enumclaw transfer station share a community of interest with the employees historically represented by Local 174. The fact that Local 3 02 represented employees at the now-defunct landfill operation does not give it a toehold to claim work jurisdiction at the quite different transfer station.

Transfer Station Lead Position

The employer desires to establish a "transfer station lead" position, and has created a job description for that classification. It proposed the new position in collective bargaining negotiations with Local 174, but that organization refused to agree with the having a lead position. The employer has now petitioned the Commission to determine which bargaining unit should represent the "transfer station lead", although it is undisputed that the new classification has remained unfilled throughout this proceeding and the work schedule for the position is not determined.

Supervisors are employees within the meaning and coverage of Chapter 41.56 RCW. Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977). It has long been the policy of the Commission, however, to exclude supervisors from the bargaining units which include their subordinates, in order to prevent conflicts of interest within bargaining units. City of Richland, supra. Numerous Commission decisions have dealt with the status of "leadworkers", who have such limited authority that separation from their subordinates is not required.

Based on the same "community of interest" considerations applied above, there would be no meaningful purpose to assigning the "lead" employee at the transfer station to the bargaining unit represented by Local 302. If there is a choice to be made concerning this position, it would be between the bargaining unit represented by Local 174 and exclusion from that unit as a supervisor.

The record indicates that the bargaining unit represented by Local 174 already includes "lead sign installer" and "transportation lead" positions. When taken in context with the Commission's precedents and the employer's own actions in raising the issue with Local 174 in bargaining, those existing titles suggest that the disputed class could properly be included in the same unit.

The employer's own brief does not present a convincing argument for a "supervisor" exclusion under Richland, stating:

The transfer station lead position involves limited supervisory work overseeing the daily operation of transfer station sites and the crews assigned to the stations. [Emphasis by bold supplied.]

The employer intends the lead worker to be accountable on how the station is operated and take a lead role in resolving customers' complaints, while performing work of the same type described above for the site attendants. The authority of the transfer station lead with regard to other employees is limited to low-level matters such as direct daily work and assuring that time sheets are completed. There is no claim that the new classification will be granted any authority regarding the hiring or discipline of employees.

The Commission generally declines to make unit clarifications on vacant or contemplated positions.¹² In this case, however, it can be said that the employer has not shown a sufficient basis for a supervisory exclusion as to the "transfer station lead", even if that position were already in existence on the terms proposed.

FINDINGS OF FACT

1.         King County, a "public employer" within the meaning of RCW 41.56.030(1), provides a number of municipal services to its residents including operation of a Solid Waste Division. The employer has historically operated both landfills and transfer stations to deal with garbage. The supervisory chain of command for employees working at the transfer stations is different than the chain of command for employees working at the landfills.

2.           Teamsters Local 174, a "bargaining representative" within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of a bargaining unit which has historically included all employees working at transfer stations operated by the King County Solid Waste Division.

3.           International Union of Operating Engineers Local 302, a "bargaining representative" within the meaning of RCW 41.56-.030(3), is the exclusive bargaining representative of a bargaining unit which has historically included equipment operators working at landfills operated by the King County Solid Waste Division and at other King County facilities. Local 3 02 has never represented any employees working at transfer stations operated by the King County Solid Waste Division.

4.           On April 4, 1993, King County closed a landfill which it had operated at Enumclaw, Washington.

5.         On April 5, 1993, King County opened a solid waste transfer station at Enumclaw, Washington, adjacent to the site of the former Enumclaw landfill. Local 174 asserted work jurisdiction over all positions at the Enumclaw transfer station facility. Local 302 asserted work jurisdiction over only the front-end loader work at the Enumclaw transfer station, based on an agreement executed by the parties in 1978.

5.         The employer initiated this proceeding to obtain a ruling as to the competing bargaining unit claims of the two unions, and the transfer station facility at Enumclaw has been operated under an interim arrangement with the two unions.

6.         Site attendants at all of the employer's transfer stations, including the Enumclaw facility, perform similar duties and have similar skills and working conditions. They direct and assist customers, resolve customer complaints, monitor waste for acceptability, remove hazardous wastes for proper handling, assure customer and employee safety, control and compact solid waste into trailers for transport to landfills, and keep the transfer station and its environs clean. Site attendants conduct daily basic equipment checks, and use bulldozers, back-hoes, loaders and compactors in the course of their duties.

7.        Equipment operators represented by Local 3 02 primarily run heavy equipment including back-hoes, loaders, large bulldozers and refuse compactors at the landfills. Although customers can bring refuse to the landfills, equipment operators have substantially less contact with the public than do site attendants at transfer stations.

CONCLUSIONS OF LAW

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

2.           The employees working at the new transfer station +facility at Enumclaw have a community of interest with the site attendants at the other transfer station facilities operated by King County, and are properly included under RCW 41.56.060 in the existing bargaining unit represented by Teamsters Local 174.

3.           As described by the employer in this record, the proposed "lead site attendant" position would not have sufficient authority to create a conflict of interest warranting exclusion as a supervisor, under RCW 41.56.060, from the existing bargaining unit represented by Teamsters Local 174.

ORDER CLARIFYING BARGAINING UNIT

All employees working at the Enumclaw transfer station facility are allocated to the existing bargaining unit represented by Teamsters Local 174.

Issued at Olympia, Washington, the 2nd day of August, 1994.

PUBLICEMPLOYMENT 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.