Toppenish School District, Decision 10394-B (PECB, 2011)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
|
In the matter of the petition of:
public school employees of washington
For clarification of an existing bargaining unit of employees of:
toppenish school district
|
CASE 22083-C-08-1388 DECISION 10394-B - PECB
CASE 22288-C-09-1398 DECISION 10395-B - PECB
DECISION OF COMMISSION
|
|
|
|
Eric T. Nordlof, General Counsel, for Public School Employees of Washington.
Chris Burton, Attorney at Law, for the employer.
Kathryn C. Elder, Representative, for Classified Administrative Central Office Personnel.
Alan Jones, Representative for Directors and Supervisors.
On October 31, 2008, Public School Employees of Washington (PSE) filed a petition seeking to clarify a bargaining unit of employees it represents at the Toppenish School District (employer) by accreting the Central Office Payroll Clerk position into its existing bargaining unit. Case 22083-C-08-1388. PSE filed a second petition on February 23, 2009 seeking to accrete the Receptionist, Assistant Secretary to the Assistant Superintendant, Accounts Payable Clerk, Secretary to the Business Manager, District Mediator, and Assistant to the Business Manager into its existing bargaining unit. Case 22288-C-09-1398. PSE filed a motion to consolidate the two petitions, which was granted.
On April 6, 2009, Alan Jones (Jones) filed a motion to intervene on behalf of the “Directors and Supervisors” claiming that the Directors and Supervisors were a necessary party to the proceedings. Jones could not explain the Directors and Supervisors’ position as to why intervention was appropriate other than to claim that three of the petitioned-for employees were “presently covered by the terms of a Salary Schedule with the [employer].” On April 8, 2009, the Classified Central Office Personnel (CACOP) filed a motion to intervene in these proceedings, claiming that it represented the employees at issue for purposes of collective bargaining. On April 24, 2009, Jose Eligio Jimenez (Jimenez), the District Ombudsman/Director of Mediator and Home Liaison Services filed a motion to intervene. Jimenez claimed that his position was part of the Directors and Supervisors group.
On May 1, 2009, the employer submitted several memoranda of understanding between it and CACOP. These documents readily appear to be collective bargaining agreements that cover the periods of 1983 through 1984, 1986 through 1989, 1997 through 1999, and 2007 through 2009.[1] The most recent document, which covers the period of September 1, 2007 through August 31, 2009, includes the period in which PSE filed its petition. The Memorandum of Understanding was divided into twelve separate articles covering various terms and conditions of employment for the employees covered by the agreement, including hours of work and overtime (Article IV), Holidays and Vacation (Article V), Probation, Seniority and Layoff Procedures (Article VIII), a Grievance Procedure (Article X), and Salary and Compensation (Article XI). The document contains a list of employees covered by CACOP agreement, including all of the positions petitioned for by PSE. The document was signed by “Central Office Representatives” Monica Delgado and Kathryn C. Elder, and by John M. Cerna on behalf of the employer. The employer also submitted job descriptions for the various positions covered by the agreements.
During a pre-hearing conference, PSE challenged the appropriateness of the CACOP bargaining unit. PSE asserted that several of the employees in the unit were confidential employees.
On May 7, 2009, Executive Director Cathleen Callahan issued an Order to Show Cause directing that PSE demonstrate why its petition should not be dismissed. The Executive Director also permitted the employer, CACOP, and the other interested individuals to submit positions in this matter. The employer, PSE, CACOP, and Jones submitted briefs supporting their respective positions. CACOP also submitted an additional Memorandum of Understanding between it and the employer that covered the period of September 1, 1991 through August 31, 1994.
The Executive Director then issued an order dismissing PSE’s petition. In reaching her conclusion, the Executive Director held that the documents submitted by CACOP and the employer demonstrated that CACOP represents the petitioned-for employees for purposes of collective bargaining and, therefore, PSE lacked standing to file a unit clarification petition pursuant to WAC 391-35-010. The union filed a timely appeal.[2]
DISCUSSION
Applicable Legal Standard
The Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, directs this Commission to determine appropriate bargaining units and resolve questions concerning representation. RCW 41.56.060 and .070. To effectuate the purposes of Chapter 41.56 RCW and the other state collective bargaining laws it administers, this Commission has adopted rules codifying best practices developed while administering the State of Washington’s collective bargaining statutes. The unit clarification proceedings authorized and regulated by Chapter 391-35 WAC permit parties who have existing bargaining relationships to resolve ambiguities concerning the scope of their bargaining units.
The filing of a unit clarification petition does not raise a question concerning representation. City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981). Rather, the function of the unit clarification case is “appropriate for resolving ambiguities concerning the unit placement of individuals who, for example, come within a newly established classification of disputed unit placement or, within an existing classification which has undergone recent, substantial changes in the duties and responsibilities of the employees in it so as to create a real doubt as to whether the individuals in such classification continue to fall within the category excluded or included - that they occupied in the past.” City of Richland, Decision 279-A, quoting Union Electric Company, 217 NLRB 666 (1975)(emphasis added).
Because unit clarification proceedings involve an existing bargaining relationship, certain limitations are placed on who may file a unit clarification petition. WAC 391-35-010 limits the filing of a petition to “the employer, the exclusive representative, or their agents, or by the parties jointly.” To allow otherwise would undermine and disrupt the stability of the bargaining relationship.
Application of Standard
The Executive Director declined to order a hearing on the basis of the submitted documents. In the Executive Director’s opinion, the submitted documents demonstrated that the employer and CACOP collectively bargained the terms and conditions of employment of the petitioned-for employees.
“To serve as a bar, a contract must contain substantial terms and conditions of employment deemed sufficient to stabilize the bargaining relationship; it will not constitute a bar if it is limited to wages only, or to one or several provisions not deemed substantial.” Northshore Utility District, Decision 10760 (PECB, 2010), citing Appalachian Shale, 121 NLRB 1163 (1954). Although the issue of “contract bar” is not presented in this matter, Northshore Utility District explains that a valid collective bargaining agreement is one where several provisions have been collectively negotiated to stabilize the relationship between the employer and a group of employees.
We agree with the Executive Director that the documents speak for themselves, and there clearly is a history of bargaining between the employer and CACOP. The 2007-2009 “Memorandum of Understanding” reached between the employer and CACOP covers and stabilizes several topics including hours of work and overtime, holidays and vacation, grievance procedure, and salary and compensation. The fact that agreements between CACOP are worded in a manner that PSE may have done differently does not diminish the fact that these documents demonstrate that the petitioned-for employees have bargained certain terms and conditions of employment and those terms and conditions are embodied in signed collective bargaining agreements.
Accordingly, because the petitioned-for employees are represented for purposes of collective bargaining, PSE lacks standing to file a petition to clarify employees in a bargaining unit it does not represent. If PSE desires to represent the employees in the CACOP bargaining unit, it must do so through the representation process.
Other Arguments on Appeal
Both before the Executive Director and on appeal, PSE has questioned the legitimacy of CACOP as an exclusive bargaining representative and also challenged the appropriateness of the CACOP bargaining unit. On appeal, PSE asserts that the CACOP unit is inappropriate because it contains confidential employees. We reject these challenges.
Agency records do not reflect that CACOP was certified by the Commission as the exclusive bargaining representative of an appropriate bargaining unit of employees. Nevertheless, an employer may extend voluntary recognition under Chapter 41.56 RCW to representatives of groups of employees for the purposes of collective bargaining. RCW 41.56.050 requires submission of a representation matter to the Commission only where there is a dispute regarding representation.[3] If such recognition is extended, the employer is then obligated to bargain with the union. City of Kennewick, Decision 482-B (PECB, 1983).
With these principles in mind, we decline to remand this case to the Executive Director to address either of the issues raised by PSE. Neither of these issues is appropriately raised in a unit clarification proceeding. As stated above, WAC 391-35-010 limits who may file such petitions, and to allow a rival labor organization to collaterally attack the appropriateness of a bargaining unit or legitimacy of a bargaining representative in the absence of a question concerning representation would create instability within the employer’s workforce that is not envisioned by the pertinent statutes.
If an employer or an exclusive bargaining representative of a unit of employees believes that a bargaining unit impermissibly contains a confidential employee, either is free to file a unit clarification petition at any time to have such a dispute resolved by this Commission.
NOW, THEREFORE, it is
ORDERED
The Order of Dismissal issued by Executive Director Cathleen Callahan is AFFIRMED.
ISSUED at Olympia, Washington, this 19th day of May, 2011.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
THOMAS W. McLANE, Commissioner
[1] There was no reason given as to why certain agreements covering other years or terms were not submitted.
[2] On September 10, 2009, Jones filed a cross-appeal that asked this Commission to review whether his position should be excluded from the CACOP unit as a confidential. The due date for a timely cross-appeal to be filed under WAC 391-35-210(2) was 7 days after the last day an appeal could have been filed. The Executive Director’s decision was issued August 12, 2009, making a timely appeal due by September 1, 2009, and a timely cross appeal due September 8, 2009. September 8, 2009 was neither a weekend nor a holiday. Although Jones’s cross-appeal was dated September 8, 2009, Commission records demonstrate that it was not received until September 10, 2009, and therefore it was untimely. Even if the cross-appeal had been timely, Jones lacked standing to file a unit clarification petition about his purported confidential status.
[3] Although Chapter 41.56 RCW permits employers to extend voluntary recognition, this Commission is not bound by the voluntary bargaining unit structure that is agreed upon by the parties. An agreed upon unit that fails to comply with the pertinent statutory criteria may be challenged and ruled inappropriate in a subsequent proceeding. See, e.g. Clover Park School District, Decision 386-A (EDUC, 1978).