University of Washington, Decision 11139 (PECB, 2011)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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In the matter of the petition of:
International Union, United Automobile, Aerospace and Agricultural Implement Workers of AmericA, LOCAL 4121
For clarification of an existing bargaining unit of employees of:
UNIVERSITY OF WASHINGTON
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CASE 22639-C-09-1411
DECISION 11139 - PECB
ORDER CLARIFYING
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Douglas Drachler McKee & Gilbrough, LLP, by Paul Drachler, Attorney at Law, for the union.
Robert M. McKenna, Attorney General, by Mark Yamashita, Assistant Attorney General, for the employer.
On August 12, 2009, the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 4121 (union) filed a petition for clarification of an existing bargaining unit under Chapter 391-35 WAC, concerning a bargaining unit of student/employees working in specific classifications at the University of Washington (employer). Specifically, the union seeks inclusion of two positions at the employer’s School of Law, legal writing fellow and legal research assistant, into its existing certified bargaining unit:
Predoctoral Instructor; Predoctoral Lecturer; Predoctoral Teaching Assistant; Predoctoral Teaching Associate I; Predoctoral Teaching Associate II; Tutor, Reader, or Grader in all academic units and tutoring centers; Predoctoral Staff Assistant; Predoctoral Staff Associate I; Predoctoral Staff Associate II; Predoctoral Researcher; Predoctoral Research Assistant; Predoctoral Research Associate I; Predoctoral Research Associate II; and any other student employees whose duties and responsibilities are substantially equivalent to those employees, who remain eligible for work in any or all of those types; excluding: students who have no service expectancy imposed upon them by the employer, casual employees, and all other employees of the employer.
Hearing Officer Guy Otilio Coss held a hearing on October 5th, 21st, November 1st and December 10th of 2010. Both the union and employer filed post-hearing briefs which were considered.
ISSUES PRESENTED
1. Is it appropriate to add positions to the petitioner’s existing bargaining unit via a unit clarification petition under Chapter 391-35 WAC?
2. Should the employer’s legal writing fellow and/or legal research assistant positions at the employer’s School of Law be included in the existing bargaining unit?
The union’s existing bargaining unit is the only appropriate unit for the petitioned-for student/employee positions per RCW 41.56.203(1). Therefore, the petition is appropriate for consideration under WAC 391-35-020(4)(b). Evidence clearly established that the petitioned-for student/employee positions are employees of the employer, are enrolled in an academic program on a University of Washington campus, and are student/employees enrolled in an academic program whose duties and responsibilities are substantially equivalent to those listed in RCW 41.56.203(1)(a) through (h). Accordingly, the existing bargaining unit is clarified to include the legal writing fellow and legal research assistant positions.
ISSUE 1: Is it appropriate to add positions to the union’s existing bargaining unit via a unit clarification petition under Chapter 391-35 WAC?
Applicable Legal Standard
WAC 391-35-020(4) provides, in relevant part, that employees or positions may be added to an existing bargaining unit in a unit clarification proceeding:
(a) Where a petition is filed within a reasonable time period after a change of circumstances altering the community of interest of the employees or positions; or
(b) Where the existing bargaining unit is the only appropriate unit for the employees or positions.
Thus, where one of the two provisions of WAC 391-35-020(4) apply, subsection (5) does not.
Application of the Standard
The employer is a state institution of higher education. The union is the certified exclusive bargaining representative of a bargaining unit of student/employees working in legislatively defined classifications. See University of Washington, Decision 8315-B (PECB, 2004); RCW 41.56.203.
The employer asserts that the union’s unit clarification petition, filed under Chapter 391-35 WAC is inappropriate because the petitioned-for positions existed prior to the representation election and 2004 certification, and that there has been no change in circumstances altering the community of interest warranting a unit clarification petition under WAC 391-35-020(4)(a). The employer also claims that WAC 391-35-020(5) requires the union to file a representation petition under WAC 391-25 to allow the petitioned-for employees to assert their statutory right to choose whether, and by whom, they wish to be represented.
In this case, there has been no change of circumstances altering the community of interest of the petitioned-for positions and, as such, the union’s petition does not meet the requirements of WAC 391-35-020(4)(a). However, WAC 391-35-020(4)(b) contains an alternative condition precedent that, if met, allows the use of unit clarification proceedings to add positions to an existing bargaining unit provided “the existing bargaining unit is the only appropriate unit for the employees or positions.” WAC 391-35-020(4)(b).
ISSUE 2: Should the legal writing fellow and/or legal research assistant positions be included in the existing bargaining unit?
Applicable Legal Standards
In 2002, the Washington State Legislature extended statutory collective bargaining rights to student/employees working in specific classifications at the University of Washington. RCW 41.56.203 provides, in relevant part, that:
(1) In addition to the entities listed in RCW 41.56.020, this chapter applies to the University of Washington with respect to employees who are enrolled in an academic program and are in a classification in (a) through (i) of this subsection on any University of Washington campus. The employees in (a) through (i) of this subsection constitute an appropriate bargaining unit:
(a) Predoctoral instructor;
(b) Predoctoral lecturer;
(c) Predoctoral teaching assistant;
(d) Predoctoral teaching associates I and II;
(e) Tutors, readers, and graders in all academic units and tutoring centers;
(f) Predoctoral staff assistant;
(g) Predoctoral staff associates I and II;
(h) Except as provided in this subsection (1)(h), predoctoral researcher, predoctoral research assistant, and predoctoral research associates I and II. The employees that constitute an appropriate bargaining unit under this subsection (1) do not include predoctoral researchers, predoctoral research assistants, and predoctoral research associates I and II who are performing research primarily related to their dissertation and who have incidental or no service expectations placed upon them by the university; and
(i) All employees enrolled in an academic program whose duties and responsibilities are substantially equivalent to those employees in (a) through (h) of this subsection.
The unambiguous language of the statute requires an institution-wide bargaining unit. University of Washington, Decision 8315 (PECB, 2003).
This employer and union were both active participants in the lobbying that preceded the adoption of the statutory language under which this case must be decided. Now that the bill they lobbied is law, the intent of the proponents is irrelevant, and Chapter 34, Laws of 2002, must be applied as written. An institution-wide bargaining unit is REQUIRED by the language in RCW 41.56.203(1) which states: "The employees in (a) through (i) of this subsection constitute an appropriate bargaining unit. . . ." (emphasis added).
Thus, because the Legislature has specifically identified the positions, duties, and responsibilities of the employees to be included in the institution-wide bargaining unit, it is unnecessary to undertake a traditional community of interest analysis under RCW 41.56.060(1). This does not, however, alter the mandate in RCW 41.56.060(1) that “[t]he 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.” The only appropriate unit for positions that satisfies the criteria defined by RCW 41.56.203(1)(a) through (i) is the bargaining unit represented by the petitioner.
In identifying what positions should be included in the single, appropriate bargaining unit, the Legislature identified a broad spectrum of student/employee titles. In addition to those specifically named positions, 41.56.203(1)(i) requires the inclusion of “All employees enrolled in an academic program whose duties and responsibilities are substantially equivalent to those employees in (a) through (h) of this subsection.” This Legislative mandate is similar to the long- standing Commission precedent concerning position titles versus actual duties:
The title of a position is not dispositive of the unit placement of a position because, when interpreting statutes, making unit determinations, and resolving representation issues, the Commission is not controlled or governed by titles given to a particular position. Washington State University, Decision 9613-A (PSRA, 2007); City of Winslow, Decision 3520-A (PECB, 1990). Rather, the Commission examines the actual duties of employees when determining whether a position is included or excluded from a bargaining unit.
Everett Community College, Decision 10392-A (PECB, 2010), aff’d, Everett Community College, Decision 10392-B (PECB, 2010).
Application of Standard
The employer argues that the School of Law student/employees should not be accreted into the petitioner’s bargaining unit because the parties never contemplated their inclusion and the history of the certification process, election, and the parties’ negotiations since the 2004 certification “demonstrate that the School of Law positions were never intended to be included in the bargaining unit.” The employer also asserts that a “decision by PERC accreting School of Law positions into the existing bargaining unit would fundamentally change long-standing and traditional operational administration of academic programs at the University.” To support its contention, the employer claims that such an order would result in either the Graduate School being “given oversight and authority over the School of Law administration, or the School of Law will have to assume Graduate School standards for admission and degree completion.” Citing RCW 41.56.021(4), the employer points out that “PERC has no authority to change the operations of any state agency, including the University’s hiring standards.”
The employer’s arguments are not supported by the statutory scheme. Any effects of an order to include School of Law positions into the petitioner’s bargaining unit are not mandated by the Commission, but are the result of carrying out the clear intent of RCW 41.56.203 as written by the Legislature. Moreover, the employer’s claim that providing bargaining rights to less than a handful of School of Law student/employees would change the operation of the university by giving oversight of the School of Law to the Graduate School is not convincing.
RCW 41.56.203 identifies the employer as the University of Washington. The University of Washington School of Law is a school located on the university’s campus that is a sub-institution within the wider university system. “The Legislature has made the University of Washington the employer in this case, and it cannot escape that responsibility by hiding behind its own sub-institutions, departments and/or programs.” University of Washington, Decision 8315.
The only relevant intent concerning the statute is that of the Legislature. “Regardless of the differing views of these parties as to their intentions when RCW 41.56.203 was being drafted and considered in the Legislature, the ultimate focus in this case must be on the actual language of the adopted statute.” University of Washington, Decision 8315. “If the statute's meaning is plain on its face, the court must give effect to that plain meaning.” McGinnis v. State, 152 Wn.2d 639, 645 (2004), citing Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224 (2002); see also Public Utility Dist. No. 1 of Clark County v. Public Employment Relations Commission, 110 Wn.2d 114 (1988).
RCW 41.56.203(1) is clear and unambiguous in that it applies to:
1. The University of Washington,
2. with respect to employees who are enrolled in an academic program and,
3. are in a classification in (a) through (i) of this subsection,
4. on any University of Washington campus.
Any student/employee position that meets the above four criteria, regardless of title, must be included in the institution-wide bargaining represented by the petitioning union. RCW 41.56.203(1)(i), see also Everett Community College, Decision 10392-A (PECB, 2010).
Having determined that the University of Washington is the employer of the petitioned-for employees, the only remaining question is whether the petitioned-for positions meet the criteria identified in RCW 41.56.203(1)(a) through (i).
In its brief, the employer asserts that “the union made clear that it was relying exclusively on a comparison with post-graduate teaching and research assistant positions in the bargaining unit” and that the union had therefore “specifically waived any comparison of the School of Law positions to hourly paid readers, graders or tutors, who are normally undergraduates.” The employer may be correct that the union only relied on comparisons with post-graduate teaching and research assistant positions in the bargaining unit. This, however, does not mean that comparisons to the other listed positions, duties and/or responsibilities identified in RCW 41.56.203(1)(a) through (i) may not be made. There was no credible testimony or evidence disputing the fact that the juris doctorate program and/or the various master’s degree programs at the School of Law are academic programs in which the petitioned-for positions are enrolled.
Finally, the employer does not contest that the legal writing fellow and legal research assistant positions perform work substantially similar to the work performed by Teaching Assistant and Research Assistant positions already included in the bargaining unit. In footnote 4 of its brief, the employer states: “[t]he University does not contend that the work that TAs and RAs in the bargaining unit perform is not substantially similar to the work that Legal Writing Fellows and Legal Research Assistants do in the Law School positions.”
Legal Writing Fellow:
David Parsons has been the president of UAW Local 4121 since 2006 and was the financial secretary/treasurer from 2004-2006. As the full-time, paid union president, his duties and responsibilities include serving as the primary spokesperson for the bargaining unit, being involved in negotiations, enforcing the collective bargaining agreement, extensive outreach with bargaining unit members and membership education. Parsons has knowledge and experience concerning the duties and responsibilities of teaching assistants via working as a teaching assistant in the English Department from 2001 through 2005. Parsons testified that his duties and responsibilities included preparing assignments, preparing a syllabus, assigning and grading writing assignments, leading class discussion, giving lectures in classes as well as holding office hours to meet individually with students. Parsons also met either regularly or semi-regularly with faculty members.
Parsons testified about the duties and responsibilities of the student/employee positions commonly referred to as teaching assistants as well as the reader, grader and tutor position. He noted that while the duties and responsibilities vary due to the needs of the class, professor, and students, the basic duties and responsibilities include leading class sessions, meeting with students individually, and having required office hours.
Parsons also noted that there are differences in the duties of the teaching assistants. For example, some teaching assistants are given a class to design and teach under the authority of a faculty member, while others are not responsible for designing or teaching a class, but instead help students interpret and understand a professor’s lessons. Some teaching assistants are required to hold discussion sessions or office hours, grade assignments using their own judgment, run tests through automatic grading machines called “scantrons.” Some do not grade assignments at all.
These descriptions are not inconsistent with the duties and responsibilities of teaching assistants and tutors, readers, graders as described in Findings of Fact 18 and 19 of University of Washington, Decision 8315:
Student/employees in the teaching assistant (TA) role (including the predoctoral instructor, predoctoral lecturer, predoctoral teaching assistant, predoctoral teaching associate I, and predoctoral teaching associate II types listed in RCW 41.56.203(1)(a) through (d)), generally teach classes, lead discussion sections, oversee laboratory sections, serve as classroom assistants to faculty members, and/or provide supervised teaching.
Student/employees in tutor, reader, and grader roles as listed in RCW 41.56.203(1)(e), assist individual students and/or work in study centers, and assist faculty members. Undergraduate students and graduate students are employed in such roles, along with persons who are not enrolled as students in the institution. Any student/employees working in these roles are paid on an hourly basis.
In comparing the duties and responsibilities of a teaching assistant and/or tutor, reader, grader to the legal writing fellow at the law school, Rachel King, a legal writing fellow, testified regarding that a legal writing fellows assists a professor in a required, year long, first year law student course titled: Legal Analysis, Research and Writing which is designed to teach first year law students basic legal skills, legal writing, and research. Legal writing fellows are required to have already taken the course so that only second and third year law students are eligible to hold the position. King testified that, while duties and responsibilities varied depending on each professor, the basic function of the position is to assist the professor with preparation for the class, assist in grading assignments, and meet with students to provide guidance and assistance. King’s experience as a fellow included meeting with her supervising professor once a week outside of class to review upcoming classes and assignments. She was asked to look at the students’ assignment and “to read over it, make sure it was clear, look for any problems...” and give her feedback on the assignment. King was also required, and paid, to attend all of the legal writing classes held by Foley and Einstein. King also taught a short “mini-lesson,” but noted that teaching or presenting was not required, but encouraged by some professors.
King also provided testimony demonstrating that her other two main duties were to hold office hours and assist in grading assignments. She held office hours once or twice a week to provide students the opportunity to use her as a resource for questions or having their work reviewed before being submitted. Some students sought review of previous work and clarifications on the corrections/comments so they might improve their work. The number of office hours King held varied based upon what was happening in the quarter as well as appointments she made with students. In her case, with the exception of the final assignment, writing assignments were not given a numerical or letter grade, but were reviewed and commented on by King and the professor. The final writing assignment was reviewed and graded by the professor.
Adrienne Neff worked as a legal writing fellow during the 2009 school year. Neff testified that her duties included holding weekly office hours to meet with students to assist them with questions concerning legal research and writing assignments involved in the legal writing and research course. She described her meetings as “typically one-on-one kind of writing tutoring.” Neff graded students’ weekly homework assignments and assigned grades of zero to three based on her judgment. Neff assisted in the development of class lesson plans, class instruction, and a large writing assignment. Neff also kept class attendance and participation records.
Professor Helen Anderson teaches a legal analysis, research and writing program for which legal writing fellows are hired. She testified that legal writing fellows are not hired to actually teach the class but to “be basically like a tutor, to meet with students one-on-one, help them with their research and writing.” Anderson also testified that while professors and legal writing assistants differed, generally legal writing fellows could assist during classes by circulating among students working in small groups and providing assistance and answering questions. Anderson stated that legal writing fellows held office hours for students needing advice or assistance, and noted that legal writing fellows provide feedback on and limited “grading” of student’s assignments.
Conclusion on Legal Writing Fellow:
Based on the credible testimony of Parsons, King, Neff, and Anderson, the record establishes that the duties and responsibilities of the employer’s legal writing fellow position are substantially equivalent to employees holding the positions of predoctoral teaching assistant and/or tutors, readers, and graders in all academic units and tutoring centers. The position of legal writing fellow at the University of Washington School of Law is therefore appropriate for inclusion in the petitioner’s bargaining unit under RCW 41.56.203(1)(i).
Legal Research Assistant:
Nitya Venkateswaran was employed as a research assistant to Professor Meredith Honig at the University of Washington College of Education while working on her master’s in education degree from 2008 to 2010. As a research assistant she researched literature on issues that Professor Honig planned to write, as well as synthesized and recommended potential articles for Professor Honig to read. Venkateswaran wrote a seven to eight page memorandum on a topic for which Professor Honig was writing a grant proposal. She also provided research, wrote in part, and edited a research paper Professor Honig presented to the Spencer Foundation. Venkateswaran was listed as a co-author on this paper.
Wendy Renquest worked as a research assistant to Professor Linda Nash during 2004 – 2005 in the employer’s History Department. Renquest assisted in preparing a book written by Professor Nash for publication. Her duties included fact checking, working on the book’s bibliography, researching and locating documents that needed to be double checked or were missing, and basic editing of Professor Nash’s notes and bibliography. Renquest testified that she would locate and photocopy journal articles as requested by Professor Nash. Renquest also helped produce materials for a class that Professor Nash wanted to teach. This work consisted of basic online research to produce a list of curriculum and syllabi from professors at other universities, and compiling a list of books she might read, use to help prepare and/or eventually assign to students. From June 2006 to the present, Renquest has been as a research assistant with the informal title of graduate assistant editorial intern and business manager for the Center for the Study of the Pacific Northwest and its journal, the Pacific Northwest Quarterly. Her duties at the center include maintaining the center’s website, copy editing, fact finding, photo finding, writing correspondence, community outreach, and assisting with conferences.
Further descriptions of the duties and responsibilities of research assistants were stated in Findings of Fact 21 in University of Washington, Decision 8315 (PECB, 2003):
Student/employees in research assistant (RA) roles (including the predoctoral researcher, predoctoral research assistant, predoctoral research associate I, and predoctoral research II types listed in RCW 41.56.203(1)(h)) generally engage in research projects under the direction of faculty members (including assisting faculty member or other research staff members on specific assignments) or perform independent research under the supervision of a faculty member.
In comparing the duties and responsibilities of a research assistant to a legal research assistant, Kathryn Peters testified that she worked for Dean Nicolas at the School of Law during 2009-2010 on an article and updating a textbook on evidence. Her work included meeting with Dean Nicolas to receive direction and assignments, researching legal issues and providing short analysis, checking citations in his article and textbook, as well as writing one more extensive legal memorandum on a specific legal question.
Alysha Yagoda also worked as a legal research assistant at the School of Law in 2010. She held two research assistant positions, one for Professor Craig Allen and one for Professor Maureen Howard. Professor Howard planned to gather data from human subjects for a research paper she was writing and Yagoda assisted her in designing a protocol, and submitting the required documentation for conducting research involving human subjects as required by the university. Yagoda assisted Howard in research and editing an article for a law review, including doing citation, grammar and punctuation review/editing.
Yagoda also performed the initial/background research for an article idea concerning a recent Washington State Supreme Court decision involving the state’s felony harassment statute that Professor Howard was considering undertaking. This included researching the legislative history of the statute, cases involving the statute, and felony harassment statutes in other states. Yagoda summarized her research and presented it to Professor Howard along with recommendations for further research. Yagoda provided research and edited a number of articles published by Professor Howard in various media outlets. Finally, as a research assistant for Professor Allen, Yagoda created a spreadsheet or database concerning incidents and legal development in international maritime and military law.
Conclusion on Legal Research Assistant:
Based on the credible testimony of Venkateswaran, Renquest, Peters and Yagoda, the record establishes that the duties and responsibilities of the employer’s legal research assistant position are substantially equivalent to student/employees in the positions of predoctoral researcher, predoctoral research assistant, and/or predoctoral research associates I and II. The position of legal research assistant at the University of Washington School of Law is therefore appropriate for inclusion in the petitioner’s existing bargaining unit under RCW 41.56.203(1)(i).
Teaching Assistant/Evidence Assistant:
In addition to the titles of legal writing fellow and legal research assistant, testimony and evidence indicated that various titles have been used by law school professors to identify student/employee positions they sought to fill. For example, there was testimony and evidence that the term “Teaching Assistant” and “Evidence Assistant” have been used to describe student positions hired by professors at the School of Law. At the time of the hearing, there were no student/employees holding this position and no former student/employee was available to testify concerning the duties and responsibilities of the positions given these titles. Because no testimony was provided, and because it is unclear whether these position(s) still exist, this decision will not specifically address those titles. However, regardless of what title is used, it is the actual duties that determine whether a position is included or excluded from a bargaining unit. If these or any other student/employee positions are created by this employer, they should be presumed included in the bargaining unit if they meet the requirements of RCW 41.56.203(1). See Washington State University, Decision 9613-A (PSRA, 2007); City of Winslow, Decision 3520-A (PECB, 1990).
FINDINGS OF FACT
1. The University of Washington (employer) is an institution of higher education and is a public employer within the meaning of RCW 41.56.030(13).
2. The International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 4121 is a bargaining representative within the meaning of RCW 41.56.030(2).
3. The University of Washington School of Law is located on a University of Washington campus and is a sub-institution of the employer.
4. The juris doctorate program, master’s degree, and predoctoral programs at the University of Washington School of Law are academic programs.
5. The legal writing fellow and legal research assistant are positions in which student/employees are enrolled in an academic program and are in a classification contained in RCW 41.56.203(1)(a) through (i),
6. The duties and responsibilities of the employer’s legal writing fellow position are substantially equivalent to those employees holding the positions of predoctoral teaching assistant and/or tutors, readers, and graders in all academic units and tutoring centers.
7. The duties and responsibilities of the employer’s legal research assistant position are substantially equivalent to those employees holding the positions of predoctoral researcher, predoctoral research assistant, and/or predoctoral research associates I and II.
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. As described in Finding of Fact 6 and 7 above, the existing bargaining unit represented by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 4121, is the only appropriate unit for the positions of legal writing fellow and legal research assistant. Therefore, the petition is appropriate under WAC 391-35-020(4)(b).
3. Based on Findings of Fact 3 through 7, the positions of legal writing fellow and legal research assistant are appropriate for accretion into the union’s existing bargaining unit.
ORDER
The positions of legal writing fellow and legal research assistant are accreted into the union’s existing bargaining unit. The unit represented is by International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Local 4121. The bargaining unit is modified as follows:
Predoctoral Instructor; Predoctoral Lecturer; Predoctoral Teaching Assistant; Predoctoral Teaching Associate I; Predoctoral Teaching Associate II; Tutor, Reader, or Grader in all academic units and tutoring centers; Predoctoral Staff Assistant; Predoctoral Staff Associate I; Predoctoral Staff Associate II; Predoctoral Researcher; Predoctoral Research Assistant; Predoctoral Research Associate I; Predoctoral Research Associate II; Legal Writing Fellow, Legal Research Assistant and any other student employees whose duties and responsibilities are substantially equivalent to those employees, who remain eligible for work in any or all of those types; excluding: students who have no service expectancy imposed upon them by the employer, casual employees, and all other employees of the employer.
Issued at Olympia, Washington, this 22nd day of August, 2011.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CATHLEEN CALLAHAN, Executive Director
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-35-210.