DECISIONS

University of Washington, Decision 11833 (PSRA, 2013)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

In the matter of the petition of:   washington federation of state employees   For clarification of an existing bargaining unit of employees of:   university of washington	CASE 23495-C-10-1439   DECISION 11833 - PSRA     ORDER OF DISMISSAL
In the matter of the petition of:   washington federation of state employees   Involving certain employees of:   unIversity of washington	CASE 23546-E-10-3593   DECISION 11834 - PSRA     DIRECTION OF ELECTION
In the matter of the petition of:   unIversity of washington   For clarification of an existing bargaining unit of employees represented by:   washington federation of state employees	CASE 24270-C-11-1466   DECISION 11835 - PSRA     ORDER CLARIFYING BARGAINING UNIT
In the matter of the petition of:   service employees international union, local 925   For clarification of an existing bargaining unit of employees of:   unIversity of washington	CASE 24402-C-11-1472   DECISION 11836 - PSRA     ORDER OF DISMISSAL

Younglove & Coker, P.L.L.C., by Edward E. Younglove III, Attorney at Law, for the Washington Federation of State Employees.

 

Robert W. Ferguson, Attorney General, by Mark K. Yamashita, Assistant Attorney General, for the employer.

 

Douglas Drachler McKee & Gilbrough, LLP, by Martha Barron, Attorney at Law, for the Service Employees International Union, Local 925.

 

 

These cases come before the agency following the reorganization of a portion of the University of Washington’s (employer) workforce.  The employer operates a medical healthcare system, UW Medicine.  UW Medicine is an umbrella organization that encompasses a number of healthcare entities, some university owned and other private non-profit entities.  The following entities operate under the umbrella of UW Medicine:  Harborview Medical Center (Harborview) and its associated clinics, the University of Washington Medical Center (UWMC) and its associated clinics, the University of Washington Neighborhood Clinics (formerly known as the University of Washington Physicians Network), Northwest Hospital and Medical Center, Valley Medical Center, Airlift Northwest, and the University of Washington School of Medicine. 

 

Consolidation of Patient Access Services at UW Medicine

Patient access is the process by which patients receiving services from any of the UW Medicine entities register their personal information, verify insurance coverage, assign payer plans, schedule patient appointments, and coordinate referrals, among other duties.  Patient access is the front door to the UW Medicine systems.  Prior to 2010, each UW Medicine entity had its own procedures and processes concerning patient access functions. 

 

At Harborview, the Patient Access Center (PAC) coordinated patient access work for Harborview and its associated clinics.  The PAC employees performing the patient access work were in the Patient Service Specialist job class.  The PAC employees did not perform other duties or work at the Harborview clinics.  The employees used a database software called EPIC to record patient registration and insurance information.  Melissa Vasiliades oversaw the PAC which was located at the Pat Steele Building on the Harborview Medical Center campus in downtown Seattle.  The PAC employees who are currently represented by the Washington Federation of State Employees (WFSE) are in that union’s Harborview bargaining unit.  The Harborview bargaining unit is described as:

 

All full-time and regular part-time nonsupervisory classified employees of the University of Washington working at Harborview Hospital, excluding members of the governing board, employees excluded from the coverage of Chapter 41.06 RCW, students, employees covered by other collective bargaining agreements, confidential employees, and supervisors. 

 

 

University of Washington, Decision 9391 (PSRA, 2006). 

 

At the UWMC, patient access work was decentralized and handled by the individual specialty clinics within the UWMC.  Even though many of those employees were in the Patient Service Specialist job class, the employees performing patient access services at the UWMC Clinics did not exclusively perform patient access work.  Those employees had other duties within the clinics.  The employees performing patient access work also utilized the EPIC database software.  Those employees are currently represented by the Service Employees International Union, Local 925 (SEIU) in that union’s Campus-wide Non-supervisory bargaining unit.  That bargaining unit is described as follows:

 

All non-supervisory civil service employees of the University of Washington performing technical, administrative, office-clerical, and support functions in the employer's academic and medical areas of operation, excluding confidential employees, internal auditors, supervisors, and employees included in any other bargaining unit.

 

 

University of Washington, Decision 10262 (PSRA, 2008). 

 

At the UW Neighborhood Clinics, patient access was handled by a private entity known as the Virtual Front Desk (VFD).  The employees at the VFD, who were not public employees covered by Chapter 41.06 RCW or Chapter 41.80 RCW, provided many of the same services as the employees performing patient access services at Harborview and UWMC. 

 

Patient access at the affiliated medical centers, such as Valley General and the Northwest Hospital and Medical Center, was accomplished according to the policies of the individual center.  No standardized system existed and each medical center selected different software to track patient access information.

 

The separate process and procedures at the UW Medicine entities were not coordinated and integrated with one another.  As a result, there was no coordinated ability to assist patients through the UW Medicine system. 

 

In 2009, the employer began a process of evaluating its patient access functions.  It hired a private healthcare consultant, Flexsource, to review its patient access operations at UW Medicine and provide recommendations as to how it could deliver its patient access services in a more efficient, effective, and patient-centered manner.  After reviewing the employer’s patient access operations, Flexsource recommended that the patient access functions be centralized into a single operation to provide universal patient access services across all of the facilities within UW Medicine.  

 

Based upon the Flexsource recommendation, the employer decided to consolidate its patient access service work to a “Contact Center” that was viewed as a shared service for all of the UW Medicine operations, not just Harborview, UWMC, or UW Neighborhood Clinics.  The intent of the Contact Center was to create an entity that provided patients a “gateway” or front door into UW Medicine’s system where patients could register their personal and insurance information and schedule appointments at the UW Medicine facilities.  The Contact Center is located at a new facility in downtown Seattle that is separate and apart from the other UW Medicine facilities.  

 

The employer planned to fully operationalize this consolidation to the Contact Center in steps.  First, the employees at the VFD providing support to the UW Neighborhood Clinics would be hired by the employer and moved to the Contact Center.  Those former VFD employees would be hired as state civil service employees and covered by Chapter 41.06 RCW.  At the same time, the PAC employees at Harborview would be moved over to the Contact Center.  An Administrative Coordinator, Program Assistant, and two employees in the Date Entry Operator job class who are included in the SEIU’s Campus-wide Non-supervisory bargaining unit were hired at the Contact Center in mid-2011. 

 

The Contact Center was expected to go “live” in September 2010 and begin performing patient access work for Harborview and the UW Neighborhood Clinics.  Patient access services for the UWMC and its clinics, the specialized Harborview clinics, and the affiliated private entities and their clinics was expected to be “on-boarded” over the course of several years with completion expected in 2013.  As new clinics were on-boarded to the Contact Center, the volume of patient access calls to the Contact Center increased.  The Contact Center hired additional staff as more clinics were on-boarded to the Contact Center in order to handle the increased work.

 

When on-boarding a specialized clinic, the Contact Center employees would meet with the employees from clinics to learn about any processes unique to the specialized clinic.  In on-boarding a private affiliated entity, the patient access data had to be converted to the EPIC system.  The goal with on-boarding is to ensure that the Contact Center employee understands the needs of the patients accessing the specialized facility’s or clinic’s services.  Once the Contact Center employees are properly trained regarding a specialized clinic, the majority of the specialized clinics’ patient access services would be handled by the Contact Center.  The employees at the UWMC specialized clinics continue to perform limited patient access work, but that work has diminished since the Contact Center went live. 

 

In March 2010, the employer informed the WFSE and the SEIU that it was consolidating its patient access services to the Contact Center consistent with the plan outlined above.  The employer also notified the WFSE that the PAC would be closed.   On March 26, 2010, the WFSE demanded to bargain the Contact Center consolidation.  During the subsequent negotiations, the employer notified the WFSE that a new job class was being created for the Contact Center.  The new job class, Patient Services Representative – Contact Center, would also be referred to as a “Contact Center Representative.”  The employer informed the WFSE that the employees working at the PAC would need to apply for the Contact Center Representative positions if they wanted to work at the Contact Center.  The employer also informed the WFSE that the employees hired for the Contact Center Representative positions at the Contact Center would not be included in the Harborview bargaining unit.  The WFSE demanded that the work performed by the PAC employees remain as Harborview bargaining unit work and that the PAC employees automatically become employees of the Contact Center.  The employer did not agree.^[1] 

 

In August 2010, all 29 employees performing patient access work at the PAC applied for the Contact Center Representative positions at the Contact Center.  On August 20, 2010, the employer notified those 29 PAC employees of their appointment to a position at the Contact Center.  The employer also informed the employees that their first day of work would be October 1, 2010.    

 

The Contact Center went “live” and started taking patient access calls on October 21, 2011.  When the Contact Center opened, the employees used the EPIC software database.  Vasiliades, who oversaw the PAC at Harborview, was hired as the director of the Contact Center.  Four additional managers oversee different portions of the center’s operation.  Joseph Karduck is responsible for managing the employees who perform patient access work and supervises the Contact Center Representatives. 

 

Commission Cases Related to Patient Access Services Consolidation within UW Medicine

On September 3, 2010, the WFSE filed a unit clarification petition concerning the former PAC employees working at the Contact Center.  Case 23495-C-10-1439.  The WFSE’s petition seeks a ruling that the employees who transferred from the PAC should still be included in the WFSE’s Harborview bargaining unit regardless of any change in work title or job location since, in the WFSE’s opinion, the employees are still performing bargaining unit work.^[2]  On September 21, 2010, the WFSE filed an unfair labor practice complaint against the employer.  The WFSE alleged: 1) that the employer failed to bargain in good faith the decision to consolidate the patient access services, and 2) that the employer removed the patient access bargaining unit work from the WFSE’s Harborview bargaining unit without first providing notice and an opportunity for bargaining.  Case 23515-U-10-5995.  On September 28, 2010, processing of the WFSE’s unit clarification petition was blocked pursuant to WAC 391-35-110 pending resolution of the unfair labor practice complaint.^[3]

 

On October 4, 2010, the WFSE filed a representation petition to include Contact Center employees hired from the VFD into its Harborview bargaining unit under WAC 391-25-440.^[4]  Case 23546-E-10-3593.  On October 5, 2010, the WFSE filed a letter requesting that its representation petition be processed notwithstanding the pending unfair labor practice case.  On October 18, 2010, Executive Director Cathleen Callahan denied the WFSE’s request. 

 

On May 25, 2011, Examiner Karyl Elinski issued a decision in the unfair labor practice case.  The Examiner found the employer had the right to reorganize its operation.  However, she also found the employer unlawfully refused to bargain the removal of bargaining unit work, breached its good faith bargaining obligation concerning the effects of its decision to reorganize its operation, and interfered with employee rights.  University of Washington, Decision 11075 (PSRA, 2011).  The Examiner ordered the employer to restore the conditions that existed prior to the employer’s unfair labor practices and undo the consolidation of the patient access work to the Contact Center.  The employer appealed that decision to the Commission.   

 

On September 23, 2011, the employer filed a unit clarification petition seeking a ruling regarding the representation status of the Contact Center employees.  Case 24270-C-11-1466.  Specifically, the employer sought clarification of whether the Contact Center work belongs to the WFSE’s Harborview bargaining unit, the SEIU’s Campus-wide Non-supervisory bargaining unit, or is unrepresented.  On November 2, 2011, processing of the employer’s unit clarification petition was blocked pursuant to WAC 391-35-110 pending resolution of the WFSE’s unfair labor practice complaint. 

 

On November 16, 2011, the SEIU filed a unit clarification petition concerning the work being performed at the Contact Center.  Case 24402-C-11-1472.  The SEIU asserts that the Contact Center work belongs to its Campus-wide Non-supervisory bargaining unit because the Contact Center work is similar to the work being performed by the employees in its bargaining unit.  On November 22, 2011, processing of the SEIU’s unit clarification petition was blocked pursuant to WAC 391-35-110 pending resolution of the unfair labor practice complaint. 

 

On March 12, 2012, the Commission ruled on the employer’s appeal of the WFSE’s unfair labor practice complaint.  University of Washington, Decision 11075-A (PSRA, 2012).  The Commission held that the employer had the right to reorganize its workforce.  The Commission also agreed with the Examiner that the employer unlawfully removed bargaining unit work from the WFSE’s bargaining unit without first satisfying its bargaining obligation, refused to bargain in good faith, and interfered with protected employee rights.  However, because the employer had the right to reorganize its workforce, the Commission modified the Examiner’s remedial order and permitted the employer’s reorganization of the patient access work to the Contact Center to stand.  University of Washington, Decision 11075-A. 

 

On April 26, 2012, the Commission issued a second decision clarifying that the WFSE continued to represent the former PAC employees at the Contact Center pending the results of these unit clarification and representation petitions.  University of Washington, Decision 11075-B (PSRA, 2012).  The employer appealed the Commission’s decision to King County Superior Court.  The employer’s right to reorganize it workforce is not a subject of the appeal.   On May 8, 2013, the King County Superior Court affirmed the Commission’s decision and dismissed the appeal.  The employer has appealed to the Court of Appeals. 

 

The Hearing on the Unit Clarification and Representation Petitions

Because none of the parties were contesting the employer’s right to reorganize its workforce under the statute, processing of the parties’ unit clarification and representation petitions was unblocked on June 4, 2012.  Hearing Officer Dario de la Rosa conducted hearings on November 13, 14, and 15, December 6 and 19, 2012, and January 15, 30, and 31, 2013. 

 

At the outset of the hearing, the WFSE moved to limit the evidence to those events that occurred up to the date of its petitions.  The WFSE also made a motion to exclude the SEIU from the proceedings.  The Hearing Officer denied both motions.

 

The SEIU made a motion to intervene in the WFSE’s representation petition.  The Hearing Officer denied that motion at that time because the SEIU had not demonstrated that it had the support of the unrepresented employees.  The SEIU subsequently filed showing of interest cards demonstrating it had the support of at least 30 percent of the employees at the Contact Center, which allow the SEIU to propose its own bargaining unit configuration. 

 

During the December 6, 2012 hearing, the employer made a motion to amend its petition to include the administrative coordinator, a program assistant, and the two employees in the Data Entry Operator positions.  The Hearing Officer granted the employer’s motion over the objection of both the SEIU and the WFSE.  The parties filed briefs to complete the record.^[5]  

 

ISSUES PRESENTED^[6]

 

1.      Are the unit clarification petitions timely under WAC 391-35-020?

2.      If the employer’s unit clarification petition is timely, did the Hearing Officer err in granting the employer’s motion to amend its unit clarification petition?

3.      Did the Hearing Officer err in declining the WFSE’s motion to limit the evidence to the date of its petition?

4.      If any of the unit clarification petitions are timely, are the WFSE’s Harborview bargaining unit and the SEIU’s Campus-wide Non-supervisory bargaining unit still appropriate and, if they are not, how should they be modified?

5.      If any of the unit clarification petitions are timely, what impact, if any, does the WFSE’s representation petition have on the processing of those unit clarification petitions?

6.      Should the SEIU’s motion to intervene in the WFSE’s representation petition be granted in light of the SEIU’s submission of a showing of interest?

 

All three petitions are timely under WAC 391-35-020.  The employer’s and the SEIU’s petitions were filed a little less than and a little more than one year after the Contact Center became operational, respectively.  The petitions are timely given the nature of the employer’s reorganization.  The employer’s reorganization was not a static event; rather, the reorganization evolved over time in such a manner that the full impact of the reorganization could not accurately be determined at the time the Contact Center became operational. 

 

The Hearing Officer also correctly granted the employer’s motion to amend its petition.  Although the motion was made more than one year after the filing of its petition, the facts demonstrate that the administrative coordinator, the program assistants, and employees in the Data Entry Operator job class who work at the Contact Center share a community of interest with the Contact Center Representatives who work in the center.  It would be inappropriate to exclude those employees from the scope of these petitions.

 

As such, the Hearing Officer did not err by denying the WFSE’s motion to limit the evidence.  Because the employer’s and the SEIU’s petitions are timely, limiting the evidence to date of the WFSE’s petition would have precluded facts regarding those petitions as well as the impacts of the employer’s reorganization.  Such limitation would also have precluded this agency from properly applying the RCW 41.80.070 unit determination criteria.

 

Although timely, the WFSE’s unit clarification petition must be denied.  The process of reorganizing the former PAC employees to the Contact Center and combining them with an almost equal number of unrepresented employees performing the same work inextricably shifted the community of interest of all of those employees away from the existing Harborview bargaining unit and to the Contact Center.  Due to this shift in the community of interest, it would be inappropriate to accrete the unrepresented employees at the Contact Center to the Harborview bargaining unit.  The WFSE’s unit clarification petition is dismissed.  For these same reasons, it is inappropriate to attempt to include the unrepresented employees at the Contact Center into the WFSE’s Harborview bargaining unit through a WAC 391-25-440 self-determination election. 

 

The SEIU’s unit clarification petition must likewise be denied.  The SEIU’s Campus-wide Non-supervisory bargaining unit has not exclusively performed patient access work.  Even though some employees in that bargaining unit have performed patient access work, members of the WFSE’s Harborview bargaining unit, including the former PAC employees, have also performed that work.  Therefore, the SEIU cannot claim that it has exclusive jurisdiction over patient access work, and that petition is dismissed. 

 

Turning to the employer’s petition as amended, the evidence demonstrates that the employees performing patient access work at the Contact Center, including the employees in the Administrative Coordinator, Program Assistant, and Data Entry Operator job classes, all share a community of interest that is distinct from either the WFSE’s Harborview bargaining unit or the SEIU’s Campus-wide Non-supervisory bargaining unit.  Accordingly, both of those bargaining units are clarified to remove these positions, and the employees in the Patient Services Representative – Contact Center, Administrative Coordinator, Program Assistant, and Data Entry Operator job classes working at the Contact Center shall compose their own bargaining unit within the employer’s workforce.  

 

Normally, when a bargaining unit is clarified to remove employees, the removed employees become unrepresented unless those employees are placed in another existing appropriate bargaining unit through the clarification process.  However, the WFSE’s representation petition sought to include the unrepresented employees performing patient access work at the Contact Center in its Harborview bargaining unit.  While that petition cannot survive in its current form, the cards submitted by the WFSE, in addition to the employees that it already represents, indicated that it has support of at least 30 percent of the employees working at the Contact Center.  The WFSE’s representation petition will be administratively amended to allow the employees in the Contact Center the opportunity to vote on their representation.  Additionally, the SEIU has historically represented some of the employees working at the Contact Center and has submitted showing of interest cards demonstrating support of at least 10 percent of the employees working at the Contact Center.  Accordingly, the SEIU’s motion to intervene in the WFSE’s representation petition is granted and a representation election is ordered to allow the employees to express their desires regarding representation for purpose of collective bargaining.   

 

DISCUSSION

 

Applicable Legal Standard

The determination and modification of bargaining units and the certification of the exclusive bargaining representative of appropriate units is a function delegated to this Commission by the Legislature.  RCW 41.80.070; Central Washington University, Decision 10215-B (PSRA, 2010).  When this agency certifies a bargaining unit, the work performed by the employees in that bargaining unit becomes the historic work jurisdiction of that unit.  See, e.g., Kitsap County Fire District 7, Decision 7064-A (PECB, 2001)(bargaining unit work is defined as “work that bargaining unit employees have historically performed”).  If an employer assigns new work to employees in a bargaining unit, that work becomes historical bargaining unit work unless there is a prior agreement between the employer and the exclusive bargaining representative to make the transfer of work temporary.  See City of Snoqualmie, Decision 9892-A (PECB, 2009); see also State – Social and Health Services, Decision 9551-A (PSRA, 2008). 

 

No hard-and-fast rule exists proscribing how bargaining units should be described.  Historically, new bargaining units are described by the work performed by the employees in the unit, as opposed to the job classes within that unit.  The use of generic terms avoids the need to revisit and revise the bargaining unit description should a job title be changed or a new job title added within the occupational type.  University of Washington, Decision 8392 (PSRA, 2004).  The bargaining unit description also instructs the employer and the exclusive bargaining representative about which employees are included or excluded from the bargaining unit.  Defining bargaining units by the work the employees perform ensures that the duty to bargain is enforced if an attempt is made to transfer that work outside of the bargaining unit.  See University of Washington, Decision 8392. 

 

Defining the bargaining unit by work is not always possible where employers are larger and include multiple divisions or work groups, where similar duties are performed by several groups of employees, and where one or more unions represent employees performing the same or similar functions in different bargaining units.  Central Washington University, Decision 10215-A (PSRA, 2009), aff’d, Decision 10215-B.  A different type of bargaining unit description may be necessary and appropriate.  This is especially true of employers under the jurisdiction of Chapter 41.80 RCW.  Central Washington University, Decision 10215-A, citing University of Washington, Decision 10496 (PSRA, 2009), and University of Washington, Decision 10495 (PSRA, 2009).   Each unit is examined individually and, based upon the factual situation presented, bargaining units will be described in a manner that clearly provides the parties with a clear understanding of which employees are included in the bargaining unit.

 

However, even where the Commission defines a bargaining unit by job class, the work being performed by the employees in the bargaining unit still becomes the historical work jurisdiction of the bargaining unit.  A change in title or reallocation does not presumptively or automatically result in an employee’s removal from a bargaining unit if that employee continues to perform the same work.  Central Washington University, Decision 10215-A; see also City of Tacoma, Decision 6780 (PECB, 1999) (an employer’s civil service system and classifications cannot overrule the Commission’s authority to place employees in appropriate bargaining units).  Any attempt to remove historical bargaining unit work is still subject to collective bargaining.  See Snohomish County, Decision 9540-A (PECB, 2007).

 

Under RCW 41.80.020(2)(c), an employer’s classification and compensation plan is not subject to bargaining.  University of Washington, Decision 10490-C (PSRA, 2011).^[7]  Regardless of the employer’s authority to make modifications to a classification system for employees, the Legislature vested to this Commission the specific authority to modify bargaining units under the provision of RCW 41.80.070.  Provided each unit continues to be appropriate, nothing in Commission decisions or rules precludes employees in the same job class from being in two different bargaining units.  Thus, even where an employee’s job class is changed to a job class that is included in a different bargaining unit, a presumption still does not exist that the employee needs to be moved to that other unit.  Rather, a meaningful change in circumstances must exist before this agency will apply the unit clarification standards to determine if any existing bargaining unit needs reconfiguration. 

 

The Unit Clarification Process –

Included with this agency’s authority to determine an appropriate bargaining unit is the power to, upon request, modify that unit through a unit clarification proceeding.  See Pierce County, Decision 7018-A (PECB, 2001).  Unit clarification cases are governed by the provisions of Chapter 391-35 WAC. 

 

The general purpose of the unit clarification process is to provide a mechanism to make changes to an existing bargaining unit based upon a change in circumstances in order to ensure the unit’s continued appropriateness.  See, e.g., Toppenish School District, Decision 1143-A (PECB, 1981) (outlining the procedures to remove supervisors from existing bargaining units).  Unit clarifications alter the composition of a bargaining unit.^[8]  The Commission adopted WAC 391-35-020 to govern the time frames during which unit clarifications may be filed so as to minimize the disruptions on the parties as well as the employees.  That rule states, in part:

 

Time for filing petition — Limitations on results of proceedings.

 

TIMELINESS OF PETITION

 

(1) A unit clarification petition may be filed at any time, with regard to:

(a) Disputes concerning positions which have been newly created by an employer.

(b) Disputes concerning the allocation of employees or positions claimed by two or more bargaining units.

. . .

 

LIMITATIONS ON RESULTS OF PROCEEDINGS

 

(3) Employees or positions may be removed from an existing bargaining unit in a unit clarification proceeding filed within a reasonable time period after a change of circumstances altering the community of interest of the employees or positions.

(4) 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.

(5) Except as provided under subsection (4) of this section, a question concerning representation will exist under chapter 391-25 WAC, and an order clarifying bargaining unit will not be issued under chapter 391-35 WAC . . . .

 

 

(emphasis added). 

 

The change in circumstance that triggers a unit clarification petition under WAC 391-35-020(3) and (4) must be a meaningful change in an employee’s duties and responsibilities.  University of Washington, Decision 10496-A (PSRA, 2011), citing City of Richland, Decision 279-A (PECB, 1978).  A mere change in job titles is not necessarily a material change in working conditions that would qualify under Chapter 391-35 WAC to alter the composition of a bargaining unit through the unit clarification process.  See University of Washington, Decision 10496-A.  Other types of changes to the workplace environment, such as a reorganization of an employer’s workforce, are occurrences that could trigger a unit clarification petition.  See Lewis County, Decision 6750 (PECB, 1999). Absent a recent change in circumstances, a unit clarification petition will be dismissed as untimely.  University of Washington, Decision 11590-A (PSRA, 2013). 

 

A unit clarification petition may also be filed at any time with respect to newly created positions; however, an order clarifying a bargaining unit will not be issued and a question concerning representation will exist when the unit clarification petition is not filed within a reasonable time period after the creation of a new position. WAC 391-35-020(1)(a), (5)(a); Seattle School District, Decision 10986 (PECB, 2011).  The longer a union waits to seek accretion after a position is created, the more likely it will be that the petition will be untimely and a history of bargaining will have developed showing that the positions are historically unrepresented.  

 

The Commission’s rules only state that the clarification petition must be filed within a reasonable time of the changes.  The rules do not set forth a specific timeframe in which the change must have occurred.  Timeliness is determined by the factual circumstances of each particular case.  Reorganization and the reassignment of duties are events that do not occur overnight, and some deference must be granted to allow an employer to alter its reorganization plan should circumstances require such changes.  Furthermore, if employees are being reallocated to a new job classification based upon a recent change in duties, it may be necessary for the reallocation process to be completed so that a proper unit determination can be made.  See University of Washington, Decision 10263 (PSRA, 2008). 

 

When a unit clarification petition is found to be timely under WAC 391-35-020, the appropriateness of the existing bargaining unit or units is inherently at issue.  Even if appropriateness is assumed, as opposed to litigated, this agency may still review the appropriateness of a bargaining unit.  Mead School District, Decision 7183-A (2001).  In determining whether an existing bargaining unit or units remain appropriate in a unit clarification proceeding, the Commission applies the same statutory unit determination criteria used to establish the unit’s initial appropriateness. 

 

Accretions –

Ordinarily, employees are permitted a voice in the selection of an exclusive bargaining representative.  RCW 41.80.080.  Accretions are the exception to the statutory rule of employee free choice.  Accretions are a form of unit clarification where employees are placed into an existing bargaining unit without the benefit of being able to vote on representation.  An accretion may be ordered when, following a change in circumstances, unrepresented employees logically belong in only one existing bargaining unit and the positions can neither stand on their own as a separate unit or be logically accreted to any other existing bargaining unit.  Pierce County, Decision 6051-A (PECB, 1998), citing City of Auburn, Decision 4880-A (PECB, 1995).  In order for an accretion to be directed, the resulting bargaining unit must be an appropriate.  The party proposing accretion bears the burden of demonstrating that the conditions for accretion are present.  Pierce County, Decision 6051-A.

 

Application of Standards

 

The WFSE’s Petition –

The WFSE filed its unit clarification petition on September 3, 2010.  The purpose of the WFSE’s petition was to ensure that employees performing patient access work and who were included in the WFSE’s Harborview bargaining unit remained in that bargaining unit.  The WFSE originally sought to defend its existing work jurisdiction.  It did not initially seek to add or subtract any positions from its Harborview bargaining unit.  The WFSE sought to clarify that it continued to represent those employees transferred to the Contact Center from the PAC.  However, in its brief, the WFSE argues that its Harborview bargaining unit is the only appropriate unit for the patient access work being performed at the Contact Center.  Therefore, the WFSE argues that the unrepresented employees performing patient access work should be accreted to its bargaining unit.^[9] 

 

The Employer’s Petition –

The employer filed its unit clarification petition on September 23, 2011.  In its petition, the employer asserts that the employees at the Contact Center should be included in a separate bargaining unit apart from either the WFSE’s Harborview bargaining unit or the SEIU’s Campus-wide Non-supervisory bargaining unit.  The employer also asserts that the WFSE’s representation petition should control these proceedings and that all of the nonsupervisory Contact Center employees should be permitted an opportunity to vote as to whether they wish to be represented in a separate bargaining unit.  In the alternative, the employer suggests that a unit determination election could be ordered to determine which bargaining unit the Contact Center employees desire to be included in.  

 

The SEIU’s Petition –

The SEIU filed its unit clarification petition on November 16, 2011.  In its petition, the SEIU asserts that its Campus-wide Non-supervisory bargaining unit historically performed patient access work and therefore the patient access work at the Contact Center should be accreted to that bargaining unit. 

 

ISSUE 1 – Timeliness of the Petitions

 

The first step in the analysis for any unit clarification petition is to determine whether the petition is timely.  If a petition is untimely, the results sought by that petition cannot be granted.  See, e.g., University of Washington, 10496-A (PSRA, 2011). 

 

Analysis Regarding Timeliness

WFSE’s Petition –

None of the parties assert that the WFSE’s petition is untimely.  The facts demonstrate that the WFSE’s petition is timely.  The WFSE’s unit clarification petition as originally filed is timely because it was filed within a reasonable time of the employer’s announced change.  The PAC employees were notified of the shift to the Contact Center.  Those employees applied for new positions at the Contact Center and were offered new positions at the Contact Center by the employer.  These specific events occurred at the start of a process that extended over a substantial period of time that warrants a review of the continued appropriateness of the Harborview bargaining unit. 

 

The WFSE’s petition is also timely under WAC 391-25-020(1)(a) because it concerns positions that are newly created positions.  The employees formerly employed at the VFD were not state civil service employees within the meaning of RCW 41.80.005(6) when they were hired to work at the Contact Center.  Those former VFD positions are newly created positions of the employer, and a unit clarification petition concerning those positions could be filed at any time. 

 

Employer’s and SEIU’s Petitions –

The SEIU and the employer assert that their petitions are timely, the WFSE does not.  The WFSE asserts that the employer filed its petition almost a year after the Contact Center went live and the SEIU filed its petition more than one year after the Contact Center opened.   The WFSE points out that the SEIU filed its petition more than six months after the first UWMC Clinic was on-boarded.  According to the WFSE, these are not within reasonable time periods of the new employees being hired or the alleged change in circumstances.  The WFSE argues that reasonableness should be timed from when the filing party knew or should have known of the change in circumstances.  The WFSE also claims that the continued on-boarding of UWMC Clinics is not a series of new change in circumstances, but only a continuation of initial event.  The WFSE asks that a “reasonableness” standard be applied that would require a party to file a unit clarification petition within a reasonable time from when it knew or should have known of the change in circumstances. 

 

Although the employer and the SEIU filed their petitions a little less than and more than one year after the Contact Center opened respectively, their petitions are nevertheless timely.  In City of Auburn, Decision 4880-A (PECB, 1995), the Commission overturned a hearing officer’s ruling that a unit clarification petition was not timely because it was filed almost two years after the position at issue was created.  The Commission stated that ensuring the appropriateness of existing bargaining units outweighed any claim of timeliness that may have existed.  The Commission therefore signaled that the statutory requirement that bargaining units remain appropriate could supersede a claim that the unit clarification petition has not been timely filed, particularly where the evidence strongly suggests an inappropriate bargaining unit would result through inaction.  

 

Furthermore, the petitions concern newly created positions that are claimed by two different bargaining units.  Under WAC 391-35-020(2)(b), a petition concerning positions that are claimed by two different bargaining units may be filed at any time.  While a service center similar to the PAC may not have existed for the employees performing patient access work at the UWMC, the employees in the SEIU’s Campus-wide Non-supervisory bargaining unit performed  patient access work.  The SEIU has a colorable claim to the patient access work being performed at the Contact Center.  This agency has an obligation to ensure that the patient access work is located in an appropriate unit and to ensure that the bargaining units remain appropriate following a recent change in circumstances. 

 

Finally, these cases differ significantly from previous unit clarifications involving this employer and these parties.  In University of Washington, Decision 11590, aff’d, Decision 11590-A (PECB, 2013), this employer’s unit clarification involving the Specimen Processing Technician job class was not timely because there had been no recent change in circumstances in the duties, skills and working conditions of the employees that altered their community of interest.  The evidence demonstrates that although the employer changed the job class of the employees in 2012, there had been no meaningful change to the working conditions of the employees since at least 2004 that altered their community of interest.  Here, the employer’s and the SEIU’s petitions were filed a little less than and a little more than a year from the date the Contact Center went live.  These timeframes are not unreasonable given the nature of the reorganization. 

 

ISSUE 2 – Employer’s Motion to Amend its Petition

 

During the fourth day of hearing, the employer made a motion to amend its petition to include the employees in the Data Entry Operator job class and administrative employees as part of this proceeding.  Those employees are represented by the SEIU and included in its Campus-wide Non-supervisory bargaining unit.  Both the WFSE and the SEIU objected to the employer’s motion, which was granted by the Hearing Officer.  The WFSE and the SEIU assert that the motion was not timely and it should have been denied.

 

The SEIU has historically represented the Data Entry Operator and administrative job classes that are included in the SEIU’s Campus-wide Non-supervisory bargaining unit.  The employer argued that these positions needed to be considered to ensure that all of the Contact Center employees were included in its petition.  The Hearing Officer granted the employer’s motion to amend its petition, but also instructed the parties to brief this particular issue. 

 

Under WAC 391-35-070, a unit clarification petition may be amended by the petitioner “under such conditions as the executive director or the commission may impose.”  Although this rule provides latitude for dealing with proposed amendments, there is no absolute guarantee that amendment will be allowed in all circumstances.  Pierce County, Decision 7035 (PECB, 2000).  At a minimum, the general rule permitting amendments must be read in conjunction with other rules which impose substantive and/or procedural limitations on unit clarification proceedings under Chapter 391-35 WAC.  Pierce County, Decision 7035.

 

The positions at issue were added to the Contact Center in July 2011, but the employer did not make its motion until December 6, 2012, a period of 17 months.  This record demonstrates, however, that it is necessary to consider these positions in order to ensure that the bargaining units remain appropriate.  Accordingly, the Hearing Officer correctly granted the employer’s motion. 

 

ISSUE 3 – The WFSE’s Motion to Limit the Scope of Evidence

 

Because the parties’ petitions are timely, the next question that must be answered is the scope of the evidence to be associated with these petitions.  At hearing and through its brief, the WFSE asserts that the evidence considered for its petition should be limited to the factual situation that existed at the time it filed its petition.  The Hearing Officer denied the WFSE’s motion to limit the evidence to the factual situation that existed at the time the WFSE filed its petition and accepted evidence that post-dated the WFSE’s petition.   

 

To support its argument, the WFSE cites to State – Corrections, Decision 9269 (PSRA, 2006), for the proposition that a unit clarification case “takes the parties and the employees as it finds them when the petition is filed.”  The WFSE also asserts that the Commission’s rules regarding the timing of the evidence should be strictly followed in order to prevent this employer from benefitting from its unfair labor practices.  The employer has been found to have committed several unfair labor practices surrounding the reorganization of the patient access work. 

In State – Corrections, the Washington State Department of Corrections (Corrections), announced in May 2004 that it was closing its Tacoma Pre-Release facility in April 2005.  The inmates housed at that facility were in transition from high-security incarceration to work release in the community.  The employees who worked at the Tacoma facility were represented by the WFSE as part of its community corrections bargaining unit.  In February 2005, Corrections announced that it was opening a new facility, the Mission Creek Corrections Center for Women.  The operation of that facility resembled a traditional prison, as opposed to a transitory facility.  When the facility opened in May 2005, the inmates from Tacoma pre-release were transferred to the Mission Creek Corrections Center. 

 

On February 7, 2005, Teamsters, Local 117 (Local 117) filed a petition to accrete the employees at Mission Creek Corrections Center to its institutions bargaining unit that consisted of all the corrections officers working for the department.  The WFSE intervened, claiming that the employees belonged in its community corrections bargaining unit. 

 

The Executive Director ruled that the work belongs in Local 117’s bargaining unit.  The Executive Director’s decision did state that cases decided under Chapter 391-35 WAC take the parties and the employees as it finds them when the petition is filed.  State – Corrections, Decision 9269, citing City of Dupont, Decision 4959 (PECB, 1995), aff’d, Decision 4959-A (PECB, 1995).^[10]  Nonetheless, the decision considered evidence that post-dated Local 117’s petition, such as the manner in which the employees at Mission Creek Corrections Center phased into their new positions between March and May 2005 and how Corrections reorganized its management structure in August of 2005.  Thus, no firm requirement exists that precludes facts that post-date a unit clarification petition from being considered to accomplish the unit determination.^[11]    

 

The WFSE also relies on Washington State University, Decision 11180 (PSRA, 2011), for the proposition that the signing of a new collective bargaining agreement precludes consideration of events occurring subsequent to the signing of that agreement.  The WFSE’s reliance is equally misplaced.  That case concerned a supervisory position and WAC 391-35-020(2)(b) requires that a unit clarification petition concerning a supervisory position be filed before the signing a collective bargaining agreement.  Petitions concerning new positions or a change in circumstances have no such timing requirement.  

 

With respect to the WFSE’s assertion that the employer should not be allowed to benefit from its illegal acts, the employer’s illegal actions have drawn out a prompt consideration of the various petitions at issue.  Nonetheless, the Commission found that the employer had the statutory right to reorganize its workforce.  University of Washington, Decision 11075-A.  Furthermore, while the employer may have improperly considered the former PAC employees as unrepresented employees, the employer has the right to challenge the continued appropriateness through the unit clarification process notwithstanding its unfair labor practices.  The employer has consistently taken the position the employees at the Contact Center should be in a separate bargaining unit as the result of its lawful reorganization. 

 

The WFSE’s motion to limit the scope of the evidence was properly denied.  The circumstances surrounding a unit clarification petition may require post-petition evidence to be considered, particularly when examining a reorganization of an employer’s workforce.  Had the evidence been limited to the date of the WFSE’s unit clarification petition, September 3, 2010, any evidence concerning the opening and operation of the Contact Center would have been precluded and this agency’s ability to conduct a proper review of the existing bargaining units would have been hampered.  Furthermore, the employer’s and the SEIU’s petitions are also timely, and limiting the scope of the evidence to the date of the WFSE’s petition would have improperly precluded facts that are pertinent to those petitions from being included in the record.   

 

 

 

 

ISSUE 4 – Merits of the Unit Clarification Petitions

 

Turning to the merits of each petition, the result sought by the WFSE and the SEIU cannot be granted and the result sought by the employer must be granted. 

 

The WFSE’s petition cannot be granted because the former PAC employees working at the Contact Center no longer have a community of interest with the employees in the Harborview bargaining unit.  The WFSE cannot demonstrate that the Harborview bargaining unit is the only appropriate bargaining unit for the Contact Center employees.  Additionally, the WFSE cannot demonstrate that it would be inappropriate for the Contact Center employees to stand alone as a separate bargaining unit.  The same conclusion is reached regardless of whether the facts are examined at the time the WFSE filed its petition or when the employer more fully understood the changes brought about by reorganization. 

 

The SEIU’s petition cannot be granted because it cannot demonstrate that the Contact Center employees share a community of interest with the Campus-wide Non-supervisory bargaining unit and that bargaining unit is the only appropriate bargaining unit for the Contact Center employees.  The creation of the Contact Center shifted the community of interest for employees performing patient access work to the Contact Center itself.  While the SEIU’s Campus-wide Non-supervisory bargaining unit historically performed some patient access work, it has not performed that work exclusively.  Any patient access work that the Campus-wide Non-supervisory bargaining unit continues to perform is limited and not of a similar nature in either scope or substance to the employees performing patient access work at the Contact Center.  The SEIU’s claim that its Campus-wide Non-supervisory bargaining unit is the only logical bargaining unit for the patient access work is not supported by the record.

 

The employer’s petition must be granted because the evidence demonstrates that the Contact Center employees now share a separate and distinct community of interest as a result of the reorganization. 

 

 

Application of Standards – Unit Determination Criteria

In determining the appropriate bargaining unit, RCW 41.56.060 directs the Commission to examine the following:  the duties, skills, and working conditions of the employer; the history of collective bargaining; the extent of organization among the employees and the desires of the employees.  Examining each component in turn demonstrates the following:

 

Duties, Skills and Working Conditions –

The record demonstrates that the employees at the PAC provided services to just Harborview and its associated clinics.  Patient access work at the UWMC Clinics historically was performed by employees represented by the SEIU.  This record also clearly demonstrates that patient access work at the VFD was historically performed by unrepresented employees who were not eligible for collective bargaining rights. 

 

When the Contact Center went live, it did not perform patient access work for only the Harborview Medical Center and its associated clinics.  Rather, it started performing patient access services for all of UW Medicine, including UWMC and the UW Physicians Network, and the affiliated private entities.  This reorganization and change to the employer patient access work is significant.  Prior to the reorganization, at least two different groups of represented employees and one unrepresented group of employees performed patient access work.  The affiliated private entities selected their own methods for patient access work.  Patient access work was not coordinated across UW Medicine.  By centralizing the patient access work to the Contact Center and giving that entity responsibility for all of the patient access work at UW Medicine, the employer has materially changed the scope of its patient access work.

 

The creation of the Contact Center is not an expansion of the existing PAC operation.  Rather, the Contact Center is a combination of two distinct patient access operations, the PAC and VFD, as well as patient access work historically performed by the UWMC Clinics and the affiliated private entities.  Although the former PAC employees are still performing patient access work at the Contact Center, the universe of clientele that they serve has vastly expanded.  The former PAC employees must now be trained to take patient access calls for all of UW Medicine, and not just Harborview.  The Contact Center employees’ working conditions have also been altered.  The employees are now housed in a centralized office, as opposed to the decentralized work environment that existed for the PAC, VFD, and UWMC Clinics. 

 

History of Collective Bargaining –

This record demonstrates that the WFSE has historically and successfully represented the former PAC employees.  Because the employees at the VFD were not public employees eligible to collectively bargain under Chapter 41.80 RCW, the WFSE has no history of representing those employees.  Additionally, the SEIU has historically represented employees at all of the UWMC Clinics who performed some patient access work. 

 

Extent of Organization –

The evidence demonstrates that the employer’s purpose for creating the Contact Center was to centralize its patient access services work to provide a more efficient, effective and uniform service focused on the patient.  When patients call the centralized contact number for UW Medicine, their first contact is with an employee at the Contact Center.  The only patient access work not performed by the Contact Center is performed by some employees in the Patient Service Specialist job class at the UWMC Clinics who are included in the SEIU’s Campus-wide Non-supervisory bargaining unit.  However, these employees are not dedicated solely to performing patient access work in a manner similar to the employees at the Contact Center.  The only time that UWMC Clinics perform patient access work is when a patient calls the clinic directly.  Furthermore, while these types of direct patient contacts happen occasionally at the clinics, their frequency has declined since the creation of the Contact Center, and the employees at the clinics often refer the caller to a Contact Center employee to complete the registration process. 

 

At the time the WFSE filed its unit clarification petition, the Contact Center employees performing patient access work consisted of 29 former PAC employees and 27 former VFD employees.  There were no employees in the Administrative Coordinator, Program Assistant, or Data Entry Operator job classes employed at the Contact Center at that time.  At the time of the hearing, there were 116 employees in the Contact Center Representative job class, seven lead employees, two employees in the Data Entry Operator job class, and two administrative employees.

 

Desires of Employees –   

Although “desires of the employees” is one of the unit determination criteria listed in RCW 41.80.070, testimony under oath is an inherently coercive and inappropriate method for ascertaining the desires of employees.  Valley Communications Center, Decision 4465-A (PECB, 1994).  Generally, the desires of employees are ascertained through the election process.  Central Washington University, Decision 9963-B (PSRA, 2010). 

 

Avoidance of Excessive Fragmentation –

Historically, the Commission considered fragmentation of the employer's workforce as one aspect of the “extent of organization” analysis.  State – Attorney General, Decision 9951 (PSRA, 2008), aff’d, Decision 9951-A (PSRA, 2009).  The inclusion of a unique “fragmentation” criterion in Chapter 41.80 RCW, in addition to the four unit determination criteria found in every other federal or state collective bargaining statute, must be presumed to have an explicit meaning.  Chapter 41.80 RCW puts consideration of excessive fragmentation forward as a separate criterion with the same weight as the other four.  State – Attorney General, Decision 9951.  As referenced above, the employer’s purpose for creating the Contact Center was to consolidate its patient access services work into one location.  Thus, the employer sought to minimize its already fragmented workforce through the creation of the Contact Center. 

 

The Appropriate Bargaining Unit

To successfully accrete the unrepresented employees at the Contact Center to either WFSE’s Harborview bargaining unit or the SEIU’s Campus-wide Non-supervisory bargaining unit, the WFSE and the SEIU needed to demonstrate that their respective bargaining unit was the only appropriate bargaining unit for the employees and that the employees could not stand alone as a separate bargaining unit.  Based upon the change in circumstances, both the WFSE and the SEIU have failed to demonstrate both elements of the accretion test. 

 

The Contact Center is a Distinct Entity –

The Contact Center is a distinct vertical operation within UW Medicine.  All of the employees at the Contact Center perform or support the process of patient access.  These employees work side-by-side in a unique work setting under common supervision.  While other employees in the employer’s workforce are in similar job classes, none perform patient access work in a manner similar to the employees at the Contact Center. 

 

The reorganization of the patient access work inextricably shifted the community of interest of the patient access work to the Contact Center.  As a dedicated operation that services all of UW Medicine, the Contact Center represents an organizational move on the part of the employer to not identify patient access work with any facility within UW Medicine other than the Contact Center itself.^[12]  In reorganizing its patient access work to the Contact Center, the employer also created a distinct and separate operation within its workforce.  The employees at the Contact Center are the only employees in UW Medicine who perform this level of patient access work and are in their own department.  When a patient calls the Contact Center, they are calling the center itself, and not any particular clinic of Harborview, UWMC, the UW Physicians Network, or any other UW Medicine Facility that utilizes the Contact Center for patient access work. 

 

The fact the Contact Center is a new facility separate and apart from any other UW Medicine entity also weighs heavily towards a finding that the employees at this facility be in their own bargaining unit.  In City of Bellingham, Decision 7322-B (PECB, 2002), the City of Bellingham ceased performing dispatcher work and transferred that work to a new entity, WhatComm. A union petitioned to represent the employees at WhatComm, but the incumbent union of the transferred employees argued that those employees continued to be employees of Bellingham and included in an existing bargaining unit.  The Executive Director agreed that the employees were employed by a new employer and the Commission affirmed.  In reaching his conclusion that the dispatcher employees were now a separate bargaining unit, the Executive Director found that the employees were moved to a new facility that altered their previous community of interest.    

The community of interest that the former PAC employees shared with the Harborview bargaining unit ceased to exist when the employer reorganized its patient access work.  The consolidation of patient access work to the Contact Center included more than just physically moving certain employees who continued to perform essentially the same work.  The consolidation also included more than just hiring new employees to supplement an existing workforce.  Rather, the employer’s reorganization “reinvented” patient access work for all of UW Medicine in such a manner that it simply cannot be said that the Contact Center is an expansion of the existing PAC.  Instead of a decentralized and unintegrated process that was administered by the various entities, the employer created a uniform and integrated process for patient access.  This is particularly true for the affiliated private medical centers which converted their patient access software to the EPIC software so that the Contact Center could provide the affiliates patient access services.  Because the employees at the Contact Center can stand alone at their own bargaining unit and the WFSE does not represent a substantial majority of those employees, accretion is not appropriate in this case. 

 

Leaving the former PAC employees in the WFSE’s Harborview bargaining unit could lead to work jurisdiction issues and inappropriate bargaining unit configurations if the unrepresented employees remain unrepresented or select a different bargaining unit.  Because the employees in the Contact Center Representative job class are currently included in the WFSE’s Harborview bargaining unit, that unit must be clarified to remove those employees so that all of the employees in the Contact Center Representative job class at the Contact Center have the same representational status. 

 

The employees in the Data Entry Operator job class and the two administrative employees must also be removed from the SEIU’s Campus-wide Non-supervisory bargaining unit.  The WFSE and the SEIU argue that these employees do not share a community of interest with the Contact Center Representatives performing patient access work.  The record demonstrates otherwise. 

 

Unlike the employees in the Contact Center Representative job class, the Data Entry Operators do not take incoming calls from patients seeking to register or schedule patients at UW Medicine Clinics.  Rather, the Data Entry Operators work with the Contact Center’s Referral Team that handles patient referrals to UW Medicine Clinics that come from outside of the UW Medicine systems.  The referral team consists of employees in the Data Entry Operator and Contact Center Representative job classes.  The Data Entry Operators will enter the patient’s information into a queue of requests which is prioritized depending on the instructions that accompany the request.  The Contact Center Representative will then attempt to contact the patient to schedule an appointment.  While there may be differences in the duties of the Contact Center Representative and Data Entry Operator job classes, these are two positions that work side-by-side to accomplish their work and the Referral Team is an integrated operation within the Contact Center.  Accordingly, it would be inappropriate to exclude these employees from the scope of the employer’s petition. 

 

The raw number of employees that are involved in the reorganization also leads to a conclusion that the employees at the Contact Center share a separate community of interest.  At the time the Contact Center opened, approximately 29 employees transferred from the PAC at Harborview to the Contact Center.^[13]  Thus, the WFSE represented only 51.7 percent of the employees performing patient access work at the Contact Center.  This is not a substantial majority that would warrant accretion of the unrepresented employees to the Harborview bargaining unit. 

 

As of November 15, 2010, 27 employees who worked at the VFD were employed at the Contact Center, and a total of 60 employees worked at the Contact Center in the newly created Contact Center Representative job class.  This number does not include supervisors, managers, and employees in the Program Operations Specialist job class.  At the time of the hearing, there were 116 employees in the Contact Center Representative job class, seven lead employees, two employees in the Data Entry Operator job class, and two administrative support staff employed at the Contact Center.^[14]  These numbers call WFSE’s majority status into question.^[15]    

 

The WFSE takes the position that the Contact Center Representative’s community of interest should be judged against the entirety of its Harborview bargaining unit at the time the petition was filed.  Because the Harborview bargaining unit contains over 1000 employees, including the 29 former PAC employees, the WFSE asserts that it clearly represents an overwhelming majority of employees and therefore accretion is appropriate.  The WFSE’s position is premised on the assumption that the patient access work as it existed at the PAC continues to be part of its Harborview bargaining unit following the reorganization and creation of the Contact Center.  These arguments fail to consider the impact that reorganization had on the employer’s patient access operations and the shift in the community of interest that occurred as the result of the reorganization. 

 

Finally, a finding that the employees at the Contact Center constitute an appropriate separate bargaining unit would not unduly fragment the employer’s workforce.  A bargaining unit that constitutes the entirety of a vertical structure of an employer’s workforce, such as a department or division, is generally considered to be an appropriate bargaining unit.  For example, in Washington State University, Decision 9613-A (PSRA, 2007), the Commission held that a vertical bargaining unit consisting of that university’s dining services was an appropriate bargaining unit.  Additionally, bargaining units that encompass all employees in a single job class of an employer’s workforce are horizontally structured bargaining units and are generally considered appropriate.  See University of Washington, Decision 8392.  While Commission precedent favors bargaining unit configurations that are vertical or horizontal or consist of all employees of an employer’s workforce, there is no absolute requirement that employees be organized in these fashions and neither horizontal nor vertical bargaining unit configurations are presumptively appropriate.  See State – Attorney General, Decision 9951-A (PSRA, 2009).  Provided justification under the unit determination criteria exists, other unit configurations are possible.  Here, a bargaining unit of just the employees in the Contact Center is an appropriate vertical bargaining unit under RCW 41.80.070. 

 

Contact Center is not an Extension of the PAC –

The record demonstrates that the WFSE’s Harborview bargaining unit is no longer a logical location for the patient access work, much less the only logical location as the test requires.  Although the WFSE asserts that the Contact Center is merely a continuation of the PAC and the patient access work at the Contact Center remains historical WFSE Harborview bargaining unit work, the facts demonstrate otherwise.  The Contact Center is not a successor or continuation of the PAC.  Rather, the Contact Center is effectively a new operation. 

 

The Commission applies the “substantial continuity” test in examining whether a public employer is required to continue to recognize the exclusive bargaining representative of employees who are part of a newly acquired operation.  The substantial continuity test evaluates whether the employer has “acquired substantial assets of its predecessor and continued, without interruption or substantial change, the predecessor’s business operation.”  Bremerton-Kitsap County Health Department, Decision 2984 (PECB, 1988), quoting Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973).  The factors that are examined include (1) whether the business of both employers is essentially the same; (2) whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and (3) whether the new entity has the same production process, produces the same products, and basically has the same body of customers.  

 

In Bremerton-Kitsap County Health Department, Decision 2984, the substantial continuity test was applied to determine whether employees transferred to a different division of the same public employer’s operation should continue to be represented in a manner similar to that which existed before the transfer.  There, this agency certified a bargaining unit of “all full-time and regular part-time home health aides of the employer.”  At the time the unit was certified, the employees in the Home Health Aid job class were included in the employer’s “Home Health Services Program.”  The employer discontinued the Home Health Program, transferred the employees to the employer’s Nursing Division, and assigned the Home Health Aide employees to a new “Community Health Aide” job class.  The employer then claimed that the employees in the Community Health Aide job class were no longer represented because the home health aide bargaining unit evaporated as a result of the transfer.  However, the evidence demonstrated that the "Community Health Aide" workforce was composed entirely of employees drawn from the "Home Health Aide" classification and pre-existing bargaining unit.  The employees had similar skills, some virtually identical duties, substantially the same "senior citizens" clientele, and similar supervision and working conditions.  Therefore, it was found that a substantial continuity existed between the Home Health Aide and the Community Health Aide work, so the union continued to represent those employees.   

 

Applying the substantial continuity test to this case produces a different result.  The PAC and Contact Center were both in the business of providing patient access services.  The employees who transferred from the PAC are essentially performing a similar type of work and are using the same EPIC computer software to perform that work.  However, the supervision, work location, and clientele of the former PAC employees have been substantially altered.  Additionally, the workforce of the two entities is not the same.  In Bremerton-Kitsap County Health Department, the workforce had not been altered.  At the time the Contact Center opened, two separate and distinct workforces, the former PAC and VFD employees, composed the workforce.  A third workforce of newly hired patient access employees has been added on a consistent basis as more clinics are on-boarded.  Thus, there is not a substantial continuity between the PAC and the Contact Center and the Contact Center is not a continuation of the former PAC operation.

 

Contact Center is not an Extension of UWMC and its Clinics –

The SEIU claims that the Contact Center’s patient access work is functionally integrated with the work performed by other employees in the SEIU’s bargaining unit.  The SEIU over-exaggerates the factual interactions between the two groups of employees. 

 

The record demonstrates that employees in the Patient Service Specialist job class working at certain UWMC Clinics perform some patient access work.  The Patient Service Specialists at times receive calls from patients asking to schedule appointments with the specialized clinic.  The Patient Service Specialist will contact the Contact Center and work with a Contact Center Representative to register and schedule the patient.  However, the level of patient access work performed by the Patient Service Specialists at the clinics has diminished since the opening of the Contact Center.  The bulk of the work performed by the employees in the Patient Service Specialist job class at certain UWMC Clinics is not associated with the “front door” patient access work being performed at the Contact Center.  Rather, the bulk of the Patient Service Specialists at the clinics perform work that is associated with supporting the mission of the individual clinic.  

 

Conclusion for WFSE’s Unit Clarification Petition –

The WFSE’s unit clarification is dismissed.  The result sought by the petition cannot be granted because the WFSE’s Harborview bargaining unit is no longer a logical location for the patient access work and the patient access.  The evidence demonstrates that the employees in the Contact Center have their own community of interest and can stand alone as a separate bargaining unit.

 

Conclusion for SEIU’s Unit Clarification Petition –

The SEIU’s unit clarification is dismissed for the same reasons as the WFSE’s unit clarification petition.  The result sought by the petition cannot be granted because the SEIU’s Campus-wide Non-supervisory bargaining unit is not a logical location for the patient access work and the patient access work can stand alone as a separate bargaining unit.  Additionally, the evidence demonstrates that the employees in the Contact Center have their own community of interest and can stand alone as a separate bargaining unit. 

 

Conclusion for the Employer’s Unit Clarification Petition –

Turning to the merits of the employer’s petition both as originally filed and as amended, the employer’s request to clarify that the employees at the Contact Center constitute a separate appropriate bargaining unit is granted for the same reasons that the WFSE’s and the SEIU’s petitions are denied.  This record demonstrates that the reorganization of the patient access work at the Contact Center has created a separate community of interest for the employees.

 

Accordingly, the WFSE’s Harborview bargaining unit and the SEIU’s Campus-wide Non-supervisory bargaining unit are each clarified to exclude any employees who are working at the Contact Center.  Normally, if a bargaining unit were clarified to remove positions, the position would be unrepresented.  This would be particularly true in this case since the WFSE did not represent a majority of the employees at the Contact Center when the employer filed its petition.  However, because the WFSE also filed a representation petition concerning some of the employees at the Contact Center, the effects of that petition must also be determined. 

 

ISSUE 5 & 6 – WFSE’s Representation Petition and SEIU’s Motion to Intervene

 

Under WAC 391-25-440, a self-determination election will be directed when one labor organization petition for a group of historically unrepresented employees and only where the resulting bargaining unit is deemed appropriate.^[16]  The fact that the SEIU has filed a motion to intervene in the WFSE’s representation petition does not automatically render the petition inappropriate.  The SEIU needed to demonstrate that the petitioned-for employees could appropriately be included in its bargaining unit for intervention to be granted. 

 

The unit determination analysis applied to the WFSE’s unit clarification petitions demonstrates that the community of interest for the patient access work shifted away from the Harborview and Campus-wide Non-supervisory bargaining units and to the Contact Center.  This is true even if the petition had been allowed to be processed through the WFSE’s request.  The employer consistently took the position that the employees at the Contact Center constitute a separate bargaining unit.  Had the representation petition been processed as the WFSE requested, the parties would have gone to hearing on the appropriateness of including the unrepresented employees to the WFSE’s Harborview bargaining unit and the same result would have been reached – the employees at the Contact Center have their own separate community of interest. 

Direction of Election –

In most instances, the WFSE’s representation petition would be dismissed for seeking an inappropriate bargaining unit.  However, both the WFSE and the SEIU have historically represented employees that are included in the Contact Center.  Additionally, both the WFSE and the SEIU have filed showing of interest cards demonstrating that they have the support of at least 30 percent of the employees at the Contact Center.  None of these employees should have their collective bargaining rights extinguished without due process.  See State – Enterprise Services, Decision 11663 (PSRA, 2013).  Accordingly, the WFSE’s representation petition shall be administratively amended and a representation election will be conducted for the following appropriate bargaining unit:

 

All full-time and regular part-time civil service employees employed by the University of Washington Contact Center, excluding supervisors, confidential employees, employees in other bargaining units, and all other employees.   

 

 

The SEIU’s motion to intervene in the WFSE’s representation petition is granted based upon the sufficiency of the showing of interest provided.  “WFSE”, “SEIU”, and “No Representation” shall be the three choices on the ballot and the provisions of RCW 41.80.070 and Chapter 391-25 WAC shall apply.  Although an election has also been directed in this case, the employer’s unit clarification has been granted.  The parties appeal rights shall be governed by WAC 391-35-210. 

 

FINDINGS OF FACT

 

1.      The University of Washington (employer) is an institution of higher education within the meaning of RCW 41.80.005(10).

 

2.      The Washington Federation of State Employees (WFSE) is an exclusive bargaining representative within the meaning of RCW 41.80.005(9).

 

3.      Service Employees International Union, Local 925 (SEIU) is an exclusive bargaining representative within the meaning of RCW 41.80.005(9). 

 

4.      The employer operates a medical healthcare system, UW Medicine.  Under the umbrella of UW Medicine are a number of public and affiliated private healthcare entities, including but not limited to Harborview Medical Center (Harborview) and its associated clinics, the University of Washington Medical Center (UWMC) and its associated clinics, the University of Washington Neighborhood Clinics (formerly known as the University of Washington Physicians Network), Northwest Hospital and Medical Center, Valley Medical Center, Airlift Northwest, and the University of Washington School of Medicine. 

 

5.      Patient access is the process by which patients receiving services from the UW Medicine entities register their personal information, verify insurance coverage, assign payer plans, schedule patient appointments, and coordinate referrals, among other duties.  Prior to 2010, Harborview, UWMC, and the UW Neighborhood Clinics each had its own procedures and process concerning patient access functions. 

 

6.      At Harborview, the Patient Access Center (PAC) coordinated patient access work for Harborview and its associated clinics.  The PAC employees performing the patient access work were in the Patient Service Specialist (PSS) job class.  The employees at the PAC provided services to just Harborview and its associated clinics.

 

7.      The PAC employees who are currently represented by the Washington Federation of State Employees (WFSE) are in that union’s Harborview bargaining unit.

 

8.      At the UWMC, patient access work was decentralized and handled by the individual specialty clinics within the UWMC.  Even though many of those employees were in the Patient Service Specialist job class, the employees performing patient access services at the UWMC Clinics did not exclusively perform patient access work.  Those employees had other duties within the clinics. The employees performing patient access work at UWMC provided services to just UWMC and its associated clinics. 

 

9.      The employees in the Patient Service Specialist job class at the UWMC and its associated clinics are represented by the SEIU in its Campus-wide Non-supervisory bargaining unit. 

10.  At the UW Neighborhood Clinics, patient access was handled by the private entity known as the Virtual Front Desk (VFD).  The employees at the VFD were not public employees covered by Chapter 41.06 RCW or Chapter 41.80 RCW, but they did provide many of the same services as the employees performing patient access services at Harborview and UWMC.  The employees performing patient access work at the UW Neighborhood Clinics provided services to just the UW Neighborhood Clinics.

 

11.  Patient Access at the affiliated medical centers was accomplished according to the policies of the individual center.

 

12.  In 2009, the employer began a process of evaluating its patient access functions.  It hired a private healthcare consultant, Flexsource, to review its patient access operations at UW Medicine and provide recommendations as to how it could deliver its patient access services in a more efficient, effective, and patient-centered manner.  After reviewing the employer’s patient access operations, Flexsource recommended that the patient access functions be centralized into a single operation to provide universal patient access services across all of the facilities within UW Medicine. 

 

13.  Based upon the Flexsource recommendation, the employer decided to consolidate its patient access service to a “Contact Center” that was viewed as a shared service for all of the UW Medicine operations, not just Harborview, UWMC, or UW Neighborhood Clinics. 

 

14.  The Contact Center is located at a new facility in downtown Seattle that is separate and apart from the other UW Medicine facilities. 

 

15.  The employer planned to fully operationalize this consolidation to the Contact Center in steps.  First, the employees at the VFD providing support to the UW Neighborhood Clinics would be hired by the employer and moved to the Contact Center.  Those former VFD employees would be hired as state civil service employees and covered by Chapter 41.06 RCW.  At that same time, the PAC employees would be moved over to the Contact Center. 

16.  Patient access services for the UWMC and its clinics, the specialized Harborview clinics, and the affiliated private entities and their clinics was expected to be “on-boarded” over the course of several years with completion expected in 2013.  As new clinics were on-boarded to the Contact Center, the volume of patient access calls to the Contact Center increased.  The Contact Center hired additional staff as more clinics were on-boarded to the Contact Center in order to handle the increased work.

 

17.  In March 2010, the employer informed the WFSE and the SEIU that it was consolidating its patient access services to the Contact Center consistent with the plan outlined above.

 

18.  On March 26, 2010, the WFSE demanded to bargain the Contact Center consolidation.  During the subsequent negotiations, the employer informed the WFSE that a new job class was being created for the Contact Center.  The new job class, Patient Services Representative – Contact Center, would also be referred to as a “Contact Center Representative.”  The employer informed the WFSE that the employees working at the PAC would need to apply for the Contact Center Representative positions if they wanted to work at the Contact Center.  The employer also informed the WFSE that the employees hired for the Contact Center Representative positions at the Contact Center would not be included in the Harborview bargaining unit.  The WFSE demanded that the work performed by the PAC employees remain Harborview bargaining unit work and that the PAC employees automatically become employees of the Contact Center.

 

19.  On August 20, 2010, the employer notified the 29 PAC employees who applied for positions at the Contact Center of their appointment to positions at the Contact Center.

 

20.  The Contact Center went “live” and started taking patient access calls on October 21, 2011.  When the Contact Center opened, the employees were still using the EPIC software database.

 

21.  An Administrative Coordinator, Program Assistant, and two employees in the Data Entry Operator job class who are included in the SEIU’s Campus-wide Non-supervisory bargaining unit transferred to the Contact Center in mid-2011.

22.  At the time the Contact Center opened, approximately 29 employees transferred from the PAC to the Contact Center.

 

23.  As of November 15, 2010, 27 employees who worked at the VFD were employed at the Contact Center, and a total of 60 employees worked at the Contact Center in the newly created Contact Center Representative job class.  This number does not include supervisors, managers, and employees in the Program Operations Specialist job class.

 

24.  At the time of the hearing, there were 116 employees in the Contact Center Representative job class, seven lead employees, two employees in the Data Entry Operator job class, and two administrative support staff employed at the Contact Center.

 

25.  Newly hired employees in the Contact Center Representative job class were not included in any bargaining unit.

 

26.  When the Contact Center went live, it did not perform patient access work for only Harborview Medical Center and its associated clinics.  Rather, it started performing patient access services for all of UW Medicine, including UWMC and the UW Physicians Network, and the affiliated private entities. 

 

27.  The consolidation of patient access work to the Contact Center included more than just physically moving certain employees who continued to perform essentially the same work.  The consolidation also included more than just hiring new employees to supplement an existing workforce.  Rather, the employer’s reorganization “reinvented” patient access work for all of UW Medicine in such a manner that it simply cannot be said that the Contact Center is an expansion of the existing PAC.  Instead of a decentralized and unintegrated process that was administered by the various entities, the employer created a uniform and integrated process for patient access.  The Contact Center is a combination of two distinct patient access operations, the PAC and VFD, as well as patient access work historically performed by the UWMC Clinics and the affiliated private entities.  Although the former PAC employees are performing essentially the same duties at the Contact Center as they did at the PAC, the universe of clientele that they serve has vastly expanded.  The former PAC employees must now be trained to take patient access calls for all of UW Medicine, and not just Harborview. 

 

28.  On September 3, 2010, the WFSE filed a unit clarification petition concerning the former PAC employees working at the Contact Center.  Case 23495-C-10-1439.  The WFSE’s petition sought a ruling that the employees transferred from the PAC are still included in the WFSE’s Harborview bargaining unit regardless of a change in work title or job location since, in the WFSE’s opinion, the employees were still performing bargaining unit work.  On September 28, 2011, processing of the WFSE’s unit clarification petition was blocked pursuant to WAC 391-35-110 pending resolution of the unfair labor practice complaint described in Finding of Fact 29.

 

29.  On September 21, 2010, the WFSE filed an unfair labor practice complaint against the employer.  The WFSE alleged: 1) that the employer failed to bargain in good faith the decision to consolidate the patient access services, and 2) that the employer removed the patient access bargaining unit work from the WFSE’s Harborview bargaining unit without first providing notice and an opportunity for bargaining.  Case 23515-U-10-5995. 

 

30.  On October 4, 2010, the WFSE filed a representation petition to include the newly hired VFD employees into its Harborview bargaining unit under WAC 391-25-440.  On October 5, 2011, processing of the WFSE’s representation petition was blocked pursuant to WAC 391-35-110 pending resolution of the unfair labor practice complaint described in Finding of Fact 29.

 

31.  On September 23, 2011, the employer filed a unit clarification petition seeking a ruling regarding the representation status of the Contact Center employees.  Case 24270-C-11-1466.  Specifically, the employer sought clarification of whether the Contact Center work belongs to the WFSE’s Harborview bargaining unit, the SEIU’s Campus-wide Non-supervisory bargaining unit, or is unrepresented. 

 

32.  On November 16, 2011, the SEIU filed a unit clarification petition concerning the work being performed at the Contact Center.  Case 24402-C-11-1472.  The SEIU asserts that the Contact Center work belongs to its Campus-wide Non-supervisory bargaining unit because the Contact Center work is similar to the work being performed by the employees in its bargaining unit.  On November 22, 2011, processing of the SEIU’s unit clarification petition was blocked pursuant to WAC 391-35-110 pending resolution of the unfair labor practice complaint.

 

33.  On the first day of the hearing, the SEIU made a motion to intervene in the WFSE’s representation petition.  The Hearing Officer denied that motion at that time because the SEIU had not demonstrated that it had the support of at least 10 percent of the petitioned- for employees.  The SEIU subsequently filed showing of interest cards demonstrating it had the support of at least 30 percent of the employees at the Contact Center.

 

34.  During the December 6, 2012 hearing, the employer made a motion to amend its petition to include the Administrative Coordinator, a Program Assistant, and the two employees in the Data Entry Operator positions.  The Hearing Officer granted the employer’s motion over the objection of both the SEIU and the WFSE.   

 

CONCLUSIONS OF LAW

 

1.      The Public Employment Relations Commission has jurisdiction over this matter pursuant to Chapter 41.80 RCW and Chapter 391-35 WAC.

 

2.      Based upon Findings of Fact 17 through 28, the unit clarification petition filed by the WFSE is timely. 

 

3.      Based upon Findings of Fact 21 through 28, the unrepresented employees working at the University of Washington Contact Center cannot be accreted to the Harborview bargaining unit represented by the WFSE.  The employees working at the Contact Center can stand alone as their own bargaining unit and do not belong to the Harborview bargaining unit. 

 

4.      Based upon Findings of Fact 17 through 27, and 32, the unit clarification petition filed by the SEIU, Local 925, is timely. 

5.      Based upon Findings of Fact 21 through 28, the unrepresented employees working at the University of Washington Contact Center cannot be accreted to the SEIU’s Campus-wide Nonsupervisory bargaining unit.  The employees working at the Contact Center can stand alone as their own bargaining unit and do not belong to the Campus-wide Non-supervisory bargaining unit. 

 

6.      Based upon Findings of Fact 17 through 28, the unit clarification petition filed by the University of Washington as amended is timely. 

 

7.      Based upon Findings of Fact 21 through 28, the classified employees working at the Contact Center share a community of interest and constitute an appropriate stand alone bargaining unit under RCW 41.80.070. 

 

ORDER

 

1.      Case 23495-C-10-1439 - The unit clarification petition filed by the Washington Federation of State Employees is dismissed.

 

2.      Case 24402-C-11-1472 - The unit clarification petition filed by the Service Employees International Union, Local 925 is dismissed. 

 

3.      Case 24270-C-11-1466 - The unit clarification petition filed by the University of Washington is granted.

 

a.       The Washington Federation of State Employees’ Harborview bargaining unit is modified to remove the employees in the Patient Service Representative – Contact Center Representative job class working at the University of Washington Contact Center.

 

b.      The Service Employees International Union, Local 925’s Campus-wide Non-supervisory bargaining unit is modified to remove the employees in the Administrative Coordinator, Program Assistant, and Data Entry Operator job classes. 

 

4.      Case 23546-E-10-3593 - The representation petition filed by the Washington Federation of State Employees is administratively modified and a representation election shall be conducted under the provisions of Chapter 391-25 WAC for a bargaining unit described as follows:

 

All full-time and regular part-time civil service employees employed by the University of Washington Contact Center, excluding supervisors, confidential employees, employees in other bargaining units, and all other employees. 

 

 

The Washington Federation of State Employees, Service Employees International Union, Local 925, and No Representation shall be the choices on the ballot.  The eligible employees shall be those employees in the Patient Service Representative – Contact Center Representative, Administrative Coordinator, Program Assistant, and Data Entry Operator job classes who are employed at the Contact Center on the date of this order and remain employed at the time of the tally.

 

ISSUED at Olympia, Washington, this   13^th   day of August, 2013.

 

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

MICHAEL P. SELLARS, 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.