University of Washington, Decision 10150-B (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
AMERICAN FEDERATION OF TEACHERS )
OF WASHINGTON ) CASE 21701-E-08-3361
)
Involving certain employees of: ) DECISION 10150-B - PECB
)
UNIVERSITY OF WASHINGTON ) DECISION OF COMMISSION
)
___________________________________)
Schwerin Campbell Barnard & Iglitzin LLP, by Terrance M.
Costello, Attorney at Law, for the union.
Robert M. McKenna, Attorney General, by Otto G. Klein III,
Special Assistant Attorney General, and Mark K. Yamashita,
Assistant Attorney General, for the employer.
This case comes before the Commission on a timely appeal filed by
the American Federation of Teachers of Washington (union) seeking
review and reversal of an Order of Dismissal issued by Executive
Director Cathleen Callahan.(fn:1) The University of Washington
(employer) supports the Executive Director's decision.
____________________
fn:1 University of Washington, Decision 10150-A (PECB, 2008).
On May 13, 2008, the union filed a petition seeking to represent the
full-time and part-time lecturers holding nine-month and quarterly
contracts, excluding hourly lecturers (petitioned-for employees or
lecturers). The lecturers perform educational outreach services,
and are hired to teach a specific number of classes in an academic
quarter. The employment contracts terminate at the end of each
quarter, but are often renewed for each succeeding academic year.
Representation Coordinator Sally Iverson held an investigation
conference with the parties on June 20, 2008, during which the
parties stipulated that the employees were not covered by Chapter
41.76 RCW, the collective bargaining law applicable to faculty at
the four-year institutions of higher education. Additionally, the
parties subsequently stated that the lecturers are not covered by
the Personnel System Reform Act, Chapter 41.80 RCW, which is the
collective bargaining law applicable to state civil service
employees.
However, during the investigation conference, the parties mentioned
that several of the petitioned-for employees had filed a class
action declaratory action in King County Superior Court to determine
whether the lecturers should be considered "faculty" for purposes of
compensation.(fn:2) The Investigation Statement issued later that day
did not address which particular collective bargaining statute
should govern this proceeding, and also did not address how the King
County litigation affected the proceeding before this agency.
____________________
fn:2 Case 08-2-13986-7 (filed April 25, 2008).
On July 3, 2008, the Executive Director issued a letter asking for
the parties' positions on which collective bargaining statute
applies, and as to whether the priority of action rule enunciated in
City of Yakima v. IAFF Local 469, 117 Wn.2d 655 (1991), precludes
this Commission from considering this matter pending the outcome of
the court litigation. Both parties responded to the Executive
Director's request.
In response to the Executive Director's request, the union filed a
letter claiming that the lecturers are higher education employees
exempt from the state civil service law, Chapter 41.06 RCW, and are
therefore covered by RCW 41.56.021. That statute, enacted in 2007,
permits certain higher education employees exempt from the state
civil service law to collectively bargain under the provision of the
Public Employees' Collective Bargaining Act, Chapter 41.56 RCW. The
union also claimed that the priority of action rule should not
preclude processing of the petition.
The employer argued that the employees are not exempt from civil
service and therefore cannot be covered by RCW 41.56.021. The
employer also stated that the priority of action rule should apply
because the plaintiffs to the lawsuit are claiming that they have
rights under the University of Washington Faculty Handbook. The
employer also argues that the union's petition should be dismissed
pending the outcome of the court litigation.
The Executive Director issued a show cause order on August 4, 2008,
asking the parties why she should not dismiss the petition. The
Executive Director raised serious doubts about the application of
RCW 41.56.021, commenting that the employees have never been
afforded civil service, exempt, or faculty status. She also raised
serious concerns regarding this agency's ability to process the
representation case in light of the pending litigation. Both parties
responded to the Executive Director's order, and reiterated their
earlier positions. The Executive Director then dismissed the
union's petition on the basis that RCW 41.56.021 did not grant the
lecturers collective bargaining rights. This appeal followed.
DISCUSSION
Lecturers are Not Covered by RCW 41.56.021
In 2002, the Washington State Legislature enacted the Personnel
System Reform Act, codified at Chapter 41.80 RCW, to provide
collective bargaining rights to civil service employees at higher
education institutions. See, generally, University of Washington,
Decision 9410 (PSRA, 2006)(outlining the history of civil service at
the four-year institutions of higher education). Also in 2002, the
Legislature enacted Chapter 41.76 RCW, which provides collective
bargaining rights to faculty at the four-year institutions of higher
education.
In order for civil service employees to exercise collective
bargaining rights under Chapter 41.80 RCW, they must be covered by
Chapter 41.06 RCW, the state civil service law. RCW 41.80.005(6).
However, under RCW 41.06.070(2)(a), certain higher education
employees are "exempt" from the coverage of Chapter 41.06 RCW,
provided they fall into certain categories or classifications. That
statute states:
RCW 41.06.070 EXEMPTIONS RIGHT OF REVERSION TO CIVIL SERVICE
STATUS EXCEPTION.
. . .
(2) The following classifications, positions, and employees of
institutions of higher education and related boards are hereby
exempted from coverage of this chapter:
(a) Members of the governing board of each institution of
higher education and related boards, all presidents, vice
presidents, and their confidential secretaries, administrative,
and personal assistants; deans, directors, and chairs; academic
personnel; and executive heads of major administrative or
academic divisions employed by institutions of higher
education; principal assistants to executive heads of major
administrative or academic divisions . . . .
(b) The governing board of each institution, and related
boards, may also exempt from this chapter classifications
involving research activities, counseling of students,
extension or continuing education activities, graphic arts or
publications activities requiring prescribed academic
preparation or special training as determined by the board:
PROVIDED, That no nonacademic employee engaged in office,
clerical, maintenance, or food and trade services may be
exempted by the board under this provision . . . .
Any employee exempted from civil service under RCW 41.06.070 loses
their Chapter 41.80 RCW collective bargaining rights. University of
Washington, Decision 9410, see also Green River Community College,
Decision 8751-A (PSRA, 2005). This statute continues to grant the
higher education institutions the authority to exempt individual
employees and remove them from existing bargaining units, provided
that the institutions satisfy their collective bargaining obligation
if bargaining unit work is removed from the bargaining unit with the
exempted employee. See University of Washington, Decision 9410.
2007 Exempt Employee Law
In 2007, the Legislature enacted RCW 41.56.021 to provide collective
bargaining rights to certain employees at higher education
institutions who have been exempted from the provisions of Chapter
41.06 RCW under RCW 41.06.070(2). RCW 41.56.021 states, in part:
(1) In addition to the entities listed in RCW 41.56.020, this
chapter applies to employees of institutions of higher
education who are exempted from civil service pursuant to RCW
41.06.070(2), with the following exceptions:
(a) Executive employees . . . , including executive heads
of major administrative or academic divisions;
(b) Managers who perform any of the following functions:
(i) Formulate, develop, or establish institutional policy,
or direct the work of an administrative unit;
(ii) Manage, administer, and control a program, including
its physical, financial, or personnel resources;
(iii) Have substantial responsibility for human resources
administration, legislative relations, public information,
internal audits and investigations, or the preparation and
administration of budgets;
(iv) Functionally is above the first level of supervision
and exercises authority that is not merely routine or clerical
in nature and requires the consistent use of independent judgment;
(c) Employees who, in the regular course of their duties,
act as a principal assistant, administrative assistant, or
personal assistant to employees as defined by (a) of this
subsection;
(d) Confidential employees;
(e) Employees who assist assistant attorneys general who
advise and represent managers or confidential employees in
personnel or labor relations matters, or who advise or
represent the state in tort actions.
(2) Employees subject to this section shall not be
included in any unit of employees certified under RCW
41.56.022, 41.56.024, or 41.56.203, chapter 41.76 RCW, or
chapter 41.80 RCW. Employees whose eligibility for collective
bargaining is covered by chapter 28B.52, 41.76, or 41.80 RCW
are exempt from the provisions of this chapter.
. . .
Whether or not the lecturers fall under one of the RCW
41.56.021(1)(a) through (e) exceptions is not an issue in this case.
What is at issue is whether the lecturers are considered exempt
from civil service. The Executive Director found that there is no
evidence demonstrating that the lecturers are a class of employees
who have been specifically exempted from civil service, and that the
lecturers have never been accorded exempt, classified, or faculty
status.
The union argues that the Executive Director's interpretation of the
lecturers' employment status is incorrect and by dismissing the
petition, the Executive Director is subverting the legislative
intent to grant bargaining rights to all higher education employees.
According to the union, the lecturers should be considered
"academic personnel," which would automatically make the lecturers
exempt from civil service under RCW 41.06.070(2) and therefore
eligible for collective bargaining rights under RCW 41.56.021. The
union urges this Commission to adopt a liberal interpretation of RCW
41.56.021 to favor collective bargaining rights.
The employer supports the Executive Director's interpretation of RCW
41.56.021, and notes that the university's governing board has not
taken steps to exempt the lecturers from civil service. Therefore,
according to the employer, the lecturers do not qualify for
collective bargaining rights under that law.
Although RCW 41.56.021 grants collective bargaining rights to
certain higher education employees who were previously ineligible
for such rights, it does not grant collective bargaining rights to
all higher education employees. For example, when the research and
teaching assistants at the University of Washington and Washington
State University sought collective bargaining rights, special
legislation was required to secure that right, because neither group
fell into any existing statutory scheme.(fn:3)
____________________
fn:3 In 2002, the Legislature enacted RCW 41.56.203, which granted
research and teaching assistants at the University of Washington
bargaining rights. In 2008, the Legislature enacted RCW 41.56.205,
which granted research and teaching assistants at Washington State
University bargaining rights.
Additionally, RCW 41.56.021(1)(a) through (c) and (e) still preclude
certain other types of employees from exercising collective
bargaining rights even though they hold classifications or positions
that would otherwise be eligible for rights, such as administrative
assistants to executive employees. Thus, it cannot be said that by
enacting RCW 41.56.021 the Legislature intended to grant all higher
education employees collective bargaining rights.
Lecturers are Not Academic Employees
The union contends that the ordinary dictionary definition of
"academic employee" includes the lecturers. We disagree.
The term "academic personnel" is not defined in Chapter 41.06 RCW,
Chapter 41.56 RCW, Chapter 41.76 RCW, or Chapter 41.80 RCW. When
interpreting the statutes this Commission administers, we must
ascertain the meaning of the words within those statutes and give
them the full effect the Legislature intended. State -
Transportation, Decision 8317-B (PSRA, 2005), citing City of Yakima,
Decision 3503-A (PECB, 1990).
In ascertaining the meaning of a particular word or words within a
statute, this Commission must consider both the statute's subject
matter and the context in which the word is used. State -
Transportation, Decision 8317-B, citing Chamberlain v. Department of
Transportation, 79 Wn. App. 212, 217 (1995). Statutes must be
interpreted and construed so that all language used is given effect,
and no portion is rendered meaningless or superfluous. State -
Transportation, Decision 8317-B, citing Whatcom County v. City of
Bellingham, 127 Wn.2d 537 (1996). Furthermore, although this
state's collective bargaining laws should be construed liberally,
this Commission should not do so if such a construction would result
in an unlikely, absurd, or strained interpretation of the statutory
language. Accord City of Yakima v. IAFF, Local 469, 117 Wn.2d 655,
670 (1991) and State ex rel. Evergreen Freedom Foundation v.
Washington Education Association, 140 Wn.2d 615, 637 (2000).
Ordinary Meaning of "Academic" and "Personnel"
As used in the statute, the ordinary meaning of the term "academic"
means "of, belonging to, or associated with an academy or school
esp. of higher learning". Webster's Third New International
Dictionary, 9 (1986). Additionally, the term "personnel" means " a
body of persons employed in some service (as the army, or navy, a
factory, office, airplane)." Webster's Third New International
Dictionary, 1687.
When these two definitions are read in conjunction, the ordinary
meaning of these words would lead to a conclusion that "academic
personnel" literally means any person employed by a school of higher
learning.
Although this definition seems reasonable on its face, when read in
context with the rest of RCW 41.06.070(2), the ordinary meaning
leads to an absurd result: it would indicate an intent to allow a
higher education employer to exempt all of its employees, and not
just certain classes. Accordingly, this reading would render
superfluous the other classes of employees who may be exempt from
civil service under RCW 41.06.070(2).
The union directs us to the collective bargaining law for community
college faculty, Chapter 28B.52 RCW, which contains a definition of
"academic employee." RCW 28B.52.020(2) defines "academic employee"
as "any teacher, counselor, librarian, or department head . . .
whether full or part time with the exception of the chief
administrative officer of, and any administrator in, each college
district." The union points to the fact that "teachers" are
included in this definition, a term that is similar in nature to
lecturers.
Thus, while the term "academic employee" seems similar to "academic
personnel," RCW 28B.52.020 is actually of little help because it
includes other classes of employees, such as counselors, that can be
exempted from civil service under RCW 41.06.070(b). Accordingly,
reliance upon the broad definition used in the community college law
is inapt for this case to determine the meaning of academic employee
within the state civil service law.
In sum, we find that the Executive Director properly concluded that
the lecturers are a special class of employees who are neither
exempt employees as defined in RCW 41.56.021, employees covered by
civil service, as defined in Chapter 41.06 RCW, or faculty under
Chapter 41.76 RCW.
NOW, THEREFORE, it is
ORDERED
The Order of Dismissal issued by Executive Director Cathleen
Callahan is AFFIRMED and Adopted as the Order of Dismissal of the
Commission.
Issued at Olympia, Washington, the 20th day of February, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
THOMAS W. McLANE, Commissioner