Community College District 29 (Clover Park Technical College),
Decision 10157-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 21807-E-08-3374
)
Involving certain employees of: ) DECISION 10157-B - PECB
)
COMMUNITY COLLEGE DISTRICT 29 )
(CLOVER PARK TECHNICAL COLLEGE) ) DECISION OF COMMISSION
___________________________________)
Robert M. McKenna, Attorney General, by Terrance J. Ryan,
Assistant Attorney General, for the employer.
Schwerin Campbell Barnard & Iglitzin LLP, by Terrance M.
Costello, Attorney at Law, for the union.
This case comes before the Commission on a timely appeal filed by
Clover Park Technical College (employer) seeking review and reversal
of an Order Directing Further Proceedings issued by Executive
Director Cathleen Callahan.(fn:1) The American Federation of Teachers
of Washington (union) supports the Executive Director's order. We
affirm the Executive Director's decision and direct further
proceedings consistent with this decision.
____________________
fn:1 Community College District 29 (Clover Park Technical College),
Decision 10157-A (PECB, 2008).
PROCEDURAL HISTORY
On June 27, 2008, the union filed a representation petition with
this agency seeking certification as the exclusive bargaining
representative of "all full-time and regular part-time exempt
employees of the [employer] excepting those excluded by statute."
Following two investigation conferences held on July 30 and August
5, the employer contested this Commission's jurisdiction over the
union's petition. The union asserted that this Commission has
jurisdiction over the petitioned-for employees under RCW 41.56.021.
The employer claimed that although RCW 41.56.024 provides collective
bargaining rights for classified employees at technical colleges,
the provision of RCW 41.56.021 do not apply to exempt employees at
the technical colleges. On August 8, 2008, the Executive Director
issued an Order to Show Cause asking for the parties' positions as
to why she should not dismiss the union's petition.(fn:2)
____________________
fn:2 Community College District 29 (Clover Park Technical College),
Decision 10157 (PECB, 2008).
Both parties filed responses to the Executive Director's request.
The union argued that when the Legislature enacted RCW 41.56.021, it
intended to grant all higher education employees, including those at
the state's technical colleges, collective bargaining rights with
certain statutory exceptions. The employer continued to assert that
the Legislature failed to include exempt employees at technical
colleges under the provisions of RCW 41.56.021, and therefore those
employees do not have collective bargaining rights.
On October 22, 2008, the Executive Director issued her decision
finding that the exempt employees at the technical colleges have
collective bargaining rights, and ordered further proceedings to
determine the scope of the proposed bargaining unit and eligibility
of employees. Specifically, the Executive Director held that with
respect to non-faculty at the technical colleges, all employees may
collectively bargain under the general provisions of Chapter 41.56
RCW, regardless of whether the employee was exempt from civil
service under RCW 41.06.070(2). Additionally, she held that under
RCW 28B.50.874, the technical colleges were not allowed to strip any
classified employee of the right to be represented for purposes of
collective bargaining. The employer now appeals that decision.
DISCUSSION
The history of collective bargaining at the technical colleges in
the State of Washington is unique and important to the decision in
this case. Prior to 1991, administration of the technical colleges
was under the common schools which were governed by the Office of
the Superintendent of Public Instruction. The collective bargaining
relationships for the certificated and classified employees of the
technical colleges were governed by Chapter 41.59 RCW and Chapter
41.56 RCW, respectively.
The 1991 Community and Technical College Act
In 1991, the Legislature passed the Community and Technical College
Act, Laws of 1991 ch. 238, which amended the existing laws
applicable to the vocational-technical colleges. The 1991 act
transferred jurisdiction over those institutions to the newly
created State Board for Community and Technical Colleges. See Lake
Washington Technical College, Decision 4391 (CCOL, 1993).
Administration of the classified employees' basic employment rights
would be governed by Chapter 28B.16 RCW, the State Higher Education
Personnel Law, and administered by the Higher Education Personnel
Board (HEPB). The HEPB assigned the technical colleges district
numbers in the same manner as the community colleges.
Although the Community and Technical College Act transferred
administration of the personnel laws for the technical colleges to
the state, the Act preserved the existing collective bargaining
rights and relationships for all technical college employees.
Collective bargaining rights for the "certificated" teachers at
those institutions was transferred from Chapter 41.59 RCW to the
coverage of Chapter 28B.52 RCW, the existing collective bargaining
law for "academic employees" of the state community college system.
To clarify the existing rights of the technical college classified
employees, the Legislature adopted RCW 41.56.024 as part of the
Community and Technical College Act. That law guaranteed that
classified employees continued collective bargaining rights under
Chapter 41.56 RCW, and also cross-referenced RCW 28B.50.874, which
preserved existing collective bargaining relationships. RCW
28B.50.874 provides, in part:
An exclusive bargaining representative certified to represent a
bargaining unit covering employees of a vocational technical
institute on September 1, 1991, shall remain the exclusive
representative of such employees thereafter until and unless
such representative is replaced or decertified in accordance
with state law.
Any collective bargaining agreement in effect on June 30,
1991, shall remain in effect as it applies to employees of
vocational technical institutes until its expiration or renewal
date or until renegotiated or renewed in accordance with
chapter 28B.52 or 41.56 RCW. After the expiration date of a
collective bargaining agreement, all of the terms and
conditions specified in the collective bargaining agreement, as
it applies to employees of vocational-technical institutes,
shall remain in effect until the effective date of a subsequent
agreement, not to exceed one year from the termination date
stated in the agreement. The board of trustees and the
employees may mutually agree to continue the terms and
conditions of the agreement beyond the one year extension.
However, nothing in this section shall be construed to deny any
employee right granted under chapter 28B.52 or 41.56 RCW. Labor
relations processes and agreements covering faculty members of
vocational technical institutes after September 1, 1991, shall
be governed by chapter 28B.52 RCW. Labor relations processes
and agreements covering classified employees of vocational
technical institutes after September 1, 1991, shall continue to
be governed by chapter 41.56 RCW.
(emphasis added). Accordingly, RCW 28B.50.874 specifically ensures
that any existing collective bargaining relationships between the
classified employees and the newly formed community college
districts are to be maintained following the enactment and
implementation of the Community and Technical College Act.
The fact that the Community and Technical College Act ensured that
the classified employees continued to enjoy Chapter 41.56 RCW
collective bargaining rights is of extreme importance. The
classified employees at the technical colleges enjoyed full-scope
collective bargaining rights while under the jurisdiction of the
common schools, including the right to collectively bargain wages,
hours, and working conditions with their employer. RCW 28B.50.874
ensured that no classified technical college employee would lose
such rights, even though other similarly situated civil service
employees at the community colleges were not permitted to bargain
over certain matters, such as wages, and enjoyed only limited
collective bargaining rights.(fn:3)
____________________
fn:3 For discussion of the difference between full-scope and
limited scope collective bargaining rights, see State - Liquor
Control Board, Decision 7869 (PSRA, 2002).
The 1993 State Civil Service System Merger
In 1993, the Legislature once again amended the higher education law
by merging the Higher Education Civil Service System with the
General Government Civil Service System under Chapter 41.06 RCW.
The Washington Personnel Resources Board administered that law.
However, nothing in the 1994 amendments changed RCW 41.56.024 or RCW
28B.50.874, so the classified technical college employees still
maintained Chapter 41.56 RCW collective bargaining rights.
2002 Personnel System Reform Act
In 2002, the Legislature enacted the Personnel System Reform Act
2002, which granted state civil service employees, including those
at the community colleges, full-scope collective bargaining rights.
Codified at Chapter 41.80 RCW, the 2002 law permitted state
employees to bargain over wages for the first time, although under
different circumstances than their local government counterparts.(fn:4)
However, collective bargaining rights for state civil service
employees is predicated on employees being covered by Chapter 41.06
RCW. RCW 41.80.005(6); see also University of Washington, Decision
9410 (PSRA, 2006). Thus, if a general government employer or higher
education institutions exercised its authority under RCW
41.06.070(2) to "exempt" certain employees from coverage of the
Chapter 41.06 RCW, those employees would also lose their Chapter
41.80 RCW collective bargaining rights, and could not be included in
any bargaining unit of employees. University of Washington,
Decision 9410; Green River Community College, Decision 8751-A (PSRA,
2005).
____________________
fn:4 The minor differences include the bargaining process, where
exclusive bargaining representatives bargain for one master
agreement covering all of their employees. These differences are
not material to this case.
Because RCW 41.06.070(2) grants the higher education institutions
broad authority to exempt employees from their civil service and
collective bargaining rights, a coalition of bargaining
representatives successfully lobbied the Legislature to enact RCW
41.56.021. Laws of 2007 ch. 136. That law provides certain
employees exempt from the Chapter 41.06 RCW civil service law at
higher education institutions the opportunity to organize and
collectively bargain under the provisions of Chapter 41.56 RCW, and
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.
. . .
The question now before us is how the above-mentioned provisions of
the Revised Code of Washington interact.
Application of Legal Standards
The Executive Director concluded that employees exempt from Chapter
41.06 RCW at the technical colleges always had collective bargaining
rights under Chapter 41.56 RCW, regardless of their status under
civil service as exempt. The employer claims this ruling to be in
error, and points to the plain language of RCW 41.56.030(8), which
defines the "institutions of higher education" as the four-year
universities and the community college, but is silent as to the
technical colleges. Thus, the employer asserts that because the
technical colleges are not specifically listed in RCW 41.56.030(8),
exempt employees at the technical colleges are not granted
collective bargaining rights because RCW 41.56.021 is limited to the
exempt employees at the "institutions of higher education." The
union continues to argue that the intent of RCW 41.56.021 was to
grant all remaining higher education employees collective bargaining
rights. Both the employer and union have misunderstood the
Executive Director's decision as to the operation of Chapter 41.56
RCW with respect to the technical colleges.
In questioning the appropriateness of the Executive Director's
decision, the employer incorrectly assumes that the Executive
Director ruled that no exempt employees could exist at the technical
colleges. This interpretation of the Executive Director's decision
and the existing statutory scheme is incorrect.
Intent of the 1991 Community and Technical College Act
The Legislature's use of the term "classified" as opposed to "civil
service" when describing which employees are eligible for collective
bargaining rights in RCW 41.56.024 is an important one. Prior to
1991, when the common schools operated the technical colleges, there
was no such thing as an "exempt" employee as known in the state
civil service system. Rather, all "classified" employees had
collective bargaining rights, with the exception of employees
determined by this Commission to be confidential employees for
purposes of collective bargaining. Although the HEPB, and later the
Department of Personnel, may have used the terms "classified" and
"civil service" interchangeably, each term has a distinct definition
within the statutory scheme.
As the Executive Director explained, unlike Chapter 41.80 RCW, where
collective bargaining rights for civil service employees are
predicated upon being covered by Chapter 41.06 RCW, Chapter 41.56
RCW has no such statutory prerequisite. Thus, there may very well
be employees at the technical colleges who are "exempt" from the
provisions of Chapter 41.06 RCW, but their civil service status has
no impact on their right to collectively bargain. When the
technical colleges were merged into the community college system,
there is no indication that the Legislature intended to remove
collective bargaining rights from employees who became exempt from
civil service. Simply put, a civil service technical college
employee who is "exempt" from civil service is not "excepted" from
exercising his or her Chapter 41.56 RCW collective bargaining
rights.
In fact, as the Executive Director pointed out, RCW 28B.50.874
specifically preserved the rights of all employees transferring from
the jurisdiction of the common schools to the community and
technical college system. The employer incorrectly interprets the
Executive Director's decision as stating that RCW 28B.50.874
extended collective bargaining rights to the exempt employees. Such
is not the case. Rather, RCW 28B.50.874 demonstrates a clear
legislative intent for the preservation of collective bargaining
rights that the classified staff of the technical colleges enjoyed
when the common school operated the technical colleges, including
the existing bargaining unit certification issued by this
Commission.
Although the employer disagrees with this interpretation, it
certainly has not pointed to any authority demonstrating that a
non-academic employee at a technical college exempted from civil
service loses his or her Chapter 41.56 RCW collective bargaining
rights. Accordingly, all non-academic technical college employees,
civil service or otherwise, continue to exercise collective
bargaining rights under Chapter 41.56 RCW.
The Executive Director Shall Continue Processing of This Case
On appeal, the employer requests that, in the event we uphold the
Executive Director's decision, we issue an order to stay processing
of the union's petition and certify our decision as the final agency
order for purposes of administrative appeal under the Administrative
Procedure Act, Chapter 34.05 RCW. The employer claims that if it is
forced to continue with this representation proceeding, it will
result in the waste of significant public resources and effort.
In Renton Education Association v. Public Employment Relations
Commission, 24 Wn. App. 476 (1979), review denied, 93 Wn.2d 1025
(1980), the Court of Appeals of Washington, Division 1, held that an
order directing an election was not a final order for purposes of
judicial review under the Administrative Procedure Act. Rather, the
final order in representation cases is the order which fixes some
legal relationship as a consummation of the administrative process.
In representation cases, the final order is the final certification
of the results of the representation election as issued by the
Executive Director.
This Commission recently reiterated this standard in State -
Ecology, Decision 9034-B (PSRA, 2005), and noted that the Renton
Education Association decision provides Commission staff with clear
and precise guidance that a direction of election is not a final
order of the agency and may not be appealed to the superior courts
at the time it is issued. Our order today is the equivalent to a
direction of election, and the employer's stated objections to the
continued processing of this case at this time presents no
compelling argument as to why we should issue an order contrary to
the Renton Education Association decision and established Commission
precedent.
NOW, THEREFORE, it is
ORDERED
The Order Directing Further Proceedings issued by Executive Director
Cathleen Callahan in the above-captioned case is AFFIRMED, and this
case is remanded to the Executive Director for further processing
consistent with this order.
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