City of Battle Ground, Decision 10321 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
CITY OF BATTLE GROUND ) CASE 21672-C-08-1334
)
For clarification of an existing ) DECISION 10321 - PECB
bargaining unit represented by: )
)
BATTLE GROUND POLICE OFFICERS ) ORDER CLARIFYING
ASSOCIATION ) BARGAINING UNIT
)
___________________________________)
Farleigh Wada Witt, by Michelle Holman Kerin, Attorney at Law,
for the employer.
Emmal Skalbania and Vinnedge, by Patrick A. Emmal, Attorney at
Law, for the union.
On April 24, 2008, the City of Battle Ground (employer) filed a
petition seeking clarification of an existing bargaining unit. The
employer seeks to remove the Police Records Clerk and the Community
Service Officer positions from the bargaining unit represented by
the Battle Ground Police Officers Association (union).(fn:1)
____________________
fn:1 The original petition named the Battle Ground Public Employees
Association (BGPEA) as the employee organization. The unit that the
employer seeks to clarify is the police officer unit which is
represented by the Battle Ground Police Officers Association
(union). On July 22, 2008, the employer filed a corrected petition
naming the union as the employee organization.
The employer also seeks to place those positions in the city-wide
clerical bargaining unit represented by the Battle Ground Public
Employees Association.(fn:2) The union does not dispute that the two
positions should be removed from the police officer unit. The union
disagrees with the employer that the employees should be placed in
the city-wide unit and argues instead that a separate bargaining
unit should be created and that it should be the certified
representative of the new unit. A hearing was held before Hearing
Officer Robin Romeo on September 19, 2008. Both parties filed
post-hearing briefs.
____________________
fn:2 The Battle Ground Public Employees Association did not file to
intervene in the proceedings.
ISSUES
1. Should the Police Records Clerk and Community Service Officer
positions be removed from the police officer bargaining unit?
Based upon the evidence and arguments presented, the Executive
Director concludes that the Police Records Clerk and Community
Service Officer positions are excluded from the police officer
bargaining unit.
2. Which existing bargaining unit should include the Police
Records Clerk and Community Service Officer positions?
The Executive Director concludes that the unit placement of
employees in the Police Records Clerk and Community Service Officer
positions is not appropriately determined in a unit clarification
proceeding and that a question concerning representation must be
decided pursuant to a petition filed under Chapter 391-25 WAC.
ANALYSIS
Unit clarification procedures have been developed by the Commission
to implement the authority conferred by RCW 41.56.060 and are set
forth in Chapter 391-35 WAC. The legislative authority to "modify"
bargaining units recognizes that overtime, changes of job function,
management structures, or other circumstances may warrant revisiting
the description of a bargaining unit. This legislative authority is
limited, however, and a petition for clarification of a bargaining
unit cannot be used to create a new bargaining unit, or to
unilaterally move or add employees to an existing bargaining unit.
ISSUE 1: REMOVAL OF EMPLOYEES FROM POLICE OFFICER BARGAINING UNIT
In 1973, the Legislature established an "interest arbitration"
procedure to resolve certain contract negotiation disputes between
public employers and certain classes of public employees. That law,
which is codified in RCW 41.56.430, states:
The intent and purpose of chapter 131, Laws of 1973 is to
recognize that there exists a public policy in the state of
Washington against strikes by uniformed personnel as a means of
settling their labor disputes; that the uninterrupted and
dedicated service of those classes of employees is vital to the
welfare and public safety of the state of Washington; that to
promote such dedicated and uninterrupted public service there
should exist an effective and adequate alternative means of
settling disputes.
The definition of uniformed personnel is found in RCW 41.56.030-
(7). Subsection (a) includes "law enforcement officers" as defined
by RCW 41.26.030 which states:
(3) "Law enforcement officer" beginning January 1, 1994, means
any person who is commissioned and employed by an employer on a
full time, fully compensated basis to enforce the criminal laws
of the state of Washington generally, with the following
qualifications:
(a) No person who is serving in a position that is basically
clerical or secretarial in nature, and who is not commissioned
shall be considered a law enforcement officer.
. . .
(c) Only such full time commissioned law enforcement personnel
as have been appointed to offices, positions or ranks in the
police department which have been created or otherwise
expressly provided for and designated by city charter or by
ordinance enacted by the legislative body of the city shall be
considered city police officers.
One consequence of the availability of interest arbitration
procedures to uniformed personnel is a line of Commission precedent
that separates employees in a bargaining unit who are eligible for
interest arbitration from those who are not eligible on the grounds
that such units should be "pure." Thurston County Fire District 9,
Decision 461 (PECB, 1978); City of Yakima, Decision 837 (PECB,
1980); Cowlitz County, Decision 2067 (PECB, 1984); Benton County,
Decision 2221 (PECB, 1985).
In 1996, the Commission codified this line of precedent in WAC
391-35-310 which states:
Due to the separate impasse resolution procedures established
for them, employees occupying positions eligible for interest
arbitration shall not be included in bargaining units which
include employees who are not eligible for interest arbitration.
The parties stipulated at the hearing that the Police Records Clerk
and Community Service Officer positions are not law enforcement
officers. Given that stipulation, the legislative history,
Commission precedent, and an examination of the record, the
Executive Director concludes that it is appropriate to remove those
employees from the police officer bargaining unit.
ISSUE 2: REPRESENTATION OF EMPLOYEES REMOVED FROM POLICE OFFICER
BARGAINING UNIT
Despite the fact that the parties were allowed to litigate the unit
placement of employees who were not properly included in the
bargaining unit, the issue of representation cannot be addressed in
a clarification proceeding. It is not up to the parties to decide
which bargaining unit, if any, employees should belong to. Rather,
employees' desires regarding representation are ascertained pursuant
to a representation petition filed under Chapter 391-25 WAC. State
- Early Learning, Decision 9880 (PSRA, 2007), aff'd, Decision 9880-A
(PSRA, 2008).
FINDINGS OF FACT
1. The City of Battle Ground, a municipal corporation of the state
of Washington, is an employer as defined by RCW 41.56.020.
2. The Battle Ground Police Officers Association, a bargaining
representative within the meaning of RCW 41.56.030(3), is the
certified bargaining representative of a bargaining unit
defined as:
All regular police officers of the City of Battle Ground
Police Department, excluding supervisors, confidential
employees and all other employees of the employer.
3. In 2004 the parties agreed to include the Police Records Clerk
and Community Service Officer positions in the Battle Ground
Police Department in the police officer bargaining unit.
4. On April 24, 2008, the City of Battle Ground filed a petition
seeking clarification of the police officers bargaining unit
seeking to remove the position of Police Records Clerk and
Community Service Officer positions from the police officer
bargaining unit.
5. The Police Records Clerk and Community Service Officer
positions are not uniformed personnel eligible for interest
arbitration within the definition of RCW 41.56.030(7).
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.56 RCW and Chapter 391-35 WAC.
2. It is appropriate to remove the Police Records Clerk and the
Community Service Officer positions from the police officer
bargaining unit under WAC 391-35-310.
3. A question concerning representation must be addressed through
the procedures in Chapter 391-25 WAC.
ORDER
The bargaining unit described in paragraph two of the foregoing
Findings of Fact is clarified to exclude the Police Records Clerk
and Community Service Officer positions.
ISSUED at Olympia, Washington, on the 5th day of March, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CATHLEEN CALLAHAN, Executive Director
This order will be the final order
of the agency unless a notice of
appeal is filed with the Commission
under WAC 391-35-210.