Central Washington University, Decision 10336 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
PUBLIC SCHOOL EMPLOYEES OF )
WASHINGTON ) CASE 21915-E-08-3388
)
Involving certain employees of: ) DECISION 10336 - PECB
)
CENTRAL WASHINGTON UNIVERSITY ) ORDER OF DISMISSAL
)
___________________________________)
Elyse Maffeo, Attorney at Law, for the union.
Attorney General Rob McKenna, by Alan Smith, Assistant Attorney
General, for the employer.
On August 8, 2008, Public School Employees of Washington (union)
filed a petition seeking to represent a bargaining unit of employees
who counsel students at Central Washington University (employer).
Representation Coordinator Sally J. Iverson held an investigation
conference on September 11, 2008. During the investigation
conference, the parties were unable to stipulate to the propriety of
the bargaining unit. The employer claimed that the proposed
bargaining unit was inappropriate and that, even if found
appropriate, four positions proposed to be included in the unit
should be excluded as supervisory. On October 21 and 22, 2008,
Hearing Officer Guy Otilio Coss conducted a hearing on these issues.
Both parties filed briefs.
ISSUES
1. Is the petitioned-for unit appropriate?
2. Are the positions of Director of Education Outreach Services
and Educational Opportunity Center, the Assistant Director of
the Educational Opportunity Center, the High School Equivalency
Program Director, and the College Assistance Migrant Program
Director supervisory positions and therefore excluded from the
proposed bargaining unit?
Based upon the entire record, the Executive Director rules that the
proposed bargaining unit sought by the union is not an appropriate
unit for the purpose of collective bargaining, and dismisses the
petition.
Because the proposed unit is found to be inappropriate, rulings on
the eligibility issues raised by the employer are unnecessary.
ISSUE 1: Is the petitioned-for bargaining unit appropriate for
purposes of collective bargaining?
APPLICABLE LEGAL STANDARDS
This case concerns the union's petition to represent a vertical unit
of ten employees of Education Outreach Services at Central
Washington University who are exempt from civil service pursuant to
RCW 41.06.070(2)(b) which states, in pertinent part:
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 . . .
(emphasis supplied). The employees at issue in this case were
exempted from Chapter 41.06 RCW because their duties were determined
to involve counseling of students. This petition is governed by RCW
41.56.021 which provides collective bargaining rights to certain
"employees of institution of higher education who are exempted from
civil service pursuant to RCW 41.06.070(2)."
The determination of appropriate bargaining units is a function
delegated by the Legislature to the Commission. RCW 41.56.060. The
Commission applies the community of interest criteria set forth in
that statute, as follows:
RCW 41.56.060 DETERMINATION OF BARGAINING UNIT--
BARGAINING REPRESENTATIVE. The commission, after hearing upon
reasonable notice, shall decide in each application for
certification as an exclusive bargaining representative, the
unit appropriate for the purpose of collective bargaining. In
determining, modifying, or combining the bargaining units, the
commission shall consider the duties, skills, and working
conditions of the public employees; the history of collective
bargaining by the public employees and their bargaining
representatives; the extent of organization among the public
employees; and the desire of the public employees.
None of the statutory criteria predominates to the exclusion of
others, but they have varying weight depending on the factual
settings of particular cases. City of Centralia, Decision 2940
(PECB, 1988).
The unit configuration proposed by a petitioning organization is
always the starting point for any unit determination analysis. King
County, Decision 5910-A (PECB, 1997). Any "appropriate" unit
configuration can be certified; it is not necessary to find "the
most appropriate" unit or the "only appropriate" unit. The
Commission has described the purpose of the unit determination
process as: "[T]o group together employees who have sufficient
similarities (community of interest) to indicate that they will be
able to bargain collectively with their employer." King County,
Decision 5910-A (PECB, 1997) and cases cited therein.
Duties, Skills, and Working Conditions
The unit sought in this case is a small vertical unit of ten
employees of the Education Outreach Services. These employees are
responsible for three programs: The Educational Opportunity Center;
the College Assistance Migrant Program; and the High School
Equivalency Program.
Duties: The Educational Opportunity Center staff recruit and
provide admissions, career, financial aid, and other counseling
services to low-income, disabled, and first generation university
students. They do not counsel/recruit specifically for this
university but instead provide information on opportunities to
attend any of the state's universities.
The College Assistance Migrant Program staff recruit and provide
admissions counseling, tutoring, basic skills instruction, financial
aid, and other student counseling services to migratory or seasonal
farm workers and their children during their first year of university.
The High School Equivalency Program assists migratory or seasonal
farm workers, their children, and/or people from diverse backgrounds
in completing high school or getting a General Equivalency Degree by
providing counseling, basic skills instruction, and testing.
As part of her duties as the Assistant Vice President for Human
Resources, Sherer Holter routinely reviews staff positions to
determine which positions should be exempt under RCW 41.06.070(2)
and, if so, under what basis. During this process, Holter reviewed
the positions held by the staff of the Education Outreach Services
Department and determined that they were exempt under RCW
41.06.070(b) based on their duties involving the "counseling of
students."
However, Holter also testified that in addition to the ten
petitioned-for employees exempted under the "counseling of students"
criteria, the employer has also exempted approximately 55 other
employees under the same criteria in the departments of admissions,
financial aid, career counseling, academic advising, student testing
and assessment, international student advising, multi-cultural
student advising, residential life counseling, student activities,
and basic skills instruction. The employees in each of these other
departments perform the same or similar duties to, and/or interact
with, the petitioned-for employees in their responsibilities of
recruiting, admissions counseling, financial aid counseling, career
counseling, basic skills and other instruction, testing, student
advising, and multi-cultural and international student advising.
Similarly, the Vice President of Student Affairs and Enrollment
Management, Keith Champagne, testified that the Education Outreach
Services employees perform duties that are similar and/or the same
as those performed by the other exempt student counselor employees.
Similar duties in both groups of employees include student
recruitment, admissions counseling, financial aid counseling,
academic advising, career counseling, student testing and
assessment, basic skills instruction, and student retention.
None of the union's witnesses or evidence contradicted the evidence
or testimony of Holter or Champagne. Rather, the union argued that
the Education Outreach Services counselors differed from other
student counseling employees or departments because their mission
and focus is restricted by the terms of the federal grant under
which it receives funding. The union argues that the grant
restricts their mission and duties because it limits their services
to a specific population of students, i.e., low-income, disabled and
first generation university students, migratory or seasonal farm
workers and their children, and/or people from diverse backgrounds.
This distinction is insufficient to distinguish the work of these
student counselors from other student counselors at the university.
Many, if not all, distinct departments of an employer will have
distinct missions and, especially in higher education, may have
distinct funding sources for that mission. The fact that the
particular type of student they counsel may differ from that of
another department is not a sufficient distinction for purposes of
collective bargaining. Further, while Education Outreach Services
employees are restricted to servicing the specific population
identified in their funding grant, this restriction does not apply
to other student counselors who are able, and in fact do, interact
with the very same students that the petitioned-for employees serve.
By way of example, the employees at issue may, in seeking to
recruit a student, refer that student to the employer's financial
aid office. Thus, the distinction raised by the union is not
sufficient, in and of itself, to justify the creation of a separate
unit where other employees perform the same or substantially similar
duties.
Skills: The position descriptions for the Education Outreach
Services employees, as well as a representative group of positions
at the university that are also exempt under the "counseling of
students" criteria, were submitted into evidence. These positions
are student counselors in the areas of academic advising, financial
aid, career counseling and admissions. This evidence, as well as
the testimony by Holter, shows that there are no significant
differences in the required education, skills, or experience among
student counselors within Education Outreach Services and those
outside the department. A bachelor's or a master's degree is
required for the majority of all such counselor positions. The
positions all require or prefer experience with various types of
student counseling services. Some employees of Education Outreach
Services, as well as some outside of that office, have specifically
required, or preferred skills, such as knowledge of specific
programs, populations, and/or bilingual abilities.
Working Conditions: All employees in the Education Outreach
Services work under the same personnel and compensation policies as
do the other exempt student counseling staff at the university. All
of the Education Outreach Services employees work at the main
campus, at various university centers in office and/or field
environments, and may travel to high schools for recruiting visits.
The employer presented evidence that, like the employees of the
Education Outreach Services, various other counseling employees work
both at the main campus, at the various university centers, and also
work in office and/or field environments. Education Outreach
Services staff, as well as other exempt student counseling staff
report to Champagne. Champagne testified that in the course of
performing their student counseling duties, all exempt student
counseling staff, both inside and outside of Education Outreach
Services, interact and work closely with each other as well as with
other employees at the university. Champagne further testified that
all employees performing student counseling functions are required
to follow the same policies and procedures.
History of Collective Bargaining
The history of bargaining need only be considered where there is a
history of representation. Pasco School District, Decision 5016-A
(PECB, 1995). The employer seeks to have the history of the "Exempt
Employees Organization" considered under this criteria. However,
the employer admits that this organization has never been, and is
not now, a bargaining unit recognized or established by the
Commission. It has long been held by the Commission that the
history of bargaining is not binding upon it where the bargaining
unit was not established by the Commission. Renton School District,
Decision 379-A (EDUC, 1978), aff'd, Renton Education Association v.
Public Employment Relations Commission, 101 Wn.2d 435 (1984).(fn:1) The
petitioned-for employees in this case have no history of
representation.
____________________
fn:1 It should be noted that if the "Exempt Employees Organization"
believed itself to be a labor organization, it could have intervened
in this proceeding. The Commission received no indication of any
intervention by any party.
Extent of Organization
The extent of organization factor looks at the extent to which the
employer's workforce is organized and compares the employees
involved in the proposed unit with the employer's overall workforce.
The Commission has generally resisted fragmentation in applying the
"extent of organization" component, particularly to avoid stranding
employees without access to collective bargaining rights and/or in
small units that are not conducive to effective collective
bargaining. See, e.g., Forks Community Hospital, Decision 4187
(PECB, 1992) (proposed clerical/service/maintenance/ technical unit
in a relatively small facility would have stranded other technical
positions within the facility); City of Vancouver, Decision 3160
(PECB, 1989) (proposed unit would have stranded other employees in
units too small for them to ever implement their statutory
bargaining rights). The avoidance of fragmentation is often thought
of as protecting employers from having to deal with multiple
bargaining units whose interests are not that divergent. Auburn
School District, Decision 2710-A (PECB, 1987).
The Commission has also been reluctant to establish multiple
bargaining units among employees who perform similar functions due
to the ongoing potential for work jurisdiction disputes in such
circumstances. The reference to "work jurisdiction" grows out of a
long line of precedents dating back to South Kitsap School District,
Decision 472 (PECB, 1978), holding that the description of an
appropriate bargaining unit outlines a body of work that the
exclusive bargaining representative is entitled to protect (and
concerning which employers have a duty to bargain) through the
collective bargaining process. See also South Central School
District, Decision 5670-A (PECB, 1997).
Here, the unit sought by the union would clearly lead to
fragmentation and work jurisdiction disputes. South Kitsap School
District, Decision 1541 (PECB, 1983), presented examples of
conflicts that develop when the border between bargaining unit work
is not clearly visible, distinct, or easy to apply. Just as two
different units of office-clerical employees within the same school
district collided in South Kitsap School District, there would be an
ongoing potential here for separate units of exempt counseling
employees to collide.
Examples of potential work jurisdiction disputes would exist, for
example, in the area of financial aid counseling - counselors in
Education Outreach Services answer questions and advise students
concerning such matters as paying for university, obtaining
financial aid and filling out required forms. This would clearly be
the work of designated financial aid counselors who, if organized,
would be entitled to protect this work through the collective
bargaining process. Another example is in the area of the Education
Outreach Services' specifically targeted populations - part of the
focus is on migrant farm workers and their children and/or people
from diverse backgrounds. Evidence submitted by the employer shows
that there are student counselors working in multi-cultural advising
and that some admission counselors outside of the Education Outreach
Services also have "a focus on Latino/a populations."
Should a part, or the remainder of, the exempt student counseling
employees not be included in the unit, the potential for ongoing
disputes about work jurisdiction between the bargaining units could
be significant. Even if no additional units were ever organized in
this workforce, the integrated nature of operations and overlapping
of student counseling duties would still mean that creation of the
petitioned-for unit could create ongoing jurisdictional disputes
between represented and unrepresented employees.
CONCLUSION
Based upon the record as a whole, the Executive Director rules that
the proposed bargaining unit sought by the union is not an
appropriate unit for the purpose of collective bargaining. The
petitioned-for employees perform duties that are the same or
substantially similar to work performed by approximately 55 other
exempt employees performing "student counseling;" the petitioned-for
employees' duties, skills, and working conditions are the same
and/or substantially similar to these other student counselor
employees; the duties of the petitioned for employees are integrated
with those of the employer's other student counseling employees; and
the petitioned-for employees work under the same personnel and
compensation policies as do the other exempt student counselors.
Finally, the unit of petitioned-for employees would unduly fragment
the employer's student counseling workforce leading to work
jurisdiction disputes between the unit and the remaining student
counselor employees.
ISSUE 2: Are the positions of Director of Education Outreach
Services and Educational Outreach Center, the Assistant
Director of the Educational Outreach Center, the High
School Equivalency Program Director, and the College
Assistance Migrant Program Director supervisory, and
therefore excluded from the proposed bargaining unit?
Because the Executive Director rules that the proposed bargaining
unit sought by the union is not an appropriate unit for the purpose
of collective bargaining, rulings on the eligibility issues are
unnecessary.
FINDINGS OF FACT
1. Central Washington University is an institution of higher
education within the meaning of RCW 41.56.030(8).
2. Public School Employees of Washington is an employee
organization within the meaning of RCW 41.56.030(3).
3. The union has petitioned to represent a bargaining unit
consisting of ten employees who counsel students in Education
Outreach Services at Central Washington University.
4. The classifications included in the petitioned-for bargaining
unit are exempt from Chapter 41.06 RCW under RCW
41.06.070(2)(b) based on their duties involving the counseling
of students.
5. There are approximately 55 other employees in similar
classifications who are also exempt from Chapter 41.06 RCW
under RCW 41.06.070(2)(b), based on their duties involving the
counseling of students.
6. The work performed by employees in the petitioned-for
bargaining unit consists of various types of student counseling
duties such as student recruitment, admissions counseling,
financial aid counseling, academic advising, career counseling,
student testing and assessment, basic skills instruction, and
student retention.
7. The work performed by employees in the petitioned-for positions
is the same or similar to, and in some cases integrated with,
that of the approximately 55 other employees exempt under RCW
41.06.070(2)(b) who counsel students.
8. All of the petitioned-for employees share similar working
conditions with approximately 55 other Central Washington
University employees who are exempt under RCW 41.06.070(b) who
counsel students.
9. All of the petitioned-for employees work under the same
personnel and compensation policies as do the approximately 55
other student counseling employees exempt under RCW
41.06.070(2)(b).
10. The unit of petitioned-for employees would unduly fragment the
employer's student counseling workforce.
11. Creation of the petitioned-for bargaining unit would create an
ongoing potential for work jurisdiction disputes because of the
integrated nature of student counseling operations and the
similarity of work performed between and among the ten sought
after employees and the approximately 55 other employees exempt
under RCW 41.06.070(2)(b) who counsel students.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
these matters pursuant to Chapter 41.56 RCW.
2. The bargaining unit described in paragraph three of the
foregoing Findings of Fact is not an appropriate unit for the
purpose of collective bargaining.
ORDER
The petition filed in Case 21915-E-08-3388 for investigation of a
question concerning representation is hereby DISMISSED.
Issued at Olympia, Washington, on this 27th 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 391-25-660.