State - Insurance Commissioner, Decision 10372 (PSRA, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
SUSAN CAMPBELL ) CASE 22373-E-09-3453
)
Involving certain employees of: ) DECISION 10372 - PSRA
)
STATE - OFFICE OF INSURANCE ) ORDER OF DISMISSAL
COMMISSIONER )
___________________________________)
On April 1, 2009, Susan Campbell filed a petition for investigation
of a question concerning representation with the Public Employment
Relations Commission, seeking to decertify the Washington Federation
of State Employees (WFSE) as exclusive bargaining representative of
the supervisory insurance examiners employed by the Washington State
Office of Insurance Commissioner. The petition identified four
employees, and described the unit as "Supervisory Insurance
Examiners Bargaining Unit".
A routine letter was mailed to the employer requesting a list of
employees. In a response filed on April 10, 2009, the employer
indicated that the petitioner is seeking decertification of a single
classification which is part of a larger bargaining unit. The
employer also supplied a copy of a collective bargaining agreement
between the union and the employer which is in effect through June
30, 2009.
The petitioner was notified that the petition appeared to seek an
inappropriate "severance-decertification" affecting only a portion
of the employees who are included in a much Decision 7355 - PECBPage
larger bargaining unit. The petitioner was given a period of 10 days
in which to show cause why the petition should not be dismissed.
On April 24, Dennis Redmon filed a notice of appearance requesting
to be added to the case as the petitioner representative along with
a request for an extension in responding to the deficiency notice.
Mr. Redmon also questioned the validity of the merger of the
supervisory insurance examiners.
Review of the Commission's records show that WFSE filed a petition
to merge the supervisory insurance examiners into its existing
supervisory unit. The parties stipulated to the merger and
Decision 9594 was issued February 16, 2007, merging the supervisory
insurance examiners into the existing agencywide supervisory
bargaining unit.
The petition currently before the Commission is seeking to decertify
a single classification within a larger bargaining so the petition
must be dismissed. The "window period" has closed so there is no
way to remedy the filing, so the request for extension is denied.
DISCUSSION
A decertification petitioner must take the unit as he or she finds
it. WAC 391-25-210(1) states:
In proceedings on a petition for "decertification" under WAC
391-25-070(6)(c) or 391-25-090 (2), the parties shall not be
permitted to remove positions from or add positions to the
existing bargaining unit.
The Commission had rejected "severance-decertification" petitions
long before that rule was adopted. In City of Seattle, Decision
2612 (PECB, 1987), where an employee sought to decertify only a
select group of employees from a larger bargaining unit, the
Commission wrote:
The distinction between "decertification" of an incumbent
exclusive bargaining representative and "severance" of a part
of the existing bargaining unit is well founded and clear.
Proceedings in the "decertification" category are characterized
by employees seeking to be rid of their present union, with the
result that they end up with no union representation. By
contrast, cases in the "severance" category involve a petition
of one organization seeking to carve out a separate bargaining
unit from a larger unit historically represented by the same or
another organization. In both types of cases, the Commission
must honor statutory directive that it consider the "history of
bargaining". RCW 41.56.060. A decertification petitioner does
not have the prerogative to fashion a new bargaining unit or
voting group, however. Rather, employees who seek to be rid of
their union must take the existing unit as they find it and
must move to decertify the context of the existing bargaining
unit. Accordingly, petitions which, as here, simultaneously
seek "severance" and "decertification" are precluded by
controlling precedent of the Public Employment Relations
Commission. See, City of Seattle, Decision 1229-A (PECB, 1982)
[Commission affirmed Executive Director's dismissal of
"severance-decertification" petition seeking to remove some,
but not all, of the employees from an existing bargaining unit
of City of Seattle employees represented by Plumbers Local
32];Valley General Hospital, Decision 1333 (PECB, 1982)
[Executive Director dismissed "severance-decertification"
petition]. The Commission's decisions on this subject are, in
turn, based on precedents of the National Labor Relations Board
(NLRB). Campbell Soup Co., 11 NLRB 234 (1055) [cited by
Commission, with approval, as standing for the proposition that
severance principles may not be applied to obtain
decertification of part of an existing bargaining unit; Oakwood
Tool & Engineering Co., 122 NLRB 812 (1958); Associated General
Contractors of California, Inc., 209 NLRB 363 (1974).
A petition seeking a "severance-decertification" is void from the
outset, and must be dismissed as such.
NOW, THEREFORE, it is
ORDERED
The petition for investigation of a question concerning
representation filed in the above matter is DISMISSED.
Issued at Olympia, Washington, this 1st day of May, 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.