Toppenish[EM1] School District,
Decision
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT
RELATIONS COMMISSION
|
In the matter of the petition of:
For clarification of an existing bargaining unit of
employees of: TOPPENISH SCHOOL DISTRICT |
CASE DECISION CASE DECISION
ORDER OF DISMISSAL |
Eric T. Nordof, General Counsel, for the petitioner.
Chris Burton, Attorney at Law, for the employer.
On October 31, 2008, Public School Employees of Washington (petitioner) filed a petition (Case 22083-C-08-1388) seeking to clarify a bargaining unit of certain employees of Toppenish School District (employer) by accreting the position of Central Office Payroll Clerk into its existing bargaining unit. On February 23, 2009, the petitioner filed a second petition (Case 22288-C-09-1398) seeking to add the Receptionist, Assistant Secretary to the Assistant Superintendent, Accounts Payable Clerk, Secretary to the Business Manager, District Mediator, and Assistant to the Business Manager to its existing unit.[1] The petitions were consolidated and assigned to Hearing Officer Emily Martin. On April 8, 2009, the Classified Administrative Central Office Personnel (CACOP) filed a motion to intervene in these proceedings. A second motion to intervene was also filed by Alan Jones on behalf of Directors and Supervisors, “a labor bargaining unit” purporting to represent three of the employees covered by a separate salary schedule with the employer.[2] Mr. Jones, now the Director of Accounting, formerly held the position of Assistant to the Business Manager. Jose Eligio Jimenez, District Ombudsman/Director of Mediator and Home Liaison Services, one of the individuals in the Directors and Supervisors group, filed a motion to intervene on April 24, 2009.
During the pre-hearing processing of these cases, a question arose concerning whether a unit clarification proceeding was appropriate as it appeared that the positions at issue may already be represented by a different labor organization (CACOP). On May 7, 2009, an Order to Show Cause was issued by the Executive Director, directing the petitioner to comment on why the petition should not be dismissed. All responses have been reviewed and considered.
ISSUE
The issue to be decided by the Executive Director is whether a unit clarification proceeding is appropriate to resolve the matters at issue.
Based on submission of the parties, the applicable statutes, rules, and case precedent, the Executive Director rules that the positions at issue are already represented for purposes of collective bargaining and the petitioner does not have standing to file a unit clarification petition.
APPLICABLE LEGAL STANDARD
Under RCW 41.56.060, the Commission has the authority to determine, modify, or combine appropriate bargaining units. In cases regarding a question of representation, the Commission has the authority to certify, decertify, or change the exclusive bargaining representative of a bargaining unit.
The Commission applies its unit clarification procedures to situations where no question concerning representation exists, but where a dispute arises about whether particular position(s) should be included in, or excluded from, a bargaining unit. WAC 391-35-010 limits who may file a unit clarification petition. The rule states that a “petition for clarification of an existing bargaining unit may be filed by the employer, the exclusive representative, or their agents, or by the parties jointly.”
ANALYSIS
The petitioner filed these unit clarification cases on the basis that certain central office positions are no longer confidential and should be included in its bargaining unit of classified employees. However, during the prehearing proceedings for these cases, a question arose about whether the positions are already represented by CACOP. If employees encompassed by this petition (Receptionist, Assistant Secretary to the Assistant Superintendent, Accounts Payable Clerk and Secretary to the Business Manager) are already represented for purposes of collective bargaining, the only relevant question is whether the petitioner has the standing to file a unit clarification petition.
Documents provided by CACOP included four Memoranda of Understanding between CACOP and the employer. The oldest agreement was in effect from September 1, 1983 until August 31, 1984; the next agreement was in effect from September 1, 1986 until August, 31, 1989; the third agreement was effective from September 1, 1997 until August 31, 1999; and the fourth and current agreement is effective from September 1, 2007 until August 31, 2009.
The terms of the four agreements between CACOP and the employer include wages, hours, and working conditions. The current Memorandum of Understanding includes a management rights clause, hours of work and overtime provisions, holidays, vacations, sick leave and other leave provisions such as family illness, bereavement, personal, judicial, maternity, emergency, and leave sharing. Provisions concerning probation, seniority and layoff, discipline and discharge for cause, health insurance, and a grievance procedure are also included. The signature page is titled “Central Office Staff Negotiated Agreement for 2007-2009” and is signed by representatives of the CACOP and the employer.
Additional documents submitted by CACOP include negotiation notes, proposals dating from as early as 1990, meeting notes taken during meetings of CACOP-represented employees, documents showing that employees elected their representatives, and minutes of the school board adopting the CACOP negotiated agreements. The 2007-2009 Memorandum of Understanding between CACOP and the employer includes a salary schedule and list of employees. With the exception of those positions occupied by Jones, Director of Accounting, and Jimenez, District Mediator, the positions on the CACOP- negotiated salary schedule are included in the petitioner’s petition.
Taken as a whole, the agreements submitted in response to the Order to Show Cause demonstrate that the employer and CACOP have engaged in collective bargaining for over twenty-five years. The petitioner asserts that it has been unaware of CACOP’s bargaining relationship with the employer. However, the petitioner’s lack of knowledge of CACOP’s collective bargaining activity is not dispositive and does not establish that collective bargaining did not occur, particularly when evidence to the contrary is so clear. Moreover, the definition of the petitioner’s own bargaining unit, as found in the petitioner’s and employer’s current collective bargaining agreement, explicitly excludes “Central Office Employees” even though some other employees at the central office have been historically included in the classified unit represented by the petitioner. The explicit exclusion of “Central Office Employees” demonstrates a joint understanding between the employer and petitioner that at least a portion of the central office’s positions are not within the petitioner’s unit.
Based upon the evidence submitted in response to the Show Cause Order, a hearing is not necessary. The best evidence, the 2007-2009 Memorandum of Understanding between CACOP and the employer, in addition to the other documents, clearly establish that CACOP has long represented the positions at issue. The rule in WAC 391-35-010 limits the right to file a unit clarification petition to “the employer, the exclusive representative, or their agents, or by the parties jointly.” The clear language of the rule indicates that petitioner does not have standing to file a unit clarification petition in this matter.
Should the petitioner wish to represent the positions at issue, it may file a timely representation petition pursuant to Chapter 391-25 WAC with an appropriate showing of interest.
CONCLUSION
Because the positions at issue are already represented for purposes of collective bargaining by CACOP, the petitioner does not have standing to file a unit clarification petition regarding these positions. The petitioner’s unit clarification petitions are hereby dismissed.
ISSUED at Olympia, Washington, this
PUBLIC
EMPLOYMENT RELATIONS COMMISSION