State - Corrections, Decision 10442 (PSRA, 2009)

 

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

In the matter of the petition of:                                  )

)

TEAMSTERS UNION, LOCAL 117                        )           CASE 22052-E-08-3408

                                                                                    )

Involving certain employees of:                                  )           DECISION 10442 - PSRA

                                                                                    )

STATE – CORRECTIONS                                       )           ORDER OF DISMISSAL    

__________________________________________)

 

 

Spencer Nathan Thal, General Counsel, for Teamsters Union, Local 117.

 

Edward Younglove, Attorney at Law, for the Washington Federation of State Employees.

 

Jackie Marks, Labor Negotiator, for the employer.

 

 

Teamsters Union, Local 117 (Teamsters) filed a representation petition on October 22, 2008, seeking to form a bargaining unit of two psychology associates working at the Department of Corrections (DOC) Community Justice Centers (CJCs) in Seattle and Spokane.  An amended petition filed on October 24, 2008, indicated that the union sought to have these positions included in its existing nonsupervisory institutions bargaining unit.  The Washington Federation of State Employees (WFSE) filed a motion to intervene as an interested party, claiming that it already represented the psychology associates working in the CJC, as part of its nonsupervisory community corrections bargaining unit.  The Commission’s Representation Coordinator convened an investigation conference call on March 2, 2009.  Two issues were identified for hearing:  first, whether WFSE already represents the positions, and second, whether the proposed bargaining unit is appropriate.  Hearing Officer Claire Nickleberry held a hearing accepting evidence and testimony on the first issue on March 11, 2009.  The second issue was set aside for a later hearing date, if needed.[1]  The parties submitted briefs on April 1, 2009.

 

ISSUE

 

The issue before the Executive Director is whether the two psychology associate positions are already represented by WFSE in its community corrections bargaining unit.

 

Based upon the controlling certification and the record evidence, the psychology associate positions are represented by WFSE and the petition filed by Teamsters Union, Local 117, is hereby dismissed. 

 

APPLICABLE LEGAL STANDARDS

 

In City of Port Angeles, Decision 1701 (PECB, 1983), the Executive Director explored a situation similar to the question raised in this case.   In that matter, one union petitioned to represent allegedly unrepresented employees in the employer’s light department.  A second union intervened, claiming that it already represented two of the positions at issue in an existing bargaining unit.  The Executive Director examined contract language and case precedent and concluded that one position was already represented, while a second was not.  In Yakima County, Decision 2380 (PECB, 1986), the Executive Director examined the question of incumbency when a schism occurred between a union and one of its locals.  In that matter, he examined documents such as the Commission’s certification records, collective bargaining agreements, authorization cards, demands for dues check off, and correspondence in determining whether there was an incumbent union.  In State – General Administration, Decisions 8087-A and 8087-B (PSRA, 2003), the Executive Director and the Commission examined the question of a union’s incumbency in the context of a petition filed by an employer, questioning whether the union had abandoned certain bargaining units.  Even though that case involved the question of incumbency for an entire bargaining unit, rather than for particular positions within an existing unit, factors such as the existence of a collective bargaining agreement, dues collection, and analysis of representation activities on behalf of employees in a bargaining unit were all considered.

 

ANALYSIS

 

WFSE currently is the exclusive bargaining representative for a bargaining unit of non-supervisory community corrections employees of the Washington State Department of Corrections described in State – Corrections, Decision 9008-A (PSRA, 2005) as:

 

All non-supervisory civil service employees of the Washington State Department of Corrections performing community corrections functions excluding confidential employees, internal auditors, supervisors, Washington Management Service employees (on or after July 1, 2004) employees in other bargaining units and employees historically excluded from the unit by orders of the Washington Personnel Board or its predecessors.

 

 

A collective bargaining agreement between the employer and WFSE is effective from September 1, 2007 through June 30, 2009.  The agreement includes a union security provision that requires bargaining unit employees to join the organization or pay a representation fee.

 

Teamsters Local 117 is the exclusive bargaining representative for a bargaining unit of non-supervisory employees of the DOC working in its correctional institutions described in State – Corrections, Decision 9351 (PSRA, 2006) as:

 

All nonsupervisory classified employees of the State of Washington working for the Department of Corrections in correctional institutions, the correctional industries program, the sex offender treatment program, and regional business service center, excluding persons exempt from the coverage of Chapter 41.06 RCW, employees in the Washington Management Service, confidential employees, supervisors, institutions employees in historically excluded groups that have not been modified by subsequent orders, and all other employees of the employer.

 

 

Both unions currently represent employees in the psychology associate job classification:  WFSE in its community corrections unit and the Teamsters in its institutions unit.  WFSE represents psychology associates in the CJCs, and Pine Lodge and Ahtanum View institutions.  The Teamsters union does not represent any employees in the CJCs.

 

WFSE asserts that it currently represents the two positions at issue, and claims that it has received dues from one of the employees since July 2008, and that it should have been receiving such dues from the other employee since December 2007.  The employer asserts that the positions at issue are unrepresented and that an error was made when one of the employees was given papers to become a member of the WFSE bargaining unit.   The Teamsters also assert that the positions are not currently represented.

 

Connie Sais, one of the employees at issue, was laterally appointed into the psychology associate position at the Seattle CJC on July 1, 2008.  In the letter confirming her appointment, the employer noted that the position was part of the WFSE community corrections unit.  The employer provided her with dues deduction forms pursuant to the union security provisions of WFSE’s collective bargaining agreement.  Sais submitted those forms to the employer on July 9, 2008.  Testimony confirmed that WFSE dues have been continuously deducted from Sais’s wages since that time.  Sais has received regular mailings from WFSE that are sent to members.   

 

Connie Tedrow holds the other position in question in the Spokane CJC.  Tedrow was hired on December 17, 2007.  Although her appointment letter did not reference any union or bargaining unit, Tedrow was sent to an orientation where membership in WFSE was discussed.  She therefore thought that she should be a member of WFSE, but when she inquired to her CJC supervisor, she was told that the employer’s personnel department said her position was  unrepresented.

 

Patricia Boday, Labor Relations Consultant at the DOC, testified that she reviewed and relied upon certifications of both the WFSE and the Teamsters bargaining units in reaching the conclusion that both positions are unrepresented.  Boday relied upon an August 2001 certification issued by the Washington Personnel Resources Board (WPRB), rather than the certification issued by this agency in 2005.

 

Regarding the WFSE bargaining unit, Boday stated, “it’s our belief that the position should be unrepresented because of the historical exclusionary factors that were in the D[epartment] O[f] P[ersonnel] adopted bargaining unit order.  These two positions do not meet the reporting structures established in that order, so the agency made the determination that they should be unrepresented positions.” [2]

 

Regarding the Teamsters bargaining unit, she stated, “The Teamsters bargaining unit discusses employees working at a facility. And because these positions do not work primarily at a facility – they support multiple facilities and also work in the community justice centers – the determination – we believe that they did not meet the psych associate bargaining unit that the Teamsters have or the institution bargaining unit that they have.”

 

According to Boday, Sais was provided the WFSE membership paperwork in error.  When the employer discovered the error, it could not correct it because of its belief that pending unit clarification cases that included Sais’s position precluded it from making any change in bargaining unit status until those cases were resolved.[3]

 

The testimony and documentary evidence reveal that the employer erred in relying on the language of the outdated community corrections bargaining unit certification issued in August 2001 by the WPRB, rather than on the current unit description.  The outdated certification describes the WFSE bargaining unit as:

 

COMMUNITY CORRECTIONS BARGAINING UNIT

 

This unit covers all classified employees (including non-permanent employees) who:

 

•         Are assigned to Ahtanum View Correctional Complex, Pine Lodge PreRelease or Tacoma Pre-Release and report through the Superintendent or Local Business  Advisor; or

•         Work within Community Corrections field operations and report through a Field Administrator; or

•         Work within the DOC Performance System and report through a Performance Manager or the Emergency Response Manager; or

•         Work within the Hearing Unit and report through the Hearings Program Administrator

 

except those employees in the following job classifications:

 

12140              Accountant 3*

09520              Administrative Assistant 1**

09530              Administrative Assistant 2**

09540              Administrative Assistant 3**

09560              Administrative Assistant 4**

39150              Corrections Specialist

80640              Food Manager 2***

80660              Food Manager 3***

19102              Human Resource Consultant 1

19103              Human Resource Consultant 2

19104              Human Resource Consultant 3

19105              Human Resource Consultant 4

75720              Plant Manager 2

36820              Recreation Specialist 3****

01023              Secretary Administrative**

01024              Secretary Supervisor**

WMS01           Washington Management Services Manager 1

WMS02           Washington Management Services Manager 2

WMS03           Washington Management Services Manager 3

 

NOTE: Washington Management Services Managers 1, 2, 3: Positions placed in Washington Management Services (WMS) that are not as a result of a change in duties and responsibilities and that were previously included shall remain included. Positions placed in WMS as a result of a change in duties and responsibilities that are comparable to positions currently excluded and/or were previously excluded from the unit shall remain excluded.

 

*          Accountant 3: Only those positions that act as a Local Business Advisor are excluded.

 

**        Administrative Assistant 1, 2, 3, 4; Secretary Administrative; Secretary Supervisor:

Only those positions that function as the confidential secretary to the Superintendent; the Field Administrator; or the Hearings Program Administrator are excluded.

 

***      Food Manager 2, 3: Only those positions that have overall responsibility for managing and directing the food service program at AVCC, PLPR or TPR are excluded.

 

****    Recreation Specialist 3: Only those positions that have overall responsibility for managing and directing the recreation program at AVCC, PLPR or TPR are excluded

 

Classifications that may be created, which are equivalent or equal to positions previously excluded, shall remain outside the unit.

 

In the event of a title change of an excluded classification/position, the classification/position shall automatically remain outside the unit.

 

 

That certification included a reporting relationship for work performed as well as listing a number of job classifications that were exempted from the bargaining unit.  The employer incorrectly relied on the reporting relationship language which does not appear in the controlling certification issued by this agency on July 5, 2005, in State – Corrections, Decision 9008-A.  The controlling certification refers only to the list of excluded employees, and does not address reporting relationships.[4]  The employer’s own organization chart defeats its argument concerning reporting relationships because both of the positions in question are in a similar reporting relationship as other psychology associates who are represented by WFSE in the community corrections unit.  Position descriptions originally indicated the positions are WFSE-represented.  The work of these employees is primarily performed in the CJCs working with community corrections teams.  In addition, although the WFSE currently represents positions in two institutions, Pine Lodge and Ahtanum View, the Teamsters have never represented any positions in the CJCs.[5]

 

CONCLUSIONS

 

Connie Sais and Connie Tedrow currently hold nonsupervisory psychology associate positions in the Department of Corrections CJCs.  These positions are in the community corrections bargaining unit represented by WFSE.  Because WFSE is the incumbent bargaining representative for these positions, the petition filed by Teamsters Local 117 is hereby dismissed.

 

FINDINGS OF FACT

 

1.               Washington State Department of Corrections is a general government agency within the meaning of RCW 41.80.005(1).

 

2.               Teamsters Union, Local 117 is an employee organization within the meaning of RCW 41.80.005(7) and is the exclusive representative of a bargaining unit of nonsupervisory employees working in correctional institutions operated by the DOC.

 

3.               The Washington Federation of State Employees is an employee organization within the meaning of RCW 41.80.005(7) and is the exclusive representative of a bargaining unit of nonsupervisory employees working in the community justice centers, and in the employer’s Pine Lodge and Ahtanum View institutions.

 

4.               On October 22, 2008, the Teamsters filed a representation petition seeking to form a bargaining unit of two psychology associates working at the Seattle and Spokane Community Justice Centers (CJCs).

 

5.               On October 24, 2008, the Teamsters filed an amended petition seeking to have these positions included in its existing nonsupervisory institutions bargaining unit pursuant to WAC 391-25-440.

 

6.               On November 4, 2008, WFSE filed a motion for intervention claiming that the two psychology associates are already represented in its community corrections bargaining unit.

 

7.               On July 1, 2008, Connie Sais was laterally appointed to a psychology associate position at the Seattle CJC and on July 9, 2008, she signed and submitted WFSE membership forms.  Subsequently, dues have been continuously deducted from her payroll.

 

8.               On December 17, 2007, Connie Tedrow was hired as a psychology associate in the Spokane CJC.  She was sent to orientation that included WFSE membership information but, when she inquired about it further, was told that she was unrepresented.

 

9.               The DOC relied on an outdated certification issued by the Washington Personnel Resources Board in 2001, Case RU-549b, to make its determination that these positions should be unrepresented. The controlling certification issued by the Public Employment Relations Commission and issued in 2005, State – Corrections, Decision 9008-A, does not support the DOC’s conclusion.

 

10.              Based upon the controlling certification and record evidence, WFSE represents the psychology associates working in the CJCs.

 

CONCLUSIONS OF LAW

 

1.                  The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.80 RCW.

 

2.                  The Washington Federation of State Employees is the incumbent representative of the psychology associate positions in the Community Justice Centers.

 

ORDER

 

The petition filed by Teamsters Local 117 is dismissed.

 

Dated at Olympia, Washington, this    19th    day of June, 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.


[1]               Resolution of the issue of incumbency is a prerequisite to making any other determinations in the case, as a finding that the positions in question are already part of a bargaining unit would require dismissal of this  petition.

[2]               WPRB Case RU-549b.

 

[3]               Cases  21795-C-08-1343 and  21796-C-08-1344.

[4]              Those employees historically excluded are set forth as exceptions by classifications in the certification issued by the WPRB in Case RU-549b.  The psychology associate classification is not listed among the exclusions.

 

[5]               Those facilities were originally designated as community corrections facilities, but are now designated as institutions.