University of Washington, Decision 10496 (PSRA, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
WASHINGTON FEDERATION OF ) CASE 21835-C-08-1361
STATE EMPLOYEES )
) DECISION 10496 - PSRA
For clarification of an existing )
bargaining unit of employees of: )
)
UNIVERSITY OF WASHINGTON ) ORDER CLARIFYING
) BARGAINING UNIT
___________________________________)
Younglove and Coker, P.L.L.C., by Edward E. Younglove III,
Attorney at Law, for the union.
Attorney General Robert M. McKenna, by Mark K. Yamashita,
Assistant Attorney General, for the employer.
On July 2, 2008, the Washington Federation of State Employees
(union) filed a unit clarification petition under Chapter 391-35
WAC. On December 17, 2008, the union amended its petition. The
petition seeks to include regular part-time employees in an existing
bargaining unit of nonsupervisory library employees of the
University of Washington (employer). The amended petition also seeks
to accrete the library and archives paraprofessional (LAP) 1-6 job
series into the unit and proposes defining the unit by work rather
than job title. Hearing Officer Jessica Bradley conducted a hearing
on the following dates: November 20, 2008, January 5 and 7,
February 4 and 25, and April 6, 2009. The parties filed post-hearing
briefs which were considered.
ISSUES
1. Should the existing library bargaining unit be clarified to
include regular part-time employees?
The Executive Director modifies the library bargaining unit
represented by the union to include regular part-time employees who
perform work similar to work performed by full-time bargaining unit
employees and who work more than 350 hours in any twelve consecutive
month period.
2. Should the LAP job series be accreted into the existing
library bargaining unit?
The Executive Director finds that the LAP job series cannot be
accreted into the unit because the conditions set forth in WAC
391-35-020(4) have not been met. The record did not establish that
there was a change of circumstances or that the existing bargaining
unit represented by the union is the only appropriate unit for the
employees at issue.
3. How should the bargaining unit be defined?
The unit description is updated to reflect job titles currently used
by the employer.
ISSUE 1 - Inclusion of Regular Part-time Employees in Unit
Legal Principles
The bargaining relationship between the employer and union is
regulated by the Personnel System Reform Act (PSRA) of 2002, Chapter
41.80 RCW. The determination of appropriate bargaining units under
that statute is a function delegated by the Legislature to the
Public Employment Relations Commission. RCW 41.80.070(1) states in
part:
The commission, after hearing upon reasonable notice to all
interested parties, shall decide, in each application for
certification as an exclusive bargaining representative, the
unit appropriate for certification. In determining the new
units or modifications of existing units, the commission
shall consider: The duties, skills, and working conditions of
the employees; the history of collective bargaining; the
extent of organization among the employees; the desires of
the employees; and the avoidance of excessive fragmentation.
Unit placement of part-time state civil service employees is
addressed in WAC 391-35-356. Under this rule, it is presumptively
appropriate for employees covered by Chapter 41.06 RCW who work less
than full-time to be included in the same bargaining unit as
full-time employees who perform similar work.
The Washington State Personnel Resources Board (PRB) is the agency
authorized to interpret Chapter 41.06 RCW, the applicable statute.
On July 1, 2005, a revised rule, WAC 357-04-045, was adopted by the
PRB addressing part-time or temporary employees:
WHICH PART-TIME OR TEMPORARY EMPLOYEES OF HIGHER EDUCATION
EMPLOYERS ARE EXEMPT FROM CIVIL SERVICE RULES?
Persons employed to work one thousand fifty hours or less
(1050 hours or less) in any twelve consecutive month period
from the original date of hire or October 1, 1989, whichever
is later, are exempt from civil service rules.
Employees who are either exempt under this subsection or
exceptions authorized under WAC 357-19-440, and who work more
than three hundred fifty (350) hours in any twelve
consecutive month period from the original date of hire or
January 1, 2004, whichever is later, may be included in an
appropriate bargaining unit for purposes of collective
bargaining, as determined by the public employment relations
commission. Overtime and time worked as a student employee
under the provisions of WAC 357-04-040 are not counted in the
three-hundred fifty (350) hours.
Analysis
In 1973, the Washington State Higher Education Personnel Board
(HEPB) certified the union as the exclusive bargaining
representative of the library bargaining unit at the University of
Washington in Decision HEPB-REC#3.
The union represents a bargaining unit of approximately 155
nonsupervisory library employees of the University of Washington.
The bargaining unit does not currently include regular part-time
employees who work less than 1050 hours.
At the time of hearing, the employer employed approximately five
part-time library employees who worked more than 350 hours in a
twelve consecutive month period, but were excluded from the
bargaining unit because they worked less than 1050 hours. Although
the part-time employees may not perform all the duties of the
equivalent full-time positions, they perform work similar to the
full-time positions in the existing bargaining unit. The union seeks
to have the part-time employees included in the existing unit. There
is no evidence that any other employee organization is known to
claim or be seeking to represent any of the part-time employees at
issue in this proceeding.
Conclusion
The existing bargaining unit appears to be the only appropriate unit
placement for the petitioned-for part-time employees. In accordance
with WAC 357-04-045 and WAC 391-35-356, the bargaining unit is
clarified to include regular part-time employees who work more than
350 hours in any twelve consecutive month period and perform work
similar to full-time bargaining unit employees.
ISSUE 2 - Accretion of Library and Archives Paraprofessionals (LAPs)
Legal Principles
WAC 391-35-020 addresses timeliness of unit clarification petitions.
In situations where a petitioner is seeking to add employees to a
bargaining unit, WAC 391-35-020 states:
(4) Employees or positions may be added to an existing
bargaining unit in a unit clarification proceeding:
(a) Where a petition is filed within a reasonable time
period after a change of circumstances altering the community
of interest of the employees or positions; or
(b) Where the existing bargaining unit is the only
appropriate unit for the employees or positions.
Analysis
The union is seeking to add employees employed in the LAP job
classification series into the existing library bargaining unit.
There are approximately eight LAPs employed by the employer. The
LAPs work in small departmental and research libraries. These
libraries are referred to as independent libraries, because they
operate independently from the university's central library system.
Each independent library, with the exception of the Miller Library,
uses its own card catalog system. All of the independent libraries
have their own materials, checkout policies, and systems. There are
no bargaining unit employees working in any of the independent
libraries.
Employees in the existing library bargaining unit work in libraries
that are part of the university's central library system or in the
law library. Libraries in the central library system are under the
direction of the Dean of University Libraries. All libraries in the
central library system and the law library use the same electronic
card catalog system and the same materials checkout system.
Employees in the independent libraries were given the LAP job title
in 2007. The change came about when the Washington State Department
of Personnel (DOP) created the job specifications for the LAP 1-6
job series effective July 10, 2007, which replaced many existing
library classifications. As a result of this reclassification, the
employer changed the job titles for unrepresented employees working
in independent libraries to LAP. For example, Martha Ferguson who
is employed in the Miller Library had her title changed from library
specialist 1 to LAP 4.(fn:1) The change in employees' titles did not
result in changes to their job duties or functions. Many of the LAPs
use unofficial working titles and were not aware of their previous
or current official job titles.
____________________
fn:1 The employer did not change the titles of bargaining unit
employees despite the fact that DOP had officially replaced many of
the titles with the LAP 1-6 series.
Libraries Employing LAPs
Rey Library in the Department of Germanics
The Rey Library is a small, approximately 400-500 square foot,
library maintained within the Department of Germanics. The
collection of books that makes up the Rey Library was started in
1968 and consists of books written in German. Kris Unsworth is
employed as a LAP 2 by the Department of Germanics. Unsworth has
worked part-time in the library since at least 2003 and is the only
employee who works in the Rey Library. The Rey Library is not
affiliated with the university's central library system. Only
faculty and graduate students in the Department of Germanics have
access to the library. There is no evidence that any Rey Library
employee has been part of any bargaining unit.
Miller Library in the College of Forest Resources
The Miller Library was established in 1985 and is located in the
College of Forest Resources. The Miller Library is funded by a
private endowment and is not part of the university's central
library system although it pays the central library system to have
its collection listed in the central card catalog database. There
are two part-time LAP 2s and two full-time LAP 4s employed in the
Miller Library. There is no evidence that any Miller Library
employee has been part of any bargaining unit.
Alcohol and Drug Abuse Institute (ADAI) Library
The ADAI Library is part of the university's Alcohol and Drug Abuse
Institute located a few blocks off the university's main campus.
The ADAI Library was founded in the 1970s. The ADAI Library is not
part of the university's central library system. Pamela Miles is
employed by ADAI as a full-time LAP 6. Miles is the only LAP
employed by ADAI. There is no evidence that any ADAI Library
employee has been part of any bargaining unit.
Center for Studies in Demography and Ecology (CSDE) Library
The CSDE Library is part of the Center for Studies in Demography and
Ecology located in Raitt Hall on the university's main campus. The
CSDE Library existed as two separate book collections until 2007
when the book collections were combined at the current Raitt Hall
location. The CSDE Library is not part of the university's central
library system. The CSDE Library has its own card catalog and is
funded through donations and grants. Beth Sanderson used to be
employed by the CSDE Library as a LAP 4. There have not been any
LAPs employed by the CSDE Library since Sanderson left the position
in December 2008. There is no evidence that any CSDE Library
employee has been part of any bargaining unit.
Applied Physics Laboratory (APL) Library
The APL Library is part of the Applied Physics Laboratory and is
located in Henderson Hall on the university's main campus. The APL
Library is maintained to help researchers and is not open to the
public or general student body. A portion of the APL Library's
documents are classified documents which are stored in a secured
vault. Only people with proper security clearances may access
documents in the vault. The APL Library has existed since 1952 and
has operated independently of the university's central library
system since 1960. Currently, the APL Library employs one full-time
LAP 6. There is no evidence that any APL Library employee has been
part of any bargaining unit.
Application of WAC 391-35-020(4)
Under WAC 391-35-020(4), unrepresented employees can only be
accreted into an existing bargaining unit if there is either a
recent change of circumstances altering the community of interest of
the employees or positions, or if the evidence shows the existing
unit is the only appropriate unit for the employees or positions.
Here, there is no change of circumstances for LAP employees.
Although the job titles of the petitioned-for employees have changed
over time, the positions they occupy and the work they do has always
been excluded from the library bargaining unit.
The record does not support a finding that the library bargaining
unit is the only appropriate unit for LAPs. Unlike employees in the
central library system who have common supervision under the Dean of
University Libraries, the LAPs are supervised by the managers in the
academic department or research institution where they work. LAPs
may share a community of interest with other nonsupervisory
employees in their respective academic departments and research
institutions who are part of the campus-wide nonsupervisory employee
bargaining unit represented by Service Employees International
Union, Local 925 (SEIU 925).
Conclusion
The LAP job position series cannot be accreted into the existing
library unit under WAC 391-35-020(4). There has not been a recent
change of circumstances altering the community of interest of the
employees and the record failed to establish that the existing unit
is the only appropriate unit for the LAPs. If the LAPs desire
representation, a petition for investigation of a question
concerning representation (QCR) petition may be filed under Chapter
391-25 WAC.
ISSUE 3 - Bargaining Unit Description
Legal Principles
The Commission has traditionally used generic terms to describe
bargaining units to avoid using specific job titles in unit
descriptions. Northshore Utility District, Decision 6040 (PECB,
1997); City of Tacoma, Decision 5634 (PECB, 1996). Generic terms
prevent confusion if an employer decides to change employees' job
titles or create new job classifications that perform the same type
of work. University of Washington, Decision 8392 (PSRA, 2004); City
of Milton, Decision 5202-B (PECB, 1995).
Despite the preference for using generic terms to describe
bargaining units, the Commission recognizes that there are
situations when using job titles is the only way to clearly define a
bargaining unit. In particular, it can be necessary to use job
titles to define units in situations "where two unions have
bargaining units that are intertwined classification by
classification." State - Natural Resources, Decision 10050 (PSRA,
2008).
Analysis
Existing Bargaining Unit
When the HEPB created, and later modified, the library bargaining
unit, it defined the unit using job classifications. The bargaining
unit certification was last modified by the HEPB on October 9, 1974,
in Decision RM-20 to include the following classes:
Accounting Assistant I
Accounting Assistant II
Book Mender I
Book Mender II
Book Restorer I
Library Associate (non-supervisory)
Library Catalog Technician
Library Collections Supervisor
Library Specialist I
Library Specialist II
Library Technician I
Library Technician II
Library Technician III
Magnetic Card/Tape Typist I
Magnetic Card/Tape Typist II
Office Assistant I
Office Assistant II
Office Assistant III
Office Assistant I-Typing
Office Assistant II-Typing
Office Assistant III-Typing
Program Assistant I
Program Assistant II
Secretary I
Secretary II
Secretary III
The HEPB bargaining unit description specifically excludes
"supervisory and other classes employed in the libraries."
The employer and union agree that the HEPB unit description is
outdated. Many of the job classifications listed in the
certification have been replaced or abolished. The pay tables in the
parties' collective bargaining agreement, which was effective from
July 1, 2007 through June 30, 2009, list the following job
classifications as included in the library bargaining unit:(fn:2)
____________________
fn:2 The union argues that the pay table in the collective
bargaining agreement was prepared by the employer and is not
inclusive of the positions that should be in the bargaining unit,
specifically in the LAP 1-6 job series.
Fiscal Technician
Fiscal Technician 2
Library Specialist 1
Library Specialist II
Library Technician I
Library Technician II
Library Technician III
Library Technician Lead
Office Assistant 1
Office Assistant 2
Office Assistant 3
Program Assistant
Program Coordinator
Secretary
Secretary Lead
Secretary Senior
Word Processing Operator 2
Word Processing Operator Lead
Generic Unit Description Proposed by Union
The union argues that the unit should be defined in generic terms in
order to account for the ever-evolving job titles. Specifically, the
union proposes that an appropriate unit description would be:
All permanent full-time and regular part-time employees
(including hourly employees working over 350 hours in any
consecutive 12 month period) performing work in any
University of Washington library, excluding supervisory
employees, confidential employees, internal auditors and
employees in other bargaining units.
Although the Commission prefers to use generic unit descriptions,
there are facts in this case that make a generic description
problematic. A list of dues and representation fee-paying library
employees produced by the employer shows that there are a number of
employees who work in the university's library system that are part
of the SEIU 925-represented campus-wide nonsupervisory employee
bargaining unit. Specifically, there are employees in the following
job classifications who perform work in the libraries that are part
of the SEIU 925 unit:
Administrative Assistant A
Budget/Fiscal Analyst
Computer Support Analyst 1
Computer Support Analyst 2
Computer Support Technician 2
Computer Support Technician 3
Electronic Media Producer 2
Fiscal Specialist 1
Fiscal Specialist 2
Fiscal Technician 3
Media Technician Senior
Office Assistant Lead
Because there are many employees who work in the libraries that are
part of the SEIU 925 bargaining unit, the generic unit language
proposed by the union is not appropriate. Adopting a generic unit
description would create ambiguity regarding which employees are
included in each bargaining unit. Such ambiguity may well lead to
work jurisdiction disputes. This case is much like the situation in
State - Natural Resources, Decision 10050, and warrants defining the
unit by job title.
Defining Unit by Job Title
The union points out that the original HEPB certification is based
on the DOP class specification system and argues that if the unit is
defined by job title, the certification should be updated to use
current DOP class specifications. The union further argues that the
Commission should look at the evolution of the DOP job titles and
define the unit to include all job classifications that stem from
the HEPB certification.
The employer argues that the bargaining unit description should use
the job titles currently in use by the university. These are the
same titles used in the pay tables in the parties' collective
bargaining agreement. The employer explained that with the passage
of the PSRA in 2002, it is no longer required to use DOP class
specifications for represented employees. Since 2002, the employer
has elected to use its own job titles and coding system for
bargaining unit employees, and is not changing employees' titles as
DOP revises and replaces job specifications.
Conclusion
Using DOP job titles to define the unit could lead to confusion
about who is in the unit because these are not the job titles
currently used by employer. Based on the evidence in the record it
appears that the list of bargaining unit positions in the parties'
2007-2009 collective bargaining agreement accurately reflects the
composition of the bargaining unit. The unit description is updated
to reflect job titles currently used by the employer.
FINDINGS OF FACT
1. The University of Washington is a state institution of
higher education within the meaning of RCW 41.80.005(10).
2. The Washington Federation of State Employees is an employee
organization within the meaning of RCW 41.80.005(7).
3. In 1973, the Washington State Higher Education Personnel
Board (HEPB) certified the union as the exclusive bargaining
representative of the library bargaining unit at the
University of Washington in Decision HEPB-REC#3.
4. The certification described in Finding of Fact 3 was
modified by the HEPB on October 9, 1974, in Decision RM-20.
It defined the bargaining unit using job classifications.
5. The certification described in Finding of Fact 4 is
outdated. Many of the bargaining unit job classifications
have been replaced or abolished.
6. The pay tables in the parties' collective bargaining
agreement, which was effective from July 1, 2007 through
June 30, 2009, list the following job classifications as
included in the library bargaining unit:
Fiscal Technician
Fiscal Technician 2
Library Specialist 1
Library Specialist II
Library Technician I
Library Technician II
Library Technician III
Library Technician Lead
Office Assistant 1
Office Assistant 2
Office Assistant 3
Program Assistant
Program Coordinator
Secretary
Secretary Lead
Secretary Senior
Word Processing Operator 2
Word Processing Operator Lead
7. The bargaining unit described in Findings of Fact 3 through
6 includes approximately 155 employees.
8. On July 2, 2008, the union filed a unit clarification
petition under Chapter 391-35 WAC, seeking to include
regular part-time employees in the library bargaining unit.
9. On December 17, 2008, the union amended its petition to also
seek accretion of the library and archives paraprofessional
(LAP) 1-6 job series into the bargaining unit.
10. At the time of hearing, the employer employed approximately
five part-time library employees who worked more than 350
hours in a twelve consecutive month period but were excluded
from the bargaining unit because they worked less than 1050
hours.
11. Although the part-time employees described in Finding of
Fact 10 may not perform all the duties of the equivalent
full-time positions, they perform work similar to the
full-time positions in the existing bargaining unit.
12. There is no evidence that any other employee organization is
known to claim or be seeking to represent any of the
part-time employees described in Findings of Fact 10 and 11.
13. There are approximately eight employees employed in the LAP
job series.
14. The LAPs described in Finding of Fact 13 work in small
departmental and research libraries. These libraries operate
independently from the university's central library system.
There are no bargaining unit employees working in any of the
independent libraries.
15. Employees in the library bargaining unit described in
Findings of Fact 3 through 6 work in libraries that are part
of the university's central library system or in the law library.
16. None of the LAPs described in Finding of Fact 13 have ever
been part of any bargaining unit.
17. There is no change of circumstances for LAP employees.
Although the job titles of the employees described in Finding of
Fact 13 have changed over time, the positions they occupy and the
work they do has always been excluded from the library bargaining
unit.
18. The library bargaining unit described in Findings of Fact 3
through 6 is not the only appropriate unit for LAPs.
19. There are employees who work in the university's central
library system and law library who are part of the campus-wide
nonsupervisory employee bargaining unit currently represented by
Service Employees International Union, Local 925.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction
in this matter under Chapter 41.80 RCW and Chapter 391-35 WAC.
2. Under WAC 391-35-356 and 357-04-045, employees who work more
than 350 hours during any twelve consecutive month period
and who perform work similar to that performed by full-time
bargaining unit employees are regular part-time employees
for the purpose of collective bargaining and are
appropriately included in the existing library bargaining
unit as described in Findings of Fact 3 through 6.
3. The LAP job position series described in Findings of Fact
13, 14, 16, 17 and 18 cannot be accreted into the existing
library bargaining unit under WAC 391-35-020(4).
ORDER
1. The description of the existing bargaining unit is modified
to read as follows:
All full-time and regular part-time employees of
the University of Washington central library system
or law library in the following classifications:
Fiscal Technician
Fiscal Technician 2
Library Specialist 1
Library Specialist II
Library Technician I
Library Technician II
Library Technician III
Library Technician Lead
Office Assistant 1
Office Assistant 2
Office Assistant 3
Program Assistant
Program Coordinator
Secretary
Secretary Lead
Secretary Senior
Word Processing Operator 2
Word Processing Operator Lead
excluding confidential employees, supervisors, and all
other employees.
2. Employees who perform work similar to that performed by
full-time bargaining unit employees and who work for the
employer more than 350 hours during any twelve consecutive
month period are included in the bargaining unit as regular
part-time employees.
ISSUED at Olympia, Washington, this 6th day of August, 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.