State - Early Learning, Decision 9880-A (PSRA, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
) CASE 20605-C-06-1282
WASHINGTON FEDERATION OF STATE ) DECISION 9880-A - PSRA
EMPLOYEES )
) CASE 20606-C-06-1283
For clarification of an existing ) DECISION 9881-A - PSRA
bargaining unit of employees of: )
)
WASHINGTON STATE - EARLY LEARNING ) DECISION OF COMMISSION
___________________________________)
Younglove Lyman Coker, P.L.L.C., by Edward Younglove III,
Attorney at Law, for the union.
Robert McKenna, Attorney General of Washington, by Laura Wulf,
Attorney at law, for the employer.
These cases come before the Commission on a timely appeal filed by
the Washington State Federation of Employees (union) seeking to
overturn certain Findings of Fact, Conclusions of Law, and Order of
Dismissal issued by Executive Director Cathleen Callahan.(fn:1) The
Washington State Department of Early Learning (DEL) supports the
union's appeal.(fn:2)
____________________
fn:1 State - Early Learning, Decision 9880 (PSRA, 2007).
fn:2 We note that the employer was present but did not participate
in these proceedings and took no position regarding the
appropriateness of the union's petition until such time as the union
filed its appeal brief.
ISSUES PRESENTED
1. Is the union's unit clarification petition appropriate under
the established statutory criteria of chapter 41.80.RCW?
2. If the union's unit clarification petition does not conform
with the statutory criteria of Chapter 41.80 RCW, did Laws of
2006, ch. 265, create a statutory exception that directed this
Commission to create a new bargaining unit of previously
represented and unrepresented employees in the Department of
Early Learning that the union would continue to represent to
preserve employees' representation status?
For the reasons set forth below, we(fn:3) find that the union's unit
clarification petitions are not appropriate under Chapter 41.80 RCW.
We also agree with the Executive Director's decision that Laws of
2006, ch. 265, did not create an exception to the unit clarification
criteria. Accordingly, we affirm the Executive Director's order
dismissing the union's unit clarification petitions.
____________________
fn:3 Commissioner Pamela G. Bradburn and Commission Douglas G.
Mooney. Chairperson Marilyn Glenn Sayan respectfully dissents from
our decision.
STANDARD OF REVIEW
Statutory construction is a question of law and is reviewed de novo.
City of Pasco v. Public Employment Relations Commission, 119 Wn.2d
504 (1992). Like the courts of appeal, we will determine questions
of law independently of the staff member whose decision is on
appeal, although the decision is entitled to substantial weight.
See Renton Technical Association v. Public Employment Relations
Commission, 101 Wn.2d 435 (1984). This Commission then applies the
law to the findings of fact issued below unless those findings are
not supported by substantial evidence. Substantial evidence exists
if the record supports a finding of any competent, relevant, and
substantive evidence, which, if accepted as true, would, within the
bounds of reason, directly or circumstantially support the
challenged finding or findings. Gogerty v. Department of
Institutions, 71 Wn.2d 1 (1967). If the substantial evidence
supports the examiner's conclusion, a harmless error will not be
cause to overturn the decision. Renton Technical College, Decision
7441-A (CCOL, 2002).
ISSUE 1 - Is the Union's Unit Clarification Appropriate?
Applicable Legal Standard
Unit clarification proceedings are designed to assist employers and
the organizations that represent their employees in "clarifying" or
fine tuning the bargaining unit that forms the basis for their
collective bargaining relationship. This Commission adopted Chapter
391-35 WAC to govern the processing of such cases. Unit
clarification cases arise in several instances including, but not
limited to, situations where:
* The historical bargaining unit description is unclear with
respect to a specific classification of employees or position;
* The parties disagree as to whether a particular classification
of employees or position is withing one of the customary
exclusionary terms;
* The parties disagree about the proper unit placement of a newly
created classification or position of employees; and
* The parties disagree about whether a classification of employee
or position should be included or excluded from the existing
bargaining unit following a change of circumstances.
WAC 391-35-020; see also Toppenish School District, Decision 1143-A
(PECB, 1981). However, unit clarification cases must always involve
an existing bargaining relationship and an existing bargaining unit
description. Western Washington University, Decision 8704-A (PSRA,
2005)(Chapter 391-35 WAC regulates the clarification of existing
bargaining unit).
Application of Standard
Here, the Executive Director found the unit clarification procedures
to be an inappropriate avenue for the union's petition, noting that
the avenue to create a certification is to file a representation
petition under RCW 41.80.080 and Chapter 391-25 WAC. We agree with
this conclusion.
RCW 41.80.070 sets forth the unit determination criteria that this
Commission applies when creating a new bargaining unit, while RCW
41.80.080 provides the avenue for the certification of an exclusive
bargaining representative of that bargaining unit of state civil
service employees. RCW 41.80.080 specifically requires that this
Commission determine all questions pertaining to the representation
and certification of state civil service employees for purposes of
collective bargaining. Furthermore, the language of RCW
41.80.070(1), which provides that bargaining units existing on June
13, 2002, "shall be considered an appropriate unit...", is
inapplicable here. The employer's expected DEL bargaining unit was
not in existence on June 13, 2002, and therefore RCW 41.80.070(1)
does not apply here.
Without an existing certification, this Commission lacks any
starting point to begin the unit clarification process, and
therefore the Executive Director correctly noted that the proper
avenue for the union would be to first file a petition for
investigation of a question concerning representation under Chapter
391-25 WAC. Following a conclusive representation election
demonstrating that the union represents a majority of the petitioned
for employees, a proper certification would then be issued.(fn:4)
____________________
fn:4 In its brief, the union submits that it has 80 percent
membership of the employees at issue. Thus, the union should have
sufficient support for a representation petition.
Having found the union's petitions inappropriate under existing
statutes and rules, we next turn to the question of whether the
legislation creating the Department of Early Learning provided an
exception to RCW 41.80.070, RCW 41.80.080, and Chapter 391-25 WAC.
ISSUE 2 - Did Laws of 2006, ch. 265, Create a Statutory Exception?
Applicable Legal Standard
"If the statute's meaning is plain on its face, the court must give
effect to that plain meaning." McGinnis v. State, 152 Wn.2d 639,
645 (2004) (citing Fraternal Order of Eagles, Tenino Aerie No. 564
v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224 (2002)).
A statute is ambiguous when it is fairly susceptible to different,
reasonable interpretations, either on its face or as applied to
particular facts, and must be construed to avoid strained or absurd
results. McGinnis v. State, 152 Wn. 2d at 645. A statute is not
ambiguous merely because different interpretations are conceivable.
Courts are not obligated to find ambiguity by seeking out alternate
interpretations. McGinnis v. State, 152 Wn.2d at 645. Generally,
new legislation is an amendment rather than a clarification of
existing law. Port of Edmonds v. Public Employment Relations
Commission, 103 Wn.2d 331, 336-7 (1985).
Analysis
Laws of 2006, ch. 265, section 504 is at issue in this appeal. The
union and the employer assert that the Legislature preserved the
representation status of represented employees in section 504.
Assuming, for argument, this is true, section 504 would essentially
create a new bargaining unit of previously represented employees
transferred to work at DEL. According to the union and the
employer, the new bargaining unit was to include the transferred
employees who were represented while employed at the Department of
Social and Health Services (DSHS) and the Department of Community
Trade and Economic Development (CTED). The parties base this
argument on inclusion in section 504 of the phrase "without any loss
of rights."
The legislation must first be examined to determine whether it is
clear and unambiguous. Each subsection must be examined in turn to
determine its meaning and applicability to these proceedings.
The union asserts that the legislation is clear and unambiguous.(fn:5)
We agree. However, we do not agree with the union's interpretation
of the language. The phrase "without loss of rights" must be given
its plain meaning. Given the plain meaning, the statute cannot be
interpreted as preserving the representation status, thereby
creating a new bargaining unit of employees at DEL from the
transferred employees who were unrepresented and represented by the
union at other agencies. Simply because the union and employer could
conceive the statute to preserve the representation status and
transfer those rights with the employees to DEL, does not make the
statute ambiguous to avoid applying the plain meaning of the words
with the statute. Because the statute's meaning is plain on its
face, we must give effect to the plain meaning and not construe the
statute to reach a contrary result.
____________________
fn:5 The union appeals errors in the Executive Director's Findings
of Fact. We find these errors to be harmless and have no effect on
the outcome of the decision.
In collective bargaining laws, terms of art can be given their
special meaning. Otherwise, the word is defined according to its
plain meaning. The statute at issue in this case is not a
collective bargaining law; rather, it is an agency enabling statute.
Therefore, the definition applied to terms used in collective
bargaining will not apply. The general meaning of the word "rights"
must apply.
Applicability of Section 504(1)
Section 504(1) contains two sentences. The first addresses the
transfer of employees. The second addresses employees classified
under Chapter 41.06 RCW, the state civil service law, and includes
the phrase "without loss of rights." The Legislature did not
mention Chapter 41.80 RCW, which provides not only collective
bargaining rights to employees and provides the method by which the
employees are certified as a bargaining unit for purposes of
collective bargaining. Chapter 41.06 and 41.80 RCW are two distinct
laws providing different rights to employees covered by those laws.
The failure of the Legislature to mention Chapter 41.80 RCW in the
section, when it clearly designated Chapter 41.06 RCW, demonstrates
that the protection provided by the phrase "without loss of rights"
applies to those rights provided for only in Chapter 41.06 RCW, not
the rights provided in Chapter 41.80 RCW. Not only did the
Legislature decline to reference in section 504(1) the preservation
of rights under Chapter 41.80 RCW, it also declined to specifically
preserve or transfer any existing bargaining unit certification. If
the Legislature had intended to preserve the rights and
certifications in existence for the employees under Chapter 41.80
RCW, and thereby creating a new bargaining unit at DEL, the
Legislature would have explicitly done so.
Furthermore, even if we were to accept the parties' interpretation,
the union's original unit clarification petitions exceeded the
parties' intended scope of section 504. The petitions sought
inclusion of many employees who were previously unrepresented for
purposes of collective bargaining. Thus, assuming the Legislature
intended employees to be transferred without loss of an existing
collective bargaining unit relationship, a conclusion that we are
not willing to reach, the previously unrepresented employees would
continue to be unrepresented until they affirmatively choose to be
represented for purposes of collective bargaining.
Applicability of Section 504(2)
Section 504(2) addresses existing collective bargaining units. The
section prevents alteration of:
any existing collective bargaining unit or provisions of
any existing collective bargaining agreement until the
agreement has expired or until the bargaining unit has
been modified by action of the public employment relations
commission as provided by law.
This language prevents the Commission from taking any action to
modify the remaining bargaining from where the employees were
transferred if, as a result of the exodus of employees, an
inappropriate bargaining unit resulted. However, the remaining
bargaining units at DSHS and CTED are not at issue here, so there is
no need to address those units.
Section 504(2) does not create a new bargaining unit. The section
applies to existing bargaining units, and there is no existing
bargaining unit for DEL. Bargaining units come into existence when
a union files a petition for representation with this Commission and
wins an election or cross check. Nothing in section 504 creates a
new bargaining unit. Section 504(2) protects bargaining units in
existence at the time of the statute's enactment. The transferred
employees would continue to be covered under the collective
bargaining agreement that previously applied to them until the
collective bargaining agreement expired, or a DEL unit was
petitioned for and certified.
Here, although the employer and the union voluntarily entered into
an agreement in which the transferred employees would continue to be
covered under the collective bargaining agreement that previously
applied to those employees, that agreement did not, and cannot,
create a bargaining unit of employees at DEL. Chapter 41.80 RCW
does not allow for voluntary recognition.(fn:6)
____________________
fn:6 RCW 41.80.080(1) affirmatively states that this commission
shall determine all questions pertaining to representation of state
civil service employees.
The employer asserts that the language used in the DEL enabling
statute mirrors language in several other statutes that transferred
positions from one agency to another. The employer argues that
historically the transferred positions become part of a bargaining
unit in the receiving agency, thus the transferred positions should
become part of a DEL bargaining unit represented by the union. The
Personnel Services Reform Act, PSRA or RCW 41.80, reformed the civil
service law, creating a full collective bargaining law. As a result
of this reform, the historical practices of the Personnel Review
Board (PRB) were eliminated. Collective bargaining under the PSRA
is under the jurisdiction of this Commission and, as such, the
interpretation of the state's collective bargaining statutes, as
well as the application of procedures to administer those statutes,
are governed by the decisions of this Commission.
It is presumed that the Legislature knows when it amends a statute
it repeals the amended statute. Therefore, the Legislature would
have known it replaced the PRB's standards and practices when the
Legislature gave this Commission jurisdiction under the PSRA. The
historical practices of the PRB in legislation having similar
language to the language at issue here has no precedential value
because this Commission applies a different standard than the PRB
applied. Finally, the parties submitted no evidence demonstrating
how the Legislature intended this Commission to interpret section
504 in light of the enactment of Chapter 41.80 RCW and, without such
evidence, we rely on the plain meaning of the statute.
The employer states that "the expected outcome" was that the
"transferred positions would be split off from existing bargaining
units" and "be moved into DEL bargaining units." The employer's
"expected outcome" fails to recognize that there is no DEL
bargaining unit. A bargaining unit can only be created under
appropriate provisions of Chapter 41.80 RCW.
If the Legislature wanted to create a new DEL bargaining unit, the
Legislature could and would have done so. Nothing in Laws of 2006,
ch. 265, section 504, demonstrates an intent on the part of the
Legislature to create a bargaining unit for DEL employees, and no
other evidence in this record demonstrates an intent other than the
one applied.
NOW, THEREFORE, it is
ORDERED
The Findings of Fact, Conclusions of Law, and Order of Dismissal
issued by Executive Director Cathleen Callahan are AFFIRMED and
ADOPTED as the Findings of Fact, Conclusions of Law, and Order of
Dismissal of the Commission.
Issued at Olympia, Washington, the 12th day of March, 2008.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
PAMELA G. BRADBURN, Commissioner
DOUGLAS G. MOONEY, Commissioner
GLENN SAYAN, CHAIRPERSON (dissenting) - The majority concludes
that in enacting Laws of 2006, ch. 265, section 504, the Legislature
did not intend to maintain the existing collective bargaining rights
and relationships of the transferred employees to the newly created
Department of Early Learning (DEL). Because I would apply the
historical interpretation of section 504 as explained and understood
by both the employer and union to these proceeding, I respectfully
dissent.
Laws of 2006, ch. 265, section 504
Before the enactment of the Chapter 41.80 RCW, the Personnel
Resources Board (PRB) was charged with administering the collective
bargaining rights granted under the previously existing provisions
of Chapter 41.06 RCW. Although the rights granted under Chapter
41.06 RCW limited bargaining to matters controlled by the agencies
within the confines of the civil service rules, and did not include
wages and wage-related benefits, the PRB nevertheless determined
appropriate bargaining units, held elections to certify exclusive
bargaining representatives of employees, and clarified existing
bargaining units in a manner similar to those practices currently
adopted by this Commission.
Prior to 2002, when the Legislature created a new state agency or
department by utilizing employees from an existing agency or
agencies, the enabling legislation normally contained a provision
that was similar, if not identical, to section 504 to maintain any
collective bargaining relationship previously enjoyed by the
employees. When presented with such language and a group of
represented employees, the PRB would, in effect, create a new
bargaining unit at the new agency comprised of the previously
represented employees and the existing bargaining representative
would continue to represent those employees for purposes of
collective bargaining. Under the PRB administration of the
collective bargaining laws, employer and exclusive bargaining
representatives came to understand and relied upon the section 504
language to accomplish the intended goal of maintaining the
collective bargaining relationship to such an extent that no thought
of changing the language was envisioned.
Despite the fact that this Commission has consistently recognized
that the passage of Chapter 41.80 RCW represents a "reform" of the
state collective bargaining laws and a directive for this Commission
to consciously depart from many, but not all, of the practices
adopted under the PRB, I cannot concur that a separation from past
practices was intended in this instance. For example, while the
Legislature recognized that this Commission applies its traditional
definition to confidential employees for purposes of eligibility, it
also automatically excluded certain types of employees from
exercising collective bargaining rights who would normally otherwise
be eligible. Cf. State - Natural Resources, Decision 8458-B (PSRA,
2005)(recognizing the traditional labor law definition of
confidential employees applies to Chapter 41.80 RCW) with State
-Transportation, Decision 8317-B (PSRA, 2005) (recognizing that
Chapter 41.80 RCW specifically exempts certain classifications of
employees who traditionally have collective bargaining rights).
Unlike the practices and procedures that were specifically changed
by the passage of Chapter 41.80 RCW, such as the scope of bargaining
and bargaining unit criteria, section 504 represents a directive
from the Legislature for this agency to adopt and apply a different
well known practice that existed well before the reforms adopted
under Chapter 41.80 RCW. To me, the Legislature's adoption of
identical language as used in the past demonstrates that intent.
Finally, although I find that the Legislature intended the
collective bargaining relationship between the transferred employees
and the union to be maintained, I agree with the majority that the
union's unit clarification petitions exceeded the scope of the
legislative intent. The union's original petitions sought to
include not only the previously represented employees, but also
sought to accrete previously unrepresented employees into the new
bargaining unit. Section 504 preserved existing bargaining unit
relationships, therefore employees who were previously unrepresented
would continue to be unrepresented until the bargaining
representative filed a petition to represent those employees, or
until a future change of circumstances makes a unit clarification
proceeding appropriate. See WAC 391-35-020 (describing the timing
for filing a representation petition and the limitations on the
results of such proceedings).(fn:7)
____________________
fn:7 The legislative creation of a new state agency should not be
considered a "change of circumstance" for purposes of making a unit
clarification proceeding appropriate under the rule.
Conclusion
Based on the foregoing argument, I cannot concur with the majority's
affirmation of the Executive Director's decision to dismiss the
union petitions.
MARILYN GLENN SAYAN, Chairperson