State - Attorney General, Decision 9951-A (PSRA, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
WASHINGTON FEDERATION OF STATE ) CASE 20492-E-06-3163
EMPLOYEES ) CASE 20705-E-06-3190
)
Involving certain employees of: ) DECISION 9951-A - PSRA
)
WASHINGTON STATE - ATTORNEY )
GENERAL ) DECISION OF COMMISSION
___________________________________)
Rob McKenna, Attorney General, by Otto G. Klein, III, Special
Assistant Attorney General, and Paige L. Dietrich, Senior
Assistant Attorney General, for the employer.
Anita Hunter, Attorney at Law, for the union.
This case comes before the Commission on a timely appeal filed by
the Washington Federation of State Employees (union) seeking review
and reversal of the Findings of Fact, Conclusion of Law, and Order
of Dismissal issued by Executive Director Cathleen Callahan.(1) The
Washington State Office of the Attorney General (employer) supports
the Executive Director's decision.
____________________
fn:1 State - Attorney General, Decision 9951 (PSRA, 2008).
ISSUE PRESENTED
The only issue presented in this appeal is whether the Executive
Director correctly dismissed the union's representation petitions
because the petitioned-for units are inappropriate under Chapter
41.80 RCW.
We find that this record supports the Executive Director's findings
and conclusions that the union failed to petition for appropriate
units. Although the union petitioned for two separate vertical
bargaining units encompassing distinct legal divisions within the
employer's operation, the evidence demonstrates that the current
organizational structure does not permit this employer's workforce
to be organized in the fashion proposed by the union. Accordingly,
we affirm the Executive Director's decision.(fn:2)
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fn:2 The union's notice of appeal did not raise consolidation of
these proceedings as an improper order meriting reversal, but
reasserts this argument in its brief on appeal. Although we need
not comment upon this matter because it was not properly raised on
appeal under WAC 391-25-660(3), we nevertheless note that WAC
10-08-085 permits multiple adjudicative proceedings involving common
issues to be consolidated at the presiding officer's discretion.
Because common issues present themselves in this case, the Executive
Director did not abuse her discretion in consolidating these
matters.
ANALYSIS
The Appropriateness of the Petitioned-for Unit
This Commission has authority to determine appropriate bargaining
units for purposes of collective bargaining. In structuring
bargaining units, the Commission is guided by RCW 41.80.070, which
outlines the factors to be considered when making unit
determinations for employees covered by Chapter 41.80 RCW.
Commission precedents decided under Chapter 41.56 RCW are applicable
to decisions rendered under Chapter 41.80 RCW, unless the latter
statute specifically directs otherwise. See State - Natural
Resources, Decision 8458-B (PSRA, 2005).
Unit determinations are made on a case-by-case basis, and the
starting point for any unit determination analysis is the
configuration sought by the petitioning organization. King County,
Decision 5910-A (PECB, 1997). The statute does not require
determination of the "most" appropriate unit; it is only necessary
that a petitioned-for unit be an appropriate unit. City of Winslow,
Decision 3520-A (PECB, 1990).
When making unit determinations under RCW 41.80.070, the
Commission's goal is to group together employees who have sufficient
similarities (community of interest) to indicate that they will be
able to bargain effectively with their employer. See Quincy School
District, Decision 3962-A (PECB, 1993). The criteria outlined in
RCW 41.80.070 are applied collectively to discern the existence of a
"community of interest" among the employees of a particular
employer, and directs us to consider the duties, skills, and working
conditions of employees, the history of collective bargaining, the
extent of organization among the employees, the desires of
employees, and the avoidance of excessive fragmentation.
The Legislature did not prioritize these criteria, and the
Commission has never applied them on a strictly mathematical basis.
King County, Decision 5910-A.(fn:3) Not all of the factors will arise
in every case, and where they do exist, any one factor could be more
important than another, depending on the factual situation.
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fn:3 The RCW 41.56.060 unit determination criteria is similar to
the RCW 41.80.070 unit determination criteria, except that when
making unit determinations for employees covered by Chapter 41.80
RCW, the Legislature has explicitly directed this Commission to
consider avoidance of excessive fragmentation but provided no
legislative history as to how this factor should be interpreted.
This Commission has considered avoidance of excessive fragmentation
as a factor when making unit determinations under Chapter 41.56 RCW,
even though no such explicit direction exists. See, e.g., Ben
Franklin Transit, Decision 2357-A (PECB, 1986).
The duties, skills, and working conditions of the petitioned-for
employees are generally considered in all unit determination cases.
The history of bargaining need only be considered where there is a
current history of representation, and is not applicable where the
employer's workforce is unorganized or full collective bargaining
rights have not been available in the past. The desires of the
petitioned-for employees is not determined through the hearing but
determined through the election process. Bremerton School District,
Decision 527 (PECB, 1978).
Concerns about the extent of organization and fragmentation
generally relate to the number and complexity of contracts to be
negotiated and administered within an employer's workforce. This
Commission has a longstanding policy of avoiding unnecessary
fragmentation of the workplace into multiple bargaining units. Ben
Franklin Transit, Decision 2357-A. Very small units are discouraged
where the positions can properly fit into broader bargaining units,
and unit structures which bifurcate a workforce have been found
inappropriate where boundaries between bargaining units are so vague
that it is difficult to tell what work belongs to each bargaining
unit. South Kitsap School District, Decision 1541 (PECB, 1983); see
also Ephrata School District, Decision 4675-A (PECB, 1995).
Finally, any determination regarding the appropriateness of a
proposed bargaining unit should examine the RCW 41.80.070 factors as
they existed in the workplace at the time the petition was filed.(fn:4)
Additionally, determinations regarding the actual duties, skills,
and working conditions of the employees at issue should be based
upon actual workplace operating conditions, never on the employer's
ideal workplace or speculations about employees' future work
responsibilities.
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fn:4 Continuing confusion seems to exist regarding at what point
the "snapshot" of the petitioned-for employees' working conditions
is taken for the purpose of providing evidence in a unit
determination cases. Several times during the hearing the
employer's representative stated that evidence regarding an
employee's duties or the organizational situation of the employer at
the "time of the hearing" is relevant. Although Commission
precedents exist supporting this contention, this standard was
explicitly rejected in Snohomish County Fire District 4, Decision
8816-A (PECB, 2006), and more recently in City of Yakima, Decision
9983-A (PECB, 2008). In both cases, the Commission specifically
noted only the current job duties of the employee or employees as
they exist at the time that the representation petition is filed are
to be considered.
Application of Standards
Although the Executive Director's decision outlines the
organizational structure of the employer's workforce which we
incorporate by reference, we provide a brief description for
context. The Office of the Attorney General is responsible for
representing the state of Washington in various legal matters
including, but not limited to, enforcement of certain state statutes
and representation of state agencies. For example, the employer has
responsibility for enforcing the state consumer protection law. The
employer also provides legal representation to agencies that have
been delegated authority by the Legislature to regulate a particular
statutory topic, and must enforce those particular fields of law
before the courts of law or other administrative tribunals. An
example of this would be the employer's representation of the
Department of Labor and Industries in matters before the Board of
Industrial Insurance Appeals.
The union's petitions request certification of two distinct vertical
bargaining units of employees in the Consumer Protection and Labor
and Industries divisions. Although each division is responsible for
cases concerning a distinct legal topic, the petitioned-for
employees are not centrally located in one office, but rather in
locations spread throughout the state. The employees at issue in
both petitions work in offices throughout the state of Washington.
Petitioned-for employees in the Consumer Protection Division work in
offices located in Tumwater, Seattle, Tacoma, Vancouver, Spokane,
Bellingham, and Kennewick. Petitioned-for employees in the Labor
and Industries Division work in offices located in Tumwater,
Seattle, Tacoma, and Spokane. The petitioned-for employees in
general perform legal support work for the assistant attorneys
general, and each petition seeks to represent employees holding many
of the same classifications. However, other employees of the
employer's workforce not petitioned-for by the union hold similar
classifications.
With respect to the employee classifications that the union is
petitioning for, classifications contained in both petitions include
Office Assistant 3, Office Support Supervisor 1, Paralegal 1,
Paralegal 2, Legal Secretary 1 and Legal Secretary 2 positions.
Attorney General Investigator 3 and 4, Community Consultant 2,
Customer Service Specialist 1, 2, 3, and 4, and Research Analyst 4
classifications are additional positions that appear in the petition
for the Consumer Protection employees. Although these
classifications do not appear in the petition for the Labor and
Industries employees, other employees within the employer's
workforce occupy many of these same classifications.
Additional employee classifications that appear in the petition for
the Labor and Industries employees include the Legal Support Trainee
and the Paralegal 3. Although these classifications do not appear
in the petition for the Consumer Protection employees, other
employees within the employer's workforce occupy these
classifications.
Union's Arguments on Appeal
On appeal, the union asserts that the Executive Director erred by
placing greater weight upon the job classifications of the
individual employees rather than to the work actually performed by
the employees. Specifically, the union argues the Executive
Director failed to consider the evidence and testimony demonstrating
that the work performed within each of the petitioned-for bargaining
units of employees is distinct and requires specific training that
differs from the rest of the agency. The union characterizes the
Executive Director's analysis as an "oversimplification" of the
factual record regarding the lines of supervision and specific
instances of interchange of work or transfer of employees between
divisions.
In the union's opinion, the Executive Director's decision supports
the employer's contention that the only appropriate bargaining unit
is an employer-wide unit, and no other bargaining unit configuration
is appropriate. Based upon Commission precedent, as well as other
recent decisions of the Executive Director, the union urges reversal
of the Order of Dismissal.
Duties, Skills, and Working Conditions of Petitioned-for Employees
The Executive Director found that although the petitioned-for
employees interpret or enforce different statutes and the specific
subject matter of their work is different, the employees are
nevertheless subject to similar employer-wide policies governing
hiring, firing, promotion, performance awards, hours of work, and
discipline. According to the Executive Director, this demonstrates
that the petitioned-for employees share a community of interest with
the other employees in similar classifications within the employer's
workforce. The Executive Director also explained that because the
petitioned-for employees work in various locations and the fact that
there is interchange of work between the legal divisions, the
employer's workforce was integrated in such a fashion as to warrant
the dismissal of both petitions. We agree with this conclusion.
Vertical and Horizontal Units are not Presumptively Appropriate
We begin our analysis by noting that, on the face of the petitions,
the two vertical units could be appropriate. As the union points
out, this Commission recently affirmed a decision of the Executive
Director in Washington State University, Decision 9613-A (PSRA,
2007). In that case, the union petitioned for a vertical unit
comprised of employees in the dining service department. The
Commission found the petitioned-for bargaining unit appropriate
because there was no indication that work jurisdiction issues would
be presented. However, it is important to stress that the
university's challenge to the proposed bargaining unit was that the
petitioned-for employees had been part of a larger historic unit,
although the university presented little-to-no evidence supporting
the existence of any community of interest shared with other
employees.
Thus, Washington State University does not stand for the proposition
that any vertical or horizontal bargaining unit in the state system
is presumptively appropriate.(fn:5) Rather, organizing in each of
those manners may or may not be appropriate depending on the
organizational structure of the employer's workforce.
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fn:5 Although the union cites several recent cases where state
civil service employees were organized into non-agency wide
horizontal or vertical units, including Central Washington
University, Decision 9963 (PSRA, 2008), Central Washington
University, Decision 9900 (PSRA, 2007), State - Corrections,
Decision 9812 (PSRA, 2007), and State - Military, Decision 9641
(PSRA, 2007), none of the employers in those cases challenged the
propriety of the proposed bargaining unit. The result in each case
depends on the nature of the specific challenge to the
petitioned-for unit, and the quality of evidence presented to
support the challenge.
Duties and Skills of Employees
Here, the union is attempting to organize what it describes as two
vertical units according to the legal subject matter worked on by
the employees. To support its contention that the proposed units
are appropriate, the union focuses upon many of the duties that are
performed by some of the classifications in each petitioned-for unit
that are distinct from the duties of other employees outside the
unit holding similar classifications in the employer's workforce.
For example, while employees in the paralegal classification
generally assist the assistant attorneys general in litigation
matters, some paralegals in the Labor and Industries Division work
what is known as "mediation runs," where the employee works almost
exclusively to settle industrial insurance appeals through mediation
prior to litigation. Additionally, the Consumer Protection
Division's customer support specialists perform the unique function
of receiving phone calls directly from the public regarding possible
violations of the state consumer protection laws.
Although some of the employees in the petitioned-for units do
perform unique functions, many of the other employees in both the
Consumer Protection and Labor and Industries divisions, as well as
the rest of the employer's workforce, perform very similar
functions. For example, the job duties of the paralegal
classifications generally include analyzing facts of a particular
case, composing drafts of documents and pleadings, interviewing
witnesses, and generally supporting an assistant attorney general.
The paralegal 2 and 3 classifications perform work on more complex
cases, and the paralegal 3 classification often works independently
and supervises employees in the paralegal 1 and 2 classifications.
With respect to the legal secretaries, all classification levels are
responsible for performing legal technical and secretarial work for
an attorney. The higher classifications also perform some entry
level paralegal duties or have supervisory responsibility for other
legal secretaries. Although the subject matter of the legal work
may differ, the skills needed to perform those duties are virtually
identical with other employees in the employer's workforce in the
same classifications.
Additionally, testimony and evidence provided at hearing
demonstrated that in the event of a complex case, legal assistants
from one division are called upon to assist legal assistants in a
different division. For example, many of the petitioned-for
employees in the Consumer Protection Division assisted employees in
the anti-trust division in the multi-state litigation against
tobacco companies. Witnesses stated that legal assistants in one
division have filled in for legal assistants in other divisions, in
the event of an absence. An example of this occurrence is
demonstrated by Marcie Bergman, who testified that three or four
times a year she fills in for a legal assistant in the Torts
Division.(fn:6)
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fn:6 The employer introduced evidence demonstrating that many of
the petitioned-for employees occasionally performed minor clerical
duties that were not typically assigned to them, such as delivering
mail or answering the main office phone. These minor instances of
interaction do not form a basis for finding the petitioned-for units
inappropriate.
The amount and location of Labor and Industries work also present a
significant work jurisdiction issue. This record demonstrates that
Labor and Industries work is performed in the regional services
offices located in Bellingham, Port Angeles, Everett, Wenatchee, and
Kennewick. The union's petition did not seek to represent any of
the legal secretaries in the regional service offices performing
this work, and in fact specifically rejects inclusion of those
employees in the petitioned-for unit. Determining who would be
included in a bargaining unit presents a significant long term
problem in this case because of the unique nature of those offices.
Even if we were to find the petitioned-for Labor and Industries unit
appropriate, any employee performing Labor and Industries work at
least one-sixth of time should be included in the proposed
bargaining unit. See WAC 391-35-350; see also Western Washington
University, Decision 9989 (PSRA, 2008).
Application of the one-sixth test presents its own issue, however.
The regional services offices handle cases in several legal
disciplines, depending on the needs of a particular area. For
example, the Port Angeles office handles education, labor and
industries, licensing and administrative law, and social and health
services cases. This record demonstrates that a legal secretary is
assigned to a particular assistant attorney general, but there is no
guarantee that a regional office will continue to have a consistent
amount of work in a particular legal discipline.
Finally, while some of the aforementioned duties are unique and
require specialized training, the record demonstrates that the bulk
of training throughout the employer's workforce is done uniformly.
For example, the legal secretaries receive standardized training
regarding the preparation of legal documents to ensure that all
documents emanating from the employer have a uniform look. The
result of this training is that, absent some additional training
regarding the specific field of law, most legal secretaries have the
ability to shift between different divisions. In fact, the evidence
and testimony demonstrate that the legal secretaries routinely
transfer from one legal division to another without the need for
significant additional training.(fn:7)
____________________
fn:7 Testimony from employees in the customer service specialist
and investigator classifications testified that those positions
rarely, if ever, perform work outside of their division. While
these statements were never refuted by the employer, the lack of
interchange for these particular employees does not apply to the
petitioned-for bargaining unit as a whole.
Management Structure Not a Relevant Factor
Although we find the petitioned-for units inappropriate based upon
the basic duties and skills of the employees, the employer's
management structure merits additional comments. As previously
noted, many of the petitioned-for employees work in offices all over
the state, even though they may work in the same substantive area of
law. All of the offices throughout the state area responsible for
cases covering more than one substantive area of the law.(fn:8)
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fn:8 For example, the Spokane office handles consumer protection,
criminal justice, labor and industries, labor and personnel,
licensing and administrative law, social and health services, and
torts cases. Exhibit 36.
This employer utilizes a "matrix" style of management where a
division chief in charge of a substantive field of law has
supervisory authority over employees operating within that field,
while another division chief in charge of a geographic division
office or regional office will have day-to-day supervisory authority
over the same employee. For example, a legal secretary for a Labor
and Industries assistant attorney general in the Spokane office
works for two division chiefs: Evelyn Lopez, who is in charge of
the Labor and Industries Division, and Larry Briney, who is in
charge of the Spokane office. If there is a personnel issue
involving an employee, the legal division chief and the geographical
division chief work collaboratively to resolve issues. Hiring of the
paralegal and investigator classifications are also done in this
collaborative method. However, hiring of the legal secretaries for
the geographic divisions is left to the geographic region chief.
Additionally, while the legal division chiefs may have input
regarding performance of the legal functions for employees
performing the substantive work, day-to-day matters such as
considering leave requests are left to the geographic office to
resolve.
Although the employer utilizes this unique management structure,
that structure is not, and cannot, be used as an impediment for
employees' collective bargaining rights. Generally, employees at
the Office of Attorney General are subject to the same general work
policies and procedures, and the fact that the geographic offices
operate, at least on a day-to-day basis, under different
supervision, and the different geographic offices have different
operational needs is of little importance. Should any union
petition for an appropriate bargaining unit of employees and be
certified as their exclusive bargaining representative, this
employer will have to present unified positions in collective
bargaining regardless of its existing management structure.
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 18th day of February, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
THOMAS W. McLANE, Commissioner