Central Washington University, Decision 9963-A (PSRA, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
PUBLIC SCHOOL EMPLOYEES OF )
WASHINGTON ) CASE 21290-E-07-3304
)
Involving certain employees of: ) DECISION 9963-A - PSRA
)
CENTRAL WASHINGTON UNIVERSITY ) ORDER DETERMINING
) ELIGIBILITY ISSUES
___________________________________)
Eric Nordlof, Attorney at Law, for the union.
Attorney General Rob McKenna, by Lawson Dumbeck, Assistant
Attorney General, for the employer.
On October 5, 2007, Public School Employees of Washington (union)
filed a petition seeking certification as the exclusive bargaining
representative of a newly established bargaining unit at Central
Washington University (employer). Representation Coordinator Sally
J. Iverson held an investigation conference on November 29, 2007.
After an election conducted by the Commission, Executive Director
Callahan issued an interim certification(fn:1) on January 25, 2008, for
a bargaining unit described as:
____________________
fn:1 Central Washington University, Decision 9963 (PSRA, 2008)
All full-time and regular part-time employees performing
clerical or technical work employed by Central Washington
University within the departments of Facilities Management,
Library, Testing and Assessment, International Studies, Career
Services, College of Professional Studies, College of Sciences,
College of Arts & Humanities, College of Business, and William
Douglas Honors College in the following classifications:
Customer Service (working title)
Engineering Assistant 1
Engineering Technician 1, 2, 3
Fiscal Specialist 1
Fiscal Technician 2, 3
Instruction & Classroom Support Tech 2, 3, 4
Library & Archives Paraprofessional 1, 2, 3, 4
Media Assistant 3
Media Technician
Office Assistant 2, 3
Piano Technician
Program Assistant
Research Technologist 1
Scientific Technician
Secretary
Secretary Lead
Secretary Senior
Excluding employees assigned to the Dean's Office, supervisors,
confidential employees, exempt employees, information
technology employees, and employees in the following
classifications:
Construction Project Coordinator 2
Fire Alarm Inspector (working title)
Fiscal Analyst 3
Forms & Record Analyst 2
Community Outreach & Environmental Education Specialist 2
Procure & Supply Specialist 1
Program Coordinator
Program Manager A
Recreation & Athletic Specialist 4
Stage Manager
Tour & Information Services Coordinator 3
and all other employees of the employer.(fn:2)
____________________
fn:2 The union's original petition requested inclusion of employees
who perform "office or technical work" in these departments. After
much discussion among Ms. Iverson and the parties, Iverson suggested
the above-referenced bargaining unit description, explaining that
"clerical" meant the same as "office." The parties agreed to her
description. Iverson's explanation is correct. If the union's
petition for employees performing the broad category of "office"
work were allowed to stand, it would generate confusion for all
concerned. Presumably, any number of "white collar" workers perform
"office" work, including the university president.
The only remaining issue to be determined by the Executive Director
is the status of the preservation and museum specialist 5 position,
currently held by Heather Horn Johnson. Hearing Officer Karyl
Elinski held a hearing on May 5, 2008.(fn:3) The parties filed
post-hearing briefs which were considered.
____________________
fn:3 During the hearing, the parties also presented testimony in
Commission Case 21546-E-08-3337. Prior to filing post-hearing
briefs, the parties agreed that the position at issue in that case,
the program coordinator in the financial aid scholarship office,
would be included in the bargaining unit.
ISSUE
The only issue remaining before the Executive Director is whether
the preservation and museum specialist 5 position should be included
or excluded from the bargaining unit. Based upon the record, the
applicable statutes, rules and case precedent, the Executive
Director rules that the preservation and museum specialist 5
position does not share a community of interest with other positions
in the bargaining unit, and is therefore properly excluded.
APPLICABLE LEGAL PRINCIPLES
In determining, modifying, or combining bargaining units, the
statute directs the Commission to consider the duties, skills, and
working conditions of the employees; the history of collective
bargaining; the extent of organization among the public employees;
the desires of the public employees; and the avoidance of excessive
fragmentation. RCW 41.80.070. With the exception of the explicit
"avoidance of excessive fragmentation" criterion that aligns with
Commission precedent, the criteria set forth in RCW 41.80.070 are
the same "community of interest" criteria that the Commission has
applied for many years to bargaining units under the Public
Employees' Collective Bargaining Act, Chapter 41.56 RCW.(fn:4) See, in
particular, RCW 41.56.060. University of Washington, Decision 8392
(PSRA, 2004).
____________________
fn:4 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).
The Commission applies the statutory criteria collectively to
determine the existence of a community of interest among the
employees of a particular employer. Benton County, Decision 7651-A
(PECB, 2003). In previous decisions, the Commission noted that the
Legislature did not prioritize the unit determination criteria found
in RCW 41.56.060, and that all statutory factors need to be
considered in every case. Community Transit, Decision 8734-A (PECB,
2005). Similarly, there is no indication that the Legislature
intended any one of the criteria found within RCW 41.80.070 to
dominate the others. Washington State University, Decision 9613-A
(PSRA, 2007). None of the statutory criteria predominates to the
exclusion of others, however, but they may have varying weight
depending on the factual settings of particular cases. Pierce
County, Decision 6051-A (PECB, 1998). "Where they [the statutory
criteria] do exist, one factor may be more important than another."
Okanogan School District, Decision 5394-A (PECB, 1997).
In determining an appropriate bargaining unit, the Commission seeks
to group together employees who have sufficient similarities in
responsibilities (community of interest) to indicate that they will
be able to engage in collective bargaining effectively with their
employer. Washington State University, Decision 9613-A; King
County, Decision 5910-A (PECB, 1997). The law does not require
determination of the most appropriate bargaining unit, as it is only
necessary that the petitioned-for unit be an appropriate unit.
Washington State University, Decision 9613-A; City of Winslow,
Decision 3520-A (PECB, 1990).(fn:5)
____________________
fn:5 The union argues in this case that the employer bears the
burden of proof to show that the bargaining unit in question would
be inappropriate if it included the preservation and museum
specialist 5 position. This argument is misplaced. The bargaining
unit has been determined to be appropriate. The only question is
whether the position should be included in this unit. In accordance
with WAC 391-25-510, the "scope of the hearing shall be limited to
matters relevant to the disposition of the challenged ballots."
Within the category of "duties, skills and working conditions," the
Commission considers the degree of integration of managerial
functions in an organization, similarities of pay and benefits,
similarities of duties, and the degree of interchange of employee
job functions. Pierce County, Decision 6051-A. The analysis ".
. . does not require separation of employees on a
classification-by-classification basis, but established differences
of qualifications, duties, hours of work, and method of computing
compensation . . . can be a basis for allocating positions to
different bargaining units within an employer's workforce."
Concrete School District, Decision 8131 (PECB, 2003), aff'd,
Decision 8131-A (PECB, 2004). Also, overlapping job functions or
interchange among employees alone do not establish a community of
interest. King County, Decision 5910-A.
ANALYSIS
The only issue in this case is whether the preservation and museum
specialist 5 position should be included or excluded from the
bargaining unit. That position was not included in the bargaining
unit description. The propriety of the unit is otherwise unchallenged.
Duties, Skills and Working Conditions
a. Clerical Positions
Clerical positions in this unit perform duties running the gamut of
what is typically described as "clerical" work: secretarial duties
including proofreading, maintaining and monitoring budgets,
processing requisitions, maintaining a supervisor's calendar, making
travel arrangements, drafting course schedules based on room and
instructor availability and keyboarding. Employees use various
operating systems and software to perform many of these duties. The
duties and responsibilities of the positions focus on tasks directly
related to supporting the employer's administration. Of course,
given the variety of clerical positions in the bargaining unit,
employees exercise a varying degree of skills within these
classifications. Each position is located in the department to
which it is assigned. Some positions work directly with other
employees in the unit, others do not. Clerical positions in the
bargaining unit do not require post-high school education or
degrees. The positions typically fall into salary ranges 31-39.(fn:6)
____________________
fn:6 Neither party contends that the preservation and museum
specialist 5 position falls within the "technical employee" portion
of the unit description.
b. Preservation and Museum Specialist 5
The preservation and museum specialist 5 position is held by Heather
Horn Johnson. She independently manages the Sarah Spurgeon Gallery
at Central Washington University. Her working title is "gallery
manager." As gallery manager, she is solely responsible for
procuring art exhibits, working directly with artists, preparing
contracts for artists, preserving and displaying artwork in the
gallery, preparing educational and public relations materials
relating to the exhibits, budgeting, and identifying speakers for
the gallery. Horn Johnson reports directly to the art department
chairperson, Dr. Folkestad. Horn Johnson works in her own office in
Randall Hall, but spends a good deal of time at the gallery. She
has regular contact with Dr. Folkestad, as well as a maintenance
mechanic who is a member of a Washington Federation of State
Employees bargaining unit, and faculty who are members of another
bargaining unit. All employees in the art department share a
common break room and mailbox area. Horn Johnson occasionally
works with Susan Bentley, secretary senior in the newly-formed
Public School Employees of Washington bargaining unit at issue in
this case, reconciling gallery expenditures. Bentley also handles
travel for Horn Johnson.
The preservation and museum specialist 5 position requires a
bachelor's degree and a minimum of four years of experience as a
museum curator. A master's degree is preferred. Horn Johnson is
the only employee who has ever held this position, has a bachelor's
and a master's degree, plus a number of years of directly relevant
work experience. The salary and benefits for the position are set
in accordance with state civil service rules. The position falls
within salary range 56. No other employees in the bargaining unit
can fill the preservation and museum specialist 5 position in Horn
Johnson's absence. Horn Johnson's duties do not overlap with the
clerical duties of other employees in the bargaining unit.
Although there are some similarities in working conditions, the
preservation and museum specialist 5 position is easily
distinguished from the other positions in the bargaining unit at
issue. Clerical members of the bargaining unit generally do not
share the same level of required education, responsibility and
discretion needed to perform the duties of the preservation and
museum specialist 5 position. While the clerical positions are
primarily "administrative support" positions, the preservation and
museum specialist 5 position routinely engages in independent
decision- making and has principal responsibility for all facets of
the operation of the gallery. The position has little oversight
from the department chair, who entrusts most of the decision-making
related to the gallery to the preservation and museum specialist 5
position.
The clerical positions in the bargaining unit exist to support the
administrative functions and personnel of the departments for which
they work. While employees in these positions may, on occasion,
provide assistance to students and faculty based on their
institutional knowledge of the employer's organization, they do not
do so as a function or requirement of their jobs. Although clerical
employees may hold advanced educational degrees, they are not
required to do so. Although they may exercise discretion over some
aspects of their duties, they do not do so on a regular or
all-encompassing basis. Although their salaries are a function of
civil service rules, their salaries are considerably lower than the
preservation and museum specialist 5 position.
History of Bargaining
There is no history of bargaining for the preservation and museum
specialist 5 position because it is a relatively new position with
the employer. In fact, the duties of the position were formerly
performed by faculty members.
Desires of the Employees
Commission rules recognize a concern that it is inherently coercive
to call employees to testify on their "desires" as employees. See
WAC 391-25-420.
Extent of Organization
The union argues that it plans to merge the four units it currently
represents at the employer into one unit, thus making it more likely
that Horn Johnson's position would be appropriately placed, given
the salary ranges and academic qualifications needed for positions
in other bargaining units it represents. The union also argues that
because it has entered into a tentative agreement with the employer
for the bargaining unit in question, it has already bargained
effectively for the preservation and museum specialist 5 position.
In addition, the union argues that the tentative agreement with the
employer extends to any bargaining unit for which the union may be
certified in the future as the exclusive representative. Last, the
union argues that the employer must prove that the bargaining unit
in question would be inappropriate if it included the preservation
and museum specialist 5 position. These arguments fail.
It has long been established that unit determinations may not hinge
on speculation. State - Natural Resources, Decision 8458-B. First,
in order for the union to successfully merge the four units it
represents, it must file a petition with the Commission, and the
Commission must determine that consolidation is appropriate. RCW
41.80.070(3) and WAC 391-25-426. The union has not filed such a
petition, so its argument regarding merger is based on pure
speculation. Second, the union's tentative agreement with the
employer has not yet been ratified by the Legislature. In addition,
there was no evidence presented regarding bargaining specifically
for the preservation and museum specialist 5 position, nor should
there have been because the law is well settled that a union may not
bargain for the employees until such time as it represents them.
See Kitsap County Fire District 7, Decision 2872-A (PECB, 1088).
The union may wish at some time in the future to consolidate the
bargaining units it represents. It is free to file a petition to do
so, but that will not affect the inappropriateness of the inclusion
of the preservation and museum specialist 5 position in the
bargaining unit currently at issue.
Excessive Fragmentation
Concerns about fragmentation generally relate to the number and
complexity of contracts to be negotiated and administered within an
employer's workforce. Very small units are discouraged where the
positions can fit appropriately into a broader bargaining unit.
Okanogan School District, Decision 5394-A. Marginal groups should
be incorporated into the bargaining units to which they logically
relate, and not assigned to unit configurations that divide
departments or occupational groups into units that can be explained
only on the basis of "extent of organization." Quincy School
District, Decision 3962-A (PECB, 1993).
Although the union argues that the preservation and museum
specialist 5 position would be stranded if it is excluded from the
bargaining unit, there was considerable evidence that the position
could be properly grouped with the pool manager, stage manager,
program coordinator, and tour information services coordinator
positions. In addition, there appear to be unrepresented positions
in other departments and colleges at the university that may share
similar duties, skills, and working conditions with the preservation
and museum specialist 5 position. Given the different nature of the
duties and skills performed by the clerical staff and the
preservation and museum specialist 5 position, the current
configuration should not prevail simply because the union wishes to
have it this way.
CONCLUSION
The Executive Director finds that the preservation and museum
specialist 5 position should be excluded from the bargaining unit.
FINDINGS OF FACT
1. Central Washington University (employer) is a state institution
of higher education within the meaning of RCW 41.80.005(10).
2. Public School Employees of Washington (union) is an employee
organization within the meaning of RCW 41.80.005(7).
3. On January 25, 2008, the Public Employment Relations Commission
issued an interim certification for a bargaining unit described
as:
All full-time and regular part-time employees performing
clerical or technical work employed by Central Washington
University within the departments of Facilities
Management, Library, Testing and Assessment, International
Studies, Career Services, College of Professional Studies,
College of Sciences, College of Arts & Humanities, College
of Business, and William Douglas Honors College in the
following classifications:
Customer Service (working title)
Engineering Assistant 1
Engineering Technician 1, 2, 3
Fiscal Specialist 1
Fiscal Technician 2, 3
Instruction & Classroom Support Tech 2, 3, 4
Library & Archives Paraprofessional 1, 2, 3, 4
Media Assistant 3
Media Technician
Office Assistant 2, 3
Piano Technician
Program Assistant
Research Technologist 1
Scientific Technician
Secretary
Secretary Lead
Secretary Senior
Excluding employees assigned to the Dean's Office,
supervisors, confidential employees, exempt employees,
information technology employees, and employees in the
following classifications:
Construction Project Coordinator 2
Fire Alarm Inspector (working title)
Fiscal Analyst 3
Forms & Record Analyst 2
Community Outreach & Environmental Education
Specialist 2
Procure & Supply Specialist 1
Program Coordinator
Program Manager A
Recreation & Athletic Specialist 4
Stage Manager
Tour & Information Services Coordinator 3
and all other employees of the employer.
4. The preservation and museum specialist 5 position does not
share sufficient similarities in the duties, skills, and
working conditions among the employees in the unit, and lacks a
sufficient community of interest to be included in the unit.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.80 RCW and Chapter 391-25 WAC.
2. The unit described in Finding of Fact 3 is an appropriate
bargaining unit under RCW 41.80.070.
3. The preservation and museum specialist 5 position is excluded
from the bargaining unit described in Finding of Fact 3 under
RCW 41.80.070.
ORDER
The position of preservation and museum specialist 5 shall be
excluded from the bargaining unit.
Issued at Olympia, Washington, this 27th day of August, 2008.
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.