Western Washington University, Decision 9989 (PSRA, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
PUBLIC SCHOOL EMPLOYEES OF ) CASE 20669-C-06-1286
WASHINGTON ) DECISION 9989 - PSRA
)
For clarification of an existing ) CASE 20670-C-06-1287
bargaining unit of employees of: ) DECISION 9990 - PSRA
)
WESTERN WASHINGTON UNIVERSITY ) ORDER CLARIFYING
) BARGAINING UNITS
___________________________________)
Eric T. Nordlof, Attorney at Law, for the union.
Summit Law Group, by Rodney B. Younker, Attorney at Law, joined
on the brief by Attorney General Rob McKenna, by Wendy Bohlke,
Senior Counsel, for the employer.
On September 26, 2006, Public School Employees of Washington
(union) filed two unit clarification petitions with the Public
Employment Relations Commission involving certain employees of
Western Washington University (employer). The petitions concern two
bargaining units where the union is the exclusive bargaining
representative. Case 20669-C-06-1286 involves a unit of supervisors,
while Case 20670-C-06-1287 involves a unit of professional and
technical employees. The petitions seek to include employees in the
units who the employer calls "temporary" but the union believes are
regular part-time employees for the purpose of collective
bargaining. On April 23 and 24, 2007, Hearing Officer Karyl Elinski
held the hearing. The parties filed factual stipulations and
post-hearing briefs which were considered.
ISSUES PRESENTED
1. Were the unit clarification petitions timely filed with the
Commission?
The Executive Director finds that the petitions were timely filed
under WAC 391-35-020(2)(a).
2. Are the petitioned-for employees regular part-time employees
under Commission rules and thus included in the existing
bargaining units?
The Executive Director finds that the employees in question,
provided they work more than 350 hours in any year, are regular
part-time employees within the meaning of WAC 391-35-356, and
includes such employees in the existing bargaining units.
ISSUE 1: Timeliness of Petitions
The employer argues that the union failed to file its petitions in a
timely manner and requests that both petitions be dismissed based on
this procedural defect. The employer cites Commission case
precedent on accretion of positions to bargaining units and argues
that the circumstances herein are inappropriate for accretion.
Applicable Legal Principles
Unit clarification petitions must be filed in a timely manner. Under
WAC 391-35-020(2)(a), a unit clarification petition involving the
status of a regular part-time employee is timely if the petitioner
can demonstrate that:
* it put the other party on notice during collective bargaining
negotiations that it would contest the inclusion or exclusion
of the position or class through a unit clarification
proceeding; and
* it filed the petition prior to the signing of the collective
bargaining agreement.
If the petitioner, in this case the union, can show that it met the
criteria listed above, the Commission will evaluate the substance of
the petitions.
The employer's arguments regarding accretion are not applicable to
the instant cases. Cases of accretion request that the Commission
add job classifications to a bargaining unit; however, the petitions
under consideration ask for clarification of the existing bargaining
unit by determining whether employees who work more than 350 hours
in any twelve consecutive month period are part of the existing
bargaining units.
Analysis
The petitions at issue in this decision involve two units of
employees. The first unit is comprised of approximately 180
professional and technical employees, hereafter the PTE unit. The
union was certified in Western Washington University, Decision 8962
(PSRA, 2005), as the exclusive bargaining representative of the PTE
unit on June 1, 2005, as follows:
All full-time and regular part-time professional and technical
employees of Western Washington University, excluding
supervisors and employees excluded from the coverage of the
state civil service law.
The second unit, commonly referred to as Bargaining Unit D (BUD), is
comprised of approximately 120 supervisors. The union was certified by the
Washington State Department of Personnel as the exclusive representative of
employees in BUD on December 6, 2000. See Washington State Department of
Personnel, Case No. RC-158. In 2004, the union filed a unit clarification
petition with the Commission. BUD had historically included employees who
supervised other employees (supervisors) and employees who only supervised
student workers (non-supervisory employees). On June 29, 2004, in Western
Washington University, Decision 8634 (PSRA, 2004), the Commission divided
BUD into the following two units:
1. Non-supervisory civil service employees of Western Washington
University who oversee student workers performing office-clerical and
administrative support functions, excluding confidential employees,
internal auditors, supervisors, employees in other bargaining units,
and employees historically excluded by orders of the Washington
Personnel Resources Board or its predecessors.
2. Supervisory civil service employees of Western Washington University
who supervise civil service employees performing office-clerical and
administrative support functions, excluding confidential employees,
internal auditors, non-supervisory employees, employees in other
bargaining units, and employees historically excluded by orders of the
Washington Personnel Resources Board or its predecessors.
On May 17, 2006, during collective bargaining negotiations for the BUD and
PTE contracts, the union verbally raised concerns about the exclusion of
so-called temporary employees from the bargaining units. Marty Hitchcock,
president of the local union and a member of BUD, testified that the union
told the employer's bargaining team that the union believed employees
working one-sixth time should be included in the bargaining units as regular
part-time employees and indicated that the union would file a petition with
the Commission.
On September 26, 2006, after the union and employer were unable to reach an
agreement on the inclusion of "temporary employees" who work more than
one-sixth time, the union filed two unit clarification petitions with the
Commission seeking inclusion of regular-part time employees in the PTE and
BUD bargaining units. On October 2, 2006, the employer and union signed
collective bargaining agreements for BUD and the PTE unit with effective
dates from July 1, 2007, through June 30, 2009.
Conclusion
The union met the conditions outlined in WAC 391-35-020(2)(a). First, the
union properly put the employer on notice during contract negotiations that
it believed the existing unit descriptions included employees who worked
more than one-sixth time. When the parties were unable to reach an
agreement, the union indicated it would file unit clarification petitions
with the Commission. Subsequently, the union timely filed both petitions
prior to signing the collective bargaining agreements.
ISSUE 2: Regular Part-time Employees
Should employees who hold positions that the employer calls "temporary" who
work more than 350 hours in a twelve-month period be included in the
existing bargaining units?
Applicable Legal Principles
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 State Civil Service Law, Chapter 41.06 RCW, makes reference to employees
who work less than full-time. Specifically, RCW 41.06.070 provides:
(1) The provisions of this chapter do not apply to:
. . . .
(l) . . . [P]art-time, or temporary employees . . . as defined by the
Washington personnel resources board.
The Personnel Resources Board (PRB) is the agency authorized to interpret
RCW 41.06.070, 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.
Thus, the PRB adopted nearly the same one-sixth test that the Commission
applies to non-state civil service employees. See WAC 391-35-350. The main
distinction is that the rule for non-state civil service employees is based
on an employee working more than one-sixth of the time normally worked by a
full-time employee (a fraction), whereas the rule adopted by the PRB
covering state civil service employees is based on an employee working more
than 350 hours in any twelve consecutive month period (a fixed number).
Analysis
The employer and union stipulated that although the petitioned-for employees
who work more than 350 hours in any twelve consecutive month period may not
perform all of the duties of equivalent full-time positions, the work they
perform is similar to the work performed by employees represented by the
union in bargaining units BUD and PTE. The parties' stipulations were
supported by testimony. Additionally, the parties stipulated that employees
covered by the petitions who worked between 350 and 1050 hours have job
titles that align with the positions included in the bargaining units.
In King County Public Hospital District 2 (Evergreen), Decision 9205-D
(PECB, 2007), employees referred to as "per diem" who met the one-sixth test
were found to be regular part-time employees for the purposes of unit
placement. Although that decision was reached under WAC 391-35-350, and
this case falls under WAC 391-35-356, the analysis is still applicable
because the PRB adopted a test that is nearly identical to the one-sixth
test applied to non-state civil service employees.
In this case, the employer calls the petitioned-for employees "temporary."
The fact that an employer calls an employee "temporary," does not preclude
the Commission from finding that employees who perform similar work as
full-time employees and work more than 350 hours in any twelve consecutive
month period are regular part-time employees who share a community of
interest with full-time employees.
The petitioned-for employees who worked 350 or more hours in the last
twelve-month period meet the standards outlined in WAC 391-35-356 and WAC
357-04-045, are regular part-time employees, and are included in the same
bargaining units with full-time employees who perform similar work.
Conclusion
The fact that an employer characterizes an employee as temporary does not
automatically cause the employee to be excluded from a bargaining unit.
Rather, the number of hours worked by the employee and the work the employee
performs, determines unit placement. In cases involving state civil service
employees, employees who work more than 350 hours in any twelve consecutive
month period and who perform work that is similar to the work performed by
full-time bargaining unit employees, are regular part-time employees for the
purpose of unit placement and collective bargaining.
Therefore, it is appropriate that the 106 petitioned-for employees in Case
20670-C-06-1287 be included in the PTE unit provided they have worked more
than 350 hours in the past twelve months,(fn:1) and that the petitioned-for
employee in Case 20669-C-06-1286 be included in the supervisory BUD unit
provided he/she has worked more than 350 hours in the past twelve months.
____________________
fn:1 It might be argued that adding approximately 106 employees to a unit
of 180 is significant and, therefore, inappropriate; however, such an
argument is not persuasive because no question concerning representation
exists in the PTE unit. Thus, the union continues to enjoy majority status.
FINDINGS OF FACT
1. Western Washington University is an employer within the meaning of
RCW 41.80.005(8).
2. Public School Employees of Washington is an employee organization
within the meaning of RCW 41.80.005(7).
3. On June 29, 2004, the Commission divided Bargaining Unit D (BUD) into
the following two units:
Non-supervisory civil service employees of Western Washington
University who oversee student workers performing
office-clerical and administrative support functions,
excluding confidential employees, internal auditors,
supervisors, employees in other bargaining units, and
employees historically excluded by orders of the Washington
Personnel Resources Board or its predecessors.
and
Supervisory civil service employees of Western Washington
University who supervise civil service employees performing
office-clerical and administrative support functions,
excluding confidential employees, internal auditors,
non-supervisory employees, employees in other bargaining
units, and employees historically excluded by orders of the
Washington Personnel Resources Board or its predecessors.
Public School Employees of Washington is the exclusive bargaining
representative of the units commonly referred to as the BUD units.
4. On June 1, 2005, the Commission certified Public School Employees of
Washington as the exclusive bargaining representative of:
All full-time and regular part-time professional and
technical employees of Western Washington University,
excluding supervisors and employees excluded from the
coverage of the state civil service law.
This unit is commonly referred to as the PTE unit.
5. On July 1, 2005, a revised rule adopted by the Washington Personnel
Resources Board came into effect. WAC 357-04-045 states that
employees who work more than 350 hours in any twelve consecutive
month period may be included in an appropriate bargaining unit for
purposes of collective bargaining, as determined by the Commission.
6. On May 17, 2006, Public School Employees of Washington put Western
Washington University on notice during collective bargaining
negotiations that employees in the BUD and PTE units working
one-sixth time should be included in the units as regular part-time
employees, and indicated it would file a petition with the Commission.
7. On September 26, 2006, Public School Employees of Washington filed
two unit clarification petitions with the Commission seeking the
inclusion of regular part-time employees in the BUD and PTE units.
8. On October 2, 2006, Western Washington University and Public School
Employees of Washington signed collective bargaining agreements for
the BUD and PTE units. The agreements provide for a term of July 1,
2007, through June 30, 2009.
9. Employees covered by the petitions who have worked more than 350
hours in the past twelve months perform work similar to that
performed by full-time employees in the BUD and PTE units.
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. Employees who have worked more than 350 hours in the past twelve
months, as described in Finding of Fact 9, meet the standards of WAC
357-04-045 and WAC 391-35-356, and are regular part-time employees
for the purpose of collective bargaining.
ORDER CLARIFYING BARGAINING UNITS
1. The certification for the professional and technical unit (PTE) in
Western Washington University, Decision 8962 (PSRA, 2005), is
clarified to include employees who have worked more than 350 hours in
the past twelve months.
2. The order clarifying bargaining unit for the supervisor in the
Bargaining Unit D (BUD) unit in Western Washington University,
Decision 8634 (PSRA, 2004), is clarified to include employees who
have worked more than 350 hours in the past twelve months.
ISSUED at Olympia, Washington, on the 28th day of February, 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 391-35-210.