Skagit County EMS Commission, Decision 9789-A (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
INTERNATIONAL ASSOCIATION OF )
EMTS AND PARAMEDICS ) CASE 21030-E-07-3256
)
Involving certain employees of: ) DECISION 9789-A - PECB
)
SKAGIT COUNTY EMS COMMISSION ) ORDER DETERMINING
) ELIGIBILITY ISSUES
___________________________________)
Kenneth C. Balch, National Representative, joined on the brief
by Linda Ledesma Mouzon, Regional Counsel, for the union.
William A. Holstein, Operations Manager, for the employer.
On April 24, 2007, the International Association of EMTs and
Paramedics (union), petitioned to represent a unit of Emergency
Medical Technicians (EMTs) employed by the Skagit County EMS
Commission (employer). The Commission conducted a cross-check on
June 21, 2007. On June 29, 2007, the Commission issued an interim
certification certifying the union as the exclusive bargaining
representative for a bargaining unit composed of all full-time and
regular part-time EMTs of the employer, excluding supervisors,
confidential employees and all other employees.(fn:1) The interim
certification reserved for subsequent determination the eligibility
of seven on-call EMTs for inclusion in the bargaining unit. On
August 28, 2007, Hearing Officer Paul T. Schwendiman conducted a
hearing. Both parties filed post-hearing briefs.
____________________
fn:1 Skagit County EMS Commission, Decision 9789 (PECB, 2007).
ISSUE PRESENTED
Whether the seven on-call EMTs have worked more than one-sixth
of the time normally worked by full-time EMTs during the
previous twelve months, based on their combined total of time
actually worked as EMTs and time paid when in on-call status.
The Executive Director finds the evidence does not rebut the
presumption that all of the on-call EMTs are regular part-time
employees eligible for inclusion in the bargaining unit, and
includes the on-call EMTs in the bargaining unit composed of all
full-time and regular part-time EMTs.
APPLICABLE LEGAL PRINCIPLES
When a representation petition is filed, the Commission decides
whether the petitioned-for grouping of employees is an appropriate
unit for the purpose of collective bargaining. The Commission
considers the following criteria in making its decision:
In determining, modifying, or combining the bargaining unit,
the commission shall consider the duties, skills, and working
conditions of the public employees; the history of collective
bargaining by the public employees and their bargaining
representatives; the extent of organization among the public
employees; and the desire of the public employees. . . .
RCW 41.56.060(1).
The Commission has developed a presumption for inclusion of regular
part-time employees in the same bargaining unit with full-time
employees performing similar work if they work more than one-sixth
of the time normally worked by full-time employees and remain
available for work on the same basis.
WAC 391-35-350 UNIT PLACEMENT OF REGULAR PART-TIME EMPLOYEES -
EXCLUSION OF CASUAL AND TEMPORARY EMPLOYEES. (1) It shall be
presumptively appropriate to include regular part-time
employees in the same bargaining unit with full-time employees
performing similar work, in order to avoid a potential for
conflicting work jurisdiction claims which would otherwise
exist in separate units. Employees who, during the previous
twelve months, have worked more than one-sixth of the time
normally worked by full-time employees, and who remain
available for work on the same basis, shall be presumed to be
regular part-time employees. . . .
(2) It shall be presumptively appropriate to exclude
casual and temporary employees from bargaining units.
(a) Casual employees who have not worked a sufficient
amount of time to qualify as regular part-time employees are
presumed to have had a series of separate and terminated
employment relationships, so that they lack an expectation of
continued employment and a community of interest with full-time
and regular part-time employees.
(b) Temporary employees who have not worked a sufficient
amount of time to qualify as regular part-time employees are
presumed to lack an expectation of continued employment and a
community of interest with full-time and regular part-time
employees.
(3) The presumptions set forth in this section shall be
subject to modification by adjudication.
APPLICATION OF THE STANDARDS
The parties do not dispute that full-time and on-call EMTs have the
same duties, skills, and working conditions; history of collective
bargaining; extent of organization; and that the desire of the EMTs
for union representation was expressed in a cross-check conducted by
the Commission. The record confirms that both full-time and on-call
EMTs are completely interchangeable. In addition to working their
regular 24-hour shifts at a station, full-time EMTs are occasionally
assigned to 12-hour on-call shifts. When on call, both full-time
and on-call EMTs receive the same $3.00 per hour rate of on-call
pay, have the same requirement to carry a pager, must be on duty
within 30 minutes of receiving a call to duty, and must refrain from
alcohol while assigned to the on call shift. Both full-time and
on-call EMTs perform exactly the same duties and have the same
responsibilities when on duty at the same stations. When on duty at
a station, both are subject to a two-minute response time when
dispatched to provide emergency medical assistance.
Calculation of the time worked by on-call EMTs to meet the one-sixth
test of WAC 391-35-350 properly includes the time that on-call EMTs
are paid for standing by to be called to duty at a station, as well
as the time paid for actually being on duty at a station. Whether
EMTs are working at a station or paid to be on call, on-call EMTs
are nevertheless on the employer's payroll and subject to the
employer's rules. Although EMTs are paid less when they are on
call, they are still employed and constrained by that employment
relationship.
The employer's full-time EMTs regularly work one or two 24-hour
shifts per week and average approximately 2080 hours per year. All
on-call EMTs are required to work a minimum of five 12-hour shifts
per month standing by for duty. Most stand by for more than five
shifts per month. One on-call EMT has worked as many as 22 shifts
in one month. The total hours of work compensated for each of the
seven EMTs in question ranges from a low of 1000 hours to a high in
excess of 2000 hours for the previous twelve months. All seven of
the on-call EMTs in question work in excess of one-sixth of the time
normally worked by full-time EMTs. The record reflects that all
seven on-call EMTs remain available for work on this basis, thus,
all are presumed to be regular part-time employees and are included
in the bargaining unit.
Beyond the fact that all of the on-call EMTs work more than
one-sixth of the time normally worked by full-time EMTs, their
expectancy of an ongoing employment relationship is further
supported by the following facts:
* The hiring procedure for on-call EMTs and full-time EMTs is
identical.
* On-call EMTs maintain the same state certifications and have
the same qualifications as full-time EMTs.
* On-call EMTs are fully interchangeable with full-time EMTs.
* On-call EMTs must be available for assignment to at least five
12-hour on-call shifts every month.
* On-call EMTs must indicate their availability by the 16th of
every month so that their monthly schedule can be posted on the
first day of the following month.
* If an on-call EMT is not going to be available, the employee is
required to request a leave of absence, specifying the reason
for the leave. The on-call EMT is expected to be available for
a minimum of five shifts per month after expiration of the
approved absence.
* On-call EMTs are routinely offered jobs as full-time EMTs
based on seniority.
FINDINGS OF FACT
1. Skagit County EMS Commission is a public employer within the
meaning of RCW 41.56.030(1).
2. The International Association of EMTs and Paramedics, a
bargaining representative within the meaning of RCW
41.56.030(3), is the exclusive bargaining representative of
certain employees of the employer.
3. On June 29, 2007, the Public Employment Relations Commission
issued an interim certification certifying the International
Association of EMTs and Paramedics as the exclusive bargaining
representative for a bargaining unit composed of all full-time
and regular part-time EMTs of Skagit County EMS Commission,
excluding supervisors, confidential employees and all other
employees.
4. The interim certification reserved for subsequent determination
the eligibility of seven on-call EMTs: Jerry Gardner, Heidi
Lyons, Melody Strauss, Ryan Willis, Cris Chapman, Rob Toth, and
Paul Wagner, for inclusion in the bargaining unit.
5. All seven on-call EMTs in question worked more than one-sixth
of the time worked by full-time EMT employees in the previous
12-month period.
6. Full-time and on-call EMTs have the same duties, skills, and
working conditions.
7. The hiring procedure for on-call EMTs and full-time EMTs is
identical.
8. On-call EMTs maintain the same state certifications and have
the same qualifications as full-time EMTs.
9. On-call EMTs are fully interchangeable with full-time EMTs.
10. On-call EMTs must be available for assignment to at least five
12-hour on-call shifts per month.
11. On-call EMTs must indicate their availability by the 16th of
each month so that their monthly schedule can be posted on the
first day of the following month.
12. If an on-call EMT is not going to be available, the employee is
required to request a leave of absence, specifying the reason
for the leave. The on-call EMT is expected to be available for
a minimum of five shifts per month after expiration of the
approved absence.
13. On-call EMTs are routinely offered jobs as full-time EMTs
based on seniority.
14. All seven on-call EMTs in question have a reasonable expectancy
of an ongoing employment relationship.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.56 RCW and Chapter 391-25 WAC.
2. On-call EMTs Jerry Gardner, Heidi Lyons, Melody Strauss, Ryan
Willis, Cris Chapman, Rob Toth, and Paul Wagner are regular
part-time employees under RCW 41.56.060(1) and WAC 391-35-350
and are included in the bargaining unit described in Finding of
Fact 3.
ORDER DETERMINING ELIGIBILITY ISSUES
On-call EMTs Jerry Gardner, Heidi Lyons, Melody Strauss, Ryan
Willis, Cris Chapman, Rob Toth, and Paul Wagner shall be included in
the bargaining unit involved in this proceeding.
Issued at Olympia, Washington, this 31st day of January, 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.