Western Washington University, Decision 9903-A (PSRA, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
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WESTERN WASHINGTON UNIVERSITY )
POLICE ASSOCIATION ) CASE 20965-E-07-3233
)
Involving certain employees of: ) DECISION 9903-A - PSRA
)
WESTERN WASHINGTON UNIVERSITY ) ORDER OF DISMISSAL
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Garrettson, Goldberg, Fenrich & Makler, P.C., by Sean Lemoine,
Attorney at Law, for the petitioner.
Rob McKenna, Attorney General, by Wendy Bohlke, Assistant
Attorney General, for the employer.
Younglove Lyman & Coker, P.L.L.C., by Edward Younglove,
Attorney at Law, for the incumbent intervenor.
On March 12, 2007, the Western Washington University Police
Association (petitioner) petitioned to sever a group of police
officers, sergeants, corporals, and emergency communications
officers (dispatchers) from two bargaining units and to become their
exclusive bargaining representative(fn:1). The incumbent union for
both petitioned-for groups is the Washington Federation of State
Employees (incumbent). A hearing was held before Hearing Officer
Katrina Boedecker on June 26 and July 2, 2007, in Bellingham,
Washington. At the hearing the parties stipulated that the Western
Washington University Police Association is a qualified labor
organization. The parties submitted post-hearing briefs which were
considered.
____________________
fn:1 The petitioner dropped the sergeant classification from its
original petition in an amended petition filed on April 2, 2007.
The incumbent union currently represents the petitioned-for
employees in two bargaining units. The seven police officers and
three corporals are in one bargaining unit (Unit B - a 110 member
trades, operations and services bargaining unit of nonsupervisory
classified staff) and the five dispatchers are in another bargaining
unit (Unit A - a 205 member clerical bargaining unit of
nonsupervisory classified staff).
ISSUE PRESENTED
Is it appropriate to sever the police officers, corporals and
dispatchers from the existing bargaining units?
Based on the evidence and Commission precedents, the Executive
Director rules that severance is inappropriate. The petition is
dismissed.
Applicable Standards
The determination of what is an appropriate bargaining unit is a
function delegated by the Legislature to the Commission. RCW
41.80.070(1) states that:
In determining the new units or modifications of existing
units, the commission shall consider: The duties, skills, and
working conditions of the employees; the history of collective
bargaining; the extent of organization among the employees; the
desires of the employees; and the avoidance of excessive
fragmentation.
However, Commission precedents impose a stricter scrutiny on
"severance" petitions than may be called for in the initial
organization of bargaining units. Cowlitz County, Decision 4960
(PECB, 1995). Thus, where a petitioner seeks to "sever" a sub-group
of employees from a long-established bargaining relationship, the
Commission looks to the principles enunciated by the National Labor
Relations Board in Mallinckrodt Chemical Works, 162 NLRB 387 (1966).
Those standards were adopted by the Commission in Yelm School
District, Decision 704-A (PECB, 1980) and an analysis of the
Yelm/Mallinckrodt standards are enumerated and discussed below.
Application of the Yelm/Mallinckrodt Standards
The first standard is:
Whether or not the proposed unit consists of a distinct and
homogeneous group of skilled journeymen craftsmen performing
the functions of their craft on a nonrepetitive basis, or of
employees constituting a functionally distinct department,
working in trades or operations for which a tradition of
separate representation exists.
Under the Cowlitz County stricter scrutiny standard discussed above,
the petitioned-for unit does not meet either parts of this test.
First, the petitioned-for unit does not consist of a "distinct and
homogenous group." The petitioner seeks to combine police officers
and police dispatchers in a single unit. Although the two positions
may work together in performing the overall mission of the
university police department, the qualifications and duties of the
two positions are quite different. The police officers are
commissioned armed officers who patrol the campus, its buildings and
the surrounding area. Campus police officers have the power of
arrest and are charged with enforcing campus regulations and local,
state and federal laws. Police officers are required to have either
two years of college level police science or comparable education or
one year of campus police job experience. Police officers are also
required to complete the Basic Law Enforcement Academy.
The dispatchers, on the other hand, are tasked with providing
dispatch services for the campus police department and work in an
office environment. They have no power of arrest and are not armed
nor commissioned. The dispatcher position requires a high school
diploma or GED certificate and two years of work experience
involving public contact.
The petitioned-for unit also fails to meet the standard of
"employees constituting a functionally distinct department . . . for
which a tradition of separate representation exists." The
petitioner cited several examples of separate police units at other
state educational institutions; however, these few examples do not
translate into a "tradition" of separate representation. In this
case, no tradition of separate representation for the proposed unit
exists for this employer or for like employers in state government.
The second Yelm/Mallinckrodt test more specifically addresses the
history of bargaining:
The history of collective bargaining of the employees sought at
the plant involved, and at other plants of the employer, with
emphasis on whether the existing patterns of bargaining are
productive of stability in labor relations, and whether such
stability will be unduly disrupted by the destruction of the
existing patterns of representation.
In severance cases, "the 'history of bargaining' criteria . . . [is]
a matter of substantial weight in a workforce which has been
organized for some time." Grant County, Decision 3350 (PECB, 1989).
This second test can cause rejection of a unit that could have been
found appropriate in initial organizing. Yelm School District,
Decision 704-A (PECB, 1980). "Where a bargaining relationship has
been in existence, the 'history of bargaining' weighs against its
disruption by severing the unit into two or more components."
Cowlitz County, Decision 4960 (PECB, 1995).
Undisputed testimony shows that the incumbent has been the exclusive
bargaining representative of Unit B since at least 1968, a period of
39 years, and of Unit A since at least 1983, a period of 24 years.
Given the length of these bargaining relationships, the Commission's
admonition concerning disrupting a 20-year bargaining relationship
is particularly relevant:
The reasons for disturbing such a long-established relationship
and resulting collective bargaining agreement would have to be
compelling.
Vancouver School District, Decision 4022-A (PECB, 1993). Removing
the disputed positions from the units represented by the incumbent
union would be inconsistent with the history of labor relations at
Western Washington University and would unduly disrupt a long and
stable pattern of representation.
The third Yelm/Mallinckrodt test reflects an integration standard:
The extent to which the employees in the proposed unit have
established and maintained their separate identity during the
period of inclusion in a broader unit, and the extent of their
participation or lack of participation in the establishment and
maintenance of the existing pattern of representation and the
prior opportunities, if any, afforded them to obtain separate
representation.
As stated above, the history of a separate identity of the
petitioned-for employees is non-existent.
The next Yelm/Mallinckrodt standard is:
The history and pattern of collective bargaining in the
industry involved.
With the exception of police bargaining units in local government
required to be in separate bargaining units because they are
statutorily eligible for interest arbitration, no evidence was
presented that a tradition of separate representation exists for
police officers in general nor for university police officers
specifically. There is nothing in Commission case law that suggests
that mixed units in state employment that include uniformed police
officers are improper. In fact, such units have been approved by
the Commission in the past in local governments under Chapter 41.56
RCW. For example, see Wahkiakum County, Decision 1876 (PECB, 1984),
where an election was directed in a unit of all county employees,
including deputy sheriffs.(fn:2)
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fn:2 The Wahkiakum County decision was issued prior to the deputies
being statutorily eligible for interest arbitration.
The next Yelm/Mallinckrodt standard is:
The degree of integration of the employer's production
processes, including the extent to which the continued normal
operation of the production processes is dependent upon the
performance of the assigned functions of the employees in the
proposed unit.
All of the employees of Western Washington University are assumed to
work in a coordinated effort to fulfill the mission of the employer.
The petitioned-for police officers and dispatchers work with other
employees of the institution and are thus considered part of an
integrated operation which depends upon the performance of their
duties as part of the larger organization. At the hearing, the
employer's police chief testified that "done correctly the
university police department will be integral to many of the
operations of the university, not just the law enforcement
functions. . ." Severance in this case could thus be an unnecessary
interference with the continued normal operation of the employer's
primary educational function and could unnecessarily fragment the
long-standing bargaining units.
The final Yelm/Mallinckrodt standard is:
The qualifications of the union seeking to "carve out" a
separate unit, including that union's experience in
representing employees like those involved in the severance
action.
The petitioning union presented evidence concerning the quality of
representation provided by the incumbent. The Commission has held
that "[t]he quality of representation is, however, not one of the
criteria for making a unit determination." Auburn School District
No. 408, Decision 2710-A (PECB, 1987).(fn:3) The only quality of
representation issue in a severance case concerns the qualifications
of the union seeking to "carve out" the separate unit. The record
indicates that the Western Washington University Police Association
was formed to initiate this proceeding, thus it has no basis to
claim special expertise in representing uniformed police officers.
Even if this were the case, the weight of the other
Yelm/Mallinckrodt factors require a dismissal of this severance
petition.
____________________
fn:3 The petitioner's evidence concerning the quality of
representation by the incumbent is not one of the criteria
considered in making a unit determination, was not considered in
this decision, and should not have been admitted as evidence in the hearing.
Conclusion
The moving party in a severance case has a difficult burden to meet
when there has been a long-established bargaining relationship. In
this case, that burden has not been met. The petitioned-for
bargaining unit does not consist of a distinct and homogeneous group
nor a functionally distinct department for which a tradition of
separate representation exists. The employer and incumbent union
have a long and stable bargaining relationship with the two existing
bargaining units. Removing the petitioned-for positions from these
units would be inconsistent with the history of labor relations at
Western Washington University, would disturb a 39-year (Unit B) and
a 24-year (Unit A) bargaining relationship, and would unduly disrupt
and fragment a long and stable pattern of representation. Applying
the Yelm/Mallinckrodt analysis and statutory standards to the facts
of this case, the Executive Director finds that severance of the
petitioned-for employees from their existing bargaining relationship
is not appropriate.
FINDINGS OF FACT
1. Western Washington University is a state institution of higher
education within the meaning of RCW 41.80.005(10).
2. The incumbent, the Washington Federation of State Employees, is
a bargaining representative within the meaning of RCW
41.80.005(7).
3. The incumbent represents police officers and corporals in
Bargaining Unit B, a trades, operations and services bargaining
unit of nonsupervisory classified staff at Western Washington
University, and has done so since at least 1968.
4. The incumbent represents emergency communications officers
(dispatchers) in Bargaining Unit A, a clerical bargaining unit
of nonsupervisory classified staff at Western Washington
University, and has done so since at least 1983.
5. The Western Washington University Police Association, is a
bargaining representative within the meaning of RCW 41.80.005(7).
6. On March 12, 2007, the Western Washington University Police
Association filed a petition for investigation of a question
concerning representation with the Commission under Chapter
391-25 WAC, seeking to sever police officers, corporals,
sergeants, and emergency communications officers (dispatchers)
from existing bargaining units represented by the incumbent
union and to become their exclusive bargaining representative.
7. On April 2, 2007, the Western Washington University Police
Association amended its petition for investigation of a
question concerning representation to exclude the position of
police sergeants from the petitioned-for unit.
8. The proposed bargaining unit does not constitute a distinct and
homogeneous group because campus police officers and campus
communication officers have distinct and different duties,
position qualifications, and requirements.
9. The proposed bargaining unit does not constitute a functionally
distinct group of employees for which a tradition of separate
representation exists.
10. There is no history of a separate identity of the
petitioned-for employees separate and apart from the two
existing bargaining units at Western Washington University.
11. It has not been established that there is a tradition of
separate representation for police officers or dispatchers in
state universities.
12. The petitioned-for employees are part of an integrated
operation which depends upon the proper performance of the
petitioned-for employees as part of the larger organization.
13. The Western Washington University Police Association was formed
in connection with the filing of the petition to initiate this
proceeding, and it has never represented any employees for the
purposes of collective bargaining.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter pursuant to Chapter 41.80 RCW and Chapter 391-25 WAC.
2. The proposed severance of police officers, corporals, and
emergency communications officers from the existing units
historically represented by the Washington Federation of State
Employees is not appropriate.
ORDER
Based upon the foregoing and the record as a whole, the petition for
investigation of a question concerning representation is DENIED.
ISSUED at Olympia, Washington, this 9th 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.