Eastern Washington University, Decision 9950 (PSRA, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
EASTERN WASHINGTON UNIVERSITY )
POLICE GUILD ) CASE 20966-E-07-3234
)
Involving certain employees of: ) DECISION 9950 - PSRA
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EASTERN 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 Patricia A. Thompson,
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 Eastern Washington University Police Guild
(petitioner) petitioned to sever a group of police officers,
detectives, and sergeants from two bargaining units at Eastern
Washington University (employer) and to become their exclusive
bargaining representative. The incumbent union is the Washington
Federation of State Employees (incumbent). A hearing was held before
Hearing Officer Guy Otilio Coss on June 6, 2007, in Cheney,
Washington. The parties submitted post-hearing briefs which were
considered.
At the hearing, the Hearing Officer granted the petitioner's motion
to amend its petition to include the newly created position of
police corporal to the description of the petitioned-for bargaining
unit. The employer and the incumbent stipulated that the police
corporal position was a nonsupervisory position. The parties also
stipulated that the Eastern Washington University Police Guild is a
qualified labor organization.
Following the hearing, on July 27, 2007, the petitioner filed a
motion to amend its petition to split the proposed bargaining unit
and create two bargaining units: one a rank-and-file unit consisting
of police officers, detectives and corporals and the other a
supervisors unit consisting of police sergeants. Because the
petition for severance of a police unit from the incumbent's
wall-to-wall unit is dismissed, the petitioner's motion to create a
supervisory bargaining unit is also dismissed.
The incumbent union currently represents the petitioned-for
employees in two bargaining units. The police officers, detectives,
and the newly created position of corporal are included in a
wall-to-wall bargaining unit of nonsupervisory classified staff.
The police sergeants are included in a wall-to-wall unit of
classified supervisory employees.
ISSUE PRESENTED
Is it appropriate to sever the rank-and-file police officers,
detectives, corporals, and sergeants from their respective
existing wall-to-wall bargaining units?
Based on the evidence and Commission precedents, the Executive
Director rules that the proposed severance is inappropriate. The
petition is dismissed.
Applicable Standards
A bargaining unit consisting of all of the employees of an employer,
such as the incumbent's existing unit, "is inherently an appropriate
unit" because "all such employees clearly share a community of
interest in dealing with their common employer." Federal Way Water
and Sewer District, Decision 3228 (PECB, 1989). Such a
"wall-to-wall" unit is "normally . . . thought of as an appropriate
unit, if not 'the most appropriate' bargaining unit structure."
Raymond School District, Decision 3202 (PECB, 1989).
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 applied 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.
The union's proposed unit of police officers share common duties,
skills and working conditions and as an initial organizing effort
the unit may have been found appropriate. However, applying the
strict scrutiny enunciated in Cowlitz County, Decision 4960 (PECB,
1995), the proposed unit does not meet this test -- it does consist
of a distinct and homogeneous group of skilled employees; however,
it does not meet the standard of "employees constituting a
functionally distinct department . . . for which a tradition of
separate representation exists." 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
and 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 union has been the
exclusive bargaining representative of these employees since at
least 1973, a period of 34 years. Given the length of this
bargaining relationship, 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). This
record demonstrates that the employer and the incumbent have had a
stable bargaining relationship since 1973. Removing the disputed
positions from the units represented by the incumbent union would be
inconsistent with the history of labor relations at Eastern
Washington University, would disturb a 34-year bargaining
relationship, and 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, there is no history of the petitioned-for employees
having an identity separate and apart from the two existing
wall-to-wall bargaining units with this employer. The fact that a
member of the university police force held the position of vice
president of one of the bargaining units at Eastern Washington
University establishes their participation and maintenance of the
current wall-to-wall bargaining unit.
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
that are 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
indicates that employer-wide units in state employment that include
uniformed police officers are improper. In fact, such units have
been approved by the Commission in local governments under Chapter
41.56 RCW in the past. 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:1)
____________________
fn:1 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 Eastern Washington University are assumed to
work in a coordinated effort to fulfill the mission of the employer.
The petitioned-for uniformed police officers 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. Severance in this case
could unnecessarily interfere with the continued normal operation of
the employer's primary educational function and 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).(2) 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 Eastern Washington University Police Guild 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:2 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 functionally distinct
department for which a tradition of separate representation exists
as the employer and incumbent union have had a stable bargaining
relationship since 1973. Granting severance of the positions from
the units represented by the incumbent would be inconsistent with
the history of labor relations at Eastern Washington University,
would disturb a 34-year 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. Eastern Washington University is a state institution of higher
education within the meaning of RCW 41.80.005(10).
2. The incumbent union, 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, detectives and
corporals in Bargaining Unit 1, a wall-to-wall bargaining unit
of nonsupervisory classified staff at Eastern Washington
University and has done so since at least 1973.
4. The incumbent represents sergeants in Bargaining Unit 2, a
wall-to-wall bargaining unit of supervisory classified staff at
Eastern Washington University and has done so since at least
1973.
5. The Eastern Washington University Police Guild is a bargaining
representative within the meaning of RCW 41.80.005(7).
6. On March 12, 2007, the Eastern Washington University Police
Guild filed a petition for investigation of a question
concerning representation with the Commission under Chapter
391-25 WAC, seeking to sever police officers, detectives and
sergeants from a bargaining unit represented by incumbent union
and to become their exclusive bargaining representative.
7. On June 6, 2007, the Eastern Washington University Police Guild
amended its petition for investigation of a question concerning
representation to include the newly created position of corporal.
8. The parties stipulated that the newly created corporal position
was nonsupervisory.
9. The proposed bargaining unit does not constitute a functionally
distinct department 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 Washington Federation of State Employees' wall-to-wall
bargaining units at Eastern Washington University.
11. It has not been established that there is a tradition of
separate representation for police officers in state universities.
12. The petitioned-for employees are part of the employer's
integrated operation which depends upon the proper performance
of the petitioned-for employees as part of the larger
organization.
13. The Eastern Washington University Police Guild 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, detectives,
corporals, and sergeants 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 and the
petitioner's motion to amend its petition are 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.