State - Attorney General, Decision 9951 (PSRA, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
WASHINGTON FEDERATION OF STATE ) CASE 20492-E-06-3163
EMPLOYEES ) CASE 20705-E-06-3190
)
Involving certain employees of: ) DECISION 9951 - PSRA
)
WASHINGTON STATE - ATTORNEY GENERAL ) ORDER OF DISMISSAL
)
____________________________________)
Attorney General Rob McKenna, by Otto G. Klein, III, Special
Assistant Attorney General, joined on the brief by Paige L.
Dietrich, Senior Assistant Attorney General, for the employer.
Anita Hunter, Attorney at Law, for the union.
On June 28, 2006, the Washington Federation of State Employees
(union) petitioned to represent a bargaining unit of employees in
the Consumer Protection Division (CP) of the Washington State Office
of the Attorney General (employer or AGO).(fn:1) A notice of hearing
was issued on October 3, 2006.
____________________
fn:1 Case 20492-E-06-3163.
On October 13, 2006, the union filed a second petition, seeking to
represent a bargaining unit of employees in the employer's Labor &
Industries Division (L&I).(fn:2) On November 16, 2006, the
Commission's Representation Coordinator issued an investigation
statement consolidating the two petitions. After consolidation, the
hearing was rescheduled and conducted by Hearing Officer Starr
Knutson on January 9, 10, and 12, February 6 and 13, and March 7, 8,
13 and 16, 2007, in Tumwater, Washington. Both parties filed briefs
which were considered.
____________________
fn:2 Case 20705-E-06-3190.
ISSUES
The issues presented to the Executive Director are:
Case 20492-E-06-3163 (Consumer Protection)
ISSUE 1: Is the petitioned-for bargaining unit appropriate?
ISSUE 2: Are Ruth Holbrook, Macey Anthony, Cynthia Lanpher, Cordula
O'Hearne, Michelle Ann Curtis, Kathleen Kostelec, Renee
Shadel, and Linda Vu supervisors and therefore excluded
from the bargaining unit?
ISSUE 3: Should Sue Plachy be excluded as a confidential employee?
ISSUE 4: Should non-permanent employees be included in the unit?
ISSUE 5: Is the work done by volunteers and temporary/part-time
employees enrolled as full-time work study students
bargaining unit work?
Case 20705-E-06-3190 (Labor and Industries)
ISSUE 1: Is the petitioned-for bargaining unit appropriate?
ISSUE 2: Are Shellie O'Neal, Beate Dill, Jeanette Tayor, Janice
Ost, Sharleneann Wusstig, Michi Tolmie, Todd Hamilton,
Marcella Walter, Carolyn Currie and Barbara Oliver
supervisors and therefore excluded from the bargaining unit?
ISSUE 3: Should non-permanent employees be included in the unit?
Based upon the record as a whole, the Executive Director rules that
neither of the proposed bargaining units sought by the union is an
appropriate unit for the purpose of collective bargaining, and
dismisses the petitions. Employees in the proposed bargaining units
perform work similar to the work performed by other employees; the
lines of supervision overlap between employees in the two
petitioned-for units, as well as between those employees and other
employees outside of the proposed units; the work functions of
petitioned-for employees are integrated with those of other
employees; there is significant interchange of employees among the
employer's divisions; all employees of this employer who work in
similar classifications have access to the same training
opportunities; employees regularly transfer between divisions; and
petitioned-for employees work in the same locations as other
employees and work under employer-wide policies and practices
governing compensation and other significant terms and conditions of
employment. Neither of the proposed units constitutes a
functionally distinct unit that would foster sound collective
bargaining. Thus, rulings on the eligibility issues are unnecessary.
APPLICABLE LEGAL PRINCIPLES
The Personnel System Reform Act of 2002 (PSRA) includes multiple
components with various effective dates. A new collective
bargaining system for state civil service employees has been
codified as Chapter 41.80 RCW, of which the following sections are
pertinent here:
RCW 41.80.005(6) "Employee" means any employee, including
employees whose work has ceased in connection with the pursuit
of lawful activities protected by this chapter, covered by
chapter 41.06 RCW . . . .
RCW 41.80.070 BARGAINING UNITS -- CERTIFICATION. (1) A
bargaining unit of employees covered by this chapter existing
on June 13, 2002, shall be considered an appropriate unit,
unless the unit does not meet all the requirements of (a) and
(b) of this subsection. The commission, after hearing upon
reasonable notice to all interested parties, shall decide, in
each application for certification as an exclusive bargaining
representative, the unit appropriate for certification. In
determining the new units or modification 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. . . .
In structuring bargaining units, the Commission is guided by RCW
41.80.070. The Commission is charged with the responsibility of
determining the appropriateness of each petitioned-for unit
consistent with the provisions of RCW 41.80.070(1). That section of
the statute directs the Commission to make unit determinations only
"after hearing" and in "each application for certification."
When making unit determinations, the Commission must group together
employees who have sufficient similarities (community of interest)
to indicate they will be able to bargain effectively with their
employer. Quincy School District, Decision 3962-A (PECB, 1993).
The statute does not require determination of the "most" appropriate
unit; it is only necessary that a bargaining unit be "an"
appropriate unit. City of Winslow, Decision 3520-A (PECB, 1990).
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). With the exception of the
explicit "avoidance of excessive fragmentation" criterion that
aligns with Commission precedent, the criteria found in RCW
41.80.070 are the same "community of interest" criteria that the
Commission has been applying for many years to bargaining units
under the Public Employees' Collective Bargaining Act, Chapter 41.56
RCW. See, in particular, RCW 41.56.060. University of Washington,
Decision 8392 (PSRA, 2004).
The statutory criteria are applied collectively to discern the
existence of a community of interest among the employees of a
particular employer. Benton County, Decision 7651-A (PECB, 2001).
Previous Commission decisions have 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).
Historically, the Commission has considered fragmentation of the
employer's workforce as one aspect of the "extent of organization"
analysis. The inclusion of a unique "fragmentation" criterion in
RCW 41.80 in addition to the four found in every other federal or
state collective bargaining statute must be presumed to have an
explicit meaning. The PSRA puts consideration of excessive
fragmentation forward as a separate criterion with the same weight
as the other four.
Bargaining units are often structured as "employer-wide" (all
eligible employees of the employer), "vertical" (all employees in a
department or branch of the employer's table of organization), or
"horizontal" (all employees in the same occupational grouping). See
Spokane County, Decision 7866 (PECB, 2002). Unit determinations are
made on a case-by-case basis, and the starting point for any unit
determination analysis is the configuration sought by the
petitioning organization. King County, Decision 5910-A (PECB,
1997). While the analysis begins with the unit sought by the
petitioning union, that configuration is not altogether excluded
from scrutiny. The Commission has rejected petitioned-for
bargaining units as inappropriate. See City of Marysville, Decision
4852 (PECB, 1994) and cases cited therein. An employer can dispute
the propriety of a petitioned-for unit by setting forth a credible
claim that the proposed configuration is inappropriate. Forks
Community Hospital, Decision 4187 (PECB, 1992); Snohomish Public
Hospital District 2, Decision 6687 (PECB, 1999); Grant County Public
Hospital District, Decision 7558 (PECB, 2001); Affiliated Health
Services (Skagit Public Hospital District 1/304), Decision 7785
(PECB, 2002); and cases cited therein. It is not enough, however,
for an employer to simply offer alternative configurations that
could be appropriate.
ANALYSIS
Appropriate Bargaining Units?
The initial issue presented by each petition concerns the question
of the appropriateness of the petitioned-for bargaining unit. The
analysis of that issue follows for both proposed units.
Assertions of Union and Employer - The union has petitioned for two
separate bargaining units: one consisting of 39 employees in the
Consumer Protection Division (CP), and a second consisting of 70
employees in the Labor & Industries Division (L&I).(fn:3) It claims
that each bargaining unit is composed of one division of the
employer's organization, and asks the Executive Director to consider
them as mutually exclusive vertical units. The union asserts that
the employees in the L&I division perform work for one state agency
only (L&I), and that employees in the CP division work on behalf of
the citizens of the state rather than another state agency. It
argues that each bargaining unit therefore has its own community of
interest. In support of its arguments, the union provided a
document showing that it represents 57 bargaining units in other
state agencies that are composed of a division, section or unit of
that particular employer's organization. The union asserts these
smaller units are a common practice in state government and that, as
such, the proposed bargaining units are appropriate vertical units.
____________________
fn:3 The employer's eligibility list shows 33 employees in the CP
unit and 70 employees in the L&I unit, while documents submitted in
evidence show 37 and 71 employees respectively.
The employer asserts its workforce is integrated and matrix managed
and that the petitioned-for employees share a community of interest
with other agency employees. Further, the employer argues that the
existing bargaining units in other state agencies cited by the union
were mainly created under the authority of a different board, prior
to the passage of the PSRA. The employer also asserts the
bargaining units petitioned for by the union would contravene the
criterion of avoidance of excessive fragmentation, thus placing the
employer at risk of skimming or other unfair labor practice
complaints when it exercises flexibility in assigning work in order
to meet the needs of its clients.
Synopsis of Employer's Function and Organization - The Office of the
Attorney General employs both attorneys(fn:4) and non-attorney staff in
26 legal divisions located in 12 different cities across the state.
The employer provides legal services to more than 230 state
agencies, boards, and commissions. As of March 2007, the employer's
records show it employs 644 classified staff, 42 Washington
Management staff, and 599 exempt [from civil service] staff. No
bargaining units have been previously organized within the workforce
of the AGO.
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fn:4 Assistant Attorneys General are exempt from Chapter 41.06 RCW
and therefore are precluded from collective bargaining.
Two executive managers report directly to Attorney General Rob
McKenna: Chief Deputy Brian Moran, who oversees the legal side of
the agency, and Chief of Staff Mike Bigelow,(fn:5) who oversees the
operations side. Moran oversees five deputy assistant attorneys
general, who each supervise a number of organizational units, known
either as divisions or sections. Two of those deputies manage
organizations that include petitioned-for employees. Deputy Nancy
Hovis supervises five divisions, including the Consumer Protection
Division. Deputy Shirley Battan supervises six sections and four
divisions, including the Labor & Industries Division. The
operational units supervised by Bigelow support the day-to-day
operation of the entire agency in an integrated manner that provides
consistency in areas such as human resources and computer
technology. Bigelow has a deputy chief of staff, Greg Lane, who
supervises four units: 1) Executive Ethics Board; 2) Governmental &
Community Relations; 3) Communications; and 4) Administration
Managers. The administration managers direct the activities of six
administrative units: human resources, law library, fiscal and
budget, information services, legal services, and the Seattle Office.
____________________
fn:5 Testimony identified Bigelow, while organization charts show
Milt Doumit in the position.
Petitioned-for Classifications - The petitioned-for employees
perform legal support work for the attorney general. Many of the
same classifications are included in both petitions, as well as
being used throughout the rest of the AGO.
The petitioned-for employees in the CP division are employed in the
following classifications: Attorney General (AG) Investigator 3 and
4 (4 employees); Community Consultant 2 (1 employee); Customer
Service Specialist 1, 2, 3, and 4 (8 employees); Legal Secretary 1
and 2 (6 employees); Office Assistant 3 (5 employees); Office
Support Supervisor 1 (2 employees); Paralegal 1 and 2 (7 employees);
and Research Analyst 4 (1 employee).
The petitioned-for employees in the L&I division are employed in the
classifications of Legal Secretary 1, 2, and 3 (30 employees); Legal
Support Trainee (1 employee); Office Assistant 3 (12 employees);
Office Support Supervisor 1 (2 employees); and Paralegal 1, 2, and 3
(27 employees).
In comparison, the total number of employees agency-wide in the
petitioned-for classifications includes:
* AG Investigator 3 - 31 employees in seven divisions;(fn:6)
____________________
fn:6 CP, Criminal Justice, Ethics, Regional Services, Revenue,
Spokane, and Torts.
* AG Investigator 4 - 20 employees in four divisions;(fn:7)
____________________
fn:7 CP, Criminal Justice, Spokane, and Torts.
* Community Consultant 2 - one employee in the Regional Services
Division;
* Customer Service Specialist (CSS) 1 - one employee in the
Spokane Division;
* CSS 2 - four employees in the CP and Regional Services
Divisions;
* CSS 3 - two employees in the CP Division;
* CSS 4 - four employees in the CP, Regional Services and Spokane
Divisions;
* Legal Support Trainee - eight employees in six divisions,
sections or offices;(fn:8)
____________________
fn:8 Government Operations, L&I, Public Counsel, Regional Services,
Social and Health Services, Torts, and the Seattle Office.
* Legal Secretary (LS) 1 - 47 employees in 19 divisions;(fn:9)
____________________
fn:9 Administration, Agriculture and Health, Bankruptcy and
Collections, CP, Criminal Justice, Ecology, Education, Fish,
Wildlife & Parks, Government Compliance and Enforcement, L&I,
Licensing & Administrative Law, Natural Resources, Regional
Services, Revenue, Social and Health Services, Spokane, Tacoma,
Torts, and Utilities and Transportation Commission.
* LS 2 - 140 employees among all of the divisions;
* Office Assistant 3 - 83 employees among all the divisions;
* Office Support Supervisor 1 - 12 employees in seven divisions
or offices;
* Paralegal 1 - 17 employees in ten divisions;(fn:10)
____________________
fn:10 Agriculture and Health, CP, Tacoma, Criminal Justice, Fish,
Wildlife & Parks, Government Compliance and Enforcement, L&I,
Seattle, Social and Health Services, Spokane, and Torts.
* Paralegal 2 - 91 employees in 21 divisions;(fn:11)
____________________
fn:11 Antitrust, Bankruptcy and Collections, Complex Litigation,
CP, Criminal Justice, Ecology, Fish, Wildlife & Parks, Government
Compliance and Enforcement, Government Operations, L&I, Labor and
Personnel, Licensing & Administrative Law, Natural Resources,
Regional Services, Revenue, Seattle, social and Health Services,
Spokane, Tacoma, Torts, Transportation, and Public Construction.
* Paralegal 3 - 15 employees in nine divisions;(fn:12)
____________________
fn:12 Criminal Justice, Government Compliance and Enforcement, L&I,
Seattle, Regional Services, Social and Health Services, Tacoma,
Torts, Transportation, and Public Construction.
* Research Analyst 4 - one employee in the CP division.
The petitioned-for employees in the CP division represent
approximately 5.7 percent of the total number of classified
employees of the AGO workforce. The petitioned-for employees in the
L&I division are approximately 10.9 percent of the total classified
employees of the AGO. With the limited exception of the research
analyst and the customer service specialists, the petitioned-for
classifications clearly are not unique to the proposed bargaining
units. Employees throughout the AGO perform work in these
classifications.
Statutory Criteria - Community of Interest
Duties and Skills - Job descriptions and classification
specifications for all positions of the employer are maintained by
Pam Skinner, Human Resource (HR) Director. The HR office allocates
all of the positions at the agency to the appropriate
classification.
The Paralegal 1 class specification defines that body of work as:
Under the supervision of an assistant attorney general,
performs paralegal work (e.g., analyzing facts, composing
initial drafts of documents and pleadings, interviewing
witnesses, etc.) on assigned cases or projects at an entry
level. These positions possess sufficient knowledge, training
and experience to perform work which, absent the paralegal,
would for the most part be performed by an assistant attorney
general.
Distinguishing Characteristics: This is a paraprofes-sional
class and is distinguished from legal clerical classes in that
it involves performing paralegal work (assisting attorneys in
the practice of law) delegated by an assistant attorney general
as opposed to performing legal clerical duties.
The Paralegal 2 specification defines that work as:
Under the supervision of an assistant attorney general, these
positions function at a high level of independence in
performing complex substantive paralegal work which, absent the
paralegal, would for the most part be performed by an assistant
attorney general. This work includes legal research in
selected areas, shepardizing cases, analyzing case fact
situations for legal issues and identification and development
of legal strategy. In addition, may act as a lead worker or
coordinate projects involving other paralegals or clerical
support staff.
Distinguishing Characteristics: This is a paraprofes-sional
class and is distinguished from a Paralegal 1 in that it
involves more complex duties and responsibilities, which are
performed with greater independence (e.g., negotiating
settlements).
The Paralegal 3 specification defines that work as:
Under the supervision of an attorney general division chief,
section chief, or lead attorney in a regional office, these
positions have delegated responsibility for administrative
supervision over other paralegals (e.g., signs leave slips,
assigns work, conducts performance evaluations, participates in
the interview process). These positions may perform complex
paralegal duties requiring a high degree of knowledge of legal
concepts, issues and research which, absent the paralegal,
would be performed by an assistant attorney general.
Distinguishing Characteristics: These positions are
distinguished from the Paralegal 1 and 2 positions by a
reporting relationship to an attorney general division chief,
section chief, or lead assistant attorney general in a regional
office and involve a higher expertise and independence of
action and decisions. These positions must have direct
administrative supervision over work performed by other
paralegals and are significantly involved in their training.
Ten paralegal employees from both the CP and L&I divisions testified
concerning their duties. The CP paralegals perform work such as
coordination of public disclosure requests, document management for
litigation, and trial preparation. Most of the L&I paralegals are
assigned to what is known as a "mediation run." They work to settle
industrial insurance appeals prior to litigation, work that may be
done in person or by telephonic conference with a judge and the
appellant. If the appeal is not settled, the paralegal prepares a
summary of the case for the file, and the case is then turned over
to an attorney for trial. Position description forms accepted into
evidence show that other L&I paralegals perform litigation support
work for an attorney; one does diversity and sexual harassment
training. Employees testified that their position description forms
were for the most part accurate as to duties and differed from each
other only in the amount of time spent doing the specific type of
work.
The Legal Secretary 1 class specification defines that work as:
Performs legal technical and secretarial work for an attorney,
Administrative Law Judge, Industrial Appeals Judge, review
judge or equivalent.
Distinguishing Characteristics: This class differs from
general clerical and secretarial classes in that Legal
Secretaries work more as personal assistants to attorneys . . .
to whom assigned. They also have greater responsibility than
legal stenographers or other clerical support classes to
initiate their work in relieving the attorney . . . of
technical aspects of legal practice.
The Legal Secretary 2 class specifies its work as:
Performs legal technical, secretarial and administrative work
or performs legal secretarial work for an attorney AND is
recognized and designated in writing by management to be
responsible, on a regular and ongoing basis for at least a
quarter of the time, for specialized entry level paralegal or
computer support duties.
Distinguishing Characteristics: Incumbents who perform
administrative duties but do not perform the specialized duties
must function as the principal legal secretary to an . . .
Assistant Attorney General who heads up a major legal division
or section.
Entry level paralegal duties typically include the following
functions: drafting standard interrogatories, assisting an
attorney or paralegal in deposition summaries and case
summaries; conducting basic legal research, drafting requests
for production of documents and responses, organizing and
preparing trial notebooks, pleadings and exhibits to be used at
trial.
Computer support duties include all of the following functions:
training staff in the use of computers and software in a
network environment; assisting staff with problems or questions
pertaining to computer production work; serving as liaison with
an information services division (or equivalent), communicating
operational needs for increased programming, and serving as
liaison in training and assisting staff in adapting to
hardware, software and network changes.
The Legal Secretary 3 class specification defines its work as follows:
Performs legal, technical, secretarial and administrative work
for an attorney . . . AND performs one or more of the following:
1. supervises four or more legal secretaries and/or clerical
support staff, OR;
2. supervises all regional support staff and performs all
office management duties in a regional office; OR;
3. is designated by management in writing to be the principal
legal secretary to a . . . Deputy Attorney General,
Division chief or equivalent.
Distinguishing Characteristics: In the Washington State
Attorney General's Office, regional offices are located in
Wenatchee, Kennewick, Vancouver, Bellingham, Port Angeles,
Yakima and Everett.
Six legal secretaries from the L&I division testified during the
hearing. They all described what they do as legal clerical support
work as identified in the above class specifications. Individuals
employed as legal secretaries in other divisions perform similar
work.
One investigator testified at the hearing. The Attorney General's
Office - Investigations Occupational Category describes his
position. It reads in relevant part:
Category Concept
This series works in the Office of the Attorney General (AGO).
Investigators provide legal services to the state of Washington
and its citizens. Positions can be found in a variety of
program areas such as: Torts, Consumer Protection, Medicaid
Fraud, Financial Crimes, Homicide Investigation Tracking
System, and the Sexually Violent Predator Program. Positions
determine caseload priorities and methodologies and develop
information critical to the defense or prosecution of civil or
criminal cases held in superior or federal court.
. . . .
ATTORNEY GENERAL INVESTIGATOR 3
Distinguishing Characteristics
This is the senior, specialist, or lead worker level of the
series. Investigators perform the full range of investigative
and analytical duties required to complete difficult and
complex cases.
The investigator independently determines caseload priorities
and methodology, and develops information critical to the
preparation, defense or prosecution of civil or criminal cases
in superior and federal courts. The investigator prepares
written reports documenting case findings and conclusions, and
consults with the litigation/prosecution team on case strategy
throughout trial. Senior or specialist positions may lead or
oversee the work of other investigator staff.
The four Customer Service Specialist and one Research Analyst
classifications are only used in the CP division of the agency.(fn:13)
The research analyst provides data analysis on consumer protection
issues to employees of the AGO. The customer service employees work
in Consumer Resource Centers located in one of the AGO buildings in
the state. They provide consumer protection information directly to
the public.
____________________
fn:13 Testimony from Customer Service Specialists was primarily
concerned with supervisory status.
Working Conditions - All of the petitioned-for employees share
similar working conditions, as they do with employees throughout the
AGO organization, including others not included in these petitions.
The petitioned-for employees work in one of 12 office buildings
located throughout Washington State. Although they have different
first-level and second-level supervisors as would be expected in a
large organization, they are all ultimately under the direction of
the Attorney General, one of the deputy attorneys general, and the
assigned division and/or section chief. All of the employees
involved in these proceedings are subject to the same rules,
policies, and procedures that are applicable to all other employees
of this employer. While the two divisions that include the
petitioned-for employees interpret and/or enforce different statutes
and may have separate policies related to those statutes, employee
working conditions are governed by employer-wide rather than
division policies. Hiring, promotion, evaluation, performance
awards, hours of work, and discipline are all subject to the
employer-wide policies.
Work Locations - The petitioned-for CP employees work in offices
located in Bellingham, Kennewick, Seattle, Spokane, Tacoma,
Tumwater, and Vancouver. The petitioned-for L&I employees work in
Seattle, Spokane, Tacoma, and Tumwater. Each office houses employees
who work in other divisions and sections.
The Regional Services Division (RSD), headed by Michael Shinn,
includes offices located in Bellingham, Everett, Kennewick, Port
Angeles, Vancouver, Wenatchee, and Yakima. Each office within that
division employs attorneys and classified staff working in multiple
areas of the law. The Bellingham office provides legal services in
Education, Licensing & Administrative Law, Social & Health Services,
and Torts, as well as CP and L&I. Everett, the largest regional
services office, includes 25 employees working in L&I, Education,
Social & Health Services and Torts. The Kennewick office includes
one CP employee (the bilingual community consultant), and others who
work in L&I, Education, Licensing & Administrative Law, Social &
Health Services and Torts. The five employees in the Port Angeles
office work in L&I, Education, Licensing & Administrative Law, and
Social & Health Services. Division Chief Shinn is located in the
Vancouver office, which provides legal services in Education,
Licensing & Administrative Law, and Social & Health Services, as
well as CP and L&I. The Wenatchee office employees work in L&I,
Licensing & Administrative Law, Social & Health Services and Torts,
while the Yakima office employees perform work in L&I, Education,
Licensing & Administrative Law, Social & Health Services, and Torts.
The larger offices each constitute their own division or unit. The
Seattle office, a separate unit headed by Karen Cowan, includes
approximately 300 employees working in the Administration sections
and 12 of the law: Antitrust, Bankruptcy & Collections, Complex
Litigation, CP, Criminal Justice, Education, L&I, Licensing &
Administrative Law, Public Counsel, Social & Health Services, Torts,
and the University of Washington. In the Seattle office, the 19th
floor houses CP, including the Consumer Resource Center and the
Lemon Law unit; the Education Division; and the Public Counsel Unit.
The 22nd floor is occupied by the L&I Division, along with the
Bankruptcy and Collections Unit.
The Spokane Division employees work in Administration, CP, Criminal
Justice, Education, L&I, Licensing & Administrative Law, Social &
Health Services, and Torts. Tacoma Division employees work in CP,
Criminal Justice, L&I, Social & Health Services, and Torts. The
Tumwater office employees work in all areas of the law except:
Antitrust, Bankruptcy & Collections, Complex Litigation, CP, and
Public Counsel.
The petitioned-for employees regularly interact with employees of
other divisions and sections of the AGO in a number of locations.
While the petitioned-for employees may be located on one side of a
floor in a building, there are common areas for all employees, such
as lunch and break rooms. Employees in the proposed units thus
cannot be distinguished by physical location from many of the other
employees of this employer.
Supervision - The petitioned-for employees (both L&I and CP) work
under a "matrix" style of management. Questions concerning
substantive areas of consumer protection or worker's compensation
law are handled by CP Division Chief Doug Walsh, who works in the
Seattle office, or by L&I Division Chief Evelyn Lopez, who has
offices in both Seattle and Tumwater. Lopez and Walsh supervise
only petitioned-for employees in their respective divisions.
However, petitioned-for employees who work in a location other than
Seattle or Tumwater have a "dotted line" reporting relationship to
either Lopez or Walsh, but actually report directly to Regional
Division Chief Michael Shinn, Spokane Division Chief Larry Briney,
or Tacoma Division Chief Linda Moran.
Issues of day-to-day supervision, such as attendance, leave
requests, offers of employment, and work station issues are the
responsibility of the division chief or manager for the specific
geographic location. Those managers also supervise employees from
other legal and administrative divisions co-located with the
petitioned-for employees.
The legal division chief and the geographic division chief or office
manager work collaboratively to resolve personnel issues. All five
of the division chiefs and Seattle Office Chief Karen Cowan
testified that they work together on such matters. None could
recall a time where they did not collaborate on a solution.
Discipline and other personnel issues are handled by the two
division chiefs (and sometimes one or two deputy attorney generals)
working together.
CP - The petitioned-for employees in the CP division have a
diverse chain of command involving four divisions and one
administrative unit. Twenty-four of the petitioned-for CP employees
work in Seattle under the collaborative supervision of Cowan and
Walsh. Six petitioned-for CP employees work in Tacoma under
Division Chief Moran, and four CP employees work in Spokane under
Division Chief Briney. Regional Services Division Chief Shinn
directs the day-to-day activities of five petitioned-for CP
employees who work in the Bellingham, Vancouver, and Kennewick
offices, in addition to the non-petitioned-for employees working in
those and the other regional offices.
L&I - Organizational charts for Seattle and Tumwater locations
show approximately 54 employees working for the L&I division under
the direction of Division Chief Lopez, who has offices in both
locations. Office Chief Cowan has appointing authority for all
classified staff located in the Seattle office, which includes
employees in both the proposed bargaining units, as well as
non-petitioned-for employees.
Testimony established that approximately nine additional employees
perform L&I division work in either Spokane or Tacoma under the
direction of those division chiefs. Six other employees in the
Tacoma division arguably perform support work for the L&I division.
A map of the office locations around the state submitted into
evidence indicates that every location performs L&I work.
Integration of Work Functions - The record indicates that employees
in both petitioned-for units regularly perform work on behalf of
other employees or work units not included in the petitions.
For example, in Seattle, Karen Cowan is in charge of the General
Services Division in addition to her duties as office manager.
General Services performs copying, mail receipt and distribution,
and management of the vehicle fleet. CP uses a number of those
services. Each consumer complaint that comes into the Seattle
office is scanned into the computer tracking system by a General
Services employee before it is delivered to CP. Because CP receives
checks in the mail, as does the Bankruptcy and Collections Unit, the
agency fiscal office requires that an employee from one or both of
those divisions be present as the General Services employee opens
the mail. The L&I Division also uses General Services employees to
open and distribute the mail and to run large copy projects.
General Services employees perform large copy projects for all
divisions located in Seattle. The receptionist on each floor in
Seattle works for General Services, but relief for those
receptionists is provided by employees of other divisions. On the
19th floor, an employee from the CP division provides two fifteen
minute breaks and an hour lunch for that receptionist. On the 22nd
floor, an employee from the L&I docketing staff covers for the
General Services receptionist for lunch and breaks, and occasionally
all day. Thus, the day-to-day activities of petitioned-for employees
in Seattle are integrated with the activities of non-petitioned-for
employees.
Attorneys in the smaller regional offices are not assigned solely to
one agency or legal function. Rather, they work collectively to
accomplish the legal work of that region. In those offices, the
classified staff work on the cases assigned to the attorney they
assist, no matter what area of the law is involved. Division Chief
Briney testified there is a similar interchange between employees in
the Spokane office. For example, if a court filing deadline looms
for the Department of Social and Health Services (DSHS) section in
that office, any available employee will be pulled to ensure the
correct documents are filed with the court. In other words,
employees in these offices do not work exclusively with one area of
the law, i.e., CP or L&I.
Deputy Attorney General Nancy Hovis also provided examples of the
interrelated nature of the employer's legal functions. First, she
explained that the Agriculture and Health Division attorneys
represent the state Department of Health; however, if a physician's
license is in jeopardy and the Medical Quality Assurance Commission
takes an action, an attorney assigned to the AGO Government
Compliance and Enforcement Unit would prosecute the case for the
Department of Health. The second example involved an attorney
working in the Bankruptcy and Collections Unit, which is part of the
Revenue Division. That attorney works to get money that might be
owed in a bankruptcy action for L&I, the Employment Security
Department, and the Department of Revenue. That attorney will also
provide advice to other assistant attorneys general who have
bankruptcy issues come up in a case. Hovis testified that the work
generally follows the attorney and thus the legal assistant assigned
to that attorney. Therefore, when attorneys help out with work in a
different division, the legal assistant working with that attorney
also does the work of the other division. Therefore, when an
attorney transferred from the L&I Division where he handled
ergonomics issues, to the Ecology Division, he took his current
ergonomics case with him and his new legal assistant helped him
complete that ergonomics work. Thus, work travels from one division
to another and legal assistants work on cases from other divisions.
The record was replete with examples establishing interchange among
the divisions and sections in the CP Division. Hovis provided
further examples where legal issues and assignments cut across AGO
division lines. A recent issue involving gas pricing was handled by
employees of both the Antitrust and CP divisions. When the AGO
handled the multi-state litigation against the tobacco companies,
attorneys and paralegals from Consumer Protection, Antitrust, and
other divisions were involved. A price fixing matter was recently
investigated by a CP investigator because the Antitrust Division did
not have personnel available to handle the matter.
In the Spokane Division, Chief Briney established a "SWAT" team of
attorneys from sections of the office outside DSHS to work on an
upsurge of DSHS cases. Spokane Division Paralegal Connie Reinhold,
normally assigned to CP, was assigned to work on the DSHS case.
L&I Chief Lopez provided two similar examples in that division.
Legal Assistant Darcie McMullen, who normally works in Tumwater's
L&I Division, was temporarily reassigned to the Spokane Division to
assist the DSHS Section. Paralegal Michelle Lacey was reassigned
from L&I to the Criminal Justice Division for eight months.
Legal Secretary 3 Marcie Bergman who works in the Spokane L&I
section testified that she has filled in for legal assistants in
torts and also serves as backup for other sections. Legal Secretary
2 Tracy Ayers testified she filled in for Spokane General Services
Employees by getting the office mail ready to go out, answering
phones and filling in for the receptionist during meetings. She
also filled in for eight weeks for a Spokane Interdivisional Section
employee. Thus, the record clearly establishes that there is
frequent interchange of employees between AGO divisions and sections.
Training - The agency Training and Development Plan 2006-2007
includes six agency-wide training committees: two specifically for
attorneys, one for litigation skills, one for paralegals, one for
professional staff, and one for management. The Paralegal Training
Committee is made up of paralegal employees from different
divisions. Each committee develops training, whether paralegal
training or professional training, on an agency-wide basis rather
than by division. All AGO employees were invited to a staff
conference for a day of "inspiration, learning and networking with
co-workers from near and afar!" The conference included awards, the
agency performance management plan, breakout sessions on identity
theft/spyware and image, and presentations on creativity,
methamphetamine issues, and team building.
Even so, each of the 26 legal divisions may have a separate training
retreat during the year. The attorneys and paralegals working in
that area of the law will attend the retreat to learn more about
current case law, court decisions, statutory interpretations, etc,
specific to the area of law in which they work.
Transfers - The HR office maintains a listing of all open positions
on an intranet site available internally to all employees.
Employees regularly move between divisions and promote (or demote)
to positions in other divisions. Between January 1, 2003 and
December 15, 2006, 20 CP employees, approximately half the number in
the proposed bargaining unit, transferred to different positions.
Of those, 11 worked in another division and transferred into CP,
while nine transferred from CP to another division. During the same
time period in the L&I division, 34 employees transferred to a
different position overall; 16 employees transferred into the L&I
division and the others moved with the L&I division either laterally
or were promoted. Agency-wide during the same time period, 193
employees transferred to a position outside of the division in which
they currently worked.
Briney testified employees regularly transfer between the Spokane
organizational sections, such as L&I, Labor and Personnel, and the
Interdivisional Section, which includes the four CP employees. He
cited six examples of that movement: two employees have worked in
three different units; three employees have worked in two units; and
one employee has moved between five units. These transfers between
units include movement in and out of the CP and L&I units.
Several employees also testified about their transfers between legal
divisions or sections. Legal Secretary 2 Tracey Ayers started in
the Spokane office as an Office Assistant in General Services,
promoted to a Legal Secretary 1 in L&I, and later promoted again
within L&I to her present position in Spokane. She also worked in
the Spokane Interdivisional Section for eight weeks. She currently
provides assistance to that division every other week, as well as
doing copy projects for General Services. Legal Secretary 3 Marcie
Bergman, currently employed in the L&I division, testified that in
her 15 years of employment with the AGO, she has worked in five
divisions: torts, CP, licensing, employment security, and L&I.
Three or four times a year for a one or two week period she fills in
for a Torts legal assistant as well as others. Clearly, there is
frequent movement among and between the petitioned-for employees and
others in the AGO.
Conclusion Regarding Community of Interest - The petitioned-for
employees share a community of interest, not only with each other,
but also with the rest of the integrated workforce. All employees
of this employer are governed by the same rules, policies, and
procedures with respect to personnel matters, including evaluation,
promotion, performance awards, and discipline. Employees in the
petitioned-for units do not work solely in one location, nor do they
work only with other petitioned-for employees. In fact, many of the
petitioned-for employees work in closer proximity to non-
petitioned-for employees than they do to those included in the
petition(s). Petitioned-for employees report to more than one
supervisor and they share at least one of their supervisors with
other employees who are not included in these petitions.
Further, the record reflects that employees in the petitioned-for
units provide regular and ongoing support to employees in other
divisions who are not included in these petitions. Petitioned-for
employees who work in smaller offices do not work solely in one
particular area of legal practice, and their work grows and changes
with the work of the attorneys for whom they provide support.
Finally, there is regular transfer and promotion of petitioned-for
employees between and among the various divisions and work units of
this employer.
History of Collective Bargaining
Generally, the history of bargaining need only be considered where
there is a history of representation. The Attorney General's Office
has none.(fn:14)
____________________
fn:14 Prior to 2003, some employees in the L&I Division were
represented when they were employed by the Department of Labor and
Industries, a separate state agency; however, that representation
ended when they were transferred to the AGO.
Extent of Organization
This aspect of the statutory unit determination criteria compares
the group at issue with the employer's overall workforce.
Representation petitions have been dismissed when the proposed unit
cut across supervisory lines, cut across lines of generic employee
types, and did not include all employees performing similar work.
Spokane County, Decision 6720 and 6721 (PECB, 1999). In Port of
Seattle, Decision 890 (PECB, 1980), an artificial division of the
employer's office-clerical workforce into two or more units was
rejected.
The union argues it has approximately 23 state bargaining units
based on organizational lines. It asserts that although many of
those bargaining units were created by the Washington Personnel
Resources Board prior to June 2002 when the PSRA transferred unit
determination authority to this agency, the Commission itself
created several new units that are organizational sections or units.
In several of the state agencies, the units created were residual
units, and another union represents one or more other bargaining
units of the same employer.
Those cases and related bargaining units are inapposite here. The
bargaining units involved in all of the cases cited by the union
existed prior to June 2002. By statute, the Commission did not have
any authority to address the appropriateness of those bargaining
units as they existed on June 13, 2002. The referenced bargaining
units may not comport with the community of interest requirements of
the PSRA. RCW 41.80.070.
Desires of Employees
The Commission does not accept testimony or documentary evidence
about the desires of employees concerning representation during a
hearing. The issue of whether or not an employee desires to be
represented by an employee organization is best resolved through a
secret ballot election.
Avoidance of Excessive Fragmentation
The community of interest criteria in RCW 41.80.070 include an
explicit admonition against excessive fragmentation that has not
been directly interpreted or applied by the Commission. Several
recent decisions have touched upon it, but not within the same
context as this case. The legislative history provides little
insight on the significance of this unique addition to the criteria
in RCW 41.80.070.
At the same time, the concern of the Legislature about fragmentation
comports with a long line of Commission precedents interpreting
other statutes, and collective bargaining tenets under both public
and private statutes traditionally avoid a proliferation of
bargaining units.
The Commission has generally resisted fragmentation in applying the
"extent of organization" component, particularly to avoid stranding
employees without access to collective bargaining rights and/or in
small units that are not conducive to effective collective
bargaining. See, for example, Forks Community Hospital, Decision
4187 (PECB, 1992) (proposed clerical/service/maintenance/technical
unit in a relatively small facility would have stranded other
technical positions within the facility); City of Vancouver,
Decision 3160 (PECB, 1989) (proposed unit would have stranded other
employees in units too small for them to ever implement their
statutory bargaining rights). The avoidance of fragmentation is
often thought of as protecting employers from having to deal with
multiple bargaining units whose interests are not that divergent.
Auburn School District, Decision 2710-A (PECB, 1987).
The Commission has also been reluctant to establish multiple
bargaining units among employees who perform similar functions, due
to the ongoing potential for work jurisdiction disputes in such
circumstances. The reference to "work jurisdiction" grows out of a
long line of Commission precedents dating back to South Kitsap
School District, Decision 472 (PECB, 1978), holding that the
description of an appropriate bargaining unit outlines a body of
work that the exclusive bargaining representative is entitled to
protect (and concerning which employers have a duty to bargain)
through the collective bargaining process. State - Corrections,
Decision 9269 (PSRA, 2006).
Here, it is the union that would fragment the AGO workforce. South
Kitsap School District, Decision 1541 (PECB, 1983), presents an
example of the type of work jurisdiction conflicts that can develop
when the border between two separate bargaining units is not clearly
visible, distinct, or easy to apply. Even without the employer's
objection to the appropriateness of the bargaining units at issue, a
clear potential for work jurisdiction disputes came upon the horizon
with the second petition filed by the union, involving a unit of
employees performing the same type of work in a different division
within this employer's organizational structure. Just as two
different units of office-clerical employees within the same school
district collided in South Kitsap School District, Decision 1541,
there would be an ongoing potential for the two separate units
proposed by this union to collide with an unanticipated result.
Should a group of employees sharing a community of interest with
these employees not be included in the unit, they could be organized
by a different union. Not only would these employees then be
working under different terms and conditions of employment, the
potential for ongoing disputes about work jurisdiction between the
bargaining units would be significant. Even if no additional units
were ever organized in this workforce, the integrated nature of
operations would still mean that creation of the two petitioned-for
units could create ongoing jurisdictional disputes between
represented and unrepresented employees.
CONCLUSION
The record in this matter does not persuade the Executive Director
to establish the petitioned-for bargaining units.
Employees in both of the proposed bargaining units work in support
of assistant attorneys general. They exercise discretion and have
knowledge of legal processes and deadlines. The work of every legal
support employee in the agency is similar to that of employees in
the proposed units. Employees in the petitioned-for groups share
similar working conditions, work locations, and supervision with
other employees of this employer. Frequent interchange occurs with
employees in other divisions and work units, and transfer and
promotion between work units is common.
Establishing two bargaining units that perform the same type of
work, while excluding others who also perform the same type of work
would unduly fragment the workforce and would not be conducive to
establishing functional collective bargaining relationships,
especially where the governing statute includes a specific criterion
prohibiting excessive fragmentation. Given the clear commonalities
among petitioned-for employees and those in the rest of the agency,
the creation of two small separate bargaining units, with a
potential for additional such units, would be counter to sound labor
relations practice.
FINDINGS OF FACT
1. The Washington State Office of the Attorney General (AGO) is an
employer within the meaning of RCW 41.80.005(8).
2. The Washington Federation of State Employees is an employee
organization within the meaning of RCW 41.80.005(7).
3. The Office of the Attorney General employs attorneys and
non-attorney staff in 26 legal divisions located in 12 cities
throughout Washington state. It currently employs
approximately 644 classified staff, 42 Washington Management
Service staff, and 599 employees who are exempt from civil
service. No bargaining units currently exist within the AGO
workforce.
4. The union has petitioned for two separate bargaining units of
employees of the AGO: one consisting of approximately 39
employees in the Consumer Protection (CP) Division, and another
consisting of approximately 70 employees in the Labor &
Industries (L&I) Division.
5. The proposed CP bargaining unit includes employees in the
classifications of Attorney General Investigator 3 and 4;
Community Consultant 2; Customer Service Specialist 1, 2, 3,
and 4; Legal Secretary 1 and 2; Office Assistant 3; Office
Support Supervisor 1; Paralegal 1 and 2; and Research Analyst
4. The proposed CP bargaining unit includes approximately 5.7
percent of the employer's classified workforce.
6. The proposed L&I bargaining unit includes employees in the
classifications of Legal Secretary 1, 2, and 3; Legal Support
Trainee; Office Assistant 3; Office Support Supervisor 1; and
Paralegal 1, 2, and 3. The proposed L&I bargaining unit
includes approximately 10.9 percent of the employer's
classified workforce.
7. The classifications included in the petitioned-for bargaining
units are used throughout the agency.
8. Employees in the petitioned-for classifications perform various
types of legal support work to assist attorneys in the
organization. The work performed by employees in the
petitioned-for positions is similar to that of other agency
legal support employees in the same classification.
9. All of the petitioned-for employees share similar working
conditions, as they do with other employees not included in the
units sought by the union. Matters involving employee working
conditions such as hiring, promotion, evaluation, performance
awards, hours of work, and discipline are subject to
employer-wide policies, rules, and procedures.
10. The employees in the proposed CP bargaining unit work in
offices located in Bellingham, Kennewick, Seattle, Spokane,
Tacoma, Tumwater, and Vancouver. Employees in the proposed L&I
bargaining unit work in Seattle, Spokane, Tacoma, and Tumwater.
Each of these offices houses employees who work in other
divisions and sections of the AGO.
11. The petitioned-for employees work under a "matrix" style of
management, in which they have reporting relationships to two
or more supervisors. Issues of day-to-day supervision, such as
attendance, leave requests, offers of employment, and work
station issues are the responsibility of the division chief or
manager of the specific geographic location. Those managers
also supervise employees from other legal and administrative
divisions co-located with the petitioned-for employees.
Questions concerning substantive legal issues are handled for
the petitioned-for employees by the CP and L&I division chiefs.
12. Employees in both petitioned-for units provide regular and
ongoing support to employees in divisions or work units not
included in the petitions, including matters such as routine
relief for lunch and work breaks. Petitioned-for employees in
the smaller regional offices typically are not confined to
working solely on issues of CP or L&I law. Rather, they work
in support of the attorney to whom they are assigned,
regardless of the area of the law involved.
13. Employees in the petitioned-for classifications regularly
transfer and promote to positions between and among the various
legal divisions or sections.
14. Creation of these bargaining units would create an ongoing
potential for work jurisdiction disputes because of the
integrated nature of this employer's operations and the
similarity of work performed between and among employees in the
two petitioned-for units and the rest of the classified
workforce.
15. Establishing two bargaining units that encompass the same type
of work would unduly fragment and disrupt collective bargaining
relationships.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
these matters pursuant to Chapter 41.80 RCW.
2. The bargaining units described in paragraphs five and six of
the foregoing findings of fact are not appropriate units for
the purpose of collective bargaining.
ORDER
1. The petition filed in Case 20492-E-06-3163 for investigation of
a question concerning representation is hereby DISMISSED.
2. The petition filed in Case 20705-E-06-3190 for investigation of
a question concerning representation is hereby DISMISSED.
Issued at Olympia, Washington, on this 11th 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.