Western Washington University, Decision 8871-A (FCBA, 2005)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
UNITED FACULTY OF WESTERN ) CASE 19049-E-04-03022
WASHINGTON/UNITED FACULTY OF )
WASHINGTON STATE ) DECISION 8871-A - FCBA
)
Involving certain employees of: )
) DIRECTION OF ELECTION
WESTERN WASHINGTON UNIVERSITY )
___________________________________)
Eric R. Hansen, Attorney at Law, for the union.
Attorney General Rob McKenna, by Wendy Bohlke, Assistant
Attorney General, for the employer.
This case filed by United Faculty of Western Washington / United
Faculty of Washington State (union) in December 2004 involves the
faculty of Western Washington University (employer). Description of
the initial processing of the case in Western Washington University,
Decision 8871 (FCBA, 2005),(fn:1) is incorporated here by reference.
Hearing Officer David Gedrose held a hearing on April 20, 21, 28,
29, and May 5 and 6, 2005. The parties filed briefs.
____________________
fn:1 Assistant deans were excluded from the bargaining unit by
summary judgment, but a hearing was ordered on issues concerning
part-time employees and managers/supervisors.
ISSUES
1. Should persons who perform faculty duties between one-sixth and
one-half of full-time be excluded from the bargaining unit as
casual employees and/or as temporary employees?
2. Should persons working under "department chair" and/or
"director" titles and be excluded from the bargaining unit as
administrators?
The Executive Director rules that the bargaining unit properly
includes the disputed persons, and directs an election.
THE EMPLOYMENT SETTING
Western Washington University is a state institution of higher
education located in Bellingham, Washington. It is operated under
the direction of a board of trustees appointed by the Governor, and
is headed by a president appointed by the board of trustees. Its
academic affairs division is headed by an individual holding dual
titles as provost and vice president for academic affairs, and is
organized into seven colleges, the university libraries, and a
graduate school. Each college is headed by a dean and has faculty
members associated with it. The library system is headed by the
university librarian, and has faculty members associated with it.
The graduate school is headed by a dean, but draws its faculty from
the colleges. Some colleges are further divided into departments,
where one of the faculty members associated with the department will
be designated as department chair. Ten interdisciplinary programs
headed by directors (ranging from Canadian-American Studies to the
Honors Program) utilize faculty associated with other colleges or
departments, so that the program director may be the only faculty
member directly associated with the program.
ISSUE 1 - INDIVIDUALS WORKING LESS THAN FULL-TIME
The union seeks certification for a bargaining unit encompassing all
persons who hold faculty status or perform faculty duties for more
than one-sixth of full-time within an academic year. The employer
acknowledges that faculty who work half-time or more are eligible
for inclusion in the bargaining unit, but would have persons who
work between one-sixth of full-time and half-time excluded as
"casual" and/or "temporary" employees.
The Applicable Legal Standards
This case arises under the Faculty Collective Bargaining Act,
Chapter 41.76 RCW (FCBA). Definitions in that statute include:
RCW 41.76.005 DEFINITIONS. The definitions in this
section apply throughout this chapter unless the context
clearly requires otherwise.
(1) "Faculty governance system" means the internal
organization that serves as the faculty advisory body and is
charged with the responsibility for recommending policies,
regulations, and rules for the college or university.
. . .
(5) "Faculty" means employees who, at a public four-year
institution of higher education, are designated with faculty
status or who perform faculty duties as defined through
policies established by the faculty governance system,
excluding casual or temporary employees, administrators,
confidential employees, graduate student employees,
postdoctoral and clinical employees, and employees subject to
chapter 41.06 or 41.56 RCW.
. . .
(11) "Bargaining unit" includes all faculty members of all
campuses of each of the colleges and universities. Only one
bargaining unit is allowable for faculty of each employer, and
that unit must contain all faculty members from all schools,
colleges, and campuses of the employer.
(emphasis added). A Commission rule (which pre-existed the FCBA and
codified precedents developed from a wide variety of employment
settings) addresses this issue, as follows:
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. For employees of school districts
and educational institutions, the term "time normally worked by
full-time employees" shall be based on the number of days in
the normal academic year.
(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.
Both the statute and WAC 391-35-350 were interpreted and applied in
Central Washington University, Decision 8127-A (FCBA, 2003) and
Eastern Washington University, Decision 8678 (FCBA, 2004).
Analysis of Issue 1
The employer's workforce includes tenured and probationary faculty
who work half-time or more, the disputed employees, and persons who
the parties stipulate to exclude from the bargaining unit (because
they teach less than one-sixth of full-time). The disputed
employees are in several categories, including:
* Employees who teach one or more regular courses, or are
employed solely for special courses. Many of the lecturers
return to teach for the employer year after year; some of them
also teach courses at other institutions of higher education.
* Emeritus faculty, who may have been tenured faculty prior to
retirement and who teach limited numbers of courses.
* Visiting professors, who may retain permanent employment at
other institutions while teaching at this institution for a
specific period of time.
The employer relies heavily on disputed employees to fulfill its
mission.
The Form of Contracts Signed by Part-Time Employees
Early in the processing of this case, the employer appeared to argue
that having fixed expiration dates in individual contracts was a
basis to exclude the disputed employees from the bargaining unit.
On March 31, 2005, after the notice of hearing was issued, the
employer's attorney filed a letter in which she wrote:
I write to ensure that the scope of the hearing . . . will
include those matters referenced by Executive Director Marvin
L. Schurke in [Decision 8871]. In particular, I wish to ensure
that I am able to put on evidence pertaining to faculty
employed pursuant to contracts which place them in categories
under PERC rules as being ineligible to vote, i.e., casual or
temporary status under WAC 391-35-350, due to the type of
contract they held. . . .
(emphasis added.) The employer's principal brief notes testimony
establishing that the contracts for the disputed employees are
"prepared on a single form that can be used for all limited term
faculty types . . ."(fn:2)
____________________
fn:2 Employer's post-hearing brief at page 5, citing Exhibit 3 and
pages 40-47 of the transcript.
Consistent with the foregoing, the union's principal brief addressed
"whether employees who have contracts with an explicit date of
termination" should be excluded from the bargaining unit.(fn:3)
____________________
fn:3 Union's post-hearing brief at page 47.
Contradicting its earlier indications, the employer's reply brief
accuses the union of proffering a rebuttal to an argument the
employer "simply did not make" and states that the employer "is not
arguing that temporary and limited term employees whose contracts
contain a specific termination date should be excluded from the unit
. . . ." The employer is thus understood to have abandoned any
claim that the presence of an explicit termination date in the
contracts signed by disputed employees is a basis to exclude them
from the bargaining unit. Accordingly, the Executive Director has
not decided the issue here.(fn:4)
____________________
fn:4 Omission of analysis of this issue here should not be
interpreted as accepting that the terms of individual employment
contracts signed outside of a collective bargaining context could
ever have the effect earlier ascribed to them by the employer, or as
condoning continuation of individual contracting as an employment
practice if the employees select an exclusive bargaining
representative for the purposes of collective bargaining under the
FCBA. See Ridgefield School District, Decision 102-B (EERA, 1977),
citing NLRB v. General Electric Co., 418 F.2d 736 (2nd Circuit,
1969), cert. den. 397 U.S. 965 (1970) in pointing out the inherent
conflict between the collective bargaining process and any attempt
to have bargaining unit members sign individual employment
contracts.
Faculty Governance System Does Not Equate With Bargaining Unit
The employer mistakenly equates inclusion in the bargaining unit
with rights under its faculty governance system. The union properly
maintains its focus in this case on the provisions of the FCBA.
The employer has a faculty governance system, as described in a
faculty constitution which has been in effect since 1979,(fn:5) and a
comprehensive faculty handbook. Employees who work half-time or
more are eligible to participate in the faculty governance system
by voting, serving in the faculty senate, and generally having a
voice in faculty matters. With artful vetoes of provisions that had
been amended to force a choice between faculty governance and
collective bargaining, the FCBA signed into law by former Governor
Gary Locke permits the faculty governance and collective bargaining
systems to co-exist at the six covered institutions.
____________________
fn:5 Contrary to the employer's reply brief, the Commission was
created by Chapter 41.58 RCW in 1975.
A reallocation of functions will occur if the faculty selects an
exclusive bargaining representative under the FCBA. The faculty
senate has acted in the past on a wide range of matters that
included faculty salaries along with curriculum, academic programs,
status, and scholarly activities, but that scope of activity would
need to be divided:
* All debate concerning wages, hours and other terms and
conditions of employment of bargaining unit members would be
shifted to the collective bargaining forum, where the employer
and union would have a duty to bargain in good faith.
* The faculty governance system and faculty senate can continue
to exist, and can continue to deal with matters that are not
mandatory subjects of bargaining under the FCBA.
The employer's attempt to distinguish the Central Washington case on
the basis that its faculty governance system and faculty voting
rights predate enactment of the FCBA, is not persuasive. The FCBA
acknowledged the existence of faculty governance systems among the
institutions it covers, but created a new set of rights and
obligations that go beyond historical systems. Much as it might
wish it were otherwise, this employer cannot overrule or negate the
statute passed by the Legislature and signed by the Governor.
Symmetry of membership need not exist between faculty governance
systems and FCBA bargaining units at the covered institutions:
* Presidents, vice-presidents, and other administrators who may
have voting rights in the faculty governance system must
nevertheless be excluded from FCBA bargaining units under RCW
41.76.005(9).
* Persons that lack voting rights in the faculty governance
system at a covered institution must nevertheless be included
in the FCBA bargaining unit if they have collective bargaining
rights under the FCBA under RCW 41.76.005(5).
The task at hand is to determine eligibility for inclusion in the
FCBA bargaining unit. The Executive Director does not thereby alter
eligibility for the employer's faculty governance system.
Community of Interest Criteria Inapposite -
The employer contends the disputed employees lack a community of
interest with faculty members who work half-time or more, but it
merely circles back to argue that its faculty governance system
would be negatively altered by the inclusion of the disputed
employees in the bargaining unit. Moreover, the employer cites no
statutory basis for it to assert (or for the Commission to consider)
a community of interest issue under the FCBA.
The "community of interest" refers to the unit determination
criteria set forth in the Public Employees' Collective Bargaining
Act applicable to local government and in the Personnel System
Reform Act applicable to state civil service employees, as follows:
RCW 41.56.060 DETERMINATION OF BARGAINING UNIT
BARGAINING REPRESENTATIVE. (1) The commission, after hearing
upon reasonable notice, shall decide in each application for
certification as an exclusive bargaining representative, the
unit appropriate for the purpose of collective bargaining. 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 41.80.070 BARGAINING UNITS CERTIFICATION. (1) . . .
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 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.
(emphasis added). Importantly, no such provisions exist within the
FCBA. To the contrary (and consistent with statutes that require
employer-wide units in the common schools,(fn:6) and in the community
colleges),(fn:7) RCW 41.76.005(11) requires employer-wide units under
the FCBA. Thus, the statute itself preempts any "community of
interest" analysis under the FCBA.
____________________
fn:6 In the first sentence of RCW 41.59.080, the Legislature
appeared to give the Commission authority to apply traditional
"community of interest" considerations, but it then negated that
authority by requiring employer-wide units in RCW 41.59.080(1).
fn:7 RCW 28B.52.030 contains singular language, and has been
interpreted as requiring employer-wide units. Community College 10
(Green River), Decision 4491-A (CCOL, 1994); Community College 13
(Lower Columbia), Decision 3987-A (CCOL, 1992).
Application of "Performs Faculty Duties" Language
The employer does not address the "perform faculty duties" language
of RCW 41.76.005(5), but that language was key to the earlier
interpretations of the FCBA:
The definition of "faculty" in RCW 41.76.005(5) contains three
components, as follows:
First, any individuals "designated with faculty status"
are included in "faculty" (and hence must be included in any
bargaining unit created under the FCBA);
Second, any individuals "who perform faculty duties as
defined through policies established by the faculty governance
system" are included in "faculty" (and hence must be included
in any bargaining unit created under the FCBA); and
Third, any individuals who are "casual or temporary
employees, administrators, . . ." are excluded from "faculty"
(and hence must be excluded from any bargaining unit created
under the FCBA).
. . .
Both Parties ... Improperly Nullify Words of the Statute
The union's position must ... be rejected because it would
render the first component of the FCBA definition of "faculty"
meaningless. The employer's position must also be rejected
because it would deprive the second component of any
independent operation.
Conclusions as to "Faculty" -
The improper attempts of both parties to add to or negate the
words of the statute do not render it ambiguous. ... [Footnote
included: The Legislature used "or" between the phrases "...
are designated with faculty status" and "who perform faculty
duties ... " in RCW 41.76.005(5). Courts presume "or" is used
disjunctively unless there is clear legislative intent to the
contrary. State v. Weed, 91 Wa.App. 810 (1998), (citing State
v. Bolar, 129 Wn.2d 361 (1996)), review denied, 137 Wn.2d 1010
(1999). Nothing is cited or found in the FCBA that evidences a
clear legislative intent that the "or" in RCW 41.76.005(5) was
to be given a meaning other than the normal disjunctive.
Reading the section disjunctively requires a conclusion that
the Legislature did NOT intend to give faculty governance
systems the sole discretion and authority to make
determinations as to the make-up of bargaining units and did
NOT intend to give the employers sole discretion as to the
make-up of bargaining units. Just as the phrase on the left
side of the "or" does not contain any reference to faculty
governance systems, the phrase on the right side of the "or"
does not contain any reference to board approval of the
definitions created by a faculty governance system.]
Giving meaning to all of the words used in the statute (and
only the words used in the statute), the Executive Director
concludes:
First, there is nothing a Faculty Senate can do to negate
the FCBA eligibility of an individual who is "designated with
faculty status" by the employer's board of trustees or by some
other source of authority; and
Second, there is nothing an employer's board of trustees
can do to negate the FCBA eligibility of individuals who
perform "faculty duties" as defined by the Faculty [governance
process].
Central Washington University, Decision 8127-A (emphasis added).
Similarly, rejection of a bargaining unit structure agreed upon by
an employer and union as part of an ad hoc relationship included:
[H]istory is not binding upon the Commission in this
proceeding. It has long been established that:
Unit definition is not a subject for bargaining in the
conventional mandatory/permissive/ illegal sense, although
parties may agree on units. Such agreement does not
indicate that the unit is or will continue to be
appropriate. [footnotes omitted]
City of Richland, Decision 279-A (PECB, 1978), aff'd, 29 Wn.
App. 599 (1981), review denied, 96 Wn.2d 1004 (1981). The FCBA
is now in effect, and this case must be decided under that
statute. The FCBA does not contain any "grandfather" provision
carrying over collective bargaining relationships that existed
prior to the effective date of the new law. [Footnote omitted]
Conformity with Chapter 41.76 RCW
Inclusion of Regular Part-Time Employees -
The proposed unit description goes beyond the full-time
employees covered by the historical unit description to include
regular part-time employees, yet excludes casual and temporary
employees as defined in WAC 391-35-350. That is consistent
with the interpretation of the FCBA in Central Washington
University, Decision 8127-A . . . .
Inclusion of Faculty Status Employees -
The proposed unit description goes beyond the "regularly
contracted" employees . . . to include all employees designated
with faculty status. That is also consistent with the Central
decision . . . .
Eastern Washington University, Decision 8678 (FCBA, 2004) (emphasis
added). The FCBA must be enforced here according to its terms.
The faculty duties defined by the faculty governance system place
teaching first and foremost, consistent with the very nature of the
institution in which this case arises. The employees who work
half-time or more are also eligible to participate (or may even be
expected/required to participate) in related functions such as being
a program director or department chair, working on committees,
advising students, and conducting research.
The disputed employees teach and/or research in the vast majority of
situations described in this record. Even if they do not serve as
program directors or department chairs, work on committees, or
advise students, they clearly perform work within the faculty duties
described in the faculty governance documents.
The employer has an ongoing need for the teaching provided by
disputed employees, if it is to provide the course offerings
demanded by its students. This situation compares closely with that
of the community colleges in this state, which maintain cadres of
part-time employees to fill assignments beyond the capacity of their
full-time faculty on a course-by-course basis. See Community
College District 12, Decision 2374 (CCOL, 1986). This situation
also has some fundamental resemblance to the situations of common
school districts, which maintain cadres of part-time employees to
fill out assignments beyond the capacity of their full-time faculty
on a day-by-day basis. See Columbia School District, et al.,
Decision 1189-A (EDUC, 1981). Employees who teach one-sixth of
full-time are included in the same bargaining units with full-time
employees at Central Washington University, at Eastern Washington
University, in the community colleges, and in the common schools,
and there is no evidence warranting a different result here.
Computation of the one-sixth standard under WAC 391-35-350 must be
based on the practices in the particular employment setting. In
this case, the rule requires that the computation be based on the
normal academic year. Although the testimony described variances of
practices among the employer's various departments and academic
units,(fn:8) that does not present an insurmountable problem. This
employer has managed to measure eligibility for participation in its
faculty governance system in the past, so there is every reason to
expect that it is capable of re-doing the one-half math it has
historically used at the one-sixth level.(fn:9)
____________________
fn:8 The employer's human relations department defines full-time as
teaching 12 credits per quarter (36 credits in an academic year),
while some of the academic units use a "six courses per year" or a
"seven courses per year" or a "30 credits per year" standard.
fn:9 In the departments that compute full-time status on the basis
of six or seven courses per year, part-time employees may attain
bargaining unit status upon being hired to teach one class each in
one or two quarters. If the credits-based standard used in the
employer's human resources department were to be applied, an
employee would attain the one-sixth threshold upon being hired to
teach two credits per quarter for three quarters, or three credits
per quarter for two quarters, or six credits within one quarter.
Similar computations would apply to the graduate school and
university libraries, to the extent they might now, or in the
future, hire employees to work less than half-time.
ISSUE 2 - THE DEPARTMENT CHAIRS AND PROGRAM DIRECTORS
The employer seeks exclusion of all department chairs and program
directors from the bargaining unit, claiming they come within the
definition of "administrator" in the FCBA. The union contends the
department chairs and program directors lack sufficient authority to
justify their exclusion from this bargaining unit, which would
exclude them from all rights conferred by the FCBA.
Applicable Legal Principles
The FCBA contains definitions and terms which must be interpreted
and applied to resolve this issue:
RCW 41.76.005 DEFINITIONS. The definitions in this
section apply throughout this chapter unless the context
clearly requires otherwise.
. . .
(5) "Faculty" means employees who, at a public four-year
institution of higher education, are designated with faculty
status or who perform faculty duties as defined through
policies established by the faculty governance system,
excluding casual or temporary employees, administrators,
confidential employees, graduate student employees,
postdoctoral and clinical employees, and employees subject to
chapter 41.06 or 41.56 RCW.
. . .
(9) "Administrator" means deans, associate and assistant
deans, vice-provosts, vice-presidents, the provost,
chancellors, vice-chancellors, the president, and faculty
members who exercise managerial or supervisory authority over
other faculty members. . . .
(emphasis added). There is no claim or evidence that any of the
department chairs or program directors have the "labor nexus" that
would be necessary to exclude them as a "confidential" employee.
The "managerial" and "supervisory" in the FCBA are familiar terms in
labor-management relations:
* The Supreme Court of the United States affirmed an exclusion of
managerial employees in NLRB v. Bell Aerospace Co. Division,
Textron, 416 U.S. 267 (1974), but that exclusion is variously
limited to "persons who formulate and effectuate management
policies by expressing and making operative the decisions of
their employer" or "who have discretion in the performance of
their jobs independent of their employer's established policy"
or who "represent management interests by taking or
recommending discretionary actions that effectively control or
implement employer policy." Hardin and Higgins, Developing
Labor Law, 4th Edition (BNA Books, 2001) at 2121.
* The National Labor Relations Act excludes "supervisors" from
all bargaining rights, Chapter 41.80 RCW limits "supervisors"
to bargaining in separate bargaining units, Chapter 41.59 RCW
effectively limits "supervisors" to bargaining in separate
bargaining units, and Chapter 41.56 RCW has been applied to
require separation of supervisors to avoid the potential for
conflicts of interest that would otherwise occur in mixed
units. City of Richland, Decision 279-A (PECB, 1978), aff'd,
29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).
The employer cites multiple decisions of the Michigan Employment
Relations Commission, as well as decisions from labor relations
agencies in Illinois, California, and New York, but those decisions
are not binding precedent. Moreover, the persuasiveness of those
decisions cannot be evaluated because the employer failed to set
forth the statutory language on which they are based.
The absence of definitions of "managerial" and "supervisory" within
the FCBA makes that statute similar to Chapter 41.56 RCW. When
"supervisor" issues arise under Chapter 41.56 RCW, the Commission
looks to the definition of "supervisor" in Chapter 41.59 RCW as
indicating the types of authority that have the potential to create
conflicts of interest:
. . . [S]upervisor . . . means any employee having authority,
in the interest of an employer, to hire, assign, promote,
transfer, layoff, recall, suspend, discipline, or discharge
other employees, or to adjust their grievances, or to recommend
effectively such action, if in connection with the foregoing
the exercise of such authority is not merely routine or
clerical in nature but calls for the consistent exercise of
independent judgment, and shall not include any persons solely
by reason of their membership on a faculty tenure or other
governance committee or body. The term "supervisor" shall
include only those employees who perform a preponderance of the
above-specified acts of authority.
RCW 41.59.020(4)(d).(fn:10) Thus, even though the employer correctly
points out the absence of Commission precedents concerning
department chairs and program directors in institutions of higher
education awarding baccalaureate and higher degrees, there are
abundant Commission precedents going back to City of Richland,
Decision 279-A, which provide guidance for distinguishing between
rank-and-file employees and their excludable supervisors.
____________________
fn:10 That definition resembles the definitions of "supervisor" in
the National Labor Relations Act and Chapter 41.80 RCW, apart from
the "preponderance" test which adjusts for the centralization of
decision-making authority in the public sector.
Federal precedents on higher education are inapposite in this case.
The Supreme Court of the United States ruled that faculty members at
a private university were all managerial and/or supervisory in NLRB
v. Yeshiva University, 444 U.S. 672 (1980), but that does not
provide basis to apply similar reasoning in this case. Our
Legislature must be presumed to have been aware of the Yeshiva
decision handed down in 1980 when it went in exactly the opposite
direction by enacting collective bargaining rights for higher
education faculty members in 2002. Enactment of the FCBA thus
overruled the Yeshiva precedent for the six state higher education
institutions covered by the FCBA.
Analysis of Department Chairs
Review of the evidence in this record fails to establish that the
department chairs either exercise sufficient independent discretion
to be categorized as "managerial" or exercise sufficient authority
over subordinates to be categorized as "supervisory" personnel.
Department chairs are recommended by the faculty members in their
respective departments for specific terms, rather than being
selected by the employer. Although their appointments are
formalized by a senior administrator, there is no evidence that any
senior administrator could appoint a department chair who had not
been recommended by his/her colleagues within the department. This
seriously erodes any suggestion that the department chairs are the
supervisors of the employees who put them in office.
Department chairs are conduits for upbound information between the
faculty members in their respective departments and the employer's
administration. The record indicates that department chairs forward
recommendations to the employer's administration on matters within
traditional "supervisor" definitions (including hiring,
evaluations,(fn:11) promotions and assignments), but that only occurs
after full consultation with and collaboration among the faculty
members in their respective departments. Department chairs also
consult with faculty members in their respective departments
concerning budget, curriculum, course schedules, workloads, and
space needs. The hiring and evaluation of part-time employees is
usually done by the department chairs in consultation with other
faculty members in their respective departments.(fn:12) The record
shows that department chairs would never consider overruling faculty
decisions.
____________________
fn:11 Sometimes, the department chairs are, themselves, evalua-ted
by the faculty members in their departments.
fn:12 Some departments select lecturers for inclusion in a pool of
potential lecturers, and department faculty are part of the process
for that selection. In some cases, students evaluate lecturers. In
some departments, either the entire department faculty, or a
committee of the faculty, evaluates lecturers. Some lecturers
evaluate themselves. Lecturers do not evaluate the department
chairs. Based on the record, inclusion of lecturers in the same
bargaining unit as department chairs would not create a conflict of
interest that outweighs the benefit of bargaining unit membership.
Department chairs lack authority on key matters within traditional
"supervisor" definitions (including transfer, suspension, layoff,
recall, and discharge of faculty members). Department chairs do not
adjust the grievances of other faculty members.
Department chairs are comparable to leadworkers, who have been
included, under innumerable Commission precedents, in the same
bargaining units with the employees they lead. Testimony of several
witnesses called by both parties was consistent in establishing that
the department chairs facilitate collaboration, rather than
exercising authority. It is clear that they continue to teach, to
counsel students, and to conduct research. Department chairs
consider themselves faculty members, they are so considered by other
faculty members, and they are defined as faculty in the faculty
handbook.
Department chairs lack authority to manage on behalf of the
employer. The record is clear that the employer's faculty system is
geared toward achieving consensus in determining matters of interest
to faculty members. Testimony given by the employer's provost under
cross-examination is fatal to any suggestion that the department
chairs exercise managerial discretion:
Q. [By Mr. Hansen] Now, at some point though isn't it
provided by university policy that the faculty -- if a
department chair wishes to continue in that capacity at
the end of their term that the faculty in the department
have to indicate whether or not they would approve that
individual from serving again as a chair of their department?
A. [By Mr. Bodman] I think the specifics of that vary from
place to place in the university but it's certainly the
case that if you wanted -- and I think any dean or any
provost would say this -- if you have a chair who does not
support the majority of his or her department it is
extremely unlikely you would want him or her to continue.
Transcript, pages 78-79 (emphasis added).(fn:13) Against that
background, the fact that recommendations forwarded by department
heads are rarely rejected by the employer's administration is more
attributable to the consultation and collaboration process within
the respective departments, than to any authority inherent to the
department head role or delegated by the employer. The convincing
evidence supports a conclusion that the department chairs primarily
act in the interest of the faculty members in their respective
departments, rather than primarily acting in the interest of the
employer.
____________________
fn:13 Notwithstanding this significant admission against interest
by the senior employer witness in this case on the first day of the
hearing, the employer continued to call witnesses for its
case-in-chief through three additional days of hearing (608
additional pages of transcript, constituting 59% of the entire transcript).
Department chairs do not equate with assistant deans,
notwithstanding the employer's claim that they share some
characteristics. The FCBA specifically excludes assistant deans
from its coverage, but leaves department chairs (where they exist)
subject to the "exercise managerial or supervisory authority over
other faculty members" test. As with the rejection of parties'
attempts to add to or ignore the FCBA in Central Washington
University, Decision 8127-A, the Executive Director declines to
write a categorical exclusion of department chairs into the statute.
Analysis of Program Directors
The employer appoints faculty members to the disputed director
positions, and it contends they should be excluded from the
bargaining unit as administrators. The union contends the program
directors are faculty members who should be included in the
bargaining unit.
A "supervisory" classification is inapt where no other faculty
members are directly associated with the programs headed by the
disputed directors. Although the absence of faculty consensus for
appointment/reappointment distinguishes the program directors from
the department chairs in a manner that weighs in favor of the
employer, the fact that the program directors do not supervise any
other faculty members is fatal to any claim of supervisory status
under the FCBA. Accepting that program directors may supervise
non-faculty employees who work on their projects or programs, the
"exercise managerial or supervisory authority" exclusion in RCW
41.76.005(9) is expressly limited to interactions with other faculty
members. At most, program directors provide evaluation input to the
departments from which program faculty are drawn, which merely puts
the information into the collaborative processes within those
departments and certainly falls far short of the "effective
recommendation" required for supervisor status.
A "managerial" classification is not established in this record, for
multiple reasons. At a minimum, any managerial authority exercised
by the disputed program directors is not "exercised . . . over other
faculty members" so as to invoke RCW 41.76.005(9). The disputed
directors engage in planning activities, they oversee the budgets
for their respective programs, and they coordinate with outside
entities, but the employer has not provided evidence sufficient to
show that any of those activities are significantly different from
matters on which other faculty members collaborate in the settings
of their respective departments. At least the program director in
an Institute of Environmental Toxicology considers part of his role
to include teaching graduate and undergraduate students who work in
the program and receive academic credit for their work, and the
program director in an Institute for Watershed Studies sees her
primary job as providing research support for students, faculty and
staff in that subject area. The heavy interaction between the
disputed directors and students is a production function, and weighs
against depicting them as "managers" of the type described in
federal precedents such as Bell Aerospace, 416 U.S. 267, and its
progeny. Moreover, the evidence provided by this employer suggests
the deans and provost exercise substantial oversight, and so falls
far short of establishing that the disputed program directors
formulate and effectuate management policies, have discretion in the
performance of their jobs independent of their employer's
established policy, or take and recommend discretionary actions that
effectively control or implement employer policy.
Conclusion on Department Chairs and Program Directors
On the record made in this case, the department chairs and program
directors are faculty members who are eligible for inclusion in the
bargaining unit proposed for creation under the FCBA.
FINDINGS OF FACT
1. Western Washington University (employer) is a state institution
of higher education, and is an employer under RCW 41.76.005(7).
2. United Faculty of Western Washington / United Faculty of
Washington State (union), a bargaining representative within
the meaning of RCW 41.76.015, has filed a properly supported
petition seeking certification as exclusive bargaining
representative for faculty employees of the employer.
3. The employer and union disagreed as to the propriety of
including employees who teach between one-sixth and one-half of
full-time in the bargaining unit, and a hearing was held in
this case under WAC 391-35-350(3), to afford the employer an
opportunity to provide evidence warranting application of a
test for casual status different from WAC 391-35-350(1). The
evidence produced at the hearing establishes that teaching has
been, and continues to be, the first and foremost duty outlined
for faculty members in the employer's faculty governance
documents, that the disputed part-time employees are primarily
employed to teach classes for the employer, and that the
employer has an ongoing need for a cadre of part-time faculty
to teach courses that cannot be covered by faculty members who
work half-time or more.
4. The employer and union disagreed as to the propriety of
including department chairs in the bargaining unit, and a
hearing was held in this case to afford the employer an
opportunity to provide evidence warranting their exclusion
under RCW 41.76.005(9). The evidence produced at the hearing
establishes that the department chairs are only appointed with
the consent (by election or consensus) of the faculty members
in the respective departments, that they are subject to
reappointment only with the consent (by election or consensus)
of the faculty members in the respective departments, that they
lead or facilitate collaborative decision-making processes
within their respective departments, and that they convey
information to the employer's administration from their
respective departments.
5. The employer and union disagreed as to the propriety of
including program directors in the bargaining unit, and a
hearing was held in this case to afford the employer an
opportunity to provide evidence warranting their exclusion
under RCW 41.76.005(9). The evidence produced at the hearing
establishes that the program directors are appointed by the
employer's administration, but that they do not exercise
independent authority or make effective recommendations on the
employment status or conditions of other faculty members. The
employer failed to establish that the ministerial activities
conducted by the program directors with respect to planning,
budgets or relations with outside entities predominate over
providing instruction or research support to students or staff.
The employer failed to establish that the program directors
formulate and effectuate management policies, have discretion
in the performance of their jobs independent of the employer's
policy, or take and recommend discretionary actions that
effectively control or implement employer policy.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under RCW 41.76.020 and Chapter 391-25 WAC.
2. Persons who teach or perform other faculty duties (as defined
by the employer's faculty governance documents) for one-sixth
or more of the full-time workload in their respective
department or program, as described in paragraph 3 of the
foregoing findings of fact, are faculty members within the
meaning of RCW 41.76.005(5) and WAC 391-35-350, and are
properly included in any bargaining unit created under Chapter
41.76 RCW.
3. As described in paragraph 4 of the foregoing findings of fact,
the department chairs at Western Washington University are
faculty members within the meaning of RCW 41.76.005(5), and are
not administrators within the meaning of RCW 41.76.005(9), so
that they are properly included in any bargaining unit created
under Chapter 41.76 RCW.
4. As described in paragraph 5 of the foregoing findings of fact,
the program directors at Western Washington University are
faculty members within the meaning of RCW 41.76.005(5), and are
not administrators within the meaning of RCW 41.76.005(9), so
that they are properly included in any bargaining unit created
under Chapter 41.76 RCW.
5. A bargaining unit consisting of all full-time and regular
part-time employees of Western Washington University who are
either designated with faculty status or perform faculty duties
as defined in the faculty governance documents of the employer,
excluding casual or temporary employees (as defined in WAC
391-35-350(2)), administrators, confidential employees,
graduate student employees, postdoctoral and clinical
employees, and all other employees of the employer, is the only
appropriate bargaining unit under RCW 41.76.005(11) and
41.76.025, and a question concerning representation currently
exists under RCW 41.76.020, in that unit.
DIRECTION OF ELECTION
A representation election shall be conducted by secret ballot, under
the direction of the Public Employment Relations Commission, in the
appropriate bargaining unit described in paragraph 5 of the
foregoing conclusions of law, for the purpose of determining whether
a majority of the employees in that unit desire to be represented
for the purposes of collective bargaining by United Faculty of
Western Washington / United Faculty of Washington or by no
representative.
Issued at Olympia, Washington, on the 5th day of December, 2005.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARVIN L. SCHURKE, Executive Director
This order may be appealed by filing
timely objections with the Commission
under WAC 391-25-590.