EVERETT SCHOOL DISTRICT, DECISION 268, (PECB, 1977)

Everett Education Assn v. Everett School District

                                           MEMORANDUM DECISION

 

BACKGROUND

On April 28, 1976 the Everett Education Association (hereinafter referred to as "Association" or "Petitioner") filed a Request for Unit Determination with the Public Employment Relations Commission seeking a ruling as to the includability of substitute certificated employees within an existing bar­gaining unit comprised of full-time and regular part-time certificated employees of Everett School District No. 2 (hereinafter referred to as "District").  A hearing was held in Seattle, Washington on November 11 and 16, 1976 before William G. Jeffery, Hearing Officer.

The District serves some 11,000 students.  The Association and the District are parties to a collective bargaining agreement in which the bargaining unit is described as:

"All education employees, as defined by said act, of the Everett School District No. 2 who are on contract, whether full or part­time, excluding substitutes as provided herein and excluding personnel who serve in positions in the District which fit the following categories defined by EERA:

 

1.   Chief executive officer;

2.   Chief administrative officers;

3.   Confidential employees;

4.   Principals and assistant principals;

5.   Supervisors.

 

"It is agreed that current positions in the Everett School District which are therefore excluded from the bargaining unit are:

          A. Superintendent;

          B. Assistant Superintendents;

          C. Directors;

          D. Principals - Instructional Leaders;

          E. Vice Principals - Administrative Assistants -                      Associate Administrators;

          F. Coordinators;

          G. Supervisors;

          H. Assistants to the Principal - Deans - Activities                   Advisors.

 

"It is understood by the parties that the Association is currently seeking from the Public Employment Relations Commission a unit clarification as to whether substitute certificated employees should be included or excluded from the bargaining unit.

 

"While said clarification is being determined, substitutes shall not be considered to be included in the bargaining unit.  If it is finally legally determined that substitutes are to be included in the bargaining unit, the parties agree, upon request of either party, to immediately begin bargaining relative to the wages, hours, and terms and conditions of employment of said substitutes; any agreements concluded from said bargaining shall be added as addendums (sic) or amendments to this Agreement.

 

"The parties agree that these educational employees who are on leave in accordance with the collective bargaining agreement are recognized to have contractual rights in accordance with applicable provision of said Agreement."

 

POSITIONS OF THE PARTIES

The Association contends that substitute certificated employees of the District share a community of interest with the full time and regular part time certificated staff, and that the Association has bargained on their behalf; so that substitutes should be included within the existing bargaining unit.

The District contends that the petition in this matter is inappropriate, and requests its dismissal.  Further, the District argues that substitute teachers are not employees within the meaning of RCW 41.59.020(4). The District contends that substitutes lack a community of interest with the District's full time and regular part time employees, and that they should not be included within the scope of the existing bargaining unit.

 

APPROPRIATENESS OF THE PETITION

The petition in this case was filed prior to the adoption of rules for the processing of representation and unit clarification proceedings before the Commission.  The District bases its request for dismissal on the decisions of the National Labor Relations Board which hold that a unit clarification petition is inappropriate where a question concerning representation exists,  or where the disputed classification is not new but was in existence at the time of the election which resulted in the present unit. 2/ The situation here is compounded somewhat by the enactment of a new collective bargaining law and the repeal of the law (including the unit determination provisions, such as they were) which was in existence at the time the bargaining relationship between the District and the association was established.  The record discloses that the substitute classification had been in dispute for some time prior to the enactment of RCW 41.59, and there is some evidence to indicate that the Association has acted as the representative of the District's substitute teachers.  The language of the present bargaining agreement between the parties evidences a mutual intent to remove this dispute from the bargaining table and to present this matter to the Commission for determination.  The District's procedural arguments are, therefore, rejected.

 

EMPLOYEE STATUS OF SUBSTITUTES

RCW 41.59.020(4) defines "employee" in terms of all certificated employees, with some specified exceptions.  The District does not argue that substi­tutes are non-certificated employees, but rather relies upon the definition of "employee" found in the National Labor Relations Act. 3/ The NLRA definition has been interpreted to include anyone who works for another for hire, unless specifically excluded from the Act. 4/ and the record here clearly indicates that the substitutes perform work for the District for compensation.  There is no statutory exclusion of substitute teachers from the definition of "employee" or the coverage of RCW 41.59 and they must therefore, be considered employees for the purposes of RCW 41.59. Under the NLRA, unit placement does not flow automatically from holding status as an employee, and it remains to be determined whether substitute teachers should be included in a unit with full time and regular part time teachers under the EERA.

 

 

STATUTORY CRITERIA

 

The legislature has given the Commission the following guidance:

"41.59.080 Determination of Bargaining Unit--Standards.

 

In determining, modifying or combining the bargaining unit, the commission shall consider the duties, skills and working conditions of the educational employees; the history of col­lective bargaining; the extent of organization among the educational employees; and the desire of the educational employees, except that:

     (1)  A unit including nonsupervisory educational employees shall not be considered appropriate unless it includes all such nonsupervisory educational employees of the employer. . . "

 

"41.59.110 Commission, Rules and Regulations of--Federal Precedents as Standard. (1) The commission shall promulgate, revise or rescind, in the manner prescribed by the adminis­trative procedure act, chapter 34.04 RCW, such rules and regulations as it may deem necessary and appropriate to administer the provisions of this chapter, in conformity with the intent and purpose of this chapter, and consistent with the best standards of labor-management relations. (2) The rules, precedents, and practices of the national labor relations board, provided they are consistent with this chapter, shall be considered by the commission in its inter­pretation of this chapter, and prior to adoption of any afore­said commission rules and regulations." (Emphasis supplied).

 

The Commission has not adopted an administrative rule regarding the status of substitute certificated employees.  The Commission has looked to, and relied upon, the rules, practices and precedents of the National Labor Relations Board in its decisions on cases coming before it.

 

 

EVIDENCE ON DUTIES, SKILLS AND WORKING CONDITIONS

 

The recruitment and hiring of substitute teachers are conducted in a manner quite different from that used for the 600 or so regular certi­fied employees of the District.  The Everett school district receives various support services from the Educational Service District (ESD) for its area, including the processing of substitute teacher applicants.  Persons seeking employment with the Everett district as a substitute teacher must annually complete an application at the ESD office and must register a teaching certificate and a health certificate with the ESD.  The application form is designed to determine the subject, grade level and school district preferences of the applicant.  The ESD then compiles and distributes a list of available substitutes to each of the

school districts which it serves.  Of some 284 persons recently regis­tered with the ESD, 112 had no desire to work as a substitute in Everett, 147 indicated a willingness to teach in Everett along with the other school districts in the area, and only 25 desired to teach only in Everett.  Between 1973 and 1976, some 297 persons worked for the District as sub­stitutes, but only 97 (or 25.60/0' of those employed) worked as a substitute in the District for more than a single school year.  It appears that State certification requirements for substitute teachers are different from the requirements for regular certificated employees.  See: Chapter 28A.67 RCW and WAC 180.80.250.

 

The District has long maintained two distinct classes of substitutes which, for purposes of this discussion, are denominated "daily substi­tutes" and "long term substitutes".  These classifications are discussed separately here.

Daily substitutes serve on an "on call as needed" basis.  Members of the regular certificated staff of the Everett district are expected to notify the District between 6:00 a.m. and 7:00 a.m. on a work day on which they will be unavailable to perform their regular assignment.  Using the list provided by the ESD, the "substitute calling secretary" attempts to locate a replacement for the absent employee.  The secretary proceeds down the list until a suitable substitute is found who is available and willing to serve.  As additional substitutes are needed, the secretary continues down the list, resulting in a constant rotation of the starting point for substitute calling.  A person who is on the substitute list need not accept a daily substitute assignment when called in order to maintain eligibility to be called in the future.

 

The variation of assignments places daily substitutes in a variety of classes, school buildings and teaching situations.  This tends to re­strict the development of knowledge of student capabilities and educa­tional needs.  Daily substitutes are not required to prepare and imple­ment a lesson plan, but rather follow the lesson plan developed and left by the regularly assigned teacher.  Such substitute teachers are not required to participate in extra-curricular activities and they do not participate in faculty meetings.  The working hours of daily substitutes are standardized throughout the District as 8:00 a.m. to 3:30 p.m., and each such substitute must report in and out with the building administrator.  Daily substitutes are also required to leave a report of their activities for the regularly assigned teacher.

 

Pursuant to past unilateral policies and the current collective bar­gaining agreement, the District compensates its regular certificated staff according to a salary schedule which recognizes differences in both training and experience, and provides its regular certificated staff with a variety of fringe benefits, including a medical plan, liability insurance, retirement contributions, life insurance and salary continuation insurance.  By contrast, daily substitutes are compensated on a flat daily rate basis and do not enjoy any of the fringe benefits available to the regular certificated staff.  The daily substitutes have also historically been excluded from the various leave provisions made available to the regular certificated staff.

 

Historically, a daily substitute has been converted into a "long term substitute" upon the completion of 20 consecutive work days in the same assignment.  Long term substitutes have a regular schedule of hours comparable to that of the regular certificated staff, and they perform most, if not all, of the functions of the regular staff member they replace.  This includes planning, attendance at faculty meetings and work on individual student needs.  Long term substitutes are compensated under the regular certificated employee salary schedule.

None of the substitute teachers are employed pursuant to a written teaching contract with the Everett School District.  They enjoy no tenure rights and do not acquire any right or preference for regular teaching positions.

 

EVIDENCE ON HISTORY OF BARGAINING

The Association was selected as the representative of the District's certificated staff in an election held in 1966.  The Association's representation status was re-affirmed in an election held in 1975.  Obviously, both of those elections were conducted under RCW 28A.72.030 prior to the existence of the Commission.  Substitute teachers did not vote in either election, nor were they included within the scope of the bargaining unit.

 

Between 1971 and 1975, any negotiations which took place occurred under the "meet and confer" provisions of RCW 28A.72, and any negotiated agreements were incorporated in a District handbook for the school year rather than in a written and signed collective bargaining agreement.  The first appearance of a provision for substitutes occurs in the 1971-72 handbook. 6/ However, that provision was simply a restatement of prior District policy, and there is no basis for a conclusion that its incorporation in the handbook was the result of collective bargaining or even the meet and confer process.  The record does indicate that the Association played a part in obtaining an increase of the daily substitute compensation rate from $25.50 to $27.50 in the Spring of 1973.

Negotiations during 1974 resulted in the inclusion of a negotiated provision in the 1974-75 Handbook restricting the scope of employment for substitutes. 7/ It is noted that the 1973-74 Handbook contained a provision limiting the function of auxiliary personnel (teacher aides). 8/ At no time has the Association represented teacher aides, and these provisions concerning substitutes and aides appear to indicate an overall purpose on the Part of the Association to define and protect the scope of work of regular certificated personnel.

6/   Section 6 provided: "The compensation for substitute teachers shall be on a daily rate of $25.50 per day, unless the substitute replaces one teacher for more than twenty (20) successive days.  In that event, the daily rate of compensation shall be increased to contract rate starting with the 21st day.  If the regular teacher goes off contract through leave or other causes, the replacing teacher shall be hired at regular salary rate.  In any event, no two teachers will be under contract for the same position.  Principals shall be responsible for keeping the record of days taught by the substitute and shall notify the payroll officer when the 21st day of substituting shall begin. Everett School Dist No. 2, 1971-72 Handbook, p.43

 

7/   It was provided: "Substitutes serve in the absence of the regular certificated staff members.  The District will not follow the practice of using a substitute who is not filing in for a specific regularly contracted staff member except on the occasions of:

1.   Enrollment uncertainties at the beginning of a school year, or

2.   Resignations of regular staff that do not allow sufficient time

     for the District to employ an immediate replacement.  "On either of the occasions identified in the subparagraphs 1. and 2. above, the District shall employ a full-time regularly contracted staff person within a reasonable time after the initial substitute began the assignment.  All substitute teachers, K-12, will be called from the main office." Everett School Dist No, 2, 1974-75 Handbook, p.32.

 

8/ It was provided:  "A.  Auxiliary personnel shall not assume or be

   given responsibilities assigned to certificated staff--such as the following:

1, Responsibility for  deciding  each  child's  program  of  instruction,

2.   Diagnosis and evaluation of pupil's progress,

3.   Reporting to parents or guardians of student, and

4.   Responsibility for making decisions in curriculum or program development.

 

Everett School District No. 2, 1973-74 Handbook, p.59.

Finally, the evidence indicates that the Association sought the recall of long term substitutes who acted in sympathy with the Association and the regular certificated staff during a work stoppage in the District in 1976 and that these persons were subsequently re­employed.

EVIDENCE ON EXTENT OF ORGANIZATION AND DESIRES OF EMPLOYEES

There presently exists only one bargaining unit of nonsupervisory educational employees within the District, and there is no pending request for creation of a second bargaining unit.  A substitute teacher called as an Association witness testified that she was among a group of substitutes which sought out the Association to represent them in the Spring of 1973.  The record is devoid of evidence of the extent to which members of the substitute teacher classes are presently members or supporters of the Association.

 

DISCUSSION

The Act requires consideration of four basic criteria in determining unit questions, the establishment of no more than one unit of nonsuper­visory certificated employees, and consideration of the consistent precedents of the National Labor Relations Board.  Although the parties have tended to treat the substitutes as a single class, the evidence establishes the existence of two clearly distinct and identifiable situations.  Reading of the statute and the referenced precedents in harmony with one another results in a conclusion which does not embrace the all-or-nothing approach of either party.

 

As the evidence amply demonstrates, there is a strong dissimilarity in wages, hours, and terms and conditions of employment as well as other collective bargaining interests between the daily substitutes and the regular full time and regular part time certificated employees of the District.  The NLRB generally finds that "on call" employees who are employed sporadically, with no established pattern of regular continuing employment, should be excluded from bargaining units as "casual" employees. 9/ Under the NLRB decisions, the option of

 

 

9/  Glynn Campbell, d/b/a/ Piggly Wiqqly El Dorado Co., 154 NLRB 445

    (1965); G. C. Murphy Co., 128 NLR6 908 (1960)

 

 

employees on a list subject to call to accept or reject offers of work militates in favor of a finding of casual employment.  10/  The record demonstrates some bargaining history by the Association with respect to substitutes, but this history has been far from regular and continuing and may even be interpreted as including provisions contrary to the interests and opportunities of substitutes.   The NLRB will not give controlling weight to a less than effective bargaining history. 11/ The undersigned is persuaded that the NLRB would exclude the daily substitutes from the bargaining unit as casual employees, and that such an exclusion is consistent with both the EERA and the best standards of labor-management relations.

 

A different situation is recognized with respect to the long term substi­tutes.  It is clear from the record that the long term substitutes perform the same functions as the employees within the existing bar­gaining unit, albeit on a tenure arrangement which is different 1-rom members of the regular certificated staff.  Even at that, regular certificated staff members are employed under individual employment contracts for only one year at a time, and face the possibility of nonrenewal following the completion of any school year.  The differences in tenure, standing alone, are not sufficient to destroy the mutuality of interest which other-wise appears to exist between the long term substitute and the regular teacher.  The Association, as the exclusive representative, has historically showed some interest in the definition and preservation of the work of its unit, and will continue to have that interest in the future.  Where it is known at the outset of an absence of a member of the regular certificated staff that the absence will be of a long term nature, or where it appears during such an absence that the absence which started out as one of short duration has or will become a long term absence, the position should be regarded as a bargaining unit position and the individual hired to fill that position (and all or almost all of its duties) should be entitled to the rights and protections which flow from coverage of the Act and representation by the Association.  The past practice of the Everett School District clearly establishes the recognized point for long term substitution as 20 consecutive work days, and reliance on any different period here would, under this record, be purely arbitrary and speculative.

lo/  Rollo Transit Corp., 110 NLRB 1623 (1954):  M.J. Pirolli & Sons, Inc.

    194 NLRB 241 (1972).

 

 

II/  See, eg., Duke Power Co., Lee Steam Station, 191 NLRB 308 (1971) Heublein, Inc., 119 NLRB 1337 R-9-58)

 

On the basis of the above and foregoing, the Executive Director makes the following:

 

FINDINGS OF FACT

 

     1.   Everett School District No. 2 has recognized Everett Education Association as the exclusive representative in a unit of full time and regular part time certificated employees of the Everett School District.

     2.   A dispute has arisen as to whether substitute certificated emp­loyees are to be included in or excluded from the bargaining unit con­sisting of full time and regular part time certificated employees of the Everett School District.

     3.   Everett School District employs two distinct classes of substitute certificated employees.  Daily substitute certificated employees have distinctly separate duties, skills and working conditions as compared to full time and regular part time certificated employees of the District.  Long term, substitute certificated employees have duties, skills and working conditions generally comparable to those of full time and regular part time certificated employees of the District.

     4.   Daily substitute certificated employees of the District are employed on an on call basis, with an employee right of rejection of offers of employment without penalty of forfeiture of future employ­ment opportunity, and are casual employees.

     5.   Positions vacated by a member of the District's regular certifi­cated staff for a period in excess of 20 consecutive work days have been recognized as calling for the performance, by a long term substitute teacher of most, if not all, of the duties of the regular staff member being replaced, and such positions are regular part time positions.

CONCLUSIONS OF LAW

 

     1.   The Public Employment Relations Commission has jurisdiction to resolve in these proceedings a dispute concerning the scope of the bargaining unit described in finding of fact number 1.

     2.   Casual employees are to be excluded from bargaining units, but regular part time employees are to be included in bargaining units created under RCW 41.59.080.

ORDER

 

     1.   Substitute certificated employees employed by the District on a daily basis on call as needed are not included in the appropriate bar­gaining unit in which Everett Education Association is recognized as the exclusive representative of certificated employees of Everett School District No. 2.

 

     2.   The appropriate bargaining unit in which Everett Education Association is recognized as the exclusive representative of certifi­cated employees of Everett School District No. 2 is hereby clarified to include the occupants of positions, also known as long term substi­tutes, where it is anticipated or comes to pass that a member of the bargaining unit will be absent from his or her regular assignment and will be replaced in such assignment for a period in excess of 20 con­secutive work days.

DATED at Olympia, Washington this            day of         1977.

 

 

 

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

 

MARVIN L. SCHURKE, Executive Director