CHAPTER I


AGENCY OVERVIEW





















 

The PERC Staff Manual was issued by the former Executive Director in October 2006 appointed by the Public Employment Relations Commission under RCW 41.58.015(2) and (3), to provide guidance and direction to PERC staff members. The staff manual is subject to constant revision and is to be regarded as a guide. Cases may be processed in a different manner and in the event of any conflict between this PERC Staff Manual and any statute, any Commission rule, or any Commission precedent, the statute, rule or precedent shall prevail.




CHAPTER I


AGENCY OVERVIEW


1.1   INTRODUCTION


1.1.1   Agency Mission

The Legislature created the Public Employment Relations Commission (PERC) in a statute that announces a legislative intent to provide:

“uniform and impartial, . . . efficient and expert”

resolution of disputes between labor and management. RCW 41.58.005(1).


1.1.2   Public Policy Context

Workplace disputes have likely existed for as long as employers have had employees, and employees have likely been banding together to pursue mutual interests since the first time two or more employees went to lunch together on payday.


Private sector employees have sought to band together for collective action throughout the history of the United States. Traditional methods to exercise power in private sector collective bargaining are for employees to withhold their services (strike) or for employers to cancel operations (lock out). Any work stoppage causes immediate and direct harm to the economy, and a reduction of governmental tax revenues.

 

♦      Between 1885 and 1920, Washington and several other states enacted laws concerning labor unions and labor disputes. Chapter 49.08 RCW (1903) authorizes state efforts to assist in resolving labor-management disputes; Chapter 49.36 RCW (1919) affirms the right of workers to organize unions and bargain with employers.

 

♦      In adopting the Railway Labor Act (1926), the National Labor Relations Act (the Wagner Act, 1935), and the Labor-Management Relations Act (the Taft-Hartley Act, 1947), Congress relied on the “commerce” clause of the United States Constitution to establish procedures regulating and minimizing (but not altogether prohibiting) disruptions of the national economy due to private sector labor disputes.


Public sector employees did not engage in collective bargaining on a widespread basis until the 1930's.

 

♦      Government was much smaller than it is today, and civil service laws were still popular. Footnote

♦      A strike by police officers in Boston was an early embarrassment for the labor movement, and was the basis for some unions to adopt charter and bylaws provisions excluding police officers from union membership.

 

♦      The American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME) was not founded until the 1930's.

  

♦      Even "new deal" President Franklin D. Roosevelt stated publicly that strikes by public employees were unthinkable.

 

♦      State courts routinely outlawed public employee strikes under common law "affront to the sovereign" principles. Footnote


Apart from a few pioneering state laws (such as in Michigan (1947), Footnote Washington (1949), Footnote and Wisconsin (1959) Footnote ), public sector bargaining was a post-1960 phenomenon:

 

♦      Chapter 41.06 RCW (our State Civil Service Law), was enacted in 1960 (by a union-sponsored initiative), and included provisions for limited-scope bargaining.

 

♦      The Wisconsin legislature enacted amendments in 1962, authorizing the Wisconsin Employment Relations Commission to administer the earlier statement of rights.

 

♦      President John F. Kennedy issued an executive order in 1962, endorsing federal employee bargaining.

 

♦      The Urban Mass Transportation Act of 1964 (UMTA) both funded local government buyouts of failing public transit systems, and guaranteed the collective bargaining rights of transit employees who thereby became public employees.

 

♦      State statutes adopted in the 1960's experimented with strike prohibitions and strike substitutes (e.g., mandatory mediation, fact finding, and compulsory arbitration).


About 40 states now have statutory public employee collective bargaining at the local government level, and about 25 have collective bargaining for their state employees.

1.2 PERC AUTHORITY AND JURISDICTION


Washington has (and always has had) a highly-fragmented approach to public sector collective bargaining.


1.2.1 Antecedents

A joint legislative/labor/management study committee created by the Legislature in 1969 issued its “First Biennial Report (Revised Second Edition)" in 1971, recommending:

 

Recommendation No. I:

The legislature should enact a comprehensive State Labor Relations Act encompassing both the public and private sectors. As a statement of policy, such an act would provide a single set of standards that would apply not only to the private sector, but would extend to all levels of government for the determination of representation issues, the enforcement of fair practices, and the settlement of disputes. Such procedures, as would be required, would be administered by a single administrative agency, such as a State Labor Relations Board, giving assurances of being more economical, providing uniformity of policy, and reducing confusion over interpretation of the law.

Recommendation No. II:

In the alternative, the Legislature should enact a comprehensive Public Employees Labor Relations Act. Such an Act, although excluding the private sector, would apply uniformly to all levels of government, and would envision the elimination of the present exemptions of port districts, public utility districts, marine employees, and the educational establishment, both secondary and higher education.

Recommendation No. III:

In any event, the Legislature should enact the following amendments to the Public Employees' Collective Bargaining Act, RCW Chapter 41.56:

1. Definitions of “supervisor,” “professional employee,” “management level employee,” and “confidential employee” should be added to the P.E.C.B. Act. . . .

2. RCW 41.56.060 should be amended to further define the . . . authority to determine the unit appropriate for the purpose of collective bargaining. This amendment should restrict . . . including within bargaining units, supervisors and/or professional employees unless a majority of such employees vote for inclusion. . . .

3. The P.E.C.B. Act should be amended to include a provision to permit the inclusion of union security clauses in agreements, if the parties agree, and further, to provide that where a labor agreement conflicts with a civil service rule or regulation, or other regulation, then the union security clause in the agreement will supercede. . . .

4. In connection with Recommendation III-3 above, the P.E.C.B. Act should be amended to safeguard the rights, of non-association of employees, in connection with agreements involving union security clauses, based on bona fide religious tenets or teachings of a church or religious body of which such employee is a member. . . .

5. A separate arbitration service within the Department of Labor and Industries should be established to handle disputes between public agencies and employee bargaining units when mediation fails and both parties request it, the costs of such service being apportioned among the parties. . . .

6. The P.E.C.B. Act should be amended to permit public agencies and employee organizations to agree to binding arbitration on disputes on terms of existing contracts concerning wages, hours and conditions of employment.


Washington already had more laws on the books (more state agencies dabbling in labor-management dispute resolution functions) than any other state in the nation:

TABLE 1 - Statutory Antecedents to Creation of PERC

Collective Bargaining Statute


Administration


1.      Chapter 49.08 RCW (Arbitration of Disputes, 1903): State-funded mediation and arbitration services for employers and employees generally.


1.     Administered by Department of Labor and Industries (L&I).


2.      Chapter 49.36 RCW (Labor Unions, 1919): Right of workers to form and carry on labor unions.


Statute lacked enforcement mechanism except by lawsuit in court.


3.      Chapter 49.32 RCW (Injunctions in Labor Disputes, 1933): A “little Norris-LaGuardia Act”.


Held unconstitutional as infringement on authority of courts. Blanchard v. Golden Age Brewing, 188 Wash. 396 (1936).


4.      Chapter 47.64 RCW (Marine Employees, 1949): Covered Washington State Ferries employees, including bargaining, grievance arbitration and interest arbitration.


2.     Administered by the (original) Marine Employees’ Commission.

 


NOTE: In 1957, the Legislature failed to pass House Bill 369, which would have authorized collective bargaining for fire fighters and police officers.

 

NOTE: In 1957, the Legislature failed to pass House Bill 377, which would have authorized collective bargaining, grievance arbitration, and interest arbitration for the public sector generally.

 

5.      Chapter 41.06 RCW (Civil Service, 1960 by initiative): Covered state employees, included bargaining on matters controlled by agencies.


3.     Administered by Department of Personnel and State Personnel Board (renamed Personnel Resources Board in 1993).


6.      RCW 54.04.170 and 54.04.180 (1963): Bargaining for public utility district employees on same basis as private sector.


Statute only enforced by lawsuits in court at that time.


7.      Chapter 28A.72 RCW (Professional Negotiations, 1965): Organizations of K-12 teachers given right to “meet, confer and negotiate to communicate the considered professional judgment of the staff” before school board adopted policies.


4.     Office of Superintendent of Public Instruction staffed “impasse committee” process. Statute lacked other enforcement, except by lawsuit in court.


NOTE: In 1965, Governor Evans vetoed House Bill 360, which would have authorized bargaining, grievance arbitration, and interest arbitration for the public sector generally. The veto message cited concerns about encroachment on the civil service system already in place for state employees (Chapter 41.06 RCW, above).

 

8.      Chapter 53.18 RCW (Employment Relations--Collective Bargaining and Arbitration, 1967): Limited collective bargaining provisions for port district employees.


1.     Administered by L&I, per reference to Chapter 49.08 RCW.


9.      Chapter 41.56 RCW (Public Employees’ Collective Bargaining Act, 1967): Local government employees “except as provided otherwise” in items 6, 7 and 8. Loosely patterned after Taft-Hartley Act, with no unfair labor practices until 1969.


1.     Administered by L&I.


10.    Chapter 28B.16 RCW (Higher Education Civil Service, 1969): Covered non-faculty employees of state institutions of higher education, including bargaining on matters controlled by the institutions (similar to Chapter 41.06 RCW).


5.     Administered by Higher Education Personnel Board.


11.    Chapter 28B.52 RCW (Professional negotiations, 1971): Organizations of community college faculty given right to “meet, confer and negotiate to communicate the considered professional judgment of the staff” before the college trustees adopted policies.


6.     State Board for Community College Education administered “impasse committee” process. Statute lacked other enforcement mechanism, except by a lawsuit in the courts.


In 1973, the Legislature enacted some changes as a partial response to the 1971 study committee recommendations:

 

♦      RCW 41.56.122(1), authorizing union security clauses by agreement of the union and employer, protecting the right of employees to religious nonassociation;

 

♦      RCW 41.56.122(2), authorizing grievance arbitration provisions in contracts; and

 

♦      RCW 41.56.125, authorizing L&I staff to provide grievance arbitration services.


The 1973 Legislature also enacted fact finding and interest arbitration for fire fighters, police officers in about 30 cities, and deputy sheriffs employed by King County.


1.2.2 Creation of PERC

In 1975, the Legislature enacted two bills on public sector collective bargaining. Two members of the 1969-1971 study committee were particularly involved: Senator Gary Grant of Seattle (then also a Service Employees International Union official), and Representative Dick King of Everett (then also a community college faculty member).

 

♦      Chapter 41.59 RCW replaced the Chapter 28A.72 RCW “meet and confer” law with a collective bargaining law generally patterned after the Taft-Hartley Act; Footnote and

 

♦      Chapter 41.58 RCW created PERC to consolidate administration of some – but not all – of the state collective bargaining laws. Footnote That statute also contains some rights and procedures applicable to all public employers and public employees, as follows:

        ►      RCW 41.58.020(1) and (2) authorize PERC to provide mediation on request of the parties or where a dispute threatens the public welfare;

        ►      RCW 41.58.020(4) endorses arbitration as the preferred method for resolving grievance disputes concerning the interpretation or application of existing collective bargaining agreements; and

        ►      RCW 41.58.040 sets forth general obligations of employers and employees to attempt to resolve disputes arising between them.


The name “Public Employment Relations Commission” was misleading, however, because PERC did not have authority over the entire public sector, but did have authority to resolve private sector disputes under Chapter 49.08 RCW.

TABLE 2 - Statutes At Onset of PERC Operations (1/1/1976)


Collective Bargaining Statute


Administration


1.      Chapter 49.08 RCW (Arbitration of Disputes, 1903): Mediation and arbitration services for employers and employees generally.


1.     Administered by PERC.


2.      Chapter 49.36 RCW (Labor Unions, 1919): Right of workers to form and carry on labor unions.


Enforced only by lawsuits in courts, as above.


3.      Chapter 49.32 RCW (Injunctions in Labor Disputes, 1933).


Remains on the books, but ruled unconstitutional, as above.


4.      Chapter 47.64 RCW (Marine Employees, 1949): Covered Washington State Ferries employees, including bargaining, grievance arbitration and interest arbitration.


1.     Administered by PERC.


5.      Chapter 41.06 RCW (Civil Service, 1960, as amended 1973): Covered state employees, including bargaining on matters controlled by agencies and union shop by referendum only.


2.     Administered by Department of Personnel and State Personnel Board (renamed Washington Personnel Resources Board in 1993).


6.      RCW 54.04.170 and 54.04.180 (1963): Bargaining for public utility district employees on same basis as private sector.


Enforced by lawsuit in court, per narrow interpretation of RCW 41.56.020.


Chapter 28A.72 RCW (Professional Negotiations, 1965).


“Meet and confer” law Repealed as of 1/1/1976:


7.      Chapter 53.18 RCW (Employment Relations--Collective Bargaining and Arbitration, 1967): Limited collective bargaining provisions for port district employees.


1.     Administered by PERC as stand-alone statute per narrow interpretation of RCW 41.56.020.


8.      Chapter 41.56 RCW (Public Employees’ Collective Bargaining Act, 1967, as amended 1969, 1973): Local government employees “except as provided otherwise” in items 6, 7, 8, 10 and 11. Patterned after Taft-Hartley Act, including duty to bargain, plus representation, unfair labor practice, grievance arbitration, and mediation, plus interest arbitration for “uniformed personnel” only.


1.     Administered by PERC.


9.      Chapter 28B.16 RCW (Higher Education Civil Service, enacted 1969) authorized collective bargaining between state institutions of higher education and their civil service employees on matters controlled by the institution, plus union security by referendum only.


3.     Administered by Higher Education Personnel Board.


10.    Chapter 28B.52 RCW (Professional Negotiations, 1971): Organiza-tions of community college faculty given right to “meet, confer and negotiate to communicate the considered professional judgment of the staff” before the board of trustees adopted policies.


1.     Administration by PERC (except no unfair labor practices).


11.    Chapter 41.59 RCW (Educational Employment Relations Act, 1975): Covered school district certificated employees. Statute patterned after Taft-Hartley Act, including the duty to bargain, plus representation, unfair labor practice, union security, grievance arbitration and mediation procedures.


1.     Administered by PERC.



PERC was thus given a “basket of mixed fruit” to administer. Even after PERC was created, Washington still led the nation in both the number of laws on the books and the number of administrative agencies engaged in resolution of labor-management disputes.

1.2.3 Judicial Actions Affecting PERC Jurisdiction

Decisions by the Supreme Court of the State of Washington have enhanced, and sometimes substantially expanded, the jurisdiction of PERC, as follows:

 

♦      Roza Irrigation District v. State, 80 Wn.2d 633 (1973), interpreted "public employer" in Chapter 41.56 RCW broadly, making that statute applicable to all municipal corporations and political subdivisions of the state.

 

♦      Zylstra v. Piva, 85 Wn.2d 743 (1975), maximized the collective bargaining rights of court employees, by giving them the right to bargain wages and wage-related benefits with their county co-employers even though their judge co-employers were not covered by the statute. This created a potential for more bargaining units in all counties.

 

♦      Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977), interpreted the definition of “public employee” in Chapter 41.56 RCW broadly, giving supervisors collective bargaining rights. This case concerned a separate bargaining unit of supervisors.

 

♦      International Association of Fire Fighters v. City of Yakima, 91 Wn.2d 101 (1978), interpreted the exclusion of "confidential" employees from Chapter 41.56 RCW narrowly, under a “labor nexus” test (those having access to confidential information concerning the employer's labor relations policies).

 

♦      City of Richland v. IAFF, 29 Wn. App. 599 (Division III, 1981), review denied, 96 Wn.2d 1004 (1981), affirmed PERC’s policy of removing supervisors from bargaining units of rank-and-file employees, to avoid potential conflicts of interest. This created a potential for separate bargaining units of supervisors throughout local government.

 

♦      Grant v. Spellman, 99 Wn.2d 815 (1983) [GRANT II], directed PERC to determine the existence of bona fide personal religious beliefs qualifying for nonassociation under the union security provisions of Chapter 41.56 RCW. Footnote

 

♦      Nucleonics Alliance v. WPPSS, 101 Wn.2d 24 (1984), extended the coverage of Chapter 41.56 RCW to the Washington Public Power Supply System, and set the stage for PERC to assert jurisdiction over public utility districts.

 

♦      Clark County Public Utility District v. PERC, 110 Wn.2d 114 (1988), extended the coverage of Chapter 41.56 RCW (and PERC’s jurisdiction) to public utility districts.

 

♦      City of Yakima v. IAFF and YPPA, 117 Wn.2d 655 (1991), interpreted the interface between civil service and collective bargaining narrowly, so that matters delegated to civil service commissions created under Chapters 41.08, 41.12, and 41.14 RCW are not excluded from collective bargaining under Chapter 41.56 RCW.

 

♦      Municipality of Metropolitan Seattle v. PERC, 118 Wn.2d 621 (1992), affirmed the authority of PERC to compel interest arbitration as an extraordinary remedy for flagrant and ongoing unfair labor practices.


1.2.4 Legislative Actions Affecting PERC Jurisdiction

The Legislature has enacted several amendments since 1976 that have altered, and in some cases substantially expanded, the jurisdiction of PERC:

 

♦      Chapter 41.56 RCW was amended in 1979, to eliminate a redundant fact finding procedure and to streamline the procedures for invoking interest arbitration for impasses in “uniformed personnel” contract negotiations.

 

♦      Chapter 53.18 RCW was amended in 1983, to clarify that Chapter 53.18 RCW and Chapter 41.56 RCW both apply to port districts and their employees. Footnote

 

♦      Chapter 41.56 RCW was amended in 1984, to extend the coverage of the interest arbitration procedure to include deputy sheriffs employed by counties of the second class or larger (10 or more of the 38 counties not covered up to that time).

 

♦      Chapter 28B.52 RCW was amended in 1987, to add duty to bargain, unfair labor practice, union security, and grievance arbitration provisions generally patterned after the Taft-Hartley Act. The Code Revisor then re-titled the statute as "Collective Bargaining--Academic Personnel in Community Colleges."

 

♦      Chapter 41.56 RCW was amended in 1987, to extend the coverage of the chapter to include printing craft employees of the University of Washington. Footnote

 

♦      Chapter 41.56 RCW was amended in 1987, to extend the coverage of the chapter to include Washington State Patrol troopers. Footnote

♦      Chapter 41.56 RCW was amended in 1988, to extend the coverage of the interest arbitration process to include paramedics employed by public entities other than public hospital districts.

 

♦      Chapter 41.56 RCW was amended in 1989, to limit unilateral implementation of changes in the event of an impasse in collective bargaining.

 

♦      Chapter 41.56 RCW was amended in 1989, to extend the coverage of the chapter to district court judges as co-employers of district court employees. Footnote

 

♦      Chapter 41.56 RCW was amended in 1992, to extend the coverage of the chapter to superior court judges as co-employers of superior court employees. Footnote

 

♦      Chapter 41.56 RCW was amended in 1993, to extend the coverage of the interest arbitration procedure to include: (a) law enforcement officers employed by some additional cities and counties; (b) correctional employees employed by counties with populations of 70,000 or more; (c) police officers employed by the Port of Seattle; (d) airport fire fighters employed by the Port of Seattle; (e) dispatchers employed within fire departments; (f) paramedics employed by public hospital districts; (g) public passenger transportation employees; and (h) Washington State Patrol troopers.

 

♦      Chapter 41.56 RCW was amended in 1993, to give state institutions of higher education and unions representing their civil service employees an option to have their relationships regulated by PERC under Chapter 41.56 RCW.

 

♦      Chapter 41.56 RCW was amended in 1995 (effective in 1997), to extend the coverage of the interest arbitration process to include law enforcement officers employed by: (a) cities with populations of 2500 or more, and (b) counties with populations of 10,000 or more.

 

♦      Chapter 41.56 RCW was amended in 2000, to limit the exclusion of “appointed” officials to members of multi-member boards and commissions. Footnote

 

♦      Chapter 41.56 RCW was amended by Initiative 775 in 2001, to extend the coverage of the chapter to include individuals contracting with the state to provide home care services under certain social services and health services programs. Footnote

 

♦      Chapter 41.56 RCW was amended in 2002, to extend the coverage of the chapter to teaching and research assistants enrolled at the University of Washington. Footnote

 

♦      Chapter 41.06 RCW was amended and Chapter 41.80 RCW was enacted in 2002 (with effective dates varying, by section, between June 13, 2002 and July 1, 2004), to establish a collective bargaining process for state civil service employees (including duty to bargain, representation, unfair labor practice, union security, mediation, and grievance arbitration procedures generally patterned after the Taft-Hartley Act, with the scope of bargaining broadened to include wages and wage-related benefits), and to transfer jurisdiction over labor-management relations to PERC. Footnote

 

♦      Chapter 41.76 RCW was enacted in 2002 (effective October 1, 2002), to establish a collective bargaining process for faculty members at six state institutions of higher education (including duty to bargain in good faith, representation, unfair labor practice, union security, mediation, and grievance arbitration procedures generally patterned after the Taft-Hartley Act). Footnote

 

♦      Chapter 41.56 RCW was amended in 2006, to provide collective bargaining rights for family child care providers receiving state subsidies.


The only legislative action that has reduced PERC’s jurisdiction actually increased the fragmentation of the administrative structure: In 1983, the Legislature made substantial amendments to Chapter 47.64 RCW and created a new Marine Employees’ Commission (MEC) to administer that statute, thus increasing the number of administrative agencies involved in resolving labor-management disputes. Footnote


TABLE 3 - Statutes Upon Full Implementation of 2002 Legislation


Collective Bargaining Statute


Administration


1.      Chapter 49.08 RCW (Arbitration of Disputes, 1903): Mediation and arbitration services for employers and employees generally.


1.     Administered by PERC.


2.      Chapter 49.36 RCW (Labor Unions, 1919): Right of workers to form and carry on labor unions.


Enforced only by lawsuits in court, as above.


3.      Chapter 49.32 RCW (Injunctions in Labor Disputes, 1933).


Remains on the books, but ruled unconstitutional, as above.


4.      Chapter 47.64 RCW (Marine Employees, 1949, amended 1983): Covers Washington State Ferries employees. Patterned after Taft-Hartley Act, including duty to bargain plus representation, unfair labor practice, union security, mediation and grievance arbitration. Also salary survey and interest arbitration procedures.


2.     Administered by the (new) Marine Employees’ Commission.


Chapter 41.06 RCW (Civil Service, 1960 by initiative, as amended 1993 and 2002). Wind-down coverage of state general government and higher education “classified” employees from 6/13/2002, included bargaining on matters controlled by agencies and union shop by referendum only, with all contracts terminated 6/30/2005.


1.     PERC administered representation, unit determination, and unfair labor practices as of 6/13/2002. DOP and WPRB administered contracts until old-system grievances resolved.


5.      RCW 54.04.170 and 54.04.180 (1963): Bargaining for public utility district employees on same basis as private sector.


1.     Administered by PERC, applying NLRB precedents.


6.      Chapter 53.18 RCW (1967, as amended 1983): Covers port districts and their employees.


1.     Administered by PERC, applying both Chapters 41.56 and 53.18 RCW.


7.      Chapter 41.56 RCW (1967 w/ numerous amendments): Covers local government employees and some state employees (including home care workers, child care providers, UofW teaching/research assistants, UofW print shop, and Washington State Patrol troopers. Paraphrases Taft-Hartley Act, plus interest arbitration for “uniformed personnel” and “public transit” only.


1.     Administered by PERC.


Chapter 28B.16 RCW (Higher Education Civil Service, enacted 1969, repealed 1993).


NOTE: Functions of the former Higher Education Personnel Board were transferred to Chapter 41.06 RCW in 1993.


8.      Chapter 28B.52 RCW (1971, as amended 1987): Covers faculty of community and technical colleges. Patterned after Taft-Hartley Act.


1.     Administered by PERC.

 


9.      Chapter 41.59 RCW (1975): Covers school district certificated employees. Statute patterned after Taft-Hartley Act.


1.     Administered by PERC.

 


10.    Chapter 41.76 RCW (2002): Covers faculty of six state institutions of higher education. Patterned after the Taft-Hartley Act, including duty to bargain, plus representation, unfair labor practice, union security, grievance arbitration and mediation procedures.


1.     Administered by PERC.

 


11.    Chapter 41.80 RCW (2002): Covers state civil service employees in general government and higher education, including units reverted to civil service from Ch. 41.56 RCW. Patterned after Taft-Hartley Act, including duty to bargain, plus representation, unfair labor practice, union security, grievance arbitration, mediation, and fact finding procedures.


1.     Administered by PERC.



1.3   THE COMMISSION'S CLIENTELE


PERC has never conducted a sophisticated survey to determine the precise number of employers, employees, or bargaining units subject to its jurisdiction. Such estimates as exist have been extrapolated from information (of varying precision) obtained from clientele organizations, and there has been no ongoing effort to update those estimates.


More important than raw numbers of employers and employees is the number of potential bargaining units in which disputes can arise. In many instances, statutes and/or interpreting rules/precedents require the existence of multiple bargaining units:

 

♦      Under traditional “community of interest” criteria, multiple-unit structures among non-supervisory employees are common in many public sector settings:

         Counties:     1. Office-clerical (often referred to as “courthouse” units)

                            2. Building code enforcement (often separate from “courthouse” unit)

                            3. Appraisers (often separate from “courthouse” unit)

                            4. Operations & maintenance (roads, parks, etc.)

                            5. Emergency communications / dispatch

                            6. Law enforcement eligible for interest arbitration (see WAC 391-35-310)

                            7. Jail / corrections eligible for interest arbitration (see WAC 391-35-310)

        Cities:          1. Office-clerical (often referred to as “city hall” units)

                            2. Building code enforcement (often separate from “city hall” unit)

                            3. Operations & maintenance (streets, sewer, water, parks, etc.)

                            4. Fire fighters eligible for interest arbitration (see WAC 391-35-310)

                            5. Law enforcement eligible for interest arbitration (see WAC 391-35-310)

        Schools:      1. Certificated employees (covered under Chapter 41.59 RCW)

                            2. Office-clerical

                            3. Instructional assistants (paraeducators or aides)

                            4. Food service

                            5. Custodial/maintenance

                            6. Transportation

Thus, the number of bargaining relationships served by PERC is far greater than the number of employers subject to PERC's jurisdiction.

 

♦      Supervisors generally have bargaining rights in separate bargaining units.

        ►      Under WAC 391-35-340 (codifying City of Richland, Decision 279-A (PECB, 1978), aff'd, 29 Wn. App. 599 (Division III, 1981), review denied, 96 Wn.2d 1004 (1981)), the separation of supervisors avoids potential conflicts of interest that would exist in mixed units. Note: While all employers under Chapter 41.56 RCW could have added units, separate units of supervisors are relatively rare.

        ►      Under RCW 41.59.080, principals and supervisors in school districts are generally excluded from teacher units and placed in separate units. Note: While all employers under Chapter 41.59 RCW could have added units, separate units of supervisors and/or principals are relatively rare.

        ►      Under RCW 41.80.070, supervisors must be in separate bargaining units from rank-and-file employees. Note: PERC adopted WAC 391-35-026 as a special procedure to “divide” historical units before bargaining commenced on July 1, 2004, and numerous supervisor units were created under that rule.

 

♦      Under WAC 391-35-300 (codifying Castle Rock School District, Decision 4722-A (EDUC, 1994)), separate units are created under Chapter 41.56 RCW for “extra-curricular activities” jobs that do not require educator certification.

 

♦      Under WAC 391-35-310, employees eligible for “interest arbitration” must be placed in units separate and apart from employees who are not eligible for interest arbitration. Note: This affects cities, counties, fire districts, public hospital districts, and public passenger transportation operations.


1.4   THE ORGANIZATION OF THE AGENCY


PERC is a single-purpose agency, dedicated exclusively to the impartial administration of state collective bargaining laws.

 

♦      The Commission consists of three citizen members appointed by the Governor under RCW 41.58.010, who only serve on a part-time basis. The Commission adopts the agency rules delegating most case processing to the Executive Director and agency staff, and generally confines its case processing to ruling on appeals from decisions issued by the Executive Director and other staff members.

 

♦      The Executive Director appointed by the Commission under RCW 41.58.015 is the full-time agency head, and is the “appointing authority “ for the PERC staff.

 

♦      An Executive Assistant (who is excluded from the coverage of the State Civil Service Law as a “Confidential Secretary”) assists the Commission and Executive Director, and administers the "Dispute Resolution Panel". Footnote

 

♦      A Law Clerk (who is excluded from the coverage of the State Civil Service Law as a “Special Assistant”) assists the Commission members with their work on appeals.

♦      Employees appointed by the Executive Director perform day-to-day management and/or supervision functions, such as:

        ►      The “Business Manager” oversees budget and fiscal affairs for the agency, and supervises the business office staff.

        ►      The “Operations Manager” is the agency rules coordinator and personnel manager, supervises the information technology and support staffs, and administers the overall assignment of cases to teams.

        ►      The “Unfair Labor Practice Manager” is the agency compliance officer, and makes preliminary rulings on unfair labor practice and nonassociation cases.

        ►      An “Information Systems Manager” plans and implements computer projects and oversees day-to-day computer operations for the agency.

        ►      Four “Field Services Managers” supervise teams of staff members processing cases, and carry limited caseloads themselves.

 

♦      Employees appointed by the Executive Director to “Labor Relations Adjudicator/ Mediator” (LRAM) positions or LRAM-in-training positions perform most of the day-to-day dispute resolution functions of the agency.

 

♦      A “Representation Coordinator” conducts the initial processing of representation cases, together with conducting most representation elections and cross-checks.

 

♦      An information technology assistant assists with computer system functionality and training staff members on computer usage.

 

♦      Office-clerical employees provide administrative support functions for other agency staff members.


The growth of the agency staff is depicted as follows:

1976:       12 FTE total; 8 FTE field staff

1979:       16 FTE total; 11 FTE field staff (after Ray-budget increase)

1982:       10.7 FTE total; 7.7 FTE field staff (during Spellman-budget cuts)

1983:       15 FTE total; 10 FTE field staff (after supposed restoration of budget cuts)

1993:       21 FTE total; 13 FTE field staff (after SCR 6403 recommendation adopted)

2002:       24.5 FTE total; 14.8 FTE field staff (after new laws and DOP/PERC contract)

2003-05:  42 FTE total authorized; 24 FTE field staff authorized (per Locke-budget funding the PSRA and other new laws enacted in 2002)

2005-07:  PERC staffing level remains unchanged through full implementation of the PSRA and other new laws enacted in 2002

1.5   AGENCY ORGANIZATION CHART

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1.6   SERVICES PROVIDED BY PERC


Statutes administered by PERC contain policy statements indicating a legislative purpose to promote peace and harmony in labor relations within the state. Congress and state legislatures have identified areas where labor and management have historically had difficulties and disputes in their relationships, and have empowered impartial administrative agencies such as PERC to resolve those disputes.


1.6.1 Summary of Services

Collective bargaining statutes protect a right of employees to be represented by organizations of their own choosing, and then regulate the collective bargaining process where employees have chosen to organize. Following the pattern of the Labor Management Relations Act of 1947 (the Taft-Hartley Act), PERC applies dispute resolution procedures specifically suited to particular types of situations, as follows:

♦      Representation (“E”) Cases involve creation and termination of bargaining relationships.

♦      Unit Clarification (“C”) Cases involve adjustments to bargaining relationships following changes of circumstances.

♦      Unfair Labor Practice (“U”) Cases involve enforcement of the process rules established for collective bargaining by the Legislature.

♦      Mediation (“M”) Cases involve non-binding assistance to parties in their negotiation of a collective bargaining agreement.

♦      Fact finding (“F”) Cases are a strike-substitute, where a “surrogate reasonable person” makes non-binding recommendations to resolve contract negotiations.

♦      Interest Arbitration (“I”) Cases are a strike-substitute, where a “surrogate reasonable person” imposes a final and binding resolution on contract negotiations covering certain classes of employers and employees.

♦      Grievance Arbitration (“A” or “P”) Cases involve final and binding interpretation or application of existing collective bargaining agreements.

♦      Grievance Mediation (“G”) Cases involve non-binding assistance to parties in disputes concerning interpretation or application of existing collective bargaining agreements.

♦      Nonassociation (“N”) Cases involve determinations on the rights of employees who object to union membership based on bona fide religious beliefs.


The Commission and its staff act in the interest of the public, as the impartial mediators and adjudicators in all proceedings before the agency.


The Commission and its staff are never advocates for any party. Responsibility for the prosecution and defense of claims is left entirely to the parties!

1.6.2 Detail Highlights of Dispute Resolution Procedures


1.6.2.a. Representation (“E”) Cases

The “recognition strike” was the traditional outlet for disputes about creation and termination of bargaining relationships. Footnote To prevent those strikes, statutes authorize PERC to conduct administrative proceedings to determine questions concerning representation and certify exclusive bargaining representatives, where appropriate.

♦      PERC assures peaceful resolution of relationships disputes in Washington, by holding it is unlawful for a party to go to impasse on such matters. Footnote

♦      Like the National Labor Relations Board (NLRB), PERC seeks to maintain "laboratory conditions" under which employees may exercise their free choice on the selection of a bargaining representative. Footnote

♦      The PERC website contains the following “normal case processing” description for “E” cases:

1.Petition for Investigation of Question Concerning Representation (PERC Form E-1 or equivalent) is filed at PERC's Olympia office, together with “showing of interest” indicating at least 30% of the employees support the petitioner.

2.The PERC Representation (QCR) Coordinator sends the employer notices for posting and requests a list of the employees involved.

        3.     Employer posts notices, and sends a list of employees to PERC.

4.PERC verifies the sufficiency of petitioner’s showing of interest.

►PERC notifies the petitioner of any correctable defect, and sets a deadline for curing the defect. If the defect is not cured in a timely manner, PERC dismisses the petition.

►If a defect is not correctable, PERC dismisses the petition.

5.Other unions have the right to move for intervention in the proceedings.

►An incumbent exclusive bargaining representative can intervene by showing it represented any of the employees involved within the preceding year.

►Other unions must supply at least a 10% showing of interest.

6.The QCR Coordinator establishes the date and time for an Investigation Conference (usually conducted by telephone conference call), and supplies a set of questions that will be covered.

7.The QCR Coordinator conducts the Investigation Conference and issues an Investigation Statement stating the stipulations made and disputed issues identified in the conference.