CHAPTER 8

UNIT DETERMINATION AND

ELIGIBILITY STANDARDS

(Rules: Chapters 391-25 and 391-35 WAC)

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 8

UNIT DETERMINATION AND ELIGIBILITY STANDARDS

8.1   NATURE OF PROCEEDINGS

Placement of employees into appropriate groupings for the purposes of collective bargaining (bargaining units) is fundamental to the bargaining relationships through which labor and management interact. These issues tend to become highly personalized. Congress and state legislatures have taken these issues off the bargaining table, and substituted administrative adjudication processes administered by impartial agencies. The Public Employment Relations Commission (PERC) processes representation cases under Chapter 391-25 WAC (see Chapters 4, 5, and 6 of this Staff Manual), and processes unit clarification cases under Chapter 391-35 WAC (see Chapter 7 of this Staff Manual), applying the standards in this chapter.

8.2   SOURCE OF AUTHORITY

The Legislature has delegated the determination of appropriate bargaining units to PERC, under statutory criteria.

♦      Chapter 28B.52 RCW (faculty of community colleges and technical colleges) - Mandatory submission of unit determination disputes to PERC is inferred from RCW 28B.52.020(7) (which limits the definition of “exclusive bargaining representative” to an organization that has been certified under the chapter), and from RCW 28B.52.080 (which authorizes PERC to adopt rules for administration of the chapter).

♦      Chapter 41.56 RCW (local government and some state employees) - Authority to determine and modify bargaining units is specifically delegated to PERC in RCW 41.56.060. Unit determination is not a mandatory subject of bargaining in the usual sense. Although parties may agree on units, their agreements are not binding on PERC. See City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn.App. 599 (1981), cert. denied, 96 Wn.2d 1004 (1981).

♦      Chapter 41.59 RCW (certificated employees of school districts) - Mandatory submission of unit determination disputes to PERC is inferred from RCW 41.59.020- (6) (which limits the definition of “exclusive bargaining representative” to an organization that has been certified under the chapter) and authority to modify bargaining units is specifically delegated to PERC in RCW 41.59.080.

♦      Chapter 41.76 RCW (faculty at state institutions of higher education awarding baccalaureate and higher degrees) - Mandatory submission of unit determination disputes to PERC is inferred from RCW 41.76.005(8) (which limits the definition of “exclusive bargaining representative” to an organization that has been certified under the chapter) and authority to modify bargaining units is specifically delegated to PERC in RCW 41.76.025.

♦      Chapter 41.80 RCW (state civil service employees) - Mandatory submission of unit determination disputes to PERC is inferred from RCW 41.80.005(9) (which limits the definition of “exclusive bargaining representative” to an organization that has been certified under the chapter) and authority to resolve unit determination disputes is specifically delegated to PERC in RCW 41.80.070.

♦      Chapter 49.08 RCW (private sector employees and public employees not covered by any other statute) - PERC has processed representation cases by consent of all parties. (The ballots cast or cards signed by employees are the record before the “arbitrator” and the certification is the arbitration award). In the unlikely event that parties submit a “unit” issue to PERC, the PERC staff member assigned to process the case would need to obtain a clear, written stipulation of the parties to have PERC decide the dispute.

♦      Chapter 53.18 RCW (covering port district employees) - Chapter 41.56 RCW applies (harmonizing the statutes under RCW 53.18.015), but PERC must also apply separate provisions in Chapter 53.18 RCW:

        ►      RCW 53.18.010 excludes “managerial” personnel who would have bargaining rights under Chapter 41.56 RCW, as interpreted in Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977).

        ►      RCW 53.18.010 excludes “professional” personnel who would have bargaining rights under Chapter 41.56 RCW.

        ►      RCW 53.18.010 excludes “administrative” personnel who might have bargaining rights under Chapter 41.56 RCW.

The exclusion of “confidential assistants” in RCW 53.18.010 aligns with the exclusion of “confidential employees” under RCW 41.56.030(2)(c), as interpreted in IAFF, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978).

♦      Chapter 54.04 RCW (covering public utility district employees) - PERC uses Chapter 41.56 RCW procedures, but must apply federal substantive law under PUD of Clark County, Decision 2125 (PECB, 1985); aff’d, 110 Wn.2d 114 (1988)). Thus:

        ►      Managerial employees must be excluded from all bargaining units (per Bell Aerospace Co., Division of Textron, 416 U.S. 267 (1974), interpreting the National Labor Relations Act), even though they might have bargaining rights under Chapter 41.56 RCW, as interpreted in Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977).

        ►      Supervisors must be excluded from all bargaining units (per Section 2(11) of the NLRA), even though they would have bargaining rights under Chapter 41.56 RCW, as interpreted in Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977).

        ►      Confidential employees meeting the “labor nexus” test must be excluded from bargaining units (per NLRB v. Hendricks County Rural Electric Cooperative, 454 U.S. 170 (1981)), which aligns with the exclusion of “confidential” employees under RCW 41.56.030(2)(c), as interpreted in IAFF, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978).

8.3   THE ROLE OF PERC

Unit determination is an "investigatory" and/or "non-adversarial"

process, but the results have significant long-term effects on

the parties. There is a potential for unit determination and

eligibility issues to become highly charged, particularly if they touch

on friendships, loyalties, and personalities, but PERC neutralizes personalization of these issues by consistently administering the statutory criteria as interpreted in agency and judicial precedents, and thus implements the public interest in having orderly and stable bargaining relationships. PERC staff members:

♦      Obtain stipulations and identify issues for formal hearings.

♦      Conduct formal hearings, assuring due process for all parties.

♦      Prepare decisions (for signature by the Executive Director in most circumstances, or by the Hearing Officer under delegated authority) which:

        ►      Describe the appropriate bargaining unit(s) of employees; and

        ►      Determine the eligibility of particular employees / positions for inclusion in a bargaining unit.

The hearing portion of representation cases and all aspects of unit clarification cases are "adjudicative proceedings" under the Administrative Procedure Act, Chapter 34.05 RCW (APA). PERC staff members must be familiar with Chapter 391-08 WAC (establishing some general procedures for all PERC cases), and the Model Rules of Procedure in Chapter 10-08 WAC (some of which apply in adjudicative proceedings before PERC).

The parties have a right to appeal PERC staff actions / decisions to the Commission, but interlocutory PERC staff actions (such as evidence rulings and rulings on motions) are not subject to appeal until the Executive Director or Hearing Officer issues an order that could become final (hereinafter, a “potentially-final” order) with an appeal statement.

8.4   FINAL RESULT OF UNIT AND ELIGIBILITY PROCEEDINGS

PERC issues formal orders on all unit determination cases filed with the agency. The final order will be either:

♦      An order closing case, based on either withdrawal of the petition or a settlement between the parties;

♦      An order accepting the parties' stipulations (which must not visibly or knowingly contravene the applicable statute or PERC unit determination precedents);

♦      An order of dismissal, based on procedural defects found to be fatal to the case;

♦      A decision ruling on whether the disputed employees should be included in or excluded from the existing bargaining unit; or

♦      A certification naming the organization the employees in

an appropriate bargaining unit have chosen as their

        exclusive bargaining representative, or a certification that

the employees in the bargaining unit chose no representation.

Final orders issued by PERC on unit and eligibility issues are subject to judicial review under the Administrative Procedure Act, Chapter 34.05 RCW (APA).

CAUTION: PERC has always acknowledged that its certifications are subject to judicial review. The NLRA precludes direct judicial review of NLRB certifications (thus requiring unhappy employers to attack the certification collaterally, by refusing to bargain), and some union lawyers have sought similar treatment under state law, but PERC is mindful that the Indiana Supreme Court struck down an entire public sector collective bargaining law because of a legislative attempt to preclude judicial review of representation case decisions!

8.5   PERC STAFF RESPONSIBILITY

PERC maintains an impartial posture as the administrative and decision-making body in all unit determination proceedings. PERC staff members must not be an advocate for any party in proceedings before the agency.

♦      The substantive processing of unit determination issues is within the job descriptions of the Field Services Managers and the Labor Relations Adjudicator/Mediator (LRAM) classifications. They must maintain independent knowledge of current statutes, rules and precedents.

♦      PERC's support staff assists with preparing documents and procedural details, under the direction of the QCR Coordinator, a Field Service Manager, or a LRAM.

While the guidelines in this chapter are to be followed generally, departures from these procedures may be warranted by the exercise of professional judgment.

8.6   GENERAL UNIT DETERMINATION PRINCIPLES 

The description of a bargaining unit ideally sets forth the ongoing criteria by which employees have been grouped together for the purposes of collective bargaining.

8.6.1   PERC Preference for Generic Unit Description Terminology

PERC policy and precedents prefer the use of generic terms in bargaining unit descriptions. Keep the focus on the long-term!

♦      Start with a "time" descriptor for inclusion, usually "all full-time and regular part-time".

♦      Continue with a “nonsupervisory” or “supervisory” preface to inclusions in the bargaining unit.

♦      Use generic terms to describe the included employees. Examples are: "office-clerical employees," "certificated employees," or "law enforcement officers."

CAUTION: Parties sometimes want to use current job titles, but such a unit description will become obsolete as soon as the employer changes one or more job titles. (Such changes may have an innocent motivation, such as to make the titles politically-correct, but are more ominous if the employer intends to exclude positions or work from the bargaining unit). Generic terms leave the parties freedom to create, change, or delete specific job titles, without having to come to PERC for a unit modification.

                •      Parties accustomed to working under civil service laws and other sophisticated classification systems may want to use classification codes/numbers, but habits developed under different systems are not a basis to alter PERC practices under collective bargaining laws.

                •      Parties may resist the use of generic terms because of short-term "eligibility" concerns that are addressed in other ways. The official eligibility list and any PERC decision will remain a part of the PERC case file, and will be available for future reference.

                •      As time passes, lists of covered classifications in the collective bargaining agreements signed by the parties will supply details for use in interpreting generic unit description language.

♦      Tie the bargaining unit to the employer or some branch of its table of organization, such as "of the City of Bliss" or "of the Bliss County Public Works Department."

♦      Use generic terms to specify exclusions, such as "elected officials," "chief administrative officers," "department heads," "confidential employees," "supervisors," "office-clerical employees," or "all other employees of the employer."

CAUTION: Parties may also want to use specific titles for excluded positions, the use of generic terms connoting roles or levels of authority reduces the potential for future disputes and leaves the employer room to change titles in the future.

Where a hearing is held on reserved eligibility issues, the Hearing Officer must assure that the final order issued in the case properly adjusts the unit description to include or exclude positions that were disputed when the unit description was first written.

8.6.2 Some Unit Configurations Are Controlled by Statute or PERC Precedent

Some statutes administered by PERC specify the grouping(s) of employees considered to be appropriate bargaining units, and some long-standing PERC precedents preclude or require certain unit structures.

♦      One-person bargaining units are inappropriate under WAC 391-35-330. (Two or more employees must collect together to engage in collective bargaining.)

♦      Chapter 28B.52 RCW - A “one unit per district” standard is applied to faculty employees in community and technical colleges, under RCW 28B.52.030. Districts with multiple campuses must have only one district-wide bargaining unit.

♦      Chapter 41.56 RCW - Statute contains multiple limitations for specific groups:

        ►      Supervisors have collective bargaining rights under Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977), but they are normally placed in separate bargaining units of supervisors under WAC 391-35-340 and City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).

        ►      Employees eligible for interest arbitration must be in bargaining units limited to employees who are eligible for interest arbitration under WAC 391-35-310 and precedents dating back to Thurston County Fire District 9, Decision 461 (PECB, 1978).

        ►      School district employees who conduct extracurricular activities that do not require educator certification (athletics coaches and others) are governed by Chapter 41.56 RCW and WAC 391-35-300. Even though many of those employees work as certificated employees for the same school districts, their extracurricular work is excluded from Chapter 41.59 RCW under Castle Rock School District, Decision 4722-B (EDUC, 1992).

CAUTION: PERC has certified employer-wide bargaining units of extracurricular activities employees since the Castle Rock decision, making no distinction between athletics and other programs, or between high school / middle school / elementary school levels. Additionally, extracurricular employees have not been commingled with other "classified" employees.

        ►      All teaching assistants and research assistants at the University of Washington must be included in an institution-wide bargaining unit under RCW 41.56.203(1).

        ►      All individual providers of home care must be included in a state-wide bargaining unit under RCW 41.56.026, by reference to RCW 74.39A.270(2)(a).

        ►      All child care providers paid by the state must be included in a state-wide bargaining unit under RCW 41.56.___.

♦      Chapter 41.59 RCW - Statute contains several limitations for specific groups:

        ►      All nonsupervisory certificated employees must be in a district-wide unit under RCW 41.59.080(1).

        ►      Supervisors have bargaining rights in separate or combined units controlled under RCW 41.59.080(2), (4), (5), and (7).

        ►      Principals and assistant principals have bargaining rights in separate or combined units controlled under RCW 41.59.080(3) through (5) and (7).

        ►      Separate units can exist at occupational skills centers under RCW 41.59.080(6), only if the history of bargaining supports separation.

        ►      Units of educational providers at state correctional facilities are tightly controlled under RCW 41.59.080(8).

♦      Chapter 41.76 RCW - Faculty bargaining units at the state “four year” institutions of higher education must be institution-wide under RCW 41.76.005(11).

♦      Chapter 41.80 RCW - Statute contains limitations for specific groups:

        ►      Supervisors must be in separate bargaining units under RCW 41.80.070(1)(a).

        ►      Higher education units must be limited to a single institution of higher education.

        ►      Units that were in existence on June 13, 2002, were deemed appropriate as of that date under RCW 41.80.070(1), but are subject to modification based on subsequent changes of circumstances.

♦      Chapter 53.18 RCW - Statute contains limitations for specific groups:

        ►      Security personnel must be in separate units under RCW 53.18.060(c), even though there is no counterpart requirement in Chapter 41.56 RCW.

        ►      Supervisors must be in separate units under RCW 53.18.060(c), which aligns with Chapter 41.56 RCW practice under WAC 391-35-340 and City of Richland, Decision 279-A (PECB, 1978), aff’d, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).

♦      Chapter 54.04 RCW - Supreme Court decision requires application of NLRA standards for certain groups:

        ►      Professional employees are entitled to placement in separate bargaining units unless commingled by their vote per Section 9(b)(1) of the NLRA, even though they have no special unit determination rights under RCW 41.56.060 beyond consideration of their “duties, skills, and working conditions.”

        ►      Security personnel must be in separate bargaining units and separate organizations, per Section 9(b)(3) of the NLRA, even though no such requirements exist under Chapter 41.56 RCW.

8.6.3   General Categories of Unit Structures

Bargaining units are often categorized by their shape in relation to the employer’s workforce. Keep the focus on the long-term, as follows:

♦      An "employer-wide" (or "wall-to-wall") unit draws its community of interest from grouping together all employees who have the same employer. Example: “All classified employees” in a small school district.

♦      A "horizontal" unit draws its community of interest from grouping together all employees within a generic occupational type. Example: “All office-clerical employees” cutting across departmental lines within the employer’s table of organization.

CAUTION: Employers sometimes argue that horizontal unit structures require department managers to deal with employees in two or more bargaining units, but horizontal units tend to reduce the potential for both unit determination issues or "skimming" claims. Occupational and career paths seldom change in re-structuring a table of organization.

♦      A "vertical" unit draws its community of interest from grouping together all employees who work in some branch (department, division, etc.) of the employer's current table of organization. For example: “All Parks Department employees” in a city, or “All Transportation employees” in a school district, or “All Department of ___ employees” of a state general government agency.

CAUTION: Vertical units create an ongoing potential for both unit determination disputes and "skimming of unit work" claims any time the employer attempts to re-structure its table of organization!

PERC staff members should watch for “H-shaped” units and other unit configurations that defy logic or description except in relation to a union’s current extent of organization.

8.6.4   "Community of Interest" Situations 

Unit determination issues can arise in a context of new organizing or a change of representation under Chapter 391-25 WAC, or from a change of circumstances affecting an existing bargaining relationship under Chapter 391-35 WAC. The Hearing Officer should always be mindful of the "community of interest" criteria administered by PERC:

♦      Duties, skills, and working conditions compare the employees involved with other employees of the same employer. PERC precedents place a particular focus on avoiding a potential for work jurisdiction conflicts.

♦      History of bargaining will not be a factor in cases involving unrepresented employees, but histories grow with each tick of the clock after positions or classes are included in or excluded from a bargaining unit.

♦      Extent of organization compares the employees involved in a proposed or existing unit with the employer's entire workforce, with particular focus on avoiding stranding of other employees in loopholes so small as to effectively preclude their exercise of statutory bargaining rights.

♦      Desires of the employees will only be assessed when two or more petitioning organizations have proposed appropriate unit configurations that overlap one another, and then only by conducting a secret ballot unit determination election.

♦      Avoidance of fragmentation (expressly stated only in Chapter 41.80 RCW, but a part of the "extent of organization" analysis under other laws) compares the employees involved with the employer's table of organization, with particular scrutiny for unit structures that would excessively divide the workforce into small units where larger units could be appropriate.

8.7   MAKING A RECORD ON "DUTIES, SKILLS, AND WORKING CONDITIONS"

Look for inter-relationships which compare or contrast the petitioned-for employees with other employees of the same employer and similar employees elsewhere:

♦      What education, training and experience requirements apply to the various groups?

♦      Are any employees claimed to be journey-level workers in traditional crafts? If yes,

        ►      Is there a single craft or a mix of crafts in the proposed unit?

        ►      Is the person working under the supervision of a journey-level crafts worker in preparation (apprenticeship) for becoming a crafts employee himself/herself?

        ►      Are traditional craft jurisdiction lines strictly observed?

♦      Are any employees claimed to meet the NLRA definition of “professional”? If yes,

        ►      What are the duties performed?

        ►      Is there a single profession or a mix of professions?

        ►      Is the professionals' work location separate from that of other employees?

        ►      Are the professionals' duties routine or varied?

        ►      Are the duties manual or mental?

        ►      What independent judgment and discretion is exercised?

        ►      Is the work predominantly intellectual and varied in character?

        ►      Is the work of such a character that the output cannot be standardized in relation to a given period of time?

        ►      Does work require knowledge of an advanced type customarily acquired by a prolonged course of education?

        ►      Is a state license and/or professional association membership required?

        ►      Is the person working under the supervision of a professional in preparation for becoming a professional employee himself/herself?

        ►      Is there a possibility that two or more professional units could be appropriate?

♦      Are any of the employees "fire fighters" covered by the Law Enforcement and Fire Fighters (LEOFF) pension system?

♦      Are any of the employees "fire dispatchers" working in a fire department? If yes,

        ►      Do they dispatch anything other than fire and emergency services?

        ►      Can or do they ever work as fire fighters?

♦      Are any of the employees engaged in the operation of an ambulance service? If yes,

        ►      Are they advanced life support technicians (paramedics) eligible for interest arbitration under RCW 41.56.030(7)?

        ►      Are they “emergency medical technicians” who are not eligible for interest arbitration?

♦      Are any of the employees claimed to be "police officers" or "deputy sheriffs" covered by the Law Enforcement and Fire Fighters (LEOFF) pension system? If yes,

        ►      Is the employer a city with a population in excess of 2,500 or a county with a population in excess of 10,000?

♦      Do any of the employees work in a county jail? If yes,

        ►      Is the employer a county with a population in excess of 70,000?

        ►      Are they trained for and responsible for custody of inmates?

♦      Are the employees involved in operating a "public passenger transportation system" eligible for interest arbitration under RCW 41.56.492?

♦      Do the employees share similarities as to their generic occupational type?

        ►      Do they operate similar types of equipment?

        ►      Do they interact with or interchange work with similar occupations in other employer operations?

        ►      Does the proposed unit include all employees of the employer who perform work within that generic occupational type?

♦      What are the departmental or divisional groupings within the employer's operation?

         ►      Does the proposed unit include all of the employees in a particular department?

         ►      What is the supervisory or management hierarchy?

         ►      Do all of the petitioned-for employees report to the same supervisor, or ultimately to the same manager?

         ►      If the proposed unit crosses departmental lines, what is the justification for linking the employees in those departments together?

NOTE: As part of the obligation to make a record, obtain the employer's organization chart and admit it in evidence. If clarification is needed, call an employer official as a witness and obtain testimony about the organization chart.

♦      Are the petitioned-for employees separated geographically from other employees of the employer? If yes,

        ►      What are the distances involved? (A picture can be worth a thousand words, so feel free to ask the parties to supply an annotated map showing locations. If a “walk through” of a facility is conducted, get a full description on the record.)

        ►      Are some employees permanently stationed at a work site while others move from site to site?

♦      What differences exist with respect to scheduling or hours of work shifts?

♦      What differences exist with respect to the amount or method of compensation?

♦      What differences exist with respect to the nature and type of employee benefits?

♦      Is there career or job progression between groups?

♦      Are seniority or other preferences honored separately for the groups?

♦      How many employees are in each of the groups?

♦      Do employees performing clerical functions work in support of the production process or in support of the employer's management / administration?

NOTE: Under the NLRA, employees working in support of administrative functions are often placed in separate “office-clerical” units, while “plant clerical” employees supporting production functions are commonly placed in the same unit with operations and maintenance employees. Applying that distinction in the K-12 schools, employees working in central offices and in the offices of building principals have been placed in "office-clerical" units, while employees who typed materials and ran copies for teachers were placed in “educational assistant” units.

♦      Are any employees described as "truck drivers" involved? If yes, do they have other duties within the employer's operation?

NOTE: Under the NLRA, outside truck drivers are often (but not always) placed in separate units from production and maintenance employees. Integration of drivers into other operations or a history of progression to / from other jobs will weigh against allowing a separate unit.

♦      Allow questioning on any similar subjects related to the "duties, skills, and working conditions" of the employees involved.

8.8   MAKING A RECORD ON HISTORY OF BARGAINING