International Ass'n of Fire Fighters, Local 1052 v. Public Employment Relations Commission

• Decision Date: 16 June 1981
• Docket Number: No. 4027-III-5,4027-III-5
• Citation: 630 P.2d 470,29 Wn.App. 599
• Parties: , 110 L.R.R.M. (BNA) 2306 INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1052, Appellant, v. PUBLIC EMPLOYMENT RELATIONS COMMISSION of the State of Washington, an administrative agency, and City of Richland, Washington, a municipal corporation, Respondents.
• Court: Washington Court of Appeals

Page 599

29 Wn.App. 599

630 P.2d 470, 110 L.R.R.M. (BNA) 2306

INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1052, Appellant, v. PUBLIC EMPLOYMENT RELATIONS COMMISSION of the State of Washington, an administrative agency, and City of Richland, Washington, a municipal corporation, Respondents.

No. 4027-III-5.

Court of Appeals of Washington, Division 3, Panel Two.

June 16, 1981.

Reconsideration Denied July 2, 1981.

Michael E. DeGrasse, Critchlow, Williams & Schuster, Richland for appellant.

Kenneth O. Eikenberry, Atty. Gen., Richard A. Heath, Asst. Atty. Gen., Olympia, for Public Relations Commission.

J. David Andrews, Seattle, for City of Richland.

ROE, Acting Chief Judge.

The questions in this case are: (1) was it proper for the Public Employment Relations Commission (PERC) to accept jurisdiction of a unit clarification petition by the City of Richland, Washington (City), and (2) after having accepted jurisdiction, was the decision of PERC, which excluded battalion chief positions from the collective bargaining unit which also included rank-and-file firefighters, either contrary to law, clearly erroneous, or arbitrary and capricious? Not involved in this case is a determination of whether the battalion chiefs are supervisory personnel or confidential employees who are ineligible for the benefits of the Public Employees' Collective Bargaining Act, RCW 41.56.010, et seq.

Since 1972, plaintiff/appellant Local 1052 (Union) had represented all members of the fire department in Richland, including the battalion chiefs, with the exception of the fire chief. In 1975, the Union and the City began negotiating a collective bargaining agreement, which would be in effect January 1, 1976, to December 31, 1977.

On May 20, 1975, the City, believing the battalion chiefs should not be included in the same local as the other firefighters, petitioned PERC for unit clarification, seeking to exclude the battalion chief position from the bargaining unit. Neither party raised this issue during the negotiations and the new agreement, which included the battalion chiefs, was signed on August 5, 1975.

Later that year, the City again asked PERC to consider its previous petition to exclude battalion chiefs. At a hearing in 1977, the Union challenged the City's right to petition and requested the hearing officer not reach the merits. This request was refused. Then the Union representatives walked out and refused to participate in a hearing on the merits relying on lack of jurisdiction of PERC. The hearing officer continued to take evidence on the function of the battalion chiefs. He later decided that PERC had jurisdiction to consider the petition and found the bargaining unit should be clarified by excluding the battalion chiefs. This decision was appealed to PERC, which affirmed the order. The Superior Court affirmed on appeal; this appeal followed.

Public employees have been given the right by statute, RCW 41.56.040, to organize for the purposes of collective bargaining. Public employees are defined in a rather restricted sense. RCW 41.56.030(2). They are those who are not elected by popular vote, or who are not appointed to office for a specified term, or whose duties do not necessarily imply a confidential relationship to the executive head of a public body. RCW 41.56.030(2).

PERC has been established to decide the appropriate bargaining unit when there is a disagreement between the public employer and employees regarding the selection of a bargaining representative. RCW 41.56.050. This process may be used in determining, modifying, or combining bargaining units; neither the statute nor the rule sets forth time limits for filing a petition for clarification of a unit. RCW 41.56.060; WAC 391-21-300. ¹ In determining, modifying, or combining the bargaining unit, the commission "shall consider the duties, skills, and working conditions of the public employees," as well as the history and extent of collective bargaining and the desire of the public employees to be organized. RCW 41.56.060.

A unit clarification petition is a procedure for resolving ambiguities when there have been changes in the responsibilities of some members of a bargaining unit. Union Electric Co., 217 N.L.R.B. 666, 667 (1975). Such petitions are authorized by our statute, RCW 41.56.060, and by rule, WAC 296-132-151: ²

Whenever a disagreement occurs on whether or not positions are to be included or excluded from the bargaining unit, the public employer or the bargaining representative may petition the department to conduct a representation hearing to resolve the matter.

PERC's authority to decide a unit appropriate for the purposes of collective bargaining is similar to that of the NLRB. See 29 U.S.C. § 159. A unit determination by the NLRB involves of necessity a large measure of informed discretion, Packard Motor Car Co. v. NLRB, 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040 (1947), and must be upheld absent a clear abuse of this discretion. Dynamic Machine Co. v. NLRB, 552 F.2d 1195, 46 A.L.R.Fed. 391 (7th Cir. 1977); Stop & Shop Cos. v. NLRB, 548 F.2d 17 (1st Cir. 1977); Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352 (9th Cir. 1970). Likewise, our Supreme Court has previously ruled that an administrative agency's appropriate unit finding must be upheld absent a clear abuse of discretion. Association of Capitol Powerhouse Engineers v. State, 89 Wash.2d 177, 183, 570 P.2d 1042, 95 A.L.R.3d 1090 (1977).

The Union argues that (1) since the employer petitioned for unit clarification prior to bargaining for a new contract with the firefighters and the battalion chiefs, (2) since an agreement was reached in which the battalion chief position was expressly included in the bargaining unit, and (3) since the issue of clarification of the unit was not brought to that bargaining table by either the employer or the employees' union, PERC lacked jurisdiction to modify the new contract.

The Union relies upon Safeway Stores, Inc., 216 N.L.R.B. 819 (1975), in which the NLRB held, "(T)he Board will not normally entertain a petition for unit clarification during the term of a contract to modify a unit which is clearly defined in the current bargaining agreement." Accord, Pacific Northwest Bell Tel. Co., 211 N.L.R.B. 1021 (1974). In addition, the Union argues that Northwest Publications, Inc., 197 N.L.R.B. 213 (1972), involving an employer's unit clarification petition requesting certain supervisors be excluded from the established bargaining unit, controls. Previous negotiations covered the employees whom the employer later sought to exclude. The employer did not raise the issue of exclusion before the contract was executed.

The Northwest Publications principle and cases relied upon by the Union are not determinative because those cases dealt with unit clarification petitions filed during midterm negotiations over the existing contracts pursuant to a limited reopening clause. In the case at bench, the City had filed its petition for unit clarification at the time of the opening of negotiations for the 1976-77 contract. The hearing officer found:

(T)he Union was put on notice by the City that the unit composition was being questioned and that the matter would be resolved by means of the Commission's processes. Since the subject of the unit makeup was not discussed at the bargaining table, although the red flag had been raised by the petition, I conclude that my consideration of the merits of the dispute would not be unduly disruptive to the parties' collective bargaining relationship.

Decisive of the question in this case is WNYS/TV (WIXT), 239 N.L.R.B. 170 (1978). There, the Union sought to clarify a bargaining unit to include additional personnel. The regional director refused to consider the petition because the Union had failed to insist upon inclusion of the disputed classification in the unit during the most recent contract negotiation. During the negotiations for the current contract the Union/petitioner proposed the classification be included in the unit, but the parties did not reach agreement. Then the Union withdrew the proposal, as it did not wish to risk economic warfare or possible unfair labor practice charges over this question. It did, however, express its intent to pursue the matter through other channels in the future. The contract was signed March 17, 1978, after which the Union filed its unit clarification petition.

In reversing the director, the NLRB relied on Massey-Ferguson, Inc., 202 N.L.R.B. 193 (1973). There, the Union filed a clarification petition shortly after the contract was executed and after notice to the employer that it would do so. The Board found the clarification to include the disputed classification was proper, absent an indication the Union had abandoned its request in exchange for some concessions in the negotiations.

Here, as in WNYS-TV and Massey-Ferguson, there was no suggestion the City withdrew its petition for unit clarification as part of the bargaining process. PERC, therefore, appropriately considered the unit clarification petition.

Having decided PERC had jurisdiction to entertain the City's unit clarification petition, we must now decide whether the order entered by the hearing officer, and upheld by PERC and the Superior Court, was within PERC's authority. We find nothing in the PERC's order which is either clearly erroneous, arbitrary and capricious, or contrary to law, and therefore affirm its decision. ³

Whether a battalion chief position should be included in the bargaining unit under state law has been hitherto rather uncertain. Prior to 1970, the city battalion chief position was included in the bargaining unit. From 1970 to 1972, the battalion chief position was excluded from the bargaining unit by agreement. In 1972, after contested representation proceedings, the battalion chief position was reincluded. Thus, there has been a continuing disagreement between the City and the Union as to...