Washington State Department of Social and Health Services, Decision 13954 (PSRA, 2024)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the matter of the petition of: Washington federation of state employees For clarification of an existing bargaining unit represented by: washington state department of social and health services	CASE 136609-C-23 DECISION 13954 - PSRA order clarifying bargaining unit
In the matter of the petitions of: washington state department of social and health services For clarification of an existing bargaining unit of employees of: washington federation of state employees	CASE 136740-C-23 and 137270-C-23 DECISION 13954 - PSRA Order clarifying bargaining unit

Edward Earl Younglove III, Attorney at Law, Younglove Coker & Rhodes, P.L.L.C., for the Washington Federation of State Employees.

Sara L. Wilmot and Jessica M. Erickson, Assistant Attorneys General, and Cheryl L. Wolfe, Senior Counsel, Attorney General Robert W. Ferguson, for the Washington State Department of Social and Health Services.

On May 12, 2023, the Washington Federation of State Employees filed a unit clarification petition concerning 10 employees recently reallocated from the Investigator 2 job class to the Investigator 3 job class working at the Washington State Department of Social and Health Services (employer or department). Case 136609-C-23. On June 12, 2023, and August 3, 2023, the employer filed two separate unit clarification petitions concerning the employees in the Social & Health Program Coordinator 4 (SHPC4) job class working in the Special Investigative Unit (SIU), case 136740-C-23, and one position in the Developmental Disability Administrator position working at the Yakima Valley School, case 137270-C-23. All three petitions concern employees working in the employer’s Developmental Disabilities Administration (DDA).

Representation Case Administrator Dario de la Rosa met with the parties to investigate all three petitions. During those discussions, the parties agreed that the petitioned-for Investigator 3s should remain in the union’s bargaining unit because the work those positions are performing has not changed and remains bargaining unit work. The parties also agree that other unrepresented employees in the Investigator 3, Administrative Assistant 3, and Office Assistant 2 job classes working in DDA that were not initially identified in any of the petitions should be added to the union’s nonsupervisory bargaining unit based upon community of interest standards. The parties agreed the employees in the SHPC 4 job class working at the SIU are internal auditors as defined by RCW 41.80.005(6) who should be removed from the union’s nonsupervisory bargaining unit. Finally, the parties agree that the Developmental Disability Administrator lacks a community of interest with the union’s supervisory bargaining unit.

The parties request for clarification is granted. The unrepresented employees in the Investigator 3, Office Assistant 2, and Administrative Assistant 3, job classes working in DDA all share a community of interest with the union’s nonsupervisory bargaining unit. To exclude these employees would create work jurisdiction issues. The employees in the SHPC 4 job class working at the SIU are internal auditors as defined by RCW 41.80.005(6) who are appropriately excluded from the bargaining unit. The Developmental Disability Administrator position working at the Yakima Valley School should be excluded from the union’s supervisory bargaining unit because the parties previously agreed that these positions lack a community of interest with the union’s supervisory bargaining unit.

BACKGROUND

The union represents a nonsupervisory and supervisory mixed class Institutions bargaining unit of employees at the department. The union’s nonsupervisory bargaining unit is currently defined as:

All nonsupervisory civil service employees of the State of Washington performing services for residents of 24-hour care and/or custody institutions operated by the Department of Social and Health Services, or providing alternative support and case services on a regional basis for the developmentally disabled who may not require institutionalizing, or those who have made the transition from a developmentally disabled institution setting back to the community, excluding confidential employees, internal auditors, supervisors, Washington Management Service employees, employees in other bargaining units, and employees historically excluded from the unit by such orders of the Washington Personnel Resources Board or its predecessors as have not been modified by orders of the Commission.

Washington State Department of Social and Health Services, Decision 13651-A (PSRA, 2023). The union’s supervisory bargaining unit is currently defined as:

All supervisory civil service employees of the State of Washington performing services for residents of 24-hour care and/or custody institutions operated by the Department of Social and Health Services, or providing alternative support and case services on a regional basis for the developmentally disabled who may not require institutionalizing, or those who have made the transition from a developmentally disabled institution setting back to the community, excluding confidential employees, internal auditors, Washington Management Service employees, nonsupervisory employees, employees in other bargaining units, and employees historically excluded from the unit by such orders of the Washington Personnel Resources Board or its predecessors as have not been modified by orders of the Commission.

Washington State Department of Social and Health Services, Decision 13630 (PSRA, 2023).

When the nonsupervisory bargaining unit was originally certified by the Washington State Personnel Board, the bargaining unit was described by job class and also included employees considered to be supervisors under chapter 41.80 RCW. See, e.g., RU-288 (1991). In 2004, this agency removed the supervisors from the bargaining unit and redefined the bargaining units by describing the kinds of work being performed by employees when it assumed jurisdiction over administration of the collective bargaining laws for state civil service employees. State – Social and Health Services, Decision 8420 (PSRA, 2004) However, the parties have relied upon the historic decisions of the Washington State Personnel Board to establish which job classes are excluded from both bargaining units.

The Union’s Petition – Investigator 3, Administrative Assistant 3, Office Assistant 2

The union’s petition concerns employees that were recently reallocated from the Investigator 2 job class to the Investigator 3 job class. The Investigator 2 job class is included in the union’s bargaining unit while the Investigator 3 job class has historically been excluded from the bargaining unit. Following the reallocation, the employer asserted the Investigator 3 positions should be removed from the union’s bargaining unit based upon the historical exclusion. The union’s petition seeks to keep these positions in its bargaining unit despite the historical exclusion.

The Representation Case Administrator conducted an investigation where the parties agreed that the duties of the at-issue employees did not change following the reallocation. The newly reallocated Investigator 3s continue to perform the same duties the positions performed when they were in the Investigator 2 job class. The Investigator 3s continue to be responsible for investigating allegations of client abuse of neglect by DDA staff. The at-issue positions gather facts and are responsible for developing the complete case from the original claim or allegation through preparation for presentation in court or administrative hearing.

During the Representation Case Administrator’s investigation, the parties recognized that other positions in DDA also logically belonged in the union’s bargaining unit. There are currently six unrepresented employees in the Investigator 3 job class who are performing the same duties as the represented employees in the Investigator 2 and 3 job classes. There are also 14 employees in the Administrative Assistant 3 and Office Assistant 2 job classes who are performing office clerical duties that are the same as represented employees in the Office Assistant and Administrative job classes. The parties agree that the unrepresented employees in the Investigators 3, Administrative Assistant 3, and Office Assistant 2 job classes all logically belong in the union’s bargaining unit because they only share a community of interest with that bargaining unit and work jurisdiction issues would be created if those employees were included in a different bargaining unit.

The Employer’s First Petition – Social & Health Program Coordinator 4

Th employer’s first petition concerns employees in the SHPC4 job class working in the SIU.[1] This agency recently added the SHPC4s to the union’s bargaining unit through a representation proceeding under WAC 391-25-080. Washington State Department of Social and Health Services, Decision 13651-A (PSRA, 2023). The employer asserts that the employees in the SHPC 4 job class working in the SIU are internal auditors. The employer concedes that it should have raised this challenge when the positions were initially added to the bargaining unit during the representation proceeding but mistakenly failed to do so. The parties now stipulate that the SHPC4s in the SIU are responsible for conducting and coordinating internal audits of DDA operated facilities for processes and performance to ensure that the employer is complying with state and federal laws. The parties are stipulate that these positions should be removed from the union’s bargaining unit.

The Employer’s Second Petition - Developmental Disability Administrator

The employer’s second petition concerns the employees in the Developmental Disability Administrator job class working at the Yakima Valley School. Currently, there are three Developmental Disability Administrators at the school, two positions are unrepresented and one position is included in the union’s supervisory bargaining unit. Unlike the Developmental Disability Administrator at other facilities and the department’s headquarters, the Developmental Disability Administrators at the Yakima Valley School are department heads and members of the facility’s executive management team. They are responsible for making decisions that impact the entire facility, including budget, staffing, organizational and operational changes, development of facility policies, and organizational decisions that impact mandatory subjects of bargaining for the supervisory and nonsupervisory employees at the facility. Additionally, the Developmental Disability Administrator positions occasionally act as the Officer of the Day which involves making decisions for the entirety of the facility on a 24-hour 7-day a week basis. They are contacted after hours to make decisions or be informed of issues that could require notification up the chain of command in DDA. They also routinely provide coverage as the Assistant Superintendent in their absence.

In 2019, the union added the employees in the Developmental Disability Administrator job class to its supervisory bargaining unit through a representation proceeding under WAC 391-25-080. Washington State Department of Social and Health Services, Decision 13061-A (PSRA, 2019). During those proceedings, the employer argued the Developmental Disability Administrators at the Yakima Valley School should be excluded from the supervisor bargaining unit based upon their duties. The parties agree to exclude only these Developmental Disability Administrators from the union’s supervisory bargaining unit. It appears that a clerical oversight occurred to include the at-issue Developmental Disability Administrators position in the union’s supervisory bargaining unit.

ANALYSIS

Applicable Legal Standard

The determination of appropriate bargaining units is a function delegated to this agency by the legislature. RCW 41.80.070; City of Richland, Decision 279-A (PECB, 1978), aff’d, International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission, 29 Wn. App. 599 (1981), rev. denied, 96 Wn.2d 1004 (1981). The goal in making unit determinations is to group together employees who have sufficient similarities (community of interest) to indicate that they will be able to bargain effectively with their employer. Central Washington University, Decision 9963-B (PSRA, 2010); Quincy School District, Decision 3962‑A (PECB, 1993).

This agency’s role is to determine whether there is a community of interest, not what the best community of interest is. Consequently, the fact that other groupings of employees may also be appropriate, or even more appropriate, does not render another configuration inappropriate. State – Secretary of State, Decision 12442 (PSRA, 2015) (citing Snohomish County, Decision 12071 (PECB, 2014); City of Winslow, Decision 3520-A (PECB, 1990)).

In examining the community of interest for the purpose of making bargaining unit determinations, this agency considers “the duties, skills, and working conditions of the employees; the history of collective bargaining; the extent of organization among the employees; the desires of the employees; and the avoidance of excessive fragmentation.” RCW 41.80.070. Bargaining unit determinations are made on a case-by-case basis, and the criteria are not applied on a strictly mathematical basis. King County, Decision 5910-A (PECB, 1997). Not all of the factors will arise in every case, and where they do exist, any one factor could be more important than another, depending on the facts. Renton School District, Decision 379-A (EDUC, 1978), aff’d, Renton Education Association v. Public Employment Relations Commission, 101 Wn.2d 435 (1984).

Included in this agency’s authority to determine an appropriate bargaining unit is the power to modify that unit, upon request, through a unit clarification proceeding. University of Washington, Decision 11590 (PSRA, 2012), aff’d, Decision 11590-A (PSRA, 2013); see also Pierce County, Decision 7018-A (PECB, 2001). Unit clarifications are governed by the provisions of chapter 391‑35 WAC. The general purpose of the unit clarification process is to provide this agency, as well as the parties to a collective bargaining relationship, with a mechanism to make changes to an existing bargaining unit based upon a change in circumstances to ensure its continued appropriateness. See, e.g., Toppenish School District, Decision 1143-A (PECB, 1981) (outlining the procedures to remove supervisors from existing bargaining units).

Generally, established bargaining units present a stability and maturity that lead to sound labor relations. City of Grand Coulee, Decision 13806 (PECB, 2024). A unit clarification petition disrupts that status quo and stability. Accordingly, a unit clarification petition requires a recent, meaningful change in circumstances that alters the existing community of interest such that clarification is necessary. WAC 391-35-020;[2] University of Washington, Decision 10496-A (PSRA, 2011) (citing City of Richland, Decision 279-A); South Sound 911, Decision 13736 (PECB, 2023). A change in circumstances is meaningful if the bargaining unit is no longer appropriate without clarification. The question is not whether the purported changes result in other or more appropriate unit configurations. The question is whether the bargaining unit remains appropriate. If the bargaining unit remains appropriate, clarification under this process is not required. In conducting this examination, the agency applies the same statutory unit determination criteria as RCW 41.80.070, which is used to establish the unit’s initial appropriateness. See South Sound 911, Decision 13736.

Among the types of changes that can alter an existing community of interest and necessitate clarification are meaningful changes to job duties, reorganization of the workforce, or other significant changes to the workplace environment. See Lewis County (Teamsters Local 252), Decision 6750 (PECB, 1999). A mere change in job titles is not necessarily a material change in working conditions that would qualify under chapter 391-35 WAC to alter the composition of a bargaining unit through the unit clarification process. See University of Washington, Decision 10496-A.

When modifying bargaining units, this Commission is mindful that a close relationship exists between a bargaining unit and the work jurisdiction of that bargaining unit. Port of Seattle (Seattle/King County Building and Construction Trades Council and HOD Carriers and Gen Laborers Local 242), Decision 6181 (PORT, 1998) (citing South Kitsap School District, Decision 472 (PECB, 1978)). If an employer assigns new work to employees in a bargaining unit, that work becomes historical bargaining unit work unless there is a prior agreement between the employer and the exclusive bargaining representative to make the transfer of work temporary. State – Social and Health Services, Decision 9551-A (PECB, 2008) (citing Kitsap County Fire District 7, Decision 7064-A (PECB, 2001)). If a question exists regarding the assignment of new work or the reassignment of existing work to another bargaining unit following a meaningful change in circumstances, the unit clarification process is the proper forum to resolve the long-term placement of that work. Clallam County Fire District 3, Decision 12587 (PECB, 2016).

When a unit clarification petition proposes to add or accrete positions into the bargaining unit, it seeks to do so without a vote of the employees in the at-issue positions. An accretion may be ordered when changed circumstances lead to the existence of positions that logically belong in only one existing bargaining unit. City of Auburn, Decision 4880-A (PECB, 1995). An accretion is not appropriate if the positions could stand on their own in a separate bargaining unit or could appropriately be placed in any other bargaining unit. Id. For an accretion to be directed, the resulting unit must be appropriate. Pierce County, Decision 6051-A (PECB, 1998). An accretion cannot be ordered where the number of employees to be added to the bargaining unit is so large as to call into question the union’s majority status in the enlarged unit. Port of Seattle, Decision 11131 (PORT, 2011).

Application of Standards

The parties’ agreement to include the employees reallocated from the Investigator 2 to Investigator 3 job class in the union’s bargaining unit is accepted. The employer’s decision to reallocate the employees to the Investigator 3 job class did not create a meaningful change in circumstances that requires removal of those positions from the union’s nonsupervisory bargaining unit. After the change in job title, the employee in the Investigator 3 job class continued to perform bargaining unit work. They perform the same duties, have the same lines of supervision, and continue to work with the same union-represented employees performing similar work.

When ascertaining bargaining unit status, this agency looks to the actual duties performed by the employees in that position. A reallocation or change in job title does not presumptively or automatically result in an employee’s removal from a bargaining unit if the employee continues to perform the same work. State – Natural Resources, Decision 9388-A (PSRA, 2006); Washington State Department of Social and Health Services, Decision 13175 (PSRA, 2020); University of Washington, Decision 11590-A. Needless and unwarranted manipulation of title and allocations designed to alter the configuration or composition of a bargaining unit are not allowed. Central Washington University, Decision 10215-A (PSRA, 2009).

The parties’ agreements to include the unrepresented employees in the Investigator 3 job class working in the DDA are also accepted. The employees in the Investigator 3 job class working in DDA perform the same duties, skills, and working conditions. They are all responsible for investigating allegations of client abuse of neglect by DDA staff. The work performed by the employees in the Investigator 3 job class is historically part of the union’s work jurisdiction and to exclude employees performing similar work from the union’s bargaining unit would create work jurisdiction issues. The unrepresented employees in the Investigator 3 job class working in DDA shall be added to the union’s nonsupervisory bargaining unit without the need of an election.

The employees in the Administrative Assistant 3 and Office Assistant 2 job classes working in the DDA only share a community of interest with the union’s bargaining unit. All the Administrative Assistants and Office Assistants perform intermediate and advanced office clerical support to supervisory employees; coordinates office operations; keeps supervisor’s calendar; makes travel arrangements; screens, prioritizes, and distributes mail; transcribes minutes, screens calls and visitors; and coordinates with other departmental staff members on administrative practices and procedures. The Administrative Assistants and Office Assistants routinely work on projects together and provide backup support for each other in the event of absences. The work performed by the employees in the Administrative Assistants and Office Assistants is historically part of the union’s work jurisdiction and to exclude employees performing similar work from the union’s bargaining unit would create work jurisdiction issues. The unrepresented employees in the Administrative Assistant 3 and Office Assistant 2 job classes working in DDA shall be added to the union’s nonsupervisory bargaining unit without the need of an election.

The parties’ agreement to exclude the SHPC4 working in the SIU from the union’s nonsupervisory unit and Developmental Disabilities Administrator from the union’s supervisory bargaining unit are also accepted. The duties of the at-issue SHPC4s qualify them as internal auditors as defined by RCW 41.80.005(6)(d). The parties previously agreed that the Developmental Disability Administrators working at the Yakima Valley School lack a community of interest with the union’s supervisory bargaining unit and the at-issue position should also be excluded. These positions are removed from their respective bargaining units.

FINDINGS OF FACT

1.                  The Washington State Department of Social and Health Services is an employer within the meaning of RCW 41.80.005(8).

 

2.                  The Washington Federation of State Employees (union) is an employee organization within the meaning of RCW 41.80.005(7).

3.                  The union represents a nonsupervisory bargaining unit is currently defined as:

All nonsupervisory civil service employees of the State of Washington performing services for residents of 24-hour care and/or custody institutions operated by the Department of Social and Health Services, or providing alternative support and case services on a regional basis for the developmentally disabled who may not require institutionalizing, or those who have made the transition from a developmentally disabled institution setting back to the community, excluding confidential employees, internal auditors, supervisors, Washington Management Service employees, employees in other bargaining units, and employees historically excluded from the unit by such orders of the Washington Personnel Resources Board or its predecessors as have not been modified by orders of the Commission.

4.                  The union represents a supervisory bargaining unit is currently defined as:

All supervisory civil service employees of the State of Washington performing services for residents of 24-hour care and/or custody institutions operated by the Department of Social and Health Services, or providing alternative support and case services on a regional basis for the developmentally disabled who may not require institutionalizing, or those who have made the transition from a developmentally disabled institution setting back to the community, excluding confidential employees, internal auditors, Washington Management Service employees, nonsupervisory employees, employees in other bargaining units, and employees historically excluded from the unit by such orders of the Washington Personnel Resources Board or its predecessors as have not been modified by orders of the Commission.

5.                  The employer recently reallocated six employees working at the Developmental Disabilities Administration (DDA) from the Investigator 2 job class to the Investigator 3 job class. The Investigator 2 job class is included in the union’s bargaining unit while the Investigator 3 job class has historically been excluded from the bargaining unit. Following the reallocation, the employer asserted the Investigator 3 positions should be removed from the union’s bargaining unit based upon the historical exclusion.

6.                  The newly reallocated Investigator 3s continue to perform the same duties the positions performed when they were in the Investigator 2 job class. The Investigator 3s continue to be responsible for investigating allegations of client abuse of neglect by DDA staff. The at-issue positions gather facts and are responsible for developing the complete case from the original claim or allegation through preparation for presentation in court or administrative hearing.

7.                  The parties agree that all of the unrepresented employees in the Investigators 3 job class working in DDA logically belong in the union’s bargaining unit because they only share a community of interest with that bargaining unit and work jurisdiction issues would be created if those employees were included in a different bargaining unit.

8.                  There are also 14 employees in the Administrative Assistant 3 and Office Assistant 2 job classes who are performing office clerical duties that are the same as represented employees in the Office Assistant and Administrative job classes. The parties agree that the unrepresented in the Administrative Assistant 3 and Office Assistant 2 job class all logically belong in the union’s bargaining unit because they only share a community of interest with that bargaining unit and work jurisdiction issues would be created if those employees were included in a different bargaining unit.

9.                  This agency recently added the employees in the Social & Health Program Coordinator 4 (SHPC4) job class working in the Special Investigative Unit (SIU) to the union’s bargaining unit through a representation proceeding under WAC 391-25-080. Washington State Department of Social and Health Services, Decision 13651-A (PSRA, 2023). The employer asserts the employees in the SHPC 4 job class working in the SIU are internal auditors who should have been excluded from the bargaining unit that during the representation proceeding and the employer mistakenly failed to raise this challenge during those proceedings. The parties stipulate that the at-issue SHPC4s are responsible for conducting and coordinating internal audits of DDA operated facilities for billing, processes, and performance to ensure that the employer is complying with state and federal laws.

10.              There are three employees in the Developmental Disability Administrator job class at the school, two are unrepresented and the at-issue employees is included in the union’s supervisory bargaining unit. Unlike the Developmental Disability Administrator at other facilities and the department’s headquarters, the Developmental Disability Administrators at the Yakima Valley School are department heads and members of the facility’s executive management team. They are responsible for making decisions that impact the entire facility, including budget, staffing, organizational and operational changes, development of facility policies, and organizational decisions that impact mandatory subjects of bargaining for the supervisory and nonsupervisory employees at the facility.

11.              When the Developmental Disability Administrators were added to the bargaining unit in 2019, the employer sought to exclude the Developmental Disability Administrators at the Yakima Valley School. The parties agree to exclude only these Developmental Disability Administrators from the union’s supervisory bargaining unit. Washington State Department of Social and Health Services, Decision 13061-A (PSRA, 2019). It appears that a clerical oversight occurred to include the at-issue Developmental Disability Administrators position in the union’s supervisory bargaining unit.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to chapter 41.80 RCW and chapter 391-35 WAC.

2.                  Based upon findings of fact 5 through 8, the employees in the unrepresented employees in the Investigator 3, Office Assistant 2, and Administrative Assistant 3, job classes working in DDA only share a community of interest with the bargaining unit described in finding of fact 3.

3.                  Based upon finding of fact 9 two employees in the Social & Health Program Coordinator 4 job class working for the SIU are internal auditors as defined by RCW 41.80.005(6) who should be excluded from the union’s nonsupervisory bargaining unit described in finding of fact 3.

4.                  Based upon findings of fact 10 and 11, the Developmental Disability Administrators working at the Yakima Valley School lack a community of interest with the union’s supervisory bargaining unit described in finding of fact 4.

ORDER

1.                  The unrepresented employees in the Investigator 3, Office Assistant 2, and Administrative Assistant 3, job classes working in DDA shall be added to the bargaining unit described in finding of fact 3 without the need of an election.

2.                  The employees in the Social & Health Program Coordinator 4 job class working in the Special Investigative Unit are internal auditors as defined by RCW 41.80.005(6) shall be removed from the union’s nonsupervisory bargaining unit described in finding of fact 3.

3.                  The Developmental Disability Administrator working at the Yakima Valley School shall be removed from the union’s supervisory bargaining unit as described in finding of fact 4.

ISSUED at Olympia, Washington, this  17th  day of September, 2024.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

Michael P. Sellars, Executive Director

This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-35-210.