                                           :f, ^ 52




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

UNIVERSITY OF WASHINGTON,
                                                 No. 68376-4-1
                     Respondent,
                                                 DIVISION ONE



WASHINGTON FEDERATION OF
STATE EMPLOYEES,                                 PUBLISHED OPINION


                     Appellant.                  FILED:     June 24, 2013


       Becker, J. —Washington law guarantees state employees the right "to

bargain collectively through representatives of their own choosing." RCW

41.80.050. A state employer may not, therefore, impose upon employees its own

choice as to which labor union should represent them. Here, the University of

Washington insisted on moving a group of hospital employees to a bargaining

unit represented by a different union as a condition of reallocating them to a

position with a higher pay grade. The Public Employment Relations Commission

correctly decided that this was an unfair labor practice.


                                      FACTS

       For many years, the Washington Federation of State Employees has been

the labor representative for employees working for the University of Washington
No. 68376-4-1/2



at Harborview Medical Center. This appeal involves a group of about 35

Harborview employees who are classified as "specimen processing technicians."

In 2003, it came to the University's attention that these employees were doing

the same work as a group of employees at a different University facility who were

on a higher pay scale. These other employees, classified as "clinical laboratory

technicians," worked at the University of Washington Medical Center. The

University decided that the Harborview employees needed to be "reallocated" as

clinical laboratory technicians. Under state civil service rules, reallocation of a

position means the "assignment of a position to a different class." WAC 357-01-

270.


       The University reallocated the Harborview employees and, at the same

time, transferred their work out of the Federation's Harborview bargaining unit.

Both of these actions were taken without notice to the Federation and without

providing an opportunity for bargaining.

       The Federation filed a complaint with the Public Employment Relations

Commission. In 2006, the Commission found that the University had committed

an unfair labor practice by unilaterally skimming bargaining unit work out of the

Federation's bargaining unit without satisfying its bargaining obligations.1 The
Commission ordered the University to return the employees to their previous job




       1Wash. Fed'n of State Emps. v. Univ. of Wash.. No. 17946-U-04-4627, 2005 WL
636216 (Wash. Pub. Emp't Relations Comm'n March 2, 2005), affirmed, Wash. Fed'n of
State Emps. v. Univ. of Wash.. No. 17946-U-03-4627, 2006 WL 4595093 (Wash. Pub.
Emp't Relations Comm'n Sept. 5, 2006).
No. 68376-4-1/3



classification as specimen processing technicians and to return their work to the

Federation's Harborview bargaining unit. The University complied.

       The problem then became how to maintain the employees at the higher

rate of pay. The Federation proposed that the University create a new job

classification of clinical laboratory technicians just for Harborview. By this

means, the employees could get paid at the higher rate while remaining in the

Federation's Harborview bargaining unit. The University did not accept the

Federation's proposal but did agree to freeze the employees at the higher level of

wages they had been receiving.

       The wage freeze arrangement was not entirely satisfactory because it did

not achieve complete parity for the specimen processing technicians at

Harborview. Unlike their counterparts, they were not entitled to state-mandated

pay raises. The University once again decided it would be best to reallocate

them as clinical laboratory technicians and to move their work out of the

Federation bargaining unit. The University's approach now meant that the

employees would be transferred into a bargaining unit of the Service Employees

International Union (SEIU) 925. In 2003, when the University first decided to

reallocate the Harborview technicians, the job class of clinical laboratory

technicians was unrepresented, but the Commission had recently certified SEIU

to represent a group of employees at the University Medical Center that included

the job class of clinical laboratory technicians.

       The University contacted the Federation to discuss its plan for resolving

the status of the employees. The Federation again responded by proposing that
No. 68376-4-1/4



the employees be given their own job code as clinical laboratory technicians at

Harborview. That way, they would be on the same pay scale as their

counterparts at the University Medical Center, while their work would remain in

the bargaining unit represented by the Federation. The University expressed the

belief that it would be more efficient if all the clinical laboratory technicians were

in the SEIU bargaining unit. The Federation argued that it had a fundamental

right to retain these employees within the Harborview bargaining unit that

historically had represented them. The employees complained to both sides that

they were being "held hostage" by the dispute.

       In April 2008, the Federation filed with the Commission the complaint that

gave rise to this appeal, alleging among other things that the University was

refusing to bargain in good faith about the status of the employees, as evidenced

by a pattern of insisting that they be transferred into SEIU. A three-day hearing

was held. In September 2010, a hearing examiner dismissed the complaint.2 As
the examiner perceived the dispute, the only issue involved was reallocation. He

found that the parties had engaged in "hard" bargaining on that issue by sticking

to their respective positions, but he concluded that there was no refusal by the

University to bargain in good faith. The authority he relied on was RCW

41.80.005(2): "The obligation to bargain does not compel either party to agree to

a proposal or to make a concession, except as otherwise provided in this

chapter."




       2 Wash. Fed'n of State Emps. v. Univ. of Wash.. No. 21681-U-08-5529, 2010 WL
3726542 (Wash. Pub. Emp't Relations Comm'n Sept. 17, 2010).
No. 68376-4-1/5



          The Federation appealed to the Commission. In March 2011, the

Commission reversed the examiner's decision.3 The Commission left unaltered

the examiner's finding that the University had bargained in good faith about the

reallocation of the employees to a different job classification. The Commission

concluded, however, that the real issue raised by the complaint was not a refusal

to bargain about reallocation; it was the University's improper attempt to

reconfigure the bargaining unit. According to the Commission's decision, the

University's insistence on moving the employees into the SEIU unit amounted to

a refusal to bargain and an interference with the employees' collective bargaining

rights.

          Regardless of the job classification assigned to a particular
          employee, [the Federation] retains the right under Chapter 41.80
          RCW to represent those employees that it was historically certified
          to represent and also retains the right to preserve the employees'
          historical work jurisdiction, including any newly assigned work.
          Therefore, even when an employer assigns new duties to a
          bargaining unit position and then reallocates that position to a new
          classification, the position still remains in the historical bargaining
          unit, and an employer may not unilaterally move employees to a
          different bargaining unit, nor may it move them after negotiating to
          impasse.[4]
The Commission found the University had committed an unfair labor practice and

ordered the University to cease and desist from attempting to bargain the

configuration of employee bargaining units.

          The University sought judicial review in superior court. The Federation

intervened to defend the Commission's ruling. The superior court reversed the



      3 Univ. of Wash, v. Wash. Fed'n of State Emps.. No. 21681-U-08-5529, 2011 WL
772225 (Wash. Pub. Emp't Relations Comm'n March 1, 2011), hereafter "Decision."
          4 Decision at *5.
No. 68376-4-1/6



Commission and ordered that the Federation's complaint be dismissed. The

Federation now appeals, seeking reinstatement of the Commission's decision.

       In reviewing administrative action, this court sits in the same position as

the trial court, applying the standards of the Washington Administrative

Procedure Act, chapter 34.05 RCW, directly to the record before the agency.

Tapper v. Emp't Sec. Dep't. 122 Wn.2d 397, 402, 858 P.2d 494 (1993).

Reviewing courts may grant relief only if the party challenging the agency order

shows that the order is invalid for one of the reasons set forth in the act at RCW

34.05.570(3). Yakima Police Patrolmen's Ass'n v. City of Yakima. 153 Wn. App.

541, 553, 222 P.3d 1217 (2009). In its petition for judicial review, the University

relied on those sections of the Administrative Procedure Act that permit a court to

grant relief from an agency order where:

              (b) The order is outside the statutory authority or jurisdiction
       of the agency conferred by any provision of law;

              (d) The agency has erroneously interpreted or applied the
       law;
             (e) The order is not supported by evidence that is substantial
      when viewed in light of the whole record before the court, which
      includes the agency record for judicial review, supplemented by any
      additional evidence received by the court under this chapter;

             (h) The order is inconsistent with a rule of the agency unless
      the agency explains the inconsistency by stating facts and reasons
      to demonstrate a rational basis for inconsistency; or
            (i) The order is arbitrary or capricious.

RCW 34.05.570(3).

       Because the Commission is entitled to substitute its findings for those of

the hearing examiner, it is the Commission's findings that are relevant on appeal.

Yakima Police, 153 Wn. App. at 552. The Commission's findings of fact are
No. 68376-4-1/7



reviewed for substantial evidence; conclusions of law are reviewed de novo.

Yakima Police. 153 Wn. App. at 552. The Commission's interpretation of the

collective bargaining statutes "is entitled to substantial weight and great

deference" in view of its expertise in the area of collective bargaining. City of

Bellevue v. Int'l Ass'n of Fire Fighters. Local 1604. 119 Wn.2d 373, 382, 831

P.2d 738 (1992).

Issue 1: Was the University attempting to bargain the configuration of
bargaining units? Answer: Yes.

       The Commission adopted the examiner's findings of fact and conclusions

of law but added one more finding and one more conclusion that the University

challenged in its petition for review by the superior court. The Commission's

finding of fact 12 states that during the course of negotiations with the

Federation, the University "proposed and insisted" that once the employees were

reallocated to the new job classification, they would have to be transferred to a

bargaining unit of SEIU. The Commission's conclusion of law 6 states that the

University's firm position was an attempt "to bargain the configuration of the

bargaining units" represented by the two unions.

       The University contends it did not propose, insist on, or attempt to bargain

the reconfiguration of the bargaining units. According to the University, its

discussions with the Federation about the status of the employees were based

on a good faith understanding that transferring them to the SEIU bargaining unit

was unavoidable, given the fact that SEIU had been certified as the

representative of a bargaining unit at the University Medical Center that included

the job class of clinical laboratory technicians.
                                           7
No. 68376-4-1/8



       The University does not contend that reconfiguration actually was

unavoidable. Nor could it so contend in the face of evidence presented by the

Federation that there are already numerous situations where University

employees in the same job classification are represented by different unions.

And even if the record established beyond doubt that the University had a good

faith understanding that transfer of the employees to SEIU was unavoidable, the

University's "understanding" was not relevant to making a finding about what the

University actually did.

       Substantial evidence supports the finding that the University "proposed

and insisted" on moving the employees to SEIU. The University notified the

Federation on October 4, 2007, "of the contemplated reclassification" of the

specimen processing technicians to SEIU. The University adhered firmly to this

position over the following year, as reflected in communications in November

2007, April 2008, and June 2008. In July 2008, the University maintained its

position that the employees' work should be "reallocated" to SEIU and therefore

the University was unwilling to accept the Federation's offer.

       From this record, it is logical to draw the conclusion that the University

was attempting to bargain a reconfiguration of the bargaining units. The

foreseeable effect of the proposal the University was insisting on would be to

remove work from the Federation's Harborview bargaining unit and add it to the

SEIU bargaining unit. We find no reason to overturn finding of fact 12 or

conclusion of law 6.




                                          8
No. 68376-4-1/9



Issue 2: Was it an unfair labor practice for the University to insist that
employees be transferred out of their existing union? Answer: Yes.

       State employees in Washington enjoy the right "to bargain collectively

through representatives of their own choosing for the purpose of collective

bargaining free from interference, restraint, or coercion." RCW 41.80.050.

Accordingly, it is an unfair labor practice for an employer to "interfere with,

restrain, or coerce employees in the exercise of their collective bargaining rights.

RCW 41.80.110(1 )(a). It is also an unfair labor practice for an employer to

"refuse to bargain collectively with the representatives of its employees." RCW

41.80.110(1 )(e). The Commission concluded that subsections (a) and (e) were

both violated by the University's attempt to bargain with the Federation about

which union should represent the employees. The University asks this court to

hold that its conduct did not amount to an unfair labor practice.

       The University had no legal right to insist, in bargaining, that the

Federation agree to let the employees be moved to another union. The

configuration of collective bargaining units is a function delegated by the

legislature to the Commission. The Commission has the authority to certify
bargaining units, and this includes "determining the new units or modifications of
existing units." RCW 41.80.070(1). In delineating between units, the
Commission is required to consider the "duties, skills, and working conditions of
the employees; the history of collective bargaining; the extent of organization
among the employees; the desires ofthe employees; and the avoidance of
excessive fragmentation." RCW 41.80.070(1).
No. 68376-4-1/10



       Where some change calls into question the proper boundaries of a

bargaining unit, the appropriate procedure is for the affected party or parties to

file a timely unit clarification petition with the Commission. RCW 41.56.060; Int'l

Ass'n of Fire Fighters, Local 1052 v. Pub. Emp't Relations Comm'n, 29 Wn. App.

599, 601-02, 630 P.2d 470. review denied, 96 Wn.2d 1004 (1981). An entire

chapter of the Washington Administrative Code is devoted to the procedures for

unit clarification petitions. See chapter 391-35 WAC. The Commission will

consider a unit clarification petition only if it is based on a recent change of

circumstances. WAC 391-35-020(4)(a).5 The University did ask the Commission
three times to assign all clinical laboratory technicians to the SEIU bargaining

unit. But the University's first petition was not filed until 2008. The Commission

dismissed each petition as untimely. The Commission's orders dismissing the

University's unit clarification petitions as untimely have not been challenged on

appeal.

       In the decision at issue in this appeal, the Commission explains that filing

a timely unit clarification petition would have been the appropriate method for the

University to use to resolve this dispute. "Unit determination questions are within

the authority of the Commission to decide, not matters for parties to agree on or

determine among themselves, and the Commission need not give any weight or

deference to agreements between parties."6 Thus, if the University believed that
reallocating the employees into a job classification that SEIU had been certified



       5 Decision at *9 n.8.
       6 Decision at *5.
                                          10
No. 68376-4-1/11



to represent would automatically result in transferring them into the SEIU

bargaining unit, the University was mistaken. Their job classification "still

remains in the historical bargaining unit, and an employer may not unilaterally

move employees to a different bargaining unit, nor may it move them after

negotiating to impasse."7
       In support of the conclusion that it was an unfair labor practice for the

University to attempt to bargain about the configuration of a bargaining unit, the

Commission cited Boise Cascade Corp. v. National Labor Relations Board, 860

F.2d 471 (D.C. Cir. 1988). In Boise Cascade, after the employer and union

arrived at a bargaining impasse, the employer unilaterally imposed a change in

how the employees' bargaining units would be configured. The court held this

action was a "fundamental" interference with the employees' bargaining rights:

             The reasons why the law does not sanction a unilateral
       change by the employer in the scope of the bargaining units are as
       simple as they are fundamental. . . .
              .. . [I]f an employer could vary unit descriptions at its
       discretion, it would have the power to sever the link between a
       recognizable group of employees and its union as the collective
       bargaining representative of these employees. This, in turn, would
       have the effect both of undermining a basic tenet of union
       recognition in the collective bargaining context and of greatly
       complicating coherence in the negotiation process.. ..
              . . . [NJeither an employer nor a union has the unilateral
       power to modify the scope of the bargaining unit as determined by
       the [National Labor Relations] Board, whether following bargaining
       to impasse or otherwise.




       7 Decision at *5.

                                          11
No. 68376-4-1/12



Boise Cascade. 860 F.2d at 475. The court explained further that "to allow a

party to insist upon a change in the scope of a bargaining unit would subvert the

authority of the [National Labor Relations] Board to make binding determinations

regarding the appropriateness of bargaining units." Boise Cascade, 860 F.2d at

475.


       The University acknowledges that federal decisions construing the

National Labor Relations Act are persuasive in interpreting similar provisions of

Washington labor statutes. See Nucleonics Alliance. Local Union No. 1-369 v.

Wash. Pub. Power Supply Svs.. 101 Wn.2d 24, 677 P.2d 108 (1984). The

University argues, however, that the Commission misinterpreted and misapplied

Boise Cascade. The distinction the University relies on is that in Boise Cascade,

the employer unilaterally implemented the reconfiguration of the bargaining units,

while here the University stopped short of implementing its proposal.

       The distinction between an attempt and a fait accompli is not meaningful

in these circumstances. The Commission did not say that the University

committed an unfair labor practice merely by raising the possibility of a

reconfiguration in its discussions with the Federation. What concerned the

Commission was that the University was unyielding in its position that

reallocation of the employees had to be accompanied by transferring their work

to SEIU. The purpose of reallocating the positions was to increase the pay of the

affected employees at Harborview. By joining reallocation to reconfiguration, the

University effectively made reconfiguration of the bargaining unit a condition of

higher pay. This conduct violated the fundamental principle embodied in Boise

                                         12
No. 68376-4-1/13



Cascade: an employer may not force upon employees its own choice of who

should be their collective bargaining representative.

       For more than a year of discussion about what to do with the Harborview

specimen processing technicians, the University steadfastly refused to consider

any solution that did not include moving them to SEIU. The Commission

correctly concluded that Boise Cascade supports the decision to find that the

University committed an unfair labor practice.

       The University further contends that the Commission acted arbitrarily by

applying Boise Cascade in a manner that is irreconcilable with the Commission's

own decisions. The Commission retained the examiner's finding that the

University did not violate its obligation to bargain in good faith, and the University

sees that finding as inconsistent with the Commission's ultimate conclusion that

the University's conduct was a refusal to bargain. We disagree. The examiner's

finding pertained to the topic of reallocation. The Commission's finding pertained

to the topic of reconfiguring the bargaining units. The Commission could

reasonably conclude that the University had a right to take an unyielding position

on its proposal for reallocation and, at the same time, conclude that the

University's conduct amounted to a refusal to bargain when its proposal for

reallocation was conditioned upon reconfiguration.

       The University also contends the Commission arbitrarily departed from its

own reasoning in the first unfair labor practice decision in this matter in 2006.

That decision was based on the Federation's complaint that the University had

reallocated the employees and moved them out of the Federation's bargaining

                                          13
No. 68376-4-1/14



unit without notifying the Federation. The Commission found in 2006 that it was

an unfair labor practice for the University to reallocate without giving the

Federation an opportunity to bargain about the effect the reallocation would have

on the employees. But the decision did not characterize the transfer of the

employees' work outside the Federation's bargaining unit as an effort to

reconfigure the bargaining unit. Why, the University asks, should the

Commission be allowed to raise the reconfiguration issue now when it was not

discussed in the previous decision?

       The Commission, like this court, undoubtedly tries to avoid deciding issues

not presented. The University's failure to bargain before removing the work was

the only conduct the Federation complained of in its first petition. In the present

case, the University did bargain; but as the petition clearly alleged, the University

persistently refused to consider any resolution of the employees' status that did

not involve transferring them to SEIU. The University's unyielding demand that

the Federation accede to the transfer of the employees to SEIU is the reason

why the Commission found that the University was unlawfully attempting to

bargain configuration:

       In this case, it is readily apparent from the record that the employer
       continually insisted during bargaining that, once the employees
       were reallocated into the [clinical laboratory technician]
       classification, they would be transferred to SEIU's bargaining unit.
       The employer made it perfectly clear. .. that the employer was
       unwilling to accept any alternative proposed by [the Federation].[8]




        Decision at *6.
                                          14
No. 68376-4-1/15



The University's insistence, maintained over many months, provided a rational

basis for the Commission to conclude that the issue presented in this case was

different from the issue presented by the 2006 decision.

       As explained by the Federation, the difference is between a "skimming"

case and a "scope" case. The Commission has observed in an unrelated case

that "Distinguishing between skimming and scope cases is not an easy task."9
Nevertheless, the distinction is important because an attempt to bargain the

scope of a bargaining unit is a direct assault upon the Commission's exclusive

statutory authority to determine the configuration of bargaining units. Boise

Cascade makes the same point where it explains that the "scope of the

bargaining unit" is determinative of what employees the unit represents, and

while the concept of scope can be difficult to define, "it is clear" that an employer

may not alter the composition of the bargaining unit under the guise of the

transfer of unit work. Boise Cascade, 860 F.2d at 474-75.

       We conclude that the Commission acted in accordance with law,

consistently with its own rules, and not arbitrarily, in its decision that the

University committed an unfair labor practice by insisting that employees be

transferred out of their existing union.




      9 Teamsters Local 763 v. Snohomish County, No. 19393-U-05-4924, 2007 WL
1959331, at*2 (Wash. Pub. Emp't Relations Comm'n June 14, 2007).

                                           15
No. 68376-4-1/16



Issue 3: Did the Commission unfairly decide the case on the basis of an issue
not specifically identified in the preliminary ruling? Answer: No.

       Under the Commission's administrative scheme, a cause of action to be

heard by the Commission is framed by a preliminary ruling issued by a hearing

examiner. WAC 391-45-110. Here, the preliminary ruling identified two causes

of action: an interference with the employees' collective bargaining rights and a

refusal to bargain, "by failing or refusing to meet and negotiate with the exclusive

bargaining representative of its employees concerning wages for specimen

processing technicians." The preliminary ruling did not specifically mention that a

persistent attempt to bargain a reconfiguration of bargaining units was a violation

that would fit into these general categories. The University contends the

Commission injected the reconfiguration issue into the case sua sponte, and as a

result, the University was not prepared to confront the issue and did not have an

ample opportunity to be heard.

       The record does not compel us to conclude that the University was

blindsided. A preliminary ruling is based on the filing of a detailed complaint.

WAC 391-45-050. The Federation's lengthy complaint alleged that the

University's conduct constituted a refusal to bargain because it became clear that

the University "never had any intention of bargaining anything but" the placement

of the employees into the SEIU bargaining unit. The Federation alleged that the

University's conduct was not only a refusal to bargain, it also "interfered with the

representational relationship" between the Federation and the employees.

These allegations sufficiently filled out the general categories identified in the



                                          16
No. 68376-4-1/17



preliminary ruling so as to notify the University it would have to defend its

practice of insisting on the transfer of the employees to SEIU.

       And if that was not enough notice, the Federation's appeal of the

examiner's decision specifically complained that the University had continually

insisted on a modification of the Federation's bargaining unit. The Federation

stated that it did not feel it could bargain the employees' most basic bargaining

rights, but the University continued to insist on it:

       The University's position throughout all of this time has been to
       insist in the exact same action for which they had been found guilty
       of a ULP [unfair labor practice], modification of the WFSE
       [Federation] bargaining unit. The employees' bargaining rights
       have been neither something the WFSE felt it could bargain nor
       something it was willing to bargain despite the University's
       persistence.

The University's unbending wish to move the employees into a different union

was plainly at the heart of the Federation's complaint of refusal to bargain and

interference with employee rights.

       Even now, the University does not claim to have evidence that it would

have put into the record if it had known the Commission was going to consider

enforcing the employees' right to remain in their historic bargaining unit. The

University should not have been surprised that the Commission, upon reading

the correspondence in which the University repeatedly insisted on reconfiguring

the bargaining units, would find it necessary to protect its exclusive authority from

the University's incursion.




                                           17
No. 68376-4-1/18



       We conclude the University had adequate notice of the issue the

Commission found dispositive, and the Commission did not deny the University

an opportunity to be heard.

       The superior court's decision is reversed. The Commission's decision is

reinstated.




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                                       18
