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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON UNIVERSITY OF WASHINGTON, Respondent,

WASHINGTON FEDERATION OF STATE EMPLOYEES, Appellant. No. 68376-4-1 DIVISION ONE

PUBLISHED OPINION 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 ofreallocating them to a 

### position with a higherpay grade. The Public Employment Relations Commission correctly decided thatthis was an unfair labor practice.

FACTS 

### For many years, the Washington Federation ofState Employees has been the labor representative for employees working forthe University ofWashingtonNo. 68376-4-1/2 

### at Harborview Medical Center. This appeal involves a group ofabout 35 

### Harborviewemployees who are classified as "specimen processing technicians." In 2003, itcame to the University's attention that these employees were doing the same workas a group ofemployees at a different Universityfacility who were
on a higher pay scale. These otheremployees, classified as "clinical laboratory technicians," worked atthe University ofWashington Medical Center. The University decided thatthe Harborview employees needed to be "reallocated" as clinical laboratory technicians. Under state civil service rules, reallocation of a position means the "assignment ofa position to a different class." WAC 357-01- 270. 

### The University reallocated the Harborview employees and, at the same time, transferred theirwork out ofthe Federation's Harborview bargaining unit. Both ofthese actions were taken without notice to the Federation and without providing an opportunityfor bargaining. The Federation filed a complaintwith the Public Employment Relations Commission. In2006, the Commission found thatthe University had committed
an unfair labor practice by unilaterally skimming bargaining unit work out ofthe 

### Federation's bargaining unitwithoutsatisfying its bargaining obligations.1 The Commission ordered the University to return the employees to their previousjob

1Wash. Fed'n ofState Emps. v. Univ. ofWash.. 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 Universitycomplied. The problem then became how to maintain the employees at the higher 

### rate of pay. The Federation proposed thatthe Universitycreate a new job classification of clinicallaboratory techniciansjustfor 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 arrangementwas 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 itwould be best to reallocate them as clinical laboratory technicians and to move their work out ofthe Federation bargaining unit. The University's approach now meantthat the employees would be transferred into a bargaining unit ofthe Service Employees International Union (SEIU) 925. In 2003, when the University first decided to reallocate the Harborview technicians, thejob class ofclinical laboratory technicians was unrepresented, but the Commission had recently certified SEIU to represent a group of employees at the University Medical Centerthat included thejob class of clinical laboratory technicians. The University contacted the Federation to discuss its plan for resolving the status ofthe employees. The Federation again responded by proposing thatNo. 68376-4-1/4
the employees be given their ownjob 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 theirwork would remain in the bargaining unit represented by the Federation. The University expressed the beliefthat itwould be more efficient if all the clinical laboratory technicians were inthe SEIU bargaining unit. The Federation argued that ithad a fundamental 

### right to retain these employees withinthe Harborview bargaining unitthat historically had represented them. The employees complained to both sides that they were being "held hostage" by the dispute. 

### InApril 2008, the Federation filed withthe Commission the complaint that 

### gave rise to this appeal, alleging among otherthings thatthe Universitywas refusing to bargain in good faith aboutthe status ofthe employees, as evidenced 

### by a pattern ofinsisting that they be transferred into SEIU. A three-day hearing 

## was held. In September2010, ahearing examinerdismissed the complaint.2 As the examinerperceived the dispute, the onlyissue involved was reallocation. He found thatthe parties had engaged in "hard" bargaining on that issue by sticking 

### to theirrespective positions, but he concluded that there was no refusal by the 

### Universityto 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."

2Wash. Fed'n of State Emps. v. Univ. ofWash.. 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. InMarch 2011, the Commission reversed the examiner's decision.3 The Commission leftunaltered 

### the examiner's finding that the University had bargained in good faith about the reallocation ofthe employees to a different job classification. The Commission concluded, however, thatthe real issue raised bythe complaintwas not a refusal to bargain about reallocation; itwas the University's improper attemptto 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 withthe employees' collective bargaining rights. Regardless ofthejob classification assigned to a particular employee, [the Federation] retains the right under Chapter41.80 RCW to represent those employees that itwas historically certified to represent and also retains the right to preserve the employees' historical workjurisdiction, 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 inthe historical bargaining unit, and an employer may not unilaterally move employees to a different bargaining unit, nor may itmove 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 ofemployee bargaining units. The University soughtjudicial review in superior court. The Federation intervened to defend the Commission's ruling. The superior court reversed the

3Univ. ofWash, v. Wash. Fed'n ofState 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 thatthe Federation's complaint be dismissed. The Federation now appeals, seeking reinstatement ofthe Commission's decision. In reviewing administrative action, this court sits inthe same position as the trial court, applying the standards ofthe Washington Administrative 

### Procedure Act, chapter 34.05 RCW, directly to the record before the agency. Tapperv. Emp't Sec. Dep't. 122 Wn.2d 397, 402, 858 P.2d 494 (1993). Reviewing courts may grant relief only ifthe party challenging the agency order shows that the order is invalid for one ofthe 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 ofthe Administrative Procedure Act that permit a courtto grant relieffrom an agency orderwhere: (b) The order is outside the statutory authority orjurisdiction ofthe 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 ofthe whole record before the court, which includes the agency record forjudicial review, supplemented by any additional evidence received by the court under this chapter; (h) The order is inconsistent with a rule ofthe 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 offact areNo. 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 inthe area of collective bargaining. City of Bellevue v. Int'lAss'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 offact 12 states that during the course of negotiations with the Federation, the University "proposed and insisted" that once the employees were reallocated to the newjob classification, they would have to be transferred to a bargaining unit of SEIU. The Commission's conclusion of law 6 states thatthe University's firm position was an attempt "to bargain the configuration ofthe bargaining units" represented by the two unions. The University contends it did not propose, insist on, or attemptto bargain the reconfiguration ofthe bargaining units. According to the University, its discussions with the Federation about the status ofthe employees were based


### on a good faith understanding thattransferring 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 Centerthat included thejob class of clinical laboratory technicians. 7No. 68376-4-1/8 The University does not contend that reconfiguration actually was unavoidable. Nor could itso contend in the face ofevidence presented by the Federation that there are already numerous situations where University 

### employees inthe samejob classification are represented by different unions. And even ifthe record established beyond doubtthatthe University had a good 

### faith understanding thattransfer ofthe employees to SEIU was unavoidable, the 

### University's "understanding" was not relevantto making a finding aboutwhat the University actually did. 

### Substantial evidence supports the finding thatthe University "proposed 

### and insisted" on moving the employees to SEIU. The University notified the Federation on October4, 2007, "ofthe contemplated reclassification" ofthe 

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

### position over the following year, as reflected in communicationsin November 2007, April 2008, and June 2008. In July 2008, the University maintained its 

### position that the employees'work should be "reallocated" to SEIU andtherefore the University was unwilling to acceptthe 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. Wefind no reason to overturn finding of fact 12 or conclusion of law 6.

8No. 68376-4-1/9
Issue 2: Was it an unfair labor practice for the University to insist that employees be transferred out oftheir existing union? Answer: Yes. 

### State employees inWashington enjoy the right "to bargain collectively 

### through representatives of their own choosing for the purpose of collective bargaining free from interference, restraint, or coercion." RCW41.80.050. 

### Accordingly, it is an unfair labor practice for an employer to "interferewith, restrain, or coerce employees in the exercise oftheir collective bargaining rights. RCW41.80.110(1 )(a). It is also an unfair labor practice for an employerto 

### "refuse to bargaincollectivelywith 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 bargainwith the Federation about which union should represent the employees. The Universityasks this court to hold that its conduct did not amount to an unfair labor practice. 

### The University had no legalrightto insist, in bargaining, that the 

### Federationagree to let the employees be moved to another union. The 

### configuration ofcollective bargaining units is afunction delegatedbythe 

### legislatureto theCommission. TheCommission has theauthoritytocertify 

### bargaining units, andthis includes "determining thenew units ormodifications of existing units." RCW41.80.070(1). In delineating betweenunits, the 

### Commission isrequired to considerthe "duties, skills, andworking conditions of theemployees; the history ofcollective bargaining; the extent oforganization 

### among theemployees; the desires oftheemployees; and theavoidance 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 withthe 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 ofthe Washington Administrative Code is devoted to the procedures for unit clarification petitions. See chapter 391-35 WAC. The Commission will considera unit clarification petition only if it is based on a recent change of 

### circumstances. WAC 391-35-020(4)(a).5 TheUniversity did ask theCommission three times to assign allclinical laboratory technicians to the SEIU bargaining 

### unit. But the University's first petitionwas notfiled until 2008. The Commission dismissed each petition as untimely. The Commission's orders dismissing the 

### University's unitclarification petitions as untimely have not been challenged on appeal. 

### Inthe decision at issue in this appeal, the Commission explains thatfiling


### atimely unit clarification petition would have been the appropriatemethod forthe Universityto use to resolve this dispute. "Unitdetermination 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 

### deferencetoagreements between parties."6 Thus, iftheUniversity believedthat reallocating the employees into a jobclassification that SEIU had been certified

5Decision at *9 n.8. 6 Decision at *5. 10No. 68376-4-1/11
to represent would automatically result intransferring them into the SEIU bargaining unit, the University was mistaken. Theirjob classification "still remains inthe historical bargaining unit, and an employer may not unilaterally
move employees to a different bargaining unit, nor may itmove them after 

### negotiating toimpasse."7 In support ofthe conclusion that itwas an unfair labor practice for the 

### University to attemptto bargain aboutthe configuration of a bargaining unit, the Commission cited Boise Cascade Corp. v. National Labor Relations Board, 860 

### F.2d 471 (D.C. Cir. 1988). InBoise Cascade, afterthe employerand 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 bythe employer inthe scope ofthe bargaining units are as simple as they are fundamental.
. . .



### .. . [I]fan employer could vary unitdescriptions at its discretion, itwould have the powerto severthe linkbetween a 

### recognizable group ofemployees and its union as the collective bargaining representative ofthese employees. This, in turn, would have the effect both ofundermining a basic tenet of union 

### recognition inthe collective bargaining context and ofgreatly complicating coherence inthe negotiation process.. ..



### . . . [NJeitheran employer nor a union has the unilateral power to modify the scope ofthe bargaining unitas determined by the [National Labor Relations] Board, whetherfollowing bargaining to impasse or otherwise.

7 Decision at *5. 11No. 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 inthe scope of a bargaining unit would subvertthe 

### authority ofthe [National Labor Relations] Board to make binding determinations regarding the appropriateness ofbargaining 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 ofthe 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 withthe Federation. What concerned the Commission was that the University was unyielding in its position that 

### reallocation ofthe employees had to be accompanied bytransferring theirwork to SEIU. The purpose of reallocating the positions was to increase the pay ofthe affected employees at Harborview. By joining reallocation to reconfiguration, the 

### University effectively made reconfiguration ofthe bargaining unit a condition of higher pay. This conduct violated the fundamental principle embodied in Boise

12No. 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 ofdiscussion 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 thatthe University committed an unfair labor practice. The University further contends that the Commission acted arbitrarily by applying Boise Cascade in a mannerthat 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 thatfinding as inconsistentwith the Commission's ultimate conclusion that 

### the University's conductwas a refusal to bargain. We disagree. The examiner's finding pertained to the topic ofreallocation. The Commission's finding pertained to the topic ofreconfiguring the bargaining units. The Commission could 

### reasonably conclude thatthe 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 inthe 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 ofthe Federation's bargaining

13No. 68376-4-1/14
unit without notifying the Federation. The Commission found in 2006 that itwas
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. Butthe decision did not characterize the transfer ofthe employees' work outside the Federation's bargaining unit as an effortto reconfigure the bargaining unit. Why, the University asks, should the Commission be allowed to raise the reconfiguration issue now when itwas 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 onlyconductthe 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 considerany resolution of the employees' status that did not involvetransferring them to SEIU. The University's unyieldingdemand that the Federation accede to the transfer ofthe employees to SEIU is the reason 

### whythe Commission found thatthe Universitywas unlawfully attempting to bargain configuration: 

### In this case, it is readily apparentfromthe record thatthe employer continually insisted during bargaining that, once the employees were reallocated into the [clinicallaboratory technician] 

### classification, they would be transferred to SEIU's bargaining unit. The employer made itperfectly clear.
.. thatthe employerwas 

## unwilling to acceptany alternative proposed by [the Federation].[8]

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

### The University's insistence, maintained over many months, provided a rational basis forthe Commission to conclude thatthe issue presented in this case was differentfrom 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 betweenskimming 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 pointwhere itexplains thatthe "scope ofthe bargaining unit" is determinative ofwhat 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 ofthe bargaining unit under the guise ofthe 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 oftheir existing union.

9Teamsters 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). 15No. 68376-4-1/16
Issue 3: Did the Commission unfairly decide the case on the basis ofan 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 preliminaryruling 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, "byfailing 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 attemptto bargain a reconfiguration ofbargaining 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 confrontthe 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 thatthe University's conduct constituted a refusal to bargain because itbecame clearthat the University "never had any intention of bargaining anything but" the placement ofthe employees into the SEIU bargaining unit. The Federation alleged that the University's conduct was not only a refusal to bargain, italso "interfered with the representational relationship" between the Federation and the employees. These allegations sufficiently filled outthe general categories identified inthe

16No. 68376-4-1/17 preliminary ruling so as to notify the University itwould have to defend its practice ofinsisting on the transfer ofthe employees to SEIU. And ifthatwas not enough notice, the Federation's appeal ofthe examiner's decision specifically complained that the University had continually insisted on a modification ofthe Federation's bargaining unit. The Federation stated that it did not feel itcould 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 inthe exact same action for which they had been found guilty 

### of a ULP [unfair laborpractice], modification ofthe WFSE 

### [Federation] bargaining unit. The employees' bargaining rights have been neither something the WFSE felt itcould bargain nor 

### something itwas 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 Universitydoes not claim to have evidence that it would 

### have putinto the record ifit had known the Commission was going to consider enforcing the employees' rightto remainin theirhistoric bargaining unit. The 

### University should not have been surprised that the Commission, uponreading the correspondence in which the University repeatedly insisted on reconfiguring 

### the bargaining units, would find itnecessaryto protect its exclusiveauthorityfrom the University's incursion.

17No. 68376-4-1/18
We conclude the University had adequate notice ofthe 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.

WE CONCUR: 

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