The PERColator Podcast
The PERColator Podcast
Episode 41: What Should Negotiators Know About Representation Cases?
Emily Whitney and Dario de la Rosa from PERC and Nicole Thibodeau from the Alaska Labor Relations Agency join us for a discussion of representation processes at PERC and ALRA and why they are important to labor negotiators.
References:
Alaska Labor Relations Association
The key stage of the collective bargaining process begins when employees who have collective bargaining rights decide to organize and be represented by a union. This can trigger the process of reaching out to labor agencies to formalize that decision through representation proceedings such as elections and card checks, and unit clarifications to sort out appropriate bargaining unit configurations. Employers also play a key role in how those processes play out. In Washington State and Alaska, three key people that shepherd these processes are Dario de la Rosa and Emily Whitney, both representation administrators at PERC and Nicole Thibodeau, hearing examiner and administrator at the Alaska Labor Relations Agency. Together they have decades of experience processing representation cases at their agencies. In this episode, Nicole, Emily and Dario explain what representation cases are, why they are important, how they are different from other types of cases that come before PERC and ALRA, and how they set the stage for collective bargaining relationships that can extend many decades. They also explore common issues that come up and share their tips for making the processes more efficient. We hope you enjoy the episode. Hello, hello, hello. Welcome to the next episode of the PERColator Podcast. I'm Matt Greer, one of your co hosts and today I'm really happy and excited to have three colleagues and friends join us, at least my friends, I consider them friends. I'll let them decide for themselves if they're my friend or not. But we have Emily, Dario and Nicole. Hello, how are y'all doing today?
Emily Whitney:Great. Thank you.
Dario de la Rosa:Glad to be here.
Nicole Thibodeau:Good to see you all.
Matt Greer:So we're really excited. We have we have multi jurisdictions represented here. So we have Emily and Dario from Washington, they work for PERC here in Washington that we have Nicole who's joining us all the way from Anchorage, Alaska, from the Alaska labor relations agency. So it's good to have you. And we're going to have some perspectives on some representation case discussions today, some some of the basics of that, as well as some tips and things to be thinking about as part of the representation case processes. So I thought we'd start off with kind of doing a representation case 101. What are some of the basics for those of you who may be new or are relatively new to these types of cases? What are they and why are they important? So, Dario, I guess we'll start with you. Do you want to give us a kind of quick 90 second version of what are representation cases?
Dario de la Rosa:Yeah, so the representation process is really the foundation to me of what collective bargaining is, as required by the statutes that we have, the Public Employment Relations Commission is required to ensure that all the bargaining units in the state are appropriate under state law, without an appropriate bargaining unit, you really can't have collective bargaining. So at PERC, we see our role as ensuring that state law is followed, that the bargaining units that we certify are appropriate that, you know, the employees share community of interest and in ascertaining that, you know, we just focus on the basics, the duties, skills, working conditions, extent of organization within the workforce, history of bargaining, and then the desires of the employees. And, you know, that's really kind of the fundamental part of the representation process.
Matt Greer:Yeah, no, I think you're right, it is one of those foundational, it's kind of the kind of as a step where you're starting that formalized structure for the collective bargaining process that you know, will add the foundations for years, decades, even that the bargaining relationship that goes forward from there. So I think they are really important. So thanks for sharing that. Emily, or Nicole, do you have anything you want to add on to that? Well, what kind of makes these cases you know, what are they in what makes them important in your views? Anything you want to add?
Emily Whitney:I think the one difference between the two types of representation cases are we have it in Washington, we call them representation or unit clarification petitions. And so the kind of difference between those two types of cases are representation cases are related to employees electing to be represented, to change their representation, or remove representation. So there's an election somehow tied to that versus a unit clarification is where the union and the employer come to perk and say, this position should be in or out of the unit for one reason or another without having an election process.
Matt Greer:Thanks. And Nicole, do from your Alaska perspective, is that kind of sound familiar to you? Are there any kind of unique aspects up there that Alaska folks might be interested in in these processes?
Nicole Thibodeau:I think the representation process and the unit clarification process which is part of representation are very similar here to how they are in Washington. I think that just generally what I would say about representation cases, or what I would add is that they're really procedural in nature. And so there are a lot of steps involved. So it's helpful to familiarize yourself with the process, either by speaking to a staff person or looking at the rules in your jurisdiction, because unlike other types of cases, these have have a lot of steps involved.
Matt Greer:Yeah, they are. They're very rule focused. And I think in Alaska, it's more of case law focus, is that right? It's kind of one of the distinctions, Washington has a more of a rules, kind of following those WAC's. And then in Alaska, more case law, is that right?
Nicole Thibodeau:I would agree with that we really have, I would say, a dearth of rules that guide us here that are either regulations or statutes. It's primarily the decisions and orders from our board that will inform a person on that process.
Matt Greer:And Emily or Dario, do you have anything you want to add on terms of the WAC process in Washington, what people should be looking at?
Emily Whitney:we have lots of statutes that apply to various different employees. So I would first check which statute the employees you're trying to organize, should fall under because they will be there will be different rules that apply to those different types of employees with who can be in or out of a unit. And sometimes it even will connect later down to what types of topics you can bargain about. And so you want to make sure you're within the correct statute, I think when you're first thinking about organizing a unit.
Dario de la Rosa:Yeah, I would just add that we have while we do have rules, particularly in our unit clarification processes about, for example, supervisors or confidential employees or employees who are eligible for interest arbitration, and where those employees can be placed in bargaining units. The rules themselves are very spartan. And really the case law develops out how the rule is to be interpreted and how it's to be
Matt Greer:Yeah, I would say that all those things are applied. located on PERC's website. So perc.wa.gov, I'll put that out there. We have a decisions database there to where you can look up some of these things, get more information, that way, you might take a look at that too. Some of them are the resources we have available at both agencies. And I guess one of the things that I just want to touch on, is we talked about how these are kind of unique types of cases. And some of our listeners may know more about the unfair labor practice or grievances, even those types of processes, they might be more familiar with it. Does someone want to kind of tell us how these types of cases, the rep cases are different from those types of cases?
Dario de la Rosa:Sure, you know I think the biggest difference between a representation and unit clarification case as opposed to a unfair labor practice or a grievance is that when we're in the representation unit clarification world, we consider it to be an investigation, PERC is going to take an active route role to ensure that the bargaining unit is appropriate. And when we mean active role, you know, whoever the PERC hearing officer is, whether it be Emily, myself or another staff member, they're going to be expected to ask questions, whether it be off the record or on the record, to gather as much information as they can about the factual situation on the ground for that particular bargaining unit for that particular bargaining unit of employees so that ultimately, if the executive director is asked to make a decision about either, for example, the appropriateness of the bargaining unit, or whether an employee is supervisory or confidential, that the executive director will have all of the information possible to make that decision. The parties won't be able to hide anything from us. We're going to dig it up.
Matt Greer:So, the the role of the agency and staff is very different on these kinds of cases.
Emily Whitney:Just to follow up on what Dario said, I think, in comparison, those ULP hearings that an examiner would sit before the parties have a cause of action statement, but beyond that, it is up to the parties to present their case, depending on who has the duty, the duty to to prove their case on that, the complainant to prove the case. So I think their examiner would be less active maybe in that hearing may also not provide as much direction and what should be presented at hearing whereas in a representation or unit clarification hearing, the hearing officer will definitely give you a heads up of what you need to present it hearing and then also ask questions or ask for specific testimony from witnesses or exhibits to be presented at that hearing.
Matt Greer:And Nicole, what about Alaska? Is that kind of sound familiar to your process, or are there differences there?
Nicole Thibodeau:It's pretty similar to the Alaska processes. I would add that some of the terminology that we use is different from some of the terminology that Washington uses. So we call the first part of the investigation and the first part of the process and investigation, whether it's a representation case or an unfair labor practice. But there are different things happening. And they sound more like what you've described, Dario and Emily. But I would add that one of the differences between unfair labor practices and representation cases is, again, the process. They're very representation cases are very procedural and timeframe driven, whereas unfair labor practices, at least in Alaska, are there are fewer rules governing the process. It's really, you know, you file a complaint of unfair labor practice and investigation occurs, and you're working with the hearing officer throughout that process. And she will make her findings at some point. But there's no, there aren't any interim defined steps along the way, unlike representation cases where it's very procedural.
Dario de la Rosa:I would, I would actually echo that as well, at least for our representation cases. You know, for example, in Washington, what when a petition is filed, the agency will send a letter to the employer asking for a list of employees, the employer has 10 days to provide that list, then Emily and I have a certain number of days where, you know, we're supposed to turn that around and get an investigatory email out to the parties, then there'll be a set timeframe when the parties need to return answers to that investigatory email, and then depending on whether or not we go to election or card check, there's also a very set amount of time and, you know, generally overall, that's about 45 days, on the flip side, our you know, clarification, petitions are really more wide open and don't have a lot of structure around them.
Matt Greer:And so those might be a little more challenging, in some ways, right, we're going to talk a little more about some of your practical tips as we as we move through the episode. And my some of them might relate to some of those timelines that come into play for various processes, I think that a lot of our listeners who listen to the podcast, are people who work more in the administering part of the labor relationship, they might be administering contracts, you know, processing grievances, bargaining successor contracts. And so a lot of that is influenced by decisions that are made at this stage of the process where, you know, unions are deciding, hey, which employees do I represent, and maybe employers deciding how to respond to that and maybe objecting to certain people being including included in bargaining units. And there are reasons for that. And they can have long term implications, because that was you have these things set in place, you have decades sometimes of a relationship that follows, and multiple bargains that come along along that way after that process is played out. So I guess I'm curious if you have any thoughts about what people should be thinking about when they're getting ready to file those petitions for elections to represent groups or deciding whether or not to file unit clarifications to add people or remove people from various units? What are some of the things that might be a little more of a long term kind of thought process that people should be considering at that point?
Emily Whitney:I think one of the things that I would ask parties to really think through is can we successfully ratify agreements between with this group that we're trying to organize? So do we think we have a group of employees that we could get to agree to ratify it a collective bargaining agreement at some point in time, and I think sometimes what happens is that we may have a group that starts a certain mixture of employees within that group. And then maybe one portion of that group grows, because the employer adds more of that type of position versus the other. And then they after many, many years, people may come back to PERC and say, well, we don't know if these people should, if these employees should be together in one unit, we should sever them. And this the standards for severance, similar to what you just talked about, Matt, of what's the history of bargaining? Have you been able to reach agreement? Have you been able to represent these employees by filing grievances if you have a grievance procedure in your collective bargaining agreement? Or have you been able to reach memorandum of agreements or any of those types of things? I think, thinking through do we think we can reach those agreements with this group of employees that we're trying to organize?
Matt Greer:Yeah, seems key, I don't know, Nicole or Dario, do you have anything to add to that?
Nicole Thibodeau:I can add that in Alaska, really, just to echo what Emily said, because in Alaska, the statute requires units to be as large as is reasonable to avoid unnecessary fragmenting and so the Alaska rules favor a larger unit. So we have a lot of mixed units in Alaska. And so I think that that is just a really legitimate concern up here when you have different positions that they do share community of interest, but it's just a different standard up here. And you might have individuals from different strike classes who are present in that unit and so then needs of the group are varied. So just keeping in mind what that might mean further down the road, when you're bargaining your contract and what the long term implications of keeping that unit and meeting the needs of everyone in the unit are,
Dario de la Rosa:I definitely see pros and cons on both sides. One of the cons about proliferating bargaining units is simply resources. Do you have enough individuals? Does does either side have enough individuals to negotiate all of those agreements? Or are you going to find yourself negotiating master agreements with lots of smaller agreements that are applicable? Like, for example, unique provisions for bargaining units? Depending on how the party's union in particular wants to organize? Or have the workforce organized? I think real practical considerations need to be given to what kind of resources do you have to bargain? And what kind of resources does the employer have? Because again, if you have multiple bargaining units, if you expect a collective bargaining agreement for each individual bargaining unit, you can find yourself constantly bargaining.
Nicole Thibodeau:I think that's a really good point, Dario, that there are pros and cons, because it's true. In Alaska in particular, we have remote areas. And it's challenging, I think, for unions to attempt to represent multiple units out there. And so it's useful that our statute allows for and, and leans towards having a larger mixed unit anyway. And it really, I think it it really consolidates resources when you have a remote area, and you have a larger unit and one union that can work with the employees to represent them. So I agree, it's got its pros and cons for sure.
Emily Whitney:And I think one thing that you were just talking about Nicole, about the, an appropriate unit in a representation petition could be 60 different versions of a unit, right? So there could be many, many ways to create an appropriate unit, because the standard of an appropriate unit is pretty low. I think, recognizing we aren't trying to get to a perfect unit, I think you will spin if you try to get to a perfect unit, but really looking at, is it an appropriate unit? And can we represent these employees successfully? I think it's kind of that those kind of two steps.
Matt Greer:I think that's a good point. Cause I think that that an appropriate unit standard might be a little counterintuitive to folks, to folks who are like, hey, no, we want we want a perfect unit. We want to strive for that perfect unit. Right? And everyone may have a different view of that. Are there people who are trying to file these petitions who are trying to get to that perfect unit, do you have any like thoughts about maybe ways to be thinking about that at the outset, that might make it a little more normal to think that way, maybe the standard is a little bit more different, maybe more practical than that?
Emily Whitney:We do have some groups who actually reach out to Dario or I pre filing a petition before PERC as they're trying to organize and figure out who all should be within a unit. And so they may ask us just some general questions about we're thinking about organizing these employees. Is there anyone else in the stratosphere that we should be thinking about when we're talking about these employees? Or do you think we could run into any problems? We're not going to be able to give the exact black and white, Yes, this is what we can do or can't do. But we could give you ideas of what should we look for? What should we think about, and employee's could also on our website, go to the decisions page on our website and start searching bargaining unit certifications and figure out how units are certified across Washington if they've been certified through PERC.
Matt Greer:Yeah, that's a good advice. If there's examples out there of how things have been done in the past, and it can be helpful. It doesn't necessarily define what's going to happen in the future, but can be start. I guess, Dario I'll ask is, is there an example you can give for how an appropriately unit would become inappropriate? Like what's an example of an inappropriate unit that might kind of come up? And I'll ask Nicole to and Alaska, but I'll start with Dario on that one.
Dario de la Rosa:Oh I mean, there's lots of ways that a unit can become inappropriate. I think one of the most common ways is that the employer decides to reorganize its workforce. We often see bargaining units when they're initially created, you're looking at an organizational chart. And, you know, effectively the union will organize all of the employees in, for example, one vertical silo of the employers workforce. Well, if the employer then decides to go and reorganize its workforce and maybe divide that pre existing silo of employees who was once a nice solid bargaining unit, and spread those employees out across the workforce, that almost always will result in the existing bargaining unit becoming inappropriate. Another really quick way that a unit can be come inappropriate is with changes in law. A quick example of that is the, we do not mix employees who are interest arbitration eligible with employees who are not interest arbitration eligible. The Washington State Legislature recently passed a lot of granting the 911 dispatchers interest arbitration rights, and we are going to be looking at the bargaining units for those employees coming up here probably for the next year, for their continued appropriateness.
Matt Greer:Yeah, great example. Nicole, anything in Alaska that you can think of to share, that'd be an example of an inappropriate, what makes a bargaining unit inappropriate?
Nicole Thibodeau:I would say it's harder in Alaska, or at least in my experience, and that's because I think we don't have a lot of rules limiting who can be in a bargaining unit. We have some, there are some we have a supervisors unit, we have a confidential unit, but those are at the state level. You know, for example, in Alaska, we allow those who are allowed to go to interest arbitration in a unit with those who aren't, that's allowed in political subdivisions. So it's harder, but certainly at the state level, I can say, I think it's the exempt and partially exempt are specifically excluded from a bargaining unit. And so they're, you know, they're not in they can't be in a unit with classified employees. And so if a position was created, that's exempt or partially exempt, and it was put in the classified service. That would that's not appropriate. But for the most part, I think it's it's not, it's hard to do in Alaska, I guess I will say, because you really have to read our decisions to understand the limitations on the units. And there's not, there's not a lot of clean answers out there.
Matt Greer:Interesting. So the'an appropriate unit' standard in Alaska might be even broader than that in Washington, it sounds like.
Nicole Thibodeau:I think it is.
Matt Greer:Great. Any other examples that came to your mind Emily on the inappropriate piece?
Emily Whitney:I think the only other type of case that we'll see, but I will say has a really high bar, and is hard to prove, are severance cases. So where the parties will come to us and say, we need to sever this bargaining unit into these two groups now, because we can't, we can't keep them together in one unit. It's not it's no longer appropriate. And so proving whether that severance is appropriate is really hard to do. That's one where again, I would definitely look up severance cases on our website, and to see the ones that we have met that standard of severance and whether that community of interest has really been ruptured or not, or whether the, we do have some where the union has said that they haven't been able to appropriately bargain for the employees, where we have kind of two different types of employees in a bargaining unit. And maybe one group has a larger number of employees than the other group of employees. And so the larger unit is regularly voting down things for that smaller unit of employees. And so the union hasn't been able to meet the needs of the other employees. I had one in the last year or so where that exact thing happened, the employer agreed we would like to give those employees a wage increase, to do all these things, but we can't get that passed. And so the union and employer were able to prove that the meaning of interest had been ruptured, because the union couldn't represent them in one big unit. The Union continued to represent both separate units, but would represent them in two separate groups of employees.
Matt Greer:Yeah. Okay, interesting. So the severance comes along with a rupture in that community of interest between groups, and that doesn't mean that one group doesn't get collective bargaining rights anymore, it just means that they kindo of get separated off the other group?
Emily Whitney:Correct.
Matt Greer:Great. Well, thanks for that. I think that's really helpful to kind of get some context for what we're talking about here. I guess for the next next part of our conversation as we kind of close things out. I'm curious, you know, if if you'd all be willing to share some of your tips like some tips on you know, what are some timelines might be people might be thinking about or some tips when they're filing paperwork with your agencies. So you should be thinking about just any kind of tips, anything you'd wish people would know, that would make your lives easier, but also the people who are filing lives easier, because then you don't have to come back and have Emily or Dario or Nicole coming back and say, Hey, you forgot to do this or you need to resubmit this because you missed something up, what are some of the tips that you might might
Nicole Thibodeau:It's come up a few times today already? And give them? certainly in our conversations we've had before that engaging staff, agency staff early on, or or like you were saying, I think, Emily, that when parties reach out and ask what do you think about this unit that we're thinking about organizing, it's really helpful to just, you know, don't feel bad about calling and talking with staff getting clarification on some questions. So engaging agency staff early on is a tip. And then in terms of a timeline I would throw out there for in Alaska, we have a process called Decert - Recert, so you can do it in one step. You can you decertify your existing rep and recertify a new one, all in one petition. And that one has a tricky timeline because it has to be either when the contract expired after the contract is expired, or the 150 to 90 days prior to contract expiration. So that's a tricky one that is hard to get the sweet spot in, I think, for a lot of unions. And so again, ask us if you if you need help identifying that timeframe.
Emily Whitney:And I think similar to Washington, we call those exact types of petitions that Nicole just talked about our we call them change of representation. Those who work in the private sector might also know them as raid petitions. But a new union is coming in and filing to represent employees that are already represented. And so we also have timelines, and our timelines, for most groups of employees are 60 to 90 days prior to the expiration of the contract. But then for state employees, it's 90 to 120 days prior to the expiration of the contract. Or as Nicole had said, if the contract expires, and there's no successor collective bargaining agreement, you can file those at that time as well. And the same would be true for our decertification petitions where employees will file those and say they just no longer want to be represented.
Matt Greer:Great, thanks, Dario, what do you have?
Dario de la Rosa:I think another tip that I would just throw out there to the to the unions of the world is do your homework before you file your petition. And when you do file your petition, be as clear and concise as possible about who you're trying to represent. In Washington, we have a pretty liberal Public Records Act. And there's not a lot that will inhibit a union from gathering information about the group of employees that they're potentially trying to represent. You know, if if a union can do their homework and figure out the exact group of employees that they're trying to represent, maybe get an organizational chart that shows exactly where these employees fall on the in the employers workforce. And then when they actually file their petition, you know, be as clear as possible about who they're trying to represent. That makes our lives so much easier. I've had several petitions where the union has been very vague about which employees it's trying to represent. And these are particularly true when it's a really large workforce, the employer sometimes will be like, well, we've got dozens of employees who fit this all over the place, who fit that particular description all over the place. And the employer is then calling me up asking me for clarification about the petition. Well, I don't know anything about the petition, it's the union. So again, if the union can be very clear, it helps everyone out.
Emily Whitney:I think one other thing I would add to that, too, is that on the employer side of things, once you have that petition, and you know who you were trying to find a list of employees for, as you're developing that list, kind of thinking ahead to we're also going to be asking you are you going to have any challenges to the employees that are on that list, we may be in Washington running a card check where we're checking to see if at least for two, two more months, checking to see if the signatures match the showing of interest cards that the union has filed with PERC. And so we're going to be asking you for employment records. So if there's a chance, maybe go ahead and start looking for those signature documents that you can find. So thinking ahead to what that process is, so that we can meet those timelines that we do have in our rules.
Nicole Thibodeau:I would add one other thing that I think is helpful is if it makes sense in the situation for the union and the employer to work together upfront, on maybe what that unit description looks like or what concerns you might have about it, I think it's a great way to kick off that relationship. And that's certainly what we've tried to accomplish here, prior to moving forward is making sure that the parties are comfortable with the unit as it is. So if you can do that work on your own. That's great. We encourage that.
Emily Whitney:Yes, that would be the same in Washington as well.
Matt Greer:Yeah, seems like that'd make a lot less work on the road, to get on the same page with that, and then maybe fewer objections along the way or needs to be to litigate certain issues. So that's really good advice. Just generally, for the collective bargaining world, let's try to get on the same page a little bit, a little bit of investment in that relationship at various points can save lots of the time and effort down the road.
Emily Whitney:I think that the actions that the parties take during that representation process. Remember, that's the groundwork, if the unit is organized, that's the groundwork leading into you coming to the table to negotiate a collective bargaining agreement. And so I think that the point of, if you can work together on that process, that is a great first few steps of then moving into your collective bargaining agreement negotiation.
Matt Greer:Yeah, that's a great, great, great bit of advice there. Yeah. Great. Well, those are all the questions I had, I guess we'll give you all a chance if you have any kind of last thoughts that you want to share with the with the audience before we end, I really appreciate you taking the time to share your wisdom with us. And some of those tips, I think that will hopefully help out some people as they're thinking through these processes, any closing thoughts?
Emily Whitney:I think the only thing I would say is always feel free to research on the PERC website. I like to direct people to at the top of the web site, it says services and there's a drop down menu, so you can find out representation unit clarification, but going to those individual pages or to the decisions page or reaching out through our info line or calling directly directly to Dario, or I, we're here to help. So hopefully, um, you can find any help that you need there.
Dario de la Rosa:I would just echo the webpage. But I would also point out a lot of the times we will put when there are updates, for example, new legislation that changes the landscape, we will be placing updates on our website about those particular changes. So pay attention to those. And again, if you have any questions, please feel free to reach out to either Emily or I because Washington is one state where the landscape definitely changes almost on a yearly basis based upon legislation that has passed. So there's always something that's moving here in collective bargaining in Washington.
Nicole Thibodeau:I would say in Alaska, we certainly don't have a lot of legislation that gets passed. But we do have a website. And it does contain a lot of useful information. It contains links to all of our decisions and orders it, probably the most useful thing for researching decisions on our website is a subject index, that is pretty good. It lists all the decisions under subject headings so you can know what subject you're looking at and then find the decisions and they're linked there and just hyperlink there on the web, or decisions are also on Westlaw. If you have Westlaw access and we have a library in our office that's open to the public. And we have a lot more resources in the library. And you can also call us we'll email you items or fax you them or just assist you in general.
Matt Greer:I love a good subject index. Well thank you so much Nicole, Dario Emily, it was really great chatting with you and I really appreciate you sharing some of this wisdom with with folks and some tips. Thanks a lot.
Emily Whitney:Thank you.
Nicole Thibodeau:Thank you.
Dario de la Rosa:Thank you.
