University of Washington, Decision 12064 (PECB, 2014) STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION In the matter of the petition of CASE 26 840 UW HOUSESTAFF ASSOCIATION DECISION 12064 PECB Involving certain employees of: UNIVERSITY OF WASHINGTON ORDER REMANDING CASE Schwerin Campbell Barnard Iglitzin Lavitt, LLP, by Danielle ranc0?Malone, Attorney at Law, and Dmitri Iglit?n, Attorney at Law, for the petitioner. Davis Wright Tremaine, LLP, by Henry E. arber, Attorney at Law, and John Hodges-Howell, Attorney at Law, for the employer. The University of Washington (University) operates an accredited medical school and offers post?graduate residency and fellowship programs that are accredited by the Accreditation Council for Graduate Medical Education (ACGME). The University also offers post?graduate residency and fellowship programs that are not accredited by the ACGME. Both the ACGME accredited and non?accredited programs last anywhere between one and seven years. On December 24, 2013, the UW Housestaff Association (union) filed a petition to represent the Residents and Fellows enrolled in the University?s ACGME accredited post?graduate training programs. The only issue to be decided at this time is whether the Residents and Fellows appointed to the University?s post?graduate medical programs are considered employees within the meaning of any of Washington?s collective bargaining laws giving this agency jurisdiction in this matter. The Residents and Fellows are ?Academic Personnel? who are employees within the meaning of Public Employees? Collective Bargaining Act, Chapter 41.56 RCW, pursuant to RCW 41.56.021. Accordingly, this agency has jurisdiction in this matter and processing of this case is remanded to the Representation Case Administrator for further proceedings consistent with this decision. DECISION 12064 PECB PAGE 2 BACKGROUND In order to practice medicine, most jurisdictions in the United States require medical doctors to obtain not only a medical degree from an accredited medical school but to also participate in post?graduate medical training that is accredited by the ACGME. A medical residency or fellowship can last anywhere between one and seven years, depending on the program specialty or subspecialty. In the state of Washington, at least two years of post?graduate training is required for licensure. RCW 18.71.050. Satisfactory completion of the entire program, which lasts from three to seven years, is required to attain eligibility for board certification. The University offers a medical residency and fellowship program that trains recent medical school graduates how to practice medicine. The University?s Office of Graduate Medical Education (GME Office) oversees the post-graduate programs offered by the University, which includes 96 different medical residency and clinical fellow programs that are accredited by the ACGME. The GME Office also oversees accredited programs.i The terms and conditions of employment that apply to Residents or Fellows appointed to participate in a University graduate medical program are set forth in a ?Residency and Fellowship Position Appointment Manual.? The manual states that the purpose of the graduate medical program is the completion of a graduate training program in accordance with accreditation standards. The major objective of the program is educational in nature. The manual sets forth the compensation and fringe benefits available to the Residents and Fellows. Residents and Fellows are paid a stipend according to the stipend schedule established by the University of Washington School of Medicine. The amount of the stipend increases for each year the Residents and Fellows are in the program. Factors considered in establishing the stipend schedule include but are not limited to the institutional budget, the cost of living in King County, Washington, and the need to remain competitive with resident programs run by other institutions of higher education. 1 The differences between the ACGME accredited and the non-accredited programs are unclear from the existing record, and are not germane to this initial decision. DECISION 12064 PECB PAGE 3 Certain Residents and Fellows are eligible for employer provided benefits. Residents and Fellows who are appointed to work the equivalent of a 50% full time employee are eligible to receive health, basic life and long term disability insurance benefits offered to other University employees through the Public Employees Benefits Board. 2 Residents and Fellows also accumulate sick leave, vacation leave, and other assorted types of leave and wellness resources that are available to other University employees. Most Residents and Fellows are eligible to enroll in the University?s Retirement Plan or the state of Washington?s Public Employee Retirement System Plan 3, as well as the Washington State Deferred Compensation Program and Voluntary Investment Program. Again, these programs are available to other University employees. The University categorizes the Residents and Fellows as employees. In Administrative Policy Statement 40.1, the University categorizes the types of personnel working for it. The University divides its workforce into eight different categories: Academic Personnel, Professional Staff (who are exempt from Chapter 41.06 RCW), Classified Staff (covered by Chapter 41.06 RCW and including both union and non?union staff), Temporary Staff, Student Employees, Academic Student Employees, Printing Craft Employees, and Other Staff Exempt from Civil Service. The University classifies the Residents and Fellows as ?Academic Personnel? along with faculty, librarians,3 and other academic employees. Residents and Fellows are assigned University?established job codes depending on the type of program he or she is participating in. At the time of the filing of the petition, there were 886 Residents, 52 Chief Residents, 319 Fellows, and approximately 50 Senior Fellow Trainees in ACGME accredited programs. Additionally, there were approximately 14 Chief Residents, 27 Clinical Associates, 186 Senior Fellow Trainees, 4 Stipend Senior Fellows, and 500 Senior Fellows in accredited programs. Six of the Fellows had concurrent Acting Instructor appointments and were considered faculty by the employer. Additionally, 94 2 Senior Fellow Trainees and Residents who are paid through other sources, such as grants, are not eligible for fringe benefits. Some Librarians are civil service employees. See University of Washington, Decision 10496 (PSRA, 2009). Educational Outreach Lecturers are considered other academic staff who exercise collective bargaining rights under Chapter 41.56 RCW. University of Washington, Decision 10909-B (PECB, 2011). DECISION 12064 PECB PAGE 4 appointees in the non?ACGME?accredited programs held concurrent instructor positions and were considered faculty by the employer. Six Residents and 63 Fellows held concurrent Senior Fellow Trainee appointments. Finally, 25 Senior Fellows held concurrent Senior Fellow Trainee appointments. ISSUE PRESENTED Are the Residents and Fellows appointed to the University?s post?graduate medical programs considered ?employees? within the meaning of any of Washington?s collective bargaining laws giving this agency jurisdiction over the union?s petition? The Residents and Fellows are employees within the meaning of Public Employees? Collective Bargaining Act, Chapter 41.56 RCW. The University treats the Residents and Fellows as ?academic personnel? who are exempt from the coverage of Chapter 41.06 RCW by RCW Pursuant to RCW 41.56.021, the Residents and Fellows are employees who are covered by Chapter 41.56 RCW for collective bargaining purposes. Accordingly, this agency has jurisdiction over the Residents and Fellows. While this agency has jurisdiction over the Residents and Fellows, several factual issues require further proceedings, including the appropriateness of the petitioned?for unit, and the eligibility of certain employees. Specifically, there is a question as to whether a bargaining unit of just the Residents and Fellows in the ACGME accredited programs is an appropriate bargaining unit, or whether the Residents and Fellows in all programs overseen by the GME Office should be included in the proposed bargaining unit. Additionally, there may be issues concerning whether certain Residents and Fellows may or may not have a pecuniary interest in their employment and whether Senior Fellows and Chief Residents should be in the same bargaining unit as the Residents and Fellows. Processing of this matter shall be remanded to the Representation Case Administrator. DECISION 12064 PECB PAGE 5 ANALYSIS Applicable Legal Standards This agency has the authority to determine and certify appropriate bargaining units. RCW 41.56.060; RCW 41.80.070; see also City ofRichland, Decision 279-A (PECB, 1978), IAFF Local 1052 v. PERC, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981); Central Washington University, Decision (PSRA, 2010). Included with this authority is the ability to determine which employees are covered by the various collective bargaining laws administered by this agency. See, e. City oanbarn, Decision (PECB, 1995) (defining how part?time and casual employees are treated for purposes of collective bargaining under Chapter 41.56 RCW). There are generally two collective bargaining statutes that apply to non?faculty employees of the University and other state four year institutions of higher education: Chapter 41.80 RCW and Chapter 41.56 RCW. Chapter 41.80 RCW applies to most employees employed by the state of Washington and includes those employed by state four year institutions of higher education. Employees under Chapter 41.80 RCW are defined to include employees who are covered by Chapter 41.06 RCW. RCW 41.80.005 (6). Chapter 41.06 RCW is the civil service law governing the employment relationship for most state employees, including non?faculty employees at state institutions of higher education. A number of specific types or categories of employees are exempted from the provisions of Chapter 41.06 RCW. RCW 41 exempts student employees, as defined by the Personnel Resources Board, from the provisions of Chapter 41.06 RCW. RCW exempts several categories of employees of institutions of higher education, including ?academic personnel? as defined by the institution, from the provisions of Chapter 41.06 RCW. Chapter 41.56 RCW is the collective bargaining statute that applies to. public employees in the state of Washington who are employed by cities, counties, municipal entities and other political subdivisions. RCW 41.56.020; RCW 41.56.030(12) and (13). Additionally, RCW 41.56.021 provides that ?employees of institutions of higher education who are exempted from Chapter 41.06 RCW pursuant to RC may exercise collective bargaining rights under Chapter DECISION 12064 PECB PAGE 6 41.56 RCW. RCW 41.56.021 does not apply to deans, directors, department chairs, and managers, as well as employees who are already covered by other collective bargaining laws. RCW through Any employee excluded by RCW through is not covered by Chapter 41.56 RCW. Application of Standards The union asserts the Residents and Fellows are employees who are covered by Chapter 41.06 RCW who may collectively bargain under the provisions of Chapter 41.80 RCW. In the alternative, the union asserts that the Residents and Fellows are academic personnel employees who may collectively bargain under the provisions of Chapter 41.56 RCW and RCW 4156021.4 The employer asserts the Residents and Fellows are not employees because the primary objective of the residency and fellowship program is educational and not pecuniary in nature. The University asserts that the Residents and Fellows are student employees and exempt, pursuant to RCW 41.06.0700), from the provisions of Chapter 41.06 RCW. Accordingly, the University asserts that the Residents and Fellows are not covered by either Chapter 41.80 RCW or Chapter 41.56 RCW. However, the employer concedes that if jurisdiction should be found, only the provisions of Chapter 41.56 RCW and RCW 41.56.021 apply to the Residents and Fellows. The Residents and Fellows are employees. The University treats the Residents and Fellows like employees. The University compensates the Residents and Fellows with a stipend which increases for each year the Resident and Fellow are in the program. The program lasts anywhere from one to seven years. The University provides health, basic life and long term disability insurance to Residents and Fellows who are appointed to work the equivalent of a 50% full time employee. The University also provides sick, vacation and other assorted types of leave and wellness resources that it provides to other employees. Most Residents and Fellows are eligible to enroll in the University?s retirement plan or the state of Washington?s Public Employee Neither party asserts that the Residents and Fellows, as a whole, are faculty eligible to bargain under Chapter 41.76 RCW. However, the employer asserts that some of the Residents and Fellows hold a dual faculty appointment, and should be considered faculty. The possibility exists that the dual appointment Residents and Fellows are in positions that are considered faculty positions and could be excluded from the potential Residents and Fellows bargaining unit. Any examination of the dual appointment Residents or Fellows and their potential to be included in the proposed Residents and Fellows bargaining unit shall occur during the investigation portion of this proceeding and need not be addressed at this time. DECISION 12064 PECB PAGE 7 Retirement Plan System Plan 3, as well as the state of Washington?s Deferred Compensation Program and Voluntary Investment Program, which are also available to other University employees. The University characterizes the compensation and fringe benefits paid to Residents and Fellows as ?a limited indicia of employment.? The compensation and fringe benefits paid to the Residents and Fellows are more than a ?limited indicia of employment.? Rather, they are an indicia of employment. The University further concedes that the Residents and Fellows are employees by its characterization of the Residents and Fellows as ?Academic Personnel.? In Administrative Policy Statement 40.1, the University delineates the types and categories of its employees. In that policy statement, the University states that ?Medical residents (chief, resident, fellow) and other senior fellows/trainees? along with faculty, librarians and other academic staff are considered to be ?Academic Personnel.? The University does not regard the Residents and Fellows as student employees or as employees covered by the provisions of Chapter 41.06 RCW. In Administrative Policy Statement 40.1, the University regards staff who are covered by the provisions of Chapter 41.06 RCW as ?Classified Staf a category separate and apart from ?Academic Personnel.? Similarly, the University regards student employees who are exempted from the provisions of Chapter 41.06 by RCW as ?Student Employees,? a category separate and apart from ?Academic Personnel.? The University clearly does not regard the Residents and Fellows as either ?Classified Staff or ?Student Employees? when it has classified them as ?Academic Personnel.? Because the Residents and Fellows are ?Academic Personnel,? they are exempt from the provisions of Chapter 41.06 RCW. RCW As a result, they are not considered employees under Chapter 41.80 RCW. Since the Residents and Fellows have been exempted from the provisions of Chapter 41.06 RCW pursuant to RCW they are eligible to collectively bargain under Chapter 41.56 RCW.5 RCW 41.56.021. 5 The University asserts that in order for the provisions of Chapter 41.56 RCW to apply to the Residents and Fellows there must be a specific statute conferring jurisdiction. In support of this assertion, the University points to RCW 41.56.513 which applies the provisions of Chapter 41.56 RCW to post-doctoral and clinical employees at the University of Washington. There is a sufficient specific statute applying the provisions of Chapter 41.56 RCW to the Residents and Fellows: RCW 41 .5 6.021. DECISION 12064 PECB PAGE 8 Conclusion Although this agency has jurisdiction in this matter, the employer has raised several factual matters that require further investigation, including the appropriateness of the petitioned?for bargaining unit and the eligibility of certain employees. Processing of this matter shall be remanded to the Representation Case Administrator for further investigation. NOW, THEREFORE it is ORDERED 1. The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and RCW 41.56.021. 2. Processing of this case is REMANDED to the Representation Case Administrator for continued further investigation consistent with this decision. Issued at Olympia, Washington, this 22]?d day of May, 2014. PUBLIC RELATIONS COMMISSION This order will be the final order of the agency unless a notice of appeal is filed with the Commission under WAC 391?25?660. '5 3" 5? ??lm . PUBLIC EMPLOYMENT RELATIONS COMMISSION Ewe? MARILYN GLENN SAYAN, CHAIRPERSON THOMAS W. MGLANE, COMMISSIONER MARK E. BRENNAN, COMMISSIONER MIKE SELLARS, EXECUTIVE DIRECTOR 112 HENRY STREET NE SUITE 300 PO BOX 40919 OLYMPIA, WASHINGTON 98504-0919 "renew RECORD OF SERVICE - ISSUED 05/22/2014 The attached document Identified as: DECISION 12064 - PECB has been served by the Public Employment Relations Commission by deposit in the United States mail, on the date issued indicated above, postage prepaid, addressed to the parties and their representatives listed in the docket records of the Commission as indicated below: CASE NUMBER: FILED: 12/24/2013 FILED BY: PARTY 2 DISPUTE: QCR UNORGANIZED BAR UNIT: PROFESSIONAL DETAILS: - COMMENTS: EMPLOYER: UNIVERSITY OF WASHINGTON ATTN: PETER DENIS 1100 NE CAMPUS PARKWAY BOX 354555 SEATTLE, WA 98105-6207 denisjp@u.washington.edu Pn1: 206-616?3564 Pn2: 208841-2872 REP BY: HENRY FARBER DAVIS WRIGHT TREMAINE 777 108TH AVE NE STE 2300 BELLEVUE, WA 98004-5149 Ph1: 425-646-6100 425-646-6138 REP BY: JOHN HODGES HOWELL DAVIS WRIGHT TREMAINE 777 108TH AVE NE STE 2300 BELLEVUE, WA 98004-5149 Ph1: 425?646-6100 PARTY 2: UW HOUSESTAFF ASSN ATTN: JACOB SUNSHINE PO BOX 95318 SEATTLE. WA 98145 uwhousestaff@gmail.com Ph1: 206-414-8667 REP BY: REP BY: DMITRI IGLITZJN SCHWERJN CAMPBELL BARNARD 18 MERCER ST STE 400 SEATTLE, WA 98119-3971 P111: 206285?2828 Ph2: 206-257?6003 DANIELLE FRANCO-MALONE SCHWERIN CAMPBELL BARNARD 18 WEST MERCER STREET STE 400 SEATTLE, WA 98119?3971 Ph1: 206-285?2828