City of Tenino, Decision 10003-B (PECB, 2009)

Betty Garrison, City Clerk, for the employer.

Teamsters Union Local 252, by Rick Engelhart, Organizer, for the union.

On January 28, 2008, Teamsters Union Local 252 (union) filed a petition seeking to represent a bargaining unit of uniformed employees in the City of Tenino (employer). On March 18, 2008, following a cross-check of records, the Public Employment Relations Commission certified the union as the exclusive bargaining representative of a bargaining unit of all full-time and regular part-time uniformed officers. Reserved for hearing was the matter of whether the sergeant position, currently occupied by Ron Evans, is a supervisory position that should be excluded from the unit.

Hearing was held in this matter at Olympia, Washington, on May 21 and November 13, 2008, before Hearing Officer J. Martin Smith. Briefs were filed to complete the record in this case.[1]

ISSUE PRESENTED

Is the position of police sergeant a “supervisor” within the meaning of Chapters 41.56 and 41.59 RCW?

Based upon the record, applicable statutes, and case precedents, the Executive Director rules that the sergeant is a lead employee, not a supervisor, and therefore, is appropriately included in the bargaining unit.

APPLICABLE LEGAL STANDARDS

The Status of Supervisors – Supervisors are employees within the meaning of Chapter 41.56 RCW, and are entitled to organize for the purpose of collective bargaining. METRO v. Department of Labor and Industries, 88 Wn.2d 925 (1977). The Commission has exercised its unit determination authority in the past to exclude "supervisors" from bargaining units containing their rank-and-file subordinates. This practice serves to limit or prevent conflicts of interest arising within the bargaining unit due to the authority supervisors have over their subordinates. City of Richland, Decision 279-A (PECB, 1978), aff'd, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).

WAC 391-35-340 codified Commission and judicial precedent dating back to City of Richland. The rule states:

It shall be presumptively appropriate to exclude persons who exercise authority on behalf of the employer over subordinate employees (usually termed "supervisors") from bargaining units containing their rank-and-file subordi­nates, in order to avoid a potential for conflicts of interest which would otherwise exist in a combined bargaining unit.

Chapter 41.56 RCW does not contain a definition of supervisor, but the Commission has traditionally looked to the definition of supervisor set forth in RCW 41.59.020(4)(d) to describe the types of authority that might create potential conflicts of interest. The term “supervisor”:

[M]eans any individual having authority, in the interest of the employer, to hire, assign, promote, transfer, layoff, recall, suspend, discipline, or discharge other employees, or to adjust their grievances, or to effec­tively recommend such action, if in connection with the foregoing the exercise of such authority is not merely routine or clerical in nature but calls for the consis­tent exercise of independent judgement . . . The term “supervisor” shall include only those employees who perform a preponderance of the above-specified acts of authority.

Supervisors Compared to Lead Workers – Supervisors and lead workers are distinguished from each other by Commission precedent. Lead workers do not exercise sufficient authority to warrant their separation from the rank-and-file employees. City of Puyallup, Decision 5639‑B (PECB, 1997). Discretionary authority in adminis­trative matters, or having the ability to direct employees in daily job assignments, may not rise to the level of possessing independ­ent authority to act on, or effectively recommend, personnel actions. City of Sunnyside, Decision 1178 (PECB, 1978); City of Gig Harbor, Decision 4020-A (PECB, 1992); City of Aberdeen, Decision 4174 (PECB, 1992).

In order to determine whether an individual possesses sufficient supervisory authority to be excluded from a rank-and-file bargain­ing unit, the actual duties and authority exercised by that individual must be examined. Such determinations are not made on the basis of titles or job descriptions. King County, Decision 7053 (PECB, 2000); Morton General Hospital, Decision 3521-B (PECB, 1991).

Sergeants have been included in bargaining units of police officers or deputies in a number of situations where city managers or chiefs and sheriffs above them in the chain of command have actual authority to review, evaluate, and discipline officers. City of Moses Lake, Decision 7008 (PECB, 2000); City of Union Gap, Decision 8619-A (PECB, 2005); Skamania County, Decision 6511-A (PECB, 1999); City of Goldendale, Decision 4448-A (PECB, 1994).

ANALYSIS

Background – The City of Tenino maintains a small police force of six employees, including a chief, a sergeant, and four police officers. Joe Vukich is the current chief; Kenneth A. Jones is the mayor. The sergeant’s position is held by Ron Evans.

In September of 2007, the city council approved a recommendation by the civil service commission to change the position title of police lieutenant to sergeant, but to keep the pay unchanged. For 2008, the sergeant position was paid one range above the city's police officers and received the same percentage wage increase as that granted to the four police officers. Evans was promoted from detective corporal to fill the new position of sergeant sometime around the Fall of 2007.

On October 1, 2007, the civil service commission issued a new “position description” for sergeant. The position description reflected that the sergeant was non-exempt under Fair Labor Standards Act (FLSA) standards, and indicated that the sergeant exercised general supervision of police officers and other staff, as assigned, and that the sergeant might act on behalf of the chief of police when the chief was away.

Chief Vukich was hired after the civil service commission switched from a lieutenant to a sergeant system, and after Evans was promoted to sergeant in late 2007.

Sergeant Evans is a police officer who works the night shift from 5:00 P.M. to 5:00 A.M. He performs the same work as other police officers, but has an hour overlap at the beginning of his shift when he can meet with the chief and the police officers, and perform routine administrative tasks. Evans also functions as the field training officer.

The Indicia of Supervisory Authority

Authority to hire – There is no dispute that Sergeant Evans does not have authority to hire employees. Mayor Jones testified that, in the event there is hiring, he, the police chief, and the clerk/treasurer would meet to discuss applicants. The mayor retains final hiring authority. Sergeant Evans testified that the chief has asked his opinion regarding applicants and Evans has given him his opinions, but that is the extent of his involvement. Sergeant Evans was not involved in the interview process the last time an officer candidate was interviewed. Although Sergeant Evans used to conduct background investigations for new hires when he was a detective, he is no longer involved in that process. Although Chief Vukich testified that the sergeant would interview applicants on occasion and do background checks for reserve officers, the record did not establish that Sergeant Evans has actually been involved in hiring, other than the fact that the sergeant and the chief agreed about hiring a lateral transfer officer for a current vacancy. Based upon all the testimony, it is clear that the sergeant is not an integral part of the employer’s hiring process. Evans does not have the authority to promote or terminate employees.

The sergeant position at issue is more akin to the sergeant in Moses Lake, Decision 7008, where the city manager made all the hiring decisions, rather than in City of Snohomish, Decision 1557 (PECB, 1983), where the sergeants were involved in the process.

Authority to discipline – Mayor Jones indicated that the sergeant does not have the authority to discipline police officers, although he can communicate with the mayor in situations where discipline may result. According to the mayor, the sergeant can make oral and recommend written reprimands.

Sergeant Evans testified that he could only recommend discipline, and that the police chief told him personally, and stated in department meetings, that only he (the chief) can issue disciplin­ary actions.

Evans indicated that since he must review reports, he has “coached” other officers in how to write police reports. Evans coached Officer #1 on October 31, 2007, and issued a coaching letter to Officer #3 on November 19, 2007, on potential deficien­cies in their reports. These letters are characterized as coaching letters, not counseling letters.

According to testimony, coaching and counseling are the first steps in the city’s progressive disciplinary procedure. Coaching is informal and is considered instructional, not disciplinary. Counseling is the next step of the process and although Chief Vukich asserts that counseling is disciplinary because it is attached to an officer’s performance evaluation, testimony is clear that the chief retains sole authority to issue disciplinary actions. Evans can and does issue commendations and “attaboy” memos.

Chief Vukich agreed that the sergeant had the authority to coach and counsel, but asserted that the sergeant also has authority to write written reprimands regarding officer misconduct. He indicated that, in a current situation, he had called for a written reprimand, and Evans was to write the letter.

It appears clear from this record that the sergeant does not have independent authority to discipline. Even Vukich’s assertion that Evans has the authority to issue reprimands was followed by testimony indicating that Vukich himself had authorized the current reprimand that Evans was to write.

Authority to adjust grievances – As of this writing, there is no negotiated collective bargaining agreement, and hence no grievance procedure arising out of that document. An employee filing a grievance under the current civil service system must file that grievance with the mayor and not through the police chain of command. The mayor’s testimony on this point was that only he or the chief could deal with grievances from the rank-and-file employees. There is no evidence in the record that the police sergeant currently has any role with regard to the grievance procedure.

Scheduling - Evans schedules the four police officers and performs the scheduling functions on a monthly basis. The schedule is set: three days on and three days off. Evans may not deviate from that schedule without the chief’s approval and, if leave is requested, Evans must advance such requests to the chief. Evans testified that officers had been working four twelve-hour shifts and he wanted to change the schedule. The chief would not allow Evans to change the shifts and the chief took the matter to city hall. After approval by city hall, the chief allowed the change Evans had requested to occur. Likewise, Evans schedules training for officers, but at the request of the chief.

Evaluations – The record contains several documents showing the sergeant’s evaluation of subordinate personnel.[2] Both Vukich and Evans testified that Evans prepared parts of the employee evalua­tions, and Vukich prepared the rest and signed off on the entire document. In January 2008, Evans signed a monthly probationary evaluation. But the main remarks were penned by Chief Vukich, who wrote 42 words of commentary under “Chief’s comments.” Evans’ role in this situation appears to be subject to the chief’s review, rather than having authority to make an independent evaluation. Evans works with the police officers in the field, and he and Vukich both testified that they commonly took this approach in the evaluation cycle for younger officers. Evans spends minimal time on evaluations of probationary officers, maybe an hour at the end of each month.

The yearly evaluation for Officer #1 was signed by Evans, but also by Chief Vukich. In the yearly evaluation for Officer #2, a commendation letter from Evans is included, but the long narrative comments at the end are under “Chief’s comments,” and it is not clear whether Evans or Vukich authored the other evaluation components.

Commission precedent does not require an employee to be excluded as a supervisor if s/he merely prepares a “draft” evaluation of a subordinate employee. Benton County, Decision 6990 (PECB, 2000). Additionally, having evaluations drafted by employees who are in the best position to observe the performance of subordinate employees does not necessarily pose sufficient conflict of interest to warrant a supervisory exclusion. City of Redmond, Decision 8486 (PECB, 2004).

Testimony established that the final decisions about probation and evaluation of employees continue to rest with the chief. The sergeant’s duties with respect to evaluating employees establish that the sergeant may exercise duties consistent with that of a “lead” employee but not as a supervisor.

Preponderance of Duties – In Skamania County, Decision 6511-A (PECB, 1999), the ten elements found within Chapter 41.59 RCW and NLRA definitions of “supervisor” were utilized to determine supervisor status, subject to the “preponderance” test found in RCW 41.59.020(4)(d­). Those elements are to: hire, assign, promote, transfer, lay off, recall, suspend, discipli­ne, discharge, and adjust grievances. It is clear that, with the exception of the “discipline” element discussed above, the City of Tenino presented virtually no evidence that the sergeant has any role in any of the listed indicia of supervisory responsibility. From the testimony of Mayor Jones, it is apparent that ­­the sergeant has no independent authority to hire, assign, transfer, promote, lay off, or recall employees. And even where the sergeant has been assigned some evaluation duties, it is particularly clear that the final determinat­ions on discipline and discharge are made by officials further up in the departmental chain of command. ­The chain includes the chief, the mayor, and the civil service commission.

The burden of proof was on the City of Tenino to show that a preponderance of the supervisory duties of RCW 41.59.020(4)(d) have been assigned to the sergeant. The city did not meet its burden. At best, the city showed that it wants Sergeant Evans to perform more supervisory and lead duties in the future; however, the Commission will only consider the current job duties of the employee as they exist at the time the petition was filed. Speculation about future job functions an employee may perform is not relevant; nor are intentions relevant. City of Yakima, Decision 9983-A (PECB); State - Natural Resources, Decision 8458-B (PSRA, 2005).

CONCLUSION

Application of the established standard shows that the position of sergeant is better described as a “lead worker,” rather than a supervisor. The sergeant does not spend a preponderance of his on-duty time performing supervisory tasks, and does not possess or exercise independent authority to carry out a preponderance of those tasks. The majority of the sergeant’s assigned tasks are those of a lead employee, not a supervisor. King County, Decision 7053 (PECB, 2000).

FINDINGS OF FACT

1.                  City of Tenino is a public employer within the meaning of RCW 41.56.030(1).

2.                  Teamsters Union Local 252 is the bargaining representative, within the meaning of RCW 41.56.030(3), of an appropriate bargaining unit of full-time and regular part-time uniformed officers of the City of Tenino.

3.                  Teamsters Union Local 252 was issued an interim certification to represent the above employees on March 21, 2008.

4.                  The sergeant position was established in late 2007 to replace the existing lieutenant position.

5.                  The sergeant is a police officer who commonly and routinely performs the same work as the uniformed police officers bargaining unit.

6.                  The sergeant in this bargaining unit does not have authority to hire, fire, transfer, or discipline bargaining unit employees.

7.                  The sergeant participates in the evaluation process and coaches employees, but the chief retains final authority with respect to employee evaluations and discipline.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391-35 WAC.

2.                  As described in paragraphs 5, 6, and 7 of the foregoing findings of fact, the position of sergeant, currently held by Ronald Evans, is not supervisory.

ORDER

The police sergeant position is not supervisory, and is, therefore properly included in the bargaining unit.

Issued at Olympia, Washington, on the 9^th day of January, 2009.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

CATHLEEN CALLAHAN, Executive Director

This order will be the final order of the agency unless a notice of appeal is filed with the Commission under WAC 391-25-660.