Clark County, Decision 10458 (PECB, 2009)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:	CASE 22160-E-08-3422
CLARK COUNTY SHERIFF’S ADMINISTRATOR’S ASSOCIATION	DECISION 10458 – PECB
Involving certain employees of:	CASE 22167-E-08-3424
CLARK COUNTY	DECISION 10459 – PECB
	ORDER OF DISMISSAL

Garrettson, Gallager, Fenrich & Makler, by Mark J. Makler, Attorney at Law, for the union.

Clark County Prosecuting Attorney Art Curtis, by Gene A. Pearce, Deputy Prosecuting Attorney, for the employer.

On December 19, 2008, the Clark County Sheriff’s Administrator’s Association (union) filed two petitions for investigation of questions concerning representation with the Public Employment Relations Commission. The petitions seek to add five unrepresented employees of Clark County (employer) to two existing bargaining units by self-determination elections pursuant to WAC 391‑25‑440.

The petition in Case 22160-E-08-3422 seeks to add all enforcement chief deputy sheriffs and assistant chief deputy sheriffs to an existing bargaining unit consisting of all enforcement commanders of the Clark County Sheriff’s Office. The petition in Case 22167-E-08-3424 seeks to add all custody chief deputy sheriffs and assistant chief deputy sheriffs to an existing bargaining unit consisting of all custody commanders of the Clark County Sheriff’s Office.

Hearing Officer Paul T. Schwendiman conducted a hearing on February 13, 2009. Both parties filed briefs.[1]

ISSUES

1.                  Are Chuck Atkins and Richard Bishop eligible to vote in a self-determination election seeking to add chief deputy sheriffs and assistant chief deputy sheriffs to existing units of commanders?

2.                  Are Michael Evans, Erin Nolan, and Jackie Batties confidential employees?

Atkins and Bishop are no longer employed as chief deputy sheriffs or assistant chief deputy sheriffs, and are not eligible to vote in either self-determination election. Evans, Nolan, and Batties are confidential employees who are not eligible for inclusion in a bargaining unit. Accordingly, both petitions are dismissed.

ISSUE 1.         Are Chuck Atkins and Richard Bishop eligible to vote in a self-determination election seeking to add chief deputy sheriffs and assistant chief deputy sheriffs to existing units of commanders?

APPLICABLE LEGAL STANDARDS

WAC 391‑25‑440 controls elections for the inclusion of unrepre­sented employees in an existing bargaining unit:

Where only one employee organization seeks to add an employee or group of previously unrepresented employees to an appropriate bargaining unit, which it already represents, under this chapter and the relevant statute, the organization may petition for a self‑determination election to ascertain the employees' desire to be included in its existing bargaining unit.

WAC 391‑25‑440(1).

In the absence of an agreement or determination otherwise, employees eligible to vote in an election “are limited to those who continue to be employed within the bargaining unit when they cast a ballot.” WAC 391‑25‑430(3).

ANALYSIS

Bishop was a chief deputy sheriff and Atkins was an assistant chief deputy sheriff on December 19, 2008, the date the petitions for self-determination election were filed. However, on January 1, 2009, the employer eliminated the chief deputy sheriff position occupied by Bishop and the assistant chief deputy sheriff position occupied by Atkins. Both Bishop and Atkins exercised their civil service right to return to their positions as commanders, positions included in the existing enforcement commanders unit represented by the union.

The union unpersuasively argues that Bishop and Atkins should be restored to their former positions and allowed to vote in a chief deputy sheriff and assistant chief deputy sheriff self-determina­tion election. The union argument is based on Commission precedent codified in WAC 391-25-140(2):

Changes of the status quo concerning wages, hours or other terms and conditions of employment of employees in the bargaining unit are prohibited during the period that a petition is pending before the commission under this chapter.

However, WAC 391-25-140(2) must be read in light of Commission guidance, most recently given in City of Seattle, Decision 9938-A (PECB, 2009):

We determine the status quo as of the date the union filed the representation petition.

In addition to the above “general status quo” obligation, Commission precedent also requires employers to maintain the “dynamic status quo.” This “dynamic status quo” concept recognizes that occasionally the status quo is not static and the employer needs to take action to follow through with changes that were set in motion prior to the union filing a representation petition.

As of December 18, 2008, when the union filed the representation petitions, the employer had already made its decision to eliminate Bishop’s civil service exempt position of Chief Administrative Deputy and Atkins’ civil service exempt position of Assistant Chief Criminal Deputy effective January 1, 2009. The process began as early as November 5, 2008, when Sheriff Gary Lucas responded to a request for a six percent baseline budget reduction by proposing to eliminate 31 positions, including the positions occupied by Bishop and Atkins. Verbal notification that their positions of Chief Administrative Deputy and Assistant Chief Criminal Deputy would be eliminated was provided to Bishop and Atkins on December 8, 2008. On December 15, 2008, Bishop and Atkins received written notifica­tion that their positions were to be eliminated effective January 1, 2009.

The written notices acknowledged receipt of Bishop’s and Atkins’ requests to be reassigned to their previous positions as commander under the civil service statute. The written notices acknowledged that their requests to revert to commander were being processed. On January 1, 2009, Bishop’s and Atkins’ chief deputy sheriff and assistant chief deputy sheriff positions were eliminated and both Bishop and Atkins were restored to their former civil service rank of commander in positions in the enforcement division.

A “dynamic status quo” existed on December 19, 2008, the date the petitions were filed. Prior to the union filing representation petitions, the employer had already set in motion the elimination of Bishop’s and Atkins’ civil service exempt chief deputy sheriff and assistant chief deputy sheriff positions and their return to their civil service rank of commander on January 1, 2009.

CONCLUSION

Under Commission rules, employees are eligible to vote in an election only if they continue to be employed within the bargaining unit when they cast a ballot. Here, only chief deputy sheriffs and assistant chief deputy sheriffs are eligible to vote in the petitioned-for self-determination elections. Both Bishop and Atkins are no longer employed as chief deputy sheriff or assistant chief deputy sheriff. Thus, they are not entitled to vote in a self-determination election.

ISSUE 2.         Are Michael Evans, Erin Nolan, and Jackie Batties confidential employees?

APPLICABLE LEGAL STANDARDS

The Commission codified its standard for determining confidential employee status by adopting WAC 391-35-320:

Confidential employees excluded from all collective bargaining rights shall be limited to:

(1) Any person who participates directly on behalf of an employer in the formulation of labor relations policy, the preparation for or conduct of collective bargaining, or the administration of collective bargain­ing agreements, except that the role of such person is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment; and

(2) Any person who assists and acts in a confiden­tial capacity to such person.

The Commission stated and extensively reviewed the confidential employee standard and its rationale in City of Yakima, Decision 9983-A (PECB, 2008):

This Commission, using established case precedent, applies a labor relations nexus test to determine the confidential status of employees to be included or excluded from a bargaining unit. That test, accepted in International Association of Fire Fighters, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978), states that a confidential employee is an employee whose duties imply a confidential relationship that must flow from an official intimate fiduciary relationship with the executive head of the bargaining unit or public official.

Confidential employees are precluded from exercising their statutory collective bargaining rights, and therefore a heavy burden is placed on the party seeking that confidential determination. City of Seattle, Decision 689-A (PECB, 1979). Any relied upon labor relations responsibilities must be necessary, regular, and ongoing. Yakima School District, Decision 7124-A (PECB, 2001)(citing Oak Harbor School District, Decision 3581 (PECB, 1990).

ANALYSIS

Collective Bargaining within the Sheriff’s Department

Sheriff Lucas does not participate on employer collective bargain­ing negotiating teams. Instead, he assigns Sheriff’s Department Human Resource Manager Candy Arata and a chief deputy sheriff to represent him during bargaining. Brianne Nelson, a support person from the Sheriff’s human resources office, is routinely assigned to assist the employer team.

Arata serves as spokesperson for the employer team. However, Arata is not well versed in the operations of the three branches of the Sheriff’s Department: enforcement, support/civil, and jail. The particular branch chief deputy sheriff represents the Sheriff in negotiations and controls the negotiations for the employer regarding contract proposals affecting operations of the branch. Negotiation of operational and minimal cost provisions of a new collective bargaining agreement are normally conducted first by Arata and the branch chief deputy sheriff. However, when salaries and benefits are negotiated, Arata, and the branch chief deputy are joined by Clark County Human Resource Manager Francine Reis or her designee.

Reis controls the amount of money that is available to fund salaries and other items significantly impacting the county budget. The chief deputy sheriff has considerable discretion on how available funds may be used to meet operational needs of the branch.

One of the first things the members of the employer’s negotiating team in the Sheriff’s Department do at the start of contract negotiations is to sit down and walk through the existing contract. Arata asks the branch chief deputy sheriff “what are issues in the contract that are bothersome, that you're having difficulty with.” The chief deputy sheriff actively participates in initially formulating what is desirable for the employer to achieve in bargaining.

The chief deputy sheriff assigned to the employer negotiating team directly formulates employer positions, prioritizes employer negotiating goals as they impact operations, and is privy to discussion prior to negotiations and in caucus during negotiations regarding the employer’s negotiating strategy.

Chief Criminal Deputy Sheriff Michael Evans

Evans has been chief criminal deputy sheriff of the department’s enforcement branch since 1999. He has been on five employer negotiating teams including the teams that negotiated the 2006-2008 Deputy Sheriff’s Guild (DSG) collective bargaining agreement. He has also negotiated memorandums of understanding with the DSG to resolve bargaining issues that occurred during the term of the collective bargaining agreement, including a four-page memorandum of understanding dated June 23, 2004 regarding overtime. Evans negotiated this memorandum of understanding without the assistance of the Sheriff or human resource personnel. The memorandum is signed for the employer only by Evans. Evans was also assigned by the Sheriff to the employer’s negotiating team that negotiated the 2007-2009 Clark County Sheriff’s Administrator’s Association collective bargaining agreement covering both the enforcement and custody commanders bargaining units.

The 2007-2009 Sheriff’s Administrator’s Association collective bargaining agreement is a first agreement covering the two separate bargaining units of commanders. One bargaining unit is the custody commanders unit that is supervised by Chief Custody Deputy Sheriff Jackie Batties. The other bargaining unit is the enforcement commanders unit that is supervised by Evans. The employer’s bargaining team for negotiation of this agreement also included Undersheriff Joe Dunegan and Sheriff’s Department Human Resource Manager Arata.

I find these and other labor relations duties performed by Evans establish a confidential relationship that flows from an official intimate fiduciary relationship with Sheriff Lucas that is necessary, regular, and ongoing. Evans is a confidential employee.

Support/Civil Branch Chief Civil Deputy Sheriff Erin Nolan

Nolan became Chief Civil Deputy Sheriff of the department’s support/civil branch in 2007. Nolan was assigned by the Sheriff to the employer’s negotiating team for the 2008-2010 Sheriff’s Support Guild collective bargaining agreement. The employer team consisted of Arata, her support person Nelson, Nolan, and Keith Larson from Clark County Human Resources. Nolan negotiated a memorandum of understanding with the Sheriff’s Support Guild regarding deployment in records effective dated February 13, 2008. The memorandum is signed for the employer only by Nolan.

I find these and other labor relations duties performed by Chief Nolan found in the record establish a confidential relationship that flows from an official intimate fiduciary relationship with Sheriff Lucas that is necessary, regular, and ongoing. Nolan is a confidential employee.

Chief Jail Deputy Sheriff Jackie Batties

Batties became Chief Jail Deputy Sheriff in 2005. She is in charge of the department’s jail branch. Batties was assigned by the Sheriff to negotiate the 2008-2010 Custody Officer’s Guild (COG) collective bargaining agreement. Batties also individually negotiated a mid-term memorandum of understanding with the COG regarding mandatory overtime that became effective March 1, 2008. The memorandum is signed only by Batties for the employer. Batties was assigned by the Sheriff to the employer negotiating team for the 2007-2009 Sheriff’s Administrator’s Association collective bargaining agreement covering both the enforcement and custody commanders bargaining units.

I find these and other labor relations duties performed by Batties found in the record imply a confidential relationship that flows from an official intimate fiduciary relationship with Sheriff Lucas that is necessary, regular, and ongoing. Batties is a confidential employee.

CONCLUSION

Evans, Nolan, and Batties are confidential employees who are not eligible for inclusion in a bargaining unit. Evans, Nolan, and Batties participate directly on behalf of the employer in the preparation for or conduct of collective bargaining, and assist in the formulation of labor relations policy.

FINDINGS OF FACT

1.                  Clark County is a public employer within the meaning of RCW 41.56.030(1).

2.                  On December 19, 2008, the Clark County Sheriff’s Administra­tor’s Association, a bargaining representative within the meaning of RCW 41.56.030(3), filed two petitions for investi­gation of questions concerning representation with the Public Employment Relations Commission.

3.                  The petition in Case 22160-E-08-3422 seeks to add all enforce­ment chief deputy sheriffs and assistant chief deputy sheriffs to an existing bargaining unit consisting of all enforcement commanders of the Clark County Sheriff’s Office, by a self-determination election pursuant to WAC 391‑25‑440.

4.                  The petition in Case 22167-E-08-3424 seeks to add all custody chief deputy sheriffs and assistant chief deputy sheriffs to an existing bargaining unit consisting of all custody command­ers of the Clark County Sheriff’s Office by a self-determina­tion election pursuant to WAC 391‑25‑440.

5.                  Neither Chuck Atkins nor Richard Bishop are an enforcement chief deputy sheriff, an enforcement assistant chief deputy sheriff, a custody chief deputy sheriff, or a custody assis­tant chief deputy sheriff. Atkins and Bishop are commanders.

6.                  Evans, Nolan, and Batties are the only enforcement chief deputy sheriffs, enforcement assistant chief deputy sheriffs, custody chief deputy sheriffs, and custody assistant chief deputy sheriffs employed by the employer.

7.                  Evans, Nolan, and Batties actively participate with the employer's bargaining teams, provide input about collective bargaining proposals, have access to confidential informa­tion, and assist in formulating labor policy.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391‑25 WAC.

2.                  Based upon Finding of Fact 7, Michael Evans, Erin Nolan, and Jackie Batties should be excluded from the petitioned-for bargaining units as confidential employees within the meaning of RCW 41.56.030(2)(c) and WAC 391‑35‑320.

3.                  Based on Findings of Fact 3 through 6, Chuck Atkins and Richard Bishop are not eligible to vote in a self-determina­tion election under WAC 391‑25‑440.

ORDER

The petitions for investigation of questions concerning representation in Case 22160-E-08-3422 and Case 22167-E-08-3424 are DISMISSED.

Issued at Olympia, Washington, this 29^th day of June, 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.