City of Blaine, Decision 6691 (PECB, 1999)

Dennis P. London, Grand Lodge Special Representative, appeared on behalf of the petitioner.

Summit Law Group, by Bruce L. Schroeder, Attorney at Law, appeared on behalf of the employer.

On May 21, 1998, International Association of Machinists and Aerospace Workers, District Lodge 160 (IAM), filed two petitions for investigation of a question concerning representation with the Public Employment Relations Commission under Chapter 391-25 WAC, seeking certification as exclusive bargaining representative of two separate bargaining units of employees of the City of Blaine (employer). One of those bargaining units was described as including “department heads”; the second bargaining unit was described as including “exempt employees”. An investigation conference conducted on June 22, 1998, resulted in several stipulations by the parties, but issues were framed concerning whether certain individuals were “confidential employees”. A hearing was held on July 16, 1998, before Hearing Officer Martha M. Nicoloff.

In a decision issued on March 1, 1999, all but one of the proposed “confidential” exclusions was rejected, but neither of the petitioned-for bargaining units was found to be appropriate. City of Blaine, Decision 6619 (PECB, 1999). The IAM was provided an opportunity to file and serve an amended petition or petitions seeking appropriate bargaining unit(s), or face dismissal of its original petitions.

On March 15, 1999, the IAM filed amended petitions. The petition in the above-captioned case was amended to request a bargaining unit limited to supervisory uniformed personnel. [1]

On March 23, 1999, the Hearing Officer convened a pre-hearing conference to discuss the amended petitions. At that time, certain additional stipulations were made as to proposed unit descriptions and voter eligibility. With respect to this petition, the parties stipulated that the director of public safety and the police captain at issue in these proceedings are supervisors, and that both are uniformed personnel eligible for interest arbitration under RCW 41.56. 430 et seq. The parties also stipulated that a bargaining unit can properly be described as:

All full-time and regular part-time supervisory uniformed law enforcement personnel, excluding elected officials, the city manager, confidential employees, non-supervisory uniformed personnel, and all other employees of the employer.

The Executive Director is unaware of any facts contradicting that stipulation, and so accepts it as describing an appropriate unit.

Discussion between the parties during the course of the conference revealed the existence of issues regarding the bargaining unit placement of another uniformed position. In particular, it was noted that the employer was claiming in a parallel proceeding that a fire captain was a supervisor. [2]In a letter dated April 1, 1999, issues affecting the supervisory uniformed bargaining unit were outlined, including a possibility of stranding either a police supervisor or a fire supervisor in an inappropriate one-person bargaining unit, and the possible interest of Teamsters Union, Local 231 (based on its status as the exclusive bargaining representative of the employer's non-supervisory law enforcement officers) or of IAFF Local 3867 (based on its status as the exclusive bargaining representative of the employer's non-supervisory fire fighters). The employer and all unions having potential interests were asked to submit statements of their positions on these issues. [3]

The employer and Teamsters Local 231 each filed statements of position.

In a follow-up letter filed May 11, 1999, the employer stated that it had entered into a long-anticipated agreement to contract with an adjoining fire district for fire services, so that the City of Blaine would no longer be an “employer” of any uniformed fire fighter personnel.

DISCUSSION

Existence of Question Concerning Representation

The contract transferring the employer's fire fighting personnel and responsibilities to another employer effectively removes any interest which IAFF Local 2837 had in this proceeding. That clears the way for determination of the question concerning representation in a separate unit of supervisory law enforcement personnel.

The employer and IAM have agreed that the police captain and the director of public safety would appropriately be placed in this bargaining unit if they are employees within the meaning of Chapter 41.56 RCW. While the employer has indicated that it may exercise its right to appeal the previous rulings that neither the police captain nor the director of public safety is excluded from collective bargaining rights as a “confidential employee”, no such appeal will be timely until a tally is issued. While an issue lurks in the background with respect to the potential for stranding a police supervisor if an appeal results in a ruling that one (but not both) of these positions is a confidential employee, that matter is not ripe for determination at this time.

Method for Determination

RCW 41.56.060 sets forth the methods for determining questions concerning representation:

The Commission shall determine the bargaining representative by (1) examination of organiza­tion membership rolls, (2) comparison of signatures on organization bargaining authorization cards, or (3) by conducting an election specifically therefor.

The Commission’s rules limit the availability of the “cross-check” procedure, as follows:

WAC 391-25-391 Special Provision — Public Employees. Where only one organization is seeking certification as the representative of unrepresented employees, and the showing of interest submitted in support of the petition indicates that the organization has been authorized by in excess of seventy percent of the employees to act as their representative for the purposes of collective bargaining, the executive director may issue a direction of cross-check. The direction of cross-check and other rulings in the proceedings up to the issuance of a tally are interim orders, and may only be appealed to the Commission by objections under WAC 391-25-590 after the cross-check.

[Emphasis by bold supplied.]

A showing of interest in excess of 70% inherently indicates little likelihood of an election altering the result. If employees desire to withdraw their authorization cards, the procedure for doing so is detailed in WAC 391-25-410(2).

Examination of the case file indicates that the IAM has submitted the substantial showing of interest required by WAC 391-25-391, even under the amended petition. The determination of the question concerning representation has already been delayed by the complexity of the issues in these matters, and there is no evident reason to inject further delay by using an election.

DIRECTION OF CROSS-CHECK

1.                  The employer shall immediately supply the Commission with copies of documents from its employment records which bear the signatures of the employees in the positions identified for in the bargaining unit described herein.

2.                  A cross-check of records shall be made under the direction of the Public Employment Relations Commission in the appropriate bargaining unit described as:

All full-time and regular part-time supervisory law enforcement personnel, excluding elected officials, the city manager, confidential employees, non -supervisory uniformed personnel, and all other employees of the employer.

to determine whether a majority of the employees in that bargaining unit have authorized the International Association of Machinists and Aerospace Workers, District Lodge 160, to represent them for purposes of collective bargaining.

Issued at Olympia, Washington, this 20^th day of May, 1999.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This order may be appealed to the Commission by filing objections under WAC 391-25-590.