Kitsap County, Decision 6805 (PECB, 1999)

On June 28, 1999, the International Union of Police Associations (union) filed a petition 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 certain employees of Kitsap County (employer). An investigation conference was held, and an investi­gation statement was issued. While the employer has sought to raise an issue concerning the propriety of the petitioned-for unit, it is concluded that the result sought by the employer is not available in this proceeding, and that a summary judgment is appropriate under WAC 391-08-230.

PROCEDURAL BACKGROUND:

The union seeks to represent a bargaining unit limited to two “lieutenant” positions in the Kitsap County Sheriff’s Department. The petition indicates that there has never been a collective bargaining agreement covering the employees involved.

On July 2, 1999, Representation Coordinator Sally Iverson ­sent a routine letter to the employer, requesting a list of all persons currently on its payroll who occupy positions or classifications of the type described in the petition. In a letter filed on July 12, 1999, the employer listed the names of two employees currently employed as lieutenants.

On July 16, 1999, Iverson sent a letter to the parties, indicating that the union had produced the requisite showing of interest to support the petition. The letter also scheduled­ an investigation conference (by telephone conference call) for July 29, 1999.

Hearing Officer Mark S. Downing conducted the investigation conference on July 29, 1999. An Investigation Statement issued by Downing on July 30, 1999, read as follows:

1.         The following matters were resolved dur­ing the course of the conference:

a.         The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW.

b.         The addresses of the parties as printed on the case docket sheets are correct.

c.         The petitioner, International Union of Police Associations, is a lawful labor organization qualified to act as bargaining representative pursu­ant to RCW 41.56.030 (3).

d.         A question concerning representation exists between the parties.

e.         A Petition for Investigation of a Question Concerning Representation was timely filed.

f.          None of the parties claim that an unfair labor practice charge has been filed that should be treated as a blocking charge.

g.         The description of an appropriate bargaining unit:

All full-time and regular part-time lieutenants of the Kitsap County Sheriffs Office, excluding confiden­tial employees and all other employ­ees.

h.         The correct eligibility list is the list dated July 9, 1999, prepared by the employer.

2.         The following matters remain in dispute between the parties:

The parties disagreed whether the lieu­tenants should be in a separate unit or be included in an existing unit of corpo­rals and sergeants.

The Investigation Statement indicated it would become part of the record in the case, as binding stipulations of the parties, unless objections were filed in writing within 10 days following the date of the Statement.

On August 5, 1999, the employer filed a letter with the Commission, stating that item 1. g. of the Investigation Statement should be corrected to reflect the employer’s position that a new bargaining unit of two supervisors (i.e., lieutenants) is not appropriate, given the fact that there is already a bargaining unit of supervisors (i.e., corporals and sergeants) in the Sheriff’s Department.

An amended Investigation Statement was issued on August 6, 1999. Items 1.a. through f. were unchanged; item 1. g. of the original Investigation Stateme­nt was deleted; Item 1. h. was renumbered as1. g.; and Item 2 was reworded in the Amended Investigation Statement, as follows:

The following matters remain in dispute be­tween the parties:

The parties disagreed whether the lieutenants should be in a separate unit or be included in an existing unit of corporals and sergeants. The petitioner proposes a separate unit described as follows:

All full-time and regular part-time lieutenants of the Kitsap County Sheriff’s Office, excluding confi­dential employees and all other employees.

The employer proposes that the lieutenants be included in an existing unit of supervisors (i.e. corporals and sergeants).

The Amended Investigation Statement notified the parties that any objections had to be filed within 10 days. Neither the employer or union has filed any objections.

DISCUSSION:

Appropriate Bargaining Units

The Legislature has delegated authority to the Public Employment Relations Commission to determine appropriate units for the purposes of collective bargaining:

RCW 41.56.060DETERMINATION OF BARGAIN­ING UNIT--BARGAINING REPRESENTATIVE. The commission, after hearing upon reasonable notice, shall decide in each application for certification as an exclusive bargaining representative, the unit appropriate for the purpose of collective bargaining. In deter­mining, modifying, or combining the bargaining unit, the commission shall consider the du­ties, skills, and working conditions of the public employees; the history of collective bargaining by the public employees and their bargaining representatives, the extent of organization among the public employees, and the desire of the public employees....

Citing City of Pasco, Decision 2636‑B (PECB, 1987), the Commission described its unit determination function in City of Winslow, Decision 3520‑A (PECB, 1990), as follows:

[T]he purpose [of unit determination] is to group together employees who have sufficient similarities (community of interest) to indi­cate that they will be able to bargain collectively with their employer. The statute does not require determination of the "most" appropriate bargaining unit. It is only necessary that the petitioned‑for unit be an appropriate unit. Thus, the fact that there may be other groupings of employees which would also be appropriate, or even more appropriate, does not require setting aside a unit determination.

Similarly, the task at hand in this case is to determine whether the petitioned-for unit is “an appropriate unit”.

The Commission’s docket records and published decisions confirm there are two existing bargaining units of “uniformed personnel” in the sheriff’s department. The Kitsap County Deputy Sheriffs’ Guild is the exclusive bargaining representative of a unit described as:

All regular full-time and regular part-time uniformed employees of the Kitsap County Sheriff’s Department; excluding the sheriff, undersheriff, supervisors, confidential em­ployees, and all other employees of the em­ployer.

Kitsap County, Decision 3541 (PECB, 1990).

The Kitsap County Deputy Sheriffs’ Guild is also the exclusive bargaining representative of a second unit, described as:

All full-time regular part-time commissioned corporals and sergeants excluding; confiden­tial employees and all other employees of the employer.

Kitsap County, Decision 3963 (PECB, 1992).

Although the lieutenants at issue in this proceeding have histori­cally been excluded from both of those units, the employer argues here that the lieutenants should now be included in the existing unit of corporals and sergeants.

Bargaining units encompassing all supervisory “uniformed personnel” in a police department or fire department have been found appropri­ate. See, City of Seattle, Decision 689-C (PECB, 1981), and City of Seattle, Decision 1797-A (PECB, 1985), rejecting employer arguments that separate bargaining units should be created for each rank within a para-military structure. An important distinction between those cases and the present case is, however, that both of those decisions involved organizing campaigns for new units encompassing all of the supervisory employees in the respective departments, and there was no history of bargaining in smaller supervisory units in those departments.

In this situation, the separate bargaining unit limited to corporals and sergeants has a separate history of bargaining which is entitled to consideration under RCW 41.56.060. Further, inclusion of the lieutenants in that bargaining unit at this time would violate a long-established principle:

Absent a change of circumstance warranting a change of the unit status of individuals or classifications, the unit status of those previously included in or excluded from an appropriate unit by agreement of the parties or by certification will not be disturbed. However, both accretions and exclusions can be accomplished through unit clarification pro­ceedings in appropriate circumstances.

City of Richland, Decision 279-A (PECB, 1978), affirmed 29 Wn.App. 599 (Division III, 1981), review denied 96 Wn.2d 1004 (1981).

This is not a unit clarification proceeding under Chapter 391-35 WAC, and the Kitsap County Deputy Sheriffs’ Guild is not a party to this proceeding. Moreover, the employer does not argue here that its organizati­onal structure has been altered, or that there has been any other relevant change of circumstances.

The facts of this case are more akin to those in City of Vancouver, Decision 3160 (PECB, 1989), where an employer responded to a petition for a separate unit of building inspectors by asserting that they should be accreted to an existing general employee unit from which they had historically been excluded. The City of Vancouver decision included:

Under most circumstances, public employees have the right to freely choose their own exclusive bargaining representative. RCW 41.56.040. As stated in Kitsap Transit Authority, Decision 3104 (PECB, 1989):

Accretions are an exception to the norm, and will be ordered only where changed circumstances lead to the presence of positions which logically belong only in an existing bargaining unit, so that those posi­tions can neither stand on their own as a separate bargaining unit or be logically accreted to any other existing bargaining unit.

The parameters of the existing unit had not changed in City of Vancouver, and the employer had never previously claimed that unit was inappropriate because of its exclusion of building inspectors. The decision concluded that the long history of unrepresented status for the petitioned-for employees required a conclusion rejecting accretion to the existing unit, and stated:

Representation and unit clarification proceed­ings cannot be used to obtain the ordered inclusion of positions which have existed outside of the bargaining unit for a substantial period of time. King County, Decision 3049 (PECB, 1988); City of Prosser, Decision 3157 (PECB, 1989).

The proposed accretion was thus rejected in City of Vancouver, and the historically-unrepresented employees were permitted to exercise their statutory right to select a representative of their own choosing for the new, separate unit.

Assuming that the petitioned-for lieutenants are supervisors, an additional concern here is that the employer’s argument is based on a questionable assumption that the unit of corporals and sergeants is truly a “separate unit of supervisors”. While persons who exercise supervisory authority, on behalf of the employer, over subordinate employees have bargaining rights under Chapter 41.56 RCW, under Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977), they are routinely placed into separate bargaining units under City of Richland, supra, to avoid a potential for conflicts of interest. In applying those precepts, law enforcement officers holding ranks up to and including “sergeant” have been included in non-supervi­sory bargaining units. See, for example: Okanogan County, Decision 6142-A (PECB, 1998); Adams County, Decision 6005‑B (PECB, 1998); Franklin County, Decision 5192 (PECB, 1995); Washington State Patrol, Decision 2806‑A (PECB, 1988); City of Redmond, Decision 2269‑B (PECB, 1986). While titles vary from one law enforcement operation to another, and are not binding in any case, it cannot be assumed that the sergeants and corporals in Kitsap County have duties and responsibilities which simultaneously warrant their exclusion from the rank-and-file unit and align them in interest with the petitioned-for lieutenants.

NOW, THEREFORE, it is

DIRECTED

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

All full-time and regular part-time lieutenants of the Kitsap County Sheriff’s Office, excluding confidential employees and all other employees

to determine whether a majority of the employees in that unit have authorized the International Union of Police Associations to represent them for the purposes of collective bargaining.

Issued at Olympia, Washington, this 24^th day of August, 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.