City of Ferndale, Decision 6485-A (PECB, 1999)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
INTERNATIONALASSOCIATIONOFMACHINISTSANDAEROSPACE WORKERS,DISTRICT LODGE 160	CASE 14183-E-98-2369
Involving certain employees of:	DECISION 6485-A – PECB
CITY OF FERNDALE	ORDER DETERMININGELIGIBILITY ISSUES
In the matter of the petition of
INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,DISTRICT LODGE 160	CASE 14184-E-98-2370
Involving certain employees of:	DECISION 6849 – PECB
CITY OF FERNDALE	DIRECTION OF CROSS-CHECK

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

Langbeer, Tull, Sitkin, & Lee, by Charles J. Tull, Attorney at Law, appeared on behalf of the employer.

On October 13, 1998, International Association of Machinists and Aerospace Workers, District Lodge 160 (union) filed two petitions with the Public Employment Relations Commission under Chapter 391-25 WAC, seeking investigation of questions concerning representa­tion among certain employees of the City of Ferndale (employer).

In Case 14183-E-98-2369, the union sought certification as exclusive bargaining representative of a bargaining unit of supervisors in the Ferndale Police Department. During the course of an investigation conference held on October 29, 1998, the parties stipulated that an appropriate bargaining unit was described as:

All full-time and regular part-time uniformed supervisors of the Ferndale Police Department, excluding confidential employees and all other employees.

The parties reserved an issue concerning the eligibility of the police chief for later determination, but stipulated that a cross-check could be conducted to resolve the question concerning representation. A cross-check was conducted, and an interim certification was issued, designating the union as exclusive bargaining representative of that unit. City of Ferndale, Decision 6485 (PECB, 1998).

In Case 14184-E-98-2370, the union sought certification for a bargaining unit of non-uniformed supervisors employed by the City of Ferndale. During an investigation conference held on October 29, 1998, the parties stipulated that an appropriate bargaining unit was described as:

All full-time and regular part-time non-uniformed supervisors of the City of Ferndale, excluding confidential employees and all other employees of the employer.

The parties framed issues as to whether the Public Works Director, Clerk/Treasurer, Planning Director, and/or Parks and Recreation Director should be excluded from the proposed bargaining unit as confidential employees. Determination of the question concerning representation was delayed, because of the large number of disputed positions in relation to the size of the bargaining unit.

The eligibility issues were consolidated for further proceedings, and a hearing was conducted on December 18, 1998, before Hearing Officer Jack T. Cowan. The parties submitted post-hearing briefs on February 1, 1999.

The clerk/treasurer is found to be a “confidential employee” excluded from all bargaining units, but other disputed individuals are found to be public employees within the meaning and coverage of Chapter 41.56 RCW.A cross-check is directed to resolve the remaining question concerning representation.

BACKGROUND

Prior to and at the time of the hearing in these matters, the City of Ferndale was operated under the “council/manager” form of municipal government.[1]The city manager reported to an elected city council, was responsible for daily operations, and prepared annual budgets for approval by the city council.[2]

The employer provides municipal services through a police depart­ment, a planning department, a clerk/treasurer’s office, a public works department, and a parks and recreation department. The head of each of those departments reported to the city manager.

Other Collective Bargaining Relationships

Prior to the onset of these proceedings, the employer had collec­tive bargaining relationships with Teamsters Union, Local 231, for three separate bargaining units: A unit of non-supervisory police department employees; a unit of operations and maintenance employees in the public works and parks operations; and unit of office-clerical employees in the municipal court. The city manager had served as the employer’s chief negotiator, and was the employer’s sole representative in at least one round of collective bargaining negotiations with Teamsters Union, Local 231.

The Disputed Positions

This controversy concerns the eligibility of the five department heads to exercise collective bargaining rights under Chapter 41.56 RCW. For the sake of clarity, the facts concerning the disputed positions are addressed individually.

Police Chief -

The workforce in the employer’s police department consists of the chief, two lieutenants, ten police officers, and two support personnel. Police Chief Dale Baker has served in that capacity for approximately ten years. Baker routinely participates in daily patrol work in a “backup” capacity, depending on the number of officers available. In emergency situations, Baker allows the “Officer in Charge” to supervise until he becomes familiar with the incident, at which point he assumes overall supervision of the scene.

Baker has hired police officers during his tenure as chief. Baker testified that he interviews potential employees on a panel with the police lieutenants, and that he has final approval in the hiring process. As to new positions, the chief’s hiring process comes only after budgetary issues concerning the new positions are addressed, and final approval is given by the city council.

Baker has never disciplined any department personnel beyond issuing a written reprimand, but testified that he relies on city procedures for discipline and makes sure that provisions of the collective bargaining agreement are followed.

Baker has participated in the budget process on behalf of the police department, but has not participated in any city-wide budget discussions. Baker testified that he discusses budget alternatives with the police staff. Baker devised a “vehicle rotation program” to make sure that the department’s automobiles are up-to-date, and he has made specific budget proposals to improve the department’s non-lethal training program. Baker makes projections on the amount of overtime that the department should anticipate, but otherwise has very little input on salary issues.

Baker has attended meetings with the city manager and the other department heads, but Baker testified those meetings were used to provide general information to the department heads, and were not used to plan for negotiations. At one time, these meetings were conducted on a regular basis, but the record indicates that their frequency had recently decreased.

Baker has not had regular involvement in collective bargaining. In his recollection, he only attended one negotiation session, where he presented information in response to a union demand to increase training opportunities. Baker had prepared a study showing the training time allowed in the preceding year, and answered union questions about training opportunities. Once those questions were answered, Baker had no further contact with the negotiations.

Clerk/Treasurer -

The workforce responsible for financial and judicial administration consists of the clerk/treasurer, two employees who provide office-clerical support for the municipal court, and three employees responsible for billing, accounting, budgeting, payroll, utility payments, and general record keeping. Clerk/Treasurer Roland Signett has held that position throughout the period relevant to these proceedings.

Signett has authority in the areas of hiring and discipline which is similar to that of the police chief. He has attended department head meetings called by the city manager. Signett also prepares a departmental budget proposal as part the overall budget process.

Signett also serves as the city’s risk manager and maintains the employer’s personnel records. Signett regularly attends city council meetings in his capacity as secretary to the council, and routinely participates in executive sessions.[3]

Signett has not been at the bargaining table as part of the employer’s negotiating team, but the record establishes that he reviews monetary proposals, and determines whether the employer has sufficient funds to meet union demands for wage and benefit improvements. The final authority to make proposals rests with the city council, in consultation with the city manager, but the record also indicates that Signett has been present at executive sessions when collective bargaining strategy has been discussed.

Public Works Director -

The workforce responsible for maintenance of the employer’s water system, sewer system, streets, vehicles, and facilities consists of the public works director, a maintenance supervisor, and approxi­mately 15 employees.[4]The non-supervisory employees are represented by Teamsters Union, Local 231.Public Works Director John Eley has worked for the employer for approximately 24 years.

Eley usually begins his work day at 6:00 a. m. when he reports to the public works building and reviews work progress reports and daily work assignments. The maintenance supervisor reports directly to Eley, and is responsible for carrying out the work plans that Eley has developed.

Eley has participated in the hiring process, as detailed in the employer’s hiring policies, and has made effective recommendations about hiring to the city manager. Eley’s recommendations on hiring have never been overruled.

In terms of discipline, Eley follows applicable employer policies, as well as the terms of the collective bargaining agreement.

Eley has participated in city council meetings, including executive sessions where construction projects have been discussed.[5]However, he has never participated in executive sessions which addressed collective bargaining issues.

Eley has also participated in the department head meetings. He testified that those meetings were not used to formulate labor relations proposals for the employer.

Eley prepares a departmental budget like the other department heads, but the nature of the work to be performed requires ongoing review.[6]Eley thus has regular meetings with the city manager to discuss specific projects and to review budget information.

While he has provided information for the management’s bargaining team, El­ey has not represented the employer in collective bargain­ing negotiations.[7]Eley dealt with one issue concerning the wages, hours, and working conditions of bargaining unit employees at an unspecified time prior to the latest contract negotiations, when the union expressed an interest in changing the shift schedule. Eley was concerned that the proposed change would not provide adequate coverage at the sewage treatment plant, so he discussed alternatives with the city manager and the union’s business representative. The parties resolved their differences of opinion on this subject, and a modified shift schedule was implemented.

Planning Director -

The workforce responsible for the employer’s planning and building code enforcement functions consists of the planning director, one building inspector, and two clerical employees. Planning Director Rick Simon has served the City of Ferndale for five years. The employees other than Simon are represented by Teamsters Union, Local 231.[8]

Simon prepares the comprehensive plan for the City of Ferndale. That plan is used as a guide for determining appropriate locations for new development, appropriate types of new development, zoning requirements, and municipal infrastructure needs for development.

Simon prepares budget requests on behalf of the department, and has participated in department head meetings. Simon has also attended city council meetings and has addressed council members in executive session about growth management issues.

Simon has been asked to make comments on union bargaining propos­als, but he has never participated in collective bargaining on behalf of the city. Simon testified that he is not familiar with the specifics in bargaining, and is only generally aware that negotiations have been initiated.

Director of Parks and Recreation -

The workforce in the Parks and Recreation Department consists of the director and one full-time employee who is represented by Teamsters Local 231, together with part-time and seasonal employees who are not in the bargaining unit represented by Local 231.Director of Parks and Recreation Dave Erickson has held that position throughout the period relevant to this proceeding.

Erickson is generally responsible for park maintenance activities, and oversees the work of other employees in the department. He also prepares grant -applications for specific improvements of park properties.

Erickson follows the same general budgetary processes used by other departments heads.

Erickson has authority to hire and discipline employees, which is similar to that of other department heads. The number and availability of part-time and seasonal employees is, however, a function of the final budget approved by the city council.

Erickson has reviewed collective bargaining proposals, but has not been an active part of the city’s bargaining team. In like manner, Erickson has attended city council meetings, but has not addressed any collective bargaining issues at those meetings.

POSITIONS OF THE PARTIES

The employer argues that the disputed positions should all be excluded from the proposed bargaining unit as “confidential” employees. The employer maintains that each of the department heads is part of the employer’s “management team”, and that it would be inherently inappropriate to place such individuals in any collective bargaining unit. The employer contends the disputed positions all share equal authority to hire and discipline employees, and that each of the department heads has budget responsibilities. The employer acknowledges that the department heads have not been members of the employer’s bargaining teams in the past, but argues that each of the department heads has reviewed collective bargaining proposals, and that each has given meaningful input on bargaining issues.

The union argues that the disputed positions are not confiden­tial employees within the meaning of the statute. While it acknowledges that the employer has established that the department heads are supervisors, it argues that the employer has not established that they have the requisite labor nexus to the employer’s labor relations policy formulation. The union thus reasons that the positions should be included in the proposed bargaining unit of supervisory employees.

DISCUSSION

Standards for "Confidential" Exclusions

In pertinent part, RCW 41.56.030(2) establishes the basis for certain exclusions from bargaining rights, in the following terms:

"Public employee" means any employee of a public employer except any person ... (c) whose duties as deputy, administrative assis­tant or secretary necessarily imply a confi­dential relationship to the executive head or body of the applicable bargaining unit, or any person elected by popular vote or appointed to office pursuant to statute, ordinance or resolution for a specified term of office by the executive head or body of the public employer ....

Issues concerning "confidential" status have been before the Commission in numerous cases. The controlling precedent is IAFF, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978), which establishes a "labor nexus" test. The Court wrote:

We begin by discussing the meaning of the phrase confidential relationship in the con­text of the Public Employees' Collective Bargaining Act. That phrase ordinarily means a fiduciary relationship. This relationship arises when continuo­us trust is reposed by one person in the skills or integrity of another.

... Those in whom such trust is continuously reposed could and perhaps would participate in the formulation of labor relations policy. They would be especially subject to a conflict of interest were they to negotiate with an employer on their own behalf. By excluding from the provisions of a collective bargaining act persons who work closely with the executive head of the bargaining unit, and who have, by virtue of a continuous trust rela­tion, assisted in carrying out official duties, including formulation of labor relations policy, such conflict is avoided. And, public trust is protected since officials have the full loyalty and control of intimate associates. When the phrase confidential relation­ship is used in the collective bargaining act, we believe it is clear that the legislature was concerned with an employee's potential misuse of confidential employer labor rela­tions policy and a conflict of interest.

This concern is clearly expressed in the Educational Employment Relations Act, RCW 41.59. Although not controlling here, it contains an instructive definition of the confidential employee. It reads:

(i) 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

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

RCW 41.59.020(4) (c) (i) and (ii).

Were we to significantly alter this definition in interpreting RCW 41.56.030(2), an anomalous result would occur.... By a consistent interpretation of the two statutes this result would be avoided. Indeed, this has been recent administrative practice. [Edmonds School District, Decision 231 (PECB, 1977.] Finally,... over the years the term confidential, when used with reference to employees, has become something of a term of art in the law which developed from that act. The mean­ing it has acquired in labor law, including public employment law, accords both with that given it by Washington's legislature in RCW 41.59.020(4) (c) and the interpre­tati­on we give to RCW 41.56.030(2).

We hold that in order for an employee to come within the exception of RCW 41.56.030(2), the duties which imply the confidential relation­ship must flow from an official intimate fiduciary relationship with the executive head of the bargaining unit or public official. The nature of this close association must concern the official and policy responsibili­ties of the public officer or executive head of the bargaining unit, including formulation of labor relations policy. General supervisory responsibility is insufficient to place an employee within the exclusion.

91 Wn.2d at 105‑107 [emphasis by bold supplied].

The Supreme Court had previously given a very narrow reading to the exclusions from coverage of Chapter 41.56 RCW. Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977).

The standard for "confidential" exclusions has been restated in numerous Commission decisions over the years. For example:

The "confidential" exclusion specifically protects the collective bargaining process, protecting the employer (and the process as a whole) from conflicts of interest and divided loyalties in an area where improper disclosure could damage the collective bargaining process. Possession of other types of informa­tion that are to be kept from public disclo­sure is not a threat to the collective bar­gaining process, and a showing that an em­ployee holds a position of general responsi­bility and trust does not establish a rela­tionship warranting exclusion from collective bargaining rights, where the individual is not privy to labor relations material, strategies, or planning sessions.

Bellingham Housing Authority, Decision 2140‑B (PECB, 1985).

Because status as a confidential employee deprives the individual of all rights under the statute, the party that seeks exclusion of an employee as confidential has a heavy burden of proof. City of Seattle, Decision 689‑A (PECB, 1979).At the same time, it is clear that an employer will be allowed some reasonable number of excluded personnel to perform the functions of the employer in the collective bargaining process. Clover Park School District, Decision 2243‑A (PECB, 1987).

Application of the Standard

The employer has clearly made a strong case that all of the disputed positions hold supervisory authority. As indicated above, however, supervisory status does not equate with confiden­tial status.

The record establishes that the clerk/treasure­r qualifies for exclusion as a “confidential employee”. Apart from his duties as the employer’s financial officer, the clerk/treasurer has frequent and detailed contact with the city council in his role as secretary to that body, is called upon to provide financial information used in the formulation of the employer’s collective bargaining policies, and is privy to city council executive sessions when collective bargaining strategy is discussed. Inclusion of this position in any bargaining unit would clearly create the inherent conflict of interest that the Supreme Court sought to avoid when it adopted the labor nexus test in City of Yakima, supra. To avoid such a result, the clerk/treasurer must be excluded from collective bargaining rights.

The other department heads have little or no contact with collective bargaining matters. While they may be aware that bargaining is in progress, and may even provide some input to the employer’s negotiators or at the collective bargaining table, the evidence does not establish that they are privy to the formulation of the employer’s labor relations policies:

•                     The city manager and a hired consultant do the bulk of the negotiations for the employer; and

•                     While the public works director dealt with union officials on the proposed shift change at the sewage treatment plant, the record shows that this was an exception to the general rule.

The record even suggests that the department heads other than the clerk/treasurer are briefed on the status of bargaining as a courtesy, rather than a necessity.

FINDINGS OF FACT

1.               The City of Ferndale is a municipal corporation of the state of Washington within the meaning of RCW 41.56.020, and is a public employer within the meaning of RCW 41.56.030(1). The employer's labor relations polici­es are formulated by the elected city council, in consultation with the city manager, and are implemented at the bargaining table by the city manager and a hired consultant.

2.               International Association of Machinists and Aerospace Workers, District Lodge 160, a bargaining representative within the meaning of RCW 41.56.030(3), has filed timely and properly supported petitions seeking certification as exclusive bargaining representative of certain supervisory employees of the City of Ferndale.

3.               The clerk/treasurer performs a variety of duties which place that individual in regular and ongoing contact with confiden­tial information concerning the formulation and implementation of the employer’s labor relations policies. In particular, the clerk/treasurer performs analysis of collective bargaining proposals and provides financial information for the employer’s negotiators, attends city council meetings as secretary to the council, and participates in executive sessions where collective bargaining matters are discussed in detail.

4.               The chief of police is a supervisory law enforcement officer, but does not serve on the em­ployer's negotiating team for collective bargaining, and is not privy to confidential information concerning the formulation and implementation of the employer's labor relations policies.

5.               The public works director, planning director, and parks and recreation director are supervisory non-uniformed employees, but do not serve on the em­ployer's negotiating team for collective bargaining, and are not privy to confidential information concerning the formulation and implementation of the em­ployer's labor relations policies.

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.                  The incumbent in the clerk/treasurer position in the City of Ferndale is a "confidential employee" within the meaning of RCW 41.56.030(2) (c).

3.                  The incumbent in the chief of police position in the City of Ferndale is a public employee within the meaning of RCW 41.56.030(2) and is within the class of “uniformed personnel” defined in RCW 41.56.030(7), and is not a “confidential employee" within the meaning of RCW 41.56.030(2) (c).

4.                  Each of the incumbents in the public works director, planning director, and parks and recreation director positions in the City of Ferndale is a public employee within the meaning of RCW 41.56.030(2), and is not a “confidential employee" within the meaning of RCW 41.56.030(2) (c).

5.                  A bargaining unit limited to:

All full-time and regular part-time non-uniformed supervisors of the City of Ferndale, excluding confidential employees and all other employees of the employer

is an appropriate unit for the purposes of collective bargain­ing under RCW 41.56.060, and a question concerning representa­tion presently exists under RCW 41.56.070 and 41.56.060 in that bargaining unit.

NOW, THEREFORE, it is

ORDERED

1.                  ORDER DETERMINING ELIGIBILITY ISSUES - Case 14183-E-98-2369; DECISION 6485-A - PECB: The police chief position at the City of Ferndale is included in the bargaining unit of supervisory law enforcement officers.

2.                  DIRECTION OF CROSS-CHECK - CASE 14184-E-98-2370; Decision 6849 - PECB: A cross-check of records shall be made under the direction of the Public Employment Relations Commission in the bargaining unit described in paragraph 5 of the foregoing conclusions of law, to determine whether a majority of the employees in that bargaining unit have authorized Interna­tional Association of Machinists and Aerospace Workers, District Lodge 160, to represent them for the purposes of collective bargaining. The clerk/treasurer shall be excluded from that bargaining unit as a confidential employee.

Issued at Olympia, Washington, on the12^th day of October, 1999.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

The order in Case 14183-E-98-2369 will be the final order of the agency on the eligibility issue, unless a notice of appeal is filed with the Commission under WAC 391-25-660.

The order in Case 14184-E-98-2370 may only be appealed to the Commission by filing objections under WAC 391-25-590.