Port of Vancouver, Decision 6979 (PECB, 2000)

STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 4	CASE 14599-E-99-2430
Involving certain employees of:	DECISION 6979 - PECB
PORT OF VANCOUVER	DIRECTION OF CROSS-CHECK

Leonard, Carder, Nathan, Zuckerman, Ross, Chin & Reman, by William H. Carder, Attorney at Law, appeared on behalf of the petitioner.

Schwabe, Williamson & Wyatt, by Thomas M. Triplett, Attorney at Law, appeared on behalf of the employer.

On May 21, 1999, International Longshore and Warehouse Union, Local 4 (ILWU), filed a petition for investigation of question concerning representation with the Public Employment Relations Commission, under Chapter 391-25 WAC. The ILWU sought certification as exclusive bargaining representative of three employees of the Port of Vancouver (employer). An investigation conference was conducted on June 16, 1999, with participation by representatives of both parties. Issues were framed at that time concerning the timeliness of the petition and concerning the propriety of the petitioned-for bargaining unit. A hearing was held on September 1, 1999, before Hearing Officer Mark S. Downing. Both parties filed briefs.

On the basis of the evidence and arguments presented, the Executive Director rules that the petitioned-for unit limited to three employees in the employer’s maintenance operation ­is an appropriate unit for the purposes of collective bargaining. A cross-check is directed to resolve the question concerning representation.

BACKGROUND

The employer is organized under Title 53 RCW, and is governed by a three-member board of elected commissioners. The commissioners appoint the employer’s executive officers, including an executive director, a port counsel, and a port auditor. In turn, the executive director is responsible for approximately 65 employees hired as administrative staff, security and approximately 15 “maintenance” employees.

The employer operates a commercial river port located on the north shore of the Columbia River at the point of confluence with the Willamet­te River. ­It has 600 acres of operating facilities along 1.5 miles of riverfront. Those facilities handle a wide range of cargo, and the employer provides equipment, manpower, and storage facilities to approximately 40 industrial tenants.

The Maintenance Workforce

Generally, the employer has responsibility for common areas, and it maintains electrical service, water service, buildings, streets and approximately 18 miles of rail trackage. Twelve of the employees in the employer’s maintenance section are “skilled trades” employees who provide construction and maintenance services for tenants, depending upon the particular lease with the tenant. Those employees include:

2 heavy equipment operators

2 piledriver operators

2 carpenters

1 carpenter foreman

1 sprinklerman

3 laborers

1 electrician

Those employees work at various work sites throughout the employer’s facilities, operating heavy equipment (such as road graders and front-end loaders), repairing and resurfacing roads, digging trenches, laying pipe, driving piles, repairing buildings, maintaining building roofs and siding, and electrical work. None of these employees regularly work at the employer’s shop, or maintain or repair the equipment they use in their daily tasks.

Responsibility for the maintenance of the employer’s vehicles and heavy equipment has been assigned to the three maintenance mechanics who are at issue in this proceeding. They generally perform all of their work in the employer’s maintenance shop facility.

STIPULATIONS

During the investigation conference, which was conducted by telephone conference call, the representatives of the employer and petitioner entered into several stipulations and framed the issues for hearing in this matter. The investigation statement issued on June 24, 1999, then included:

This statement is issued pursuant to WAC 10-08-130 and WAC 391-08-210 to state the stipulations made by the parties at the investigation confer­ence and to control the subsequent course of proceedings. This statement is prepared in lieu of an election agreement and shall be posted on the appropriate employee bulletin boards in the employer's premises for a period of seven days pursuant to WAC 391-25-230.

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 were corrected to show Tom Triplett at 1211 SW 5th, Portland, Oregon 97204.

c.                   The petitioner, ILWU, Local 4, 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.

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

a.                   The employer claims the petition is un­timely filed because of a voluntary rec­ognition between the employer and IUOE, Local 701.

b.                  The employer questioned the appropriate­ness of the proposed unit.

The case will be assigned to a hearing officer to hold a hearing and resolve the dispute.

Any objections to the foregoing must be filed, in writing, with the Representation Coordinator within 10 days following the date hereof and shall, at the same time, be served upon each of the other participants named above. This state­ment becomes part of the record in this matter as binding stipulations of the parties, unless modified for good cause by a subsequent order.

Neither the employer nor the ILWU filed any objection concerning the eligibility list. Although International Union of Operating Engineers (IUOE), Local 701, had earlier filed a letter with the Commission in which it asserted that the three petitioned-for mechanics should be accreted to its existing bargaining unit, that union did not move for intervention in this matter, and was not present at the hearing.

DISCUSSION

The Appropriate Bargaining Unit

The determination of appropriate bargaining units is a function delegated by the Legislature to the Public Employment Relations Commission. RCW 41.56.060. Unit determination is not a subject for bargaining in the usual mandatory/permissive/illegal sense and, while parties can agree on unit matters, such agreements are not binding on the Commission. City of Richland, Decision 279-A (PECB, 1978), affirmed 29 Wn.App.599 (Division III, 1981), review denied 96 Wn.2d 1004 (1981). RCW 41.56.060 directs the Commission:

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.

RCW 41.56.060.

Unit determinations are made on a case‑by‑case basis, starting in a representation case under Chapter 391‑25 WAC from the unit structure proposed by the petitioning union. A unit can be certified if it is an appropriate unit; it need not be the most appropriate unit.

The statute does not confine us to certifying only “the most appropriate unit” in each case. It is only necessary that the petitioned-for bargaining unit be an appropriate one. Thus, the fact that there may be other groupings of employ­ees which would also be appropriate, or even more appropriate, does not require rejecting a pro­posed unit that is appropriate.

City of Centralia, Decision 3495-A (PECB, 1990)

[Emphasis by bold supplied]

The right of employees to a voice on the selection of their representative is further emphasized, in the case of port district employees, in RCW 53.18.030:

In determining which employee organization will represent them, employees shall have maximum freedom in exercising their right to self-organize.

Thus, the employer would need to establish in this case that the unit configuration sought by the ILWU is “inappropriate”.

Positions of the Parties on “Unit” -

The employer argues that a unit encompassing its entire maintenance workforce (15 employees) is the only appropriate unit for any of those employees, and that the petitioned-for unit of three employees should be found inappropriate. It requests resolution of an issue which, it states, was raised by the letter in which the IUOE asserted that the maintenance mechanics should be accreted to its existing bargaining unit. The employer also argues that the petition filed in this matter was untimely, because of a voluntary recognition between the employer and the IUOE.

The ILWU argues that the petitioned-for unit is appropriate because the maintenance mechanics have differe­nt wages and benefits than the other maintenance employees, because the petitioned-for employees share a distinct community of interest, and because they have no history of affiliation with a bargaining agent. In opposing the employer’s arguments concerning accretion and/or a voluntary recognition, the ILWU asserts that acceptance of the employer’s arguments would foreclose the right of the affected employees to determine their representative for bargaining.

The History of Bargaining -

The employer’s arguments concerning timeliness and the rights of IUOE Local 701 are unfounded, and are rejected. While the “history of bargaining” component of the unit determination criteria set forth in RCW 41.56.060 is the basis for discussion of “severance” and “timeliness” issues in numerous decisions by the Commission and counterpart agencies such as the National Labor Relations Board (NLRB), it has no application in a case where, as here, there is no actual history of bargaining.

Since 1977, the employer has had letters of agreement in effect with unions representing some of the employees in its maintenance workforce, as follows:[1]

*          With International Union of Operating Engineers, Local 701, covering heavy equipment operators;

*          With Piledrivers, Local Union 2416, representing pile-driver operators;

*          With SW District Council of Carpenters, Local 1715, representing carpenters;­

*          With National Automatic Sprinkler Industry Union, Local 669, representing sprinklermen;

*          With International Brotherhood of Electrical Workers, Local 48, representing electricians; and

*          With Laborers International Union of North America, Local Union 335, representing laborers.

Those employees receive the wages specified by a local master agreement covering their particular craft, the employer contributes to six different union retirement trust funds, and the employer contributes to six different union medical programs. The employer deducts union dues from the wages of those employees, and transmits those funds (in differing amounts for all but two of the unions) to the specific craft union to which the employee belongs.[2]

The petitioned-for maintenance shop mechanics have never been represented by a labor union, covered by a collective bargaining agreement, or even covered by any of the letters of agreement described above. They are the employer’s only maintenance employees who are covered by the Public Employees Retirement System and by the employer’s medical insurance plans. T­he employer has never deducted union dues from the wages of the petitioned-for employees, nor has it ever been authorized to so do.

The employer’s claim of having extended voluntary recognition to the IUOE as exclusive bargaining representative of the petitioned-for employees is not supported by the record. Apart from the procedural vacuum created by the failure of the IUOE to move for intervention in this proceeding, there is certainly neither signed documentation of such a transaction nor a signed collective bargaining agreement following up on such a transaction. There was no evidence presented at the hearing th­at the mechanics have ever asked for representation by the IUOE for purposes of negotiating their wage­s, hours or working conditions. Under City of Mukilteo, Decision 1571-B (PECB, 1983) at page 4, “a request for recognition must claim majority support from an appropriate unit”. In the absence of a claim of (and a willingness to demonstrate) such support, an employer would commit an unfair labor practice by extending voluntary recognition to a union that did not hold majority status in the unit, and a union which accepted voluntary recognition would be subject to scrutiny as an unlawfully assisted “company union”. Finally, even if there were proof of a valid voluntary recognition, the “certification bar” set forth in RCW 41.56.070 only applies to a certification issued by the Commission following an election or cross-check.

Duties, Skills and Working Conditions -

The petitioned-for bargaining unit consists of two utility mechanics (Stephen Handy and Kerry Karschney) and the mechanic foreman (Mark Savage). The evidence clearly establishes that they have a community of interest separate and apart from the employer’s other maintenance employees.

The employer’s position description for the utility mechanics is as follows:

BASIC FUNCTION:

Perform major and minor repairs to a wide variety of both gasoline and diesel powered equipment. Includes preventative maintenance tasks, engine breakdown and buildup, repairing carburetors, tuning engines, servicing and repairing hydraulic systems, welding broken accessories and similar heavy-duty mechanic functions. Perform other duties and responsi­bilities as required including conveyor and other mechanical systems in support of marine operations.

QUALIFICATIONS:

Journeyman mechanic experienced in working on diesel and gasoline powered equipment such as front end loaders, cranes (diesel, electric), crawler cranes, dump trucks, automobiles, lift trucks, etc. Must have acceptable arc and acetylene welding credentials. Must be familiar with and be able to check and repair all electri­cal/electronic and carburetor systems for the above equipment.

EXPERIENCE:

Prefer a minimum of five years related experi­ence and satisfactory references. Ability to write legibly and converse in the English language. Must possess a current Drivers License.

The mechanics testified that they repa­ir dump trucks, front-end loaders, road graders, vibratory rollers, forklifts, chain saws, electrical vibrators for doing concrete work, rubber-tired cranes, asphalt breakers, backhoes, pickups, cars, trucks, and security vehicles. They primarily work in the shop, and testified that they only operate this equipment as necessary to move equipment into or out of the shop for repair or maintenance. The utility mechanics testified that they never do any carpentry, plumbing, electrical, piledriver or laborer work.

The employer’s job description for the mechanic foreman position (with emphasis by bold on similarities) is as follows:

BASIC FUNCTION

Under the direction of the director of terminal services, supervises mechanical shop operations for the maintenance, service and repair of mechanical and utility equipment. This includes all mechanical shop functions and personnel assigned. Must be able to perform the duties of all subordinates whenever necessary. Schedules all work assignments, periodically councils and evaluates work of subord­inates and insures that all personnel are informed and use proper safety procedures in carrying out their assigned tasks.

Supervises the work of all of the mechanical shop maintenance personnel. Oversees the major and minor repairs of all port owned and related mechanical equipment, including preventative maintenance tasks, such as engine breakdown, buildup, engine turning, servicing and repairing of hydraulic systems, welding and similar mechanical functions. Incumbent is responsible for requisitioning, through central purchasing, and purchasing through field purchases, parts, supplies, tools and necess­ary equipment.

This is a working foreman position and the incumbent is expected to perform all of the same duties and functions as a journeyman utility maintenance mechanic. Is responsible for record­ing daily time sheets and maintaining equipment and shop maintenance needs. Makes daily work assignments for all maintena­nce personnel. Conducts periodic safety meetings with staff to insure that proper shop and field safety prac­tices are being observed and followed. Maintains and makes periodic employee performance reviews as required. Incumbent is expected to be avail­able for all district emergency situations and to designate an alternate in his absence. Perform other related duties as assigned.

QUALIFICATIONS:

Journeyman mechanic experienced in assembly, maintenance and repair of utility, construction and automotive equipment. This experience in-cludes, but is not restricted to internal combustion engine mechanics, diesel engine mechanics, fuel and carburetor systems, electrical and generating systems, wiring, ignition, power trains, brakes, chassis, metal working, welding, various machine operations and all fluid, hydraulic and pneumatic power systems. Must be skilled in record keeping and other shop and automotive administration.

Requires a good knowledge of principles of leadership and be able to satisfactorily communicate with fellow employees and the public.

Must be able to read and write legibly and converse in the English language. Must be able to read and interpret blueprints, sketch­es, in­structions and direc­tions. Requires good knowl­edge of port policies and procedures and a familiarity with port facilities and equipment.

EXPERIENCE:

Must have a minimum of five years experience as a journeyman mechanic in the area of assem­bly, maintenance and repair of utility constr­uction and automotive equipment. Should have supervisory experience.

As is explicitly noted in his job description, the mechanic foreman performs all of the job duties of the utility mechanics. He does some of that work in the field, but primarily works in the shop.

Interchange or interaction between employees in a petitioned‑for unit and other employees can be a basis for finding a community of interest, but the employer’s claims of “constant contact” and “interplay” with other members of the maintenance workforce are not persuasive. The evidence merely establishes that the shop crew and the other maintenance employees have occasion to interact at the beginnings and ends of their shifts, in the lunchroom they share, and when discussing the maintenance or repair needed on a particu­lar piece of equipment. It is clear that their actual work is not interchangeable. ­The mechanics never operate any of the equipment used by the other employees for “production” purposes, and the other employees do not perform any maintenance or repair tasks other than basic oiling or greasing in routine operation.

Similarities of wages, hours or working conditions can be a basis for finding a community of interest to exist, but the evidence in this case clearly demonstrates more differences than similarities. Where the other crafts employees are paid according to wage scales established by the crafts unions in the greater Vancouver/Portland area, the petitioned-for mechanics are paid on a wage scale established by the employer, presumably on a competitive basis. The shop mechanics have always been under different pension and medical benefit plans than the other maintenance employees.

Extent of Organization‑

This element of the statutory unit determination criteria compares a petitioned‑for unit to the whole of the employer's operations, and thus provides a toe‑hold for “anti-fragmentation" and “table of organization" arguments. It is necessarily applied in the context of any bargaining unit structures already existing within the employer's workforce.

Here again, the employer appears to be arguing a position that is clearly contrary to the evidence of-record. It asserts:

Key to consideration of this factor is unitary management or supervision; vertical or horizontal integration with others; whether they are in the same or a different department; and critically, the issue of unnecessary fragmentation. . . . There can be little quest­ion that fragmentation and probable lack of representation would result from petitioner’s contentions. First, both the Pipefitter and the Electrician, as one-person units, would be left without any right to orga­nize. Second, the Port would be treated to the prospect of six (6) unions representing thirteen (13) employees and two supervisors.

It appears however, that the employer is describing the present situation, not what will result if its objections are overruled. The evidence shows that the employer has treated its skilled craft employe­es other than the petitioned-for mechanics as represented employees, even to the extent of deducting union dues. Having made those decisions in the past, it cannot now credibly argue that the only appropriate bargaining unit must be a wall-to-wall unit of all maintenance employees. The decision in City of Auburn, Decision 5775 (PECB, 1996), is instructive:

[N]either the petitioner, the employer nor [an intervening union] has a right to dictate the choice of bargaining representative for the employees at issue in this proceeding. The employer's arguments favoring accretion of the petitioned‑for positions to [an existing unit] in this case are essentially the same as those which were advanced and rejected in City of Vancouver, Decision 3160 (PECB, 1989), where historically unrepresented employees were given the opportu­nity to vote on representation. No provision within Chapter 41.56 RCW provides a reward in heaven for employers who manage to preserve one or more pockets of unrepresented employees within their workforce­s, and the specter of "skimming" issues should fuel employer concerns about excessive fragmentation of units. The comeup­pance for employers that do manage to have pockets of unrepresented employees tends to occur when the employees in one or more such stranded groups exercise their statutory right to organize for the purposes of collective bargaining.

See, also, Cusick School District, Decision 2946 (PECB, 1988). The employer’s concer­ns about fragmentation do not override the historical absence of union representation for the petitioned-for mechanics, particularly where those ­mechanics have duties and skills distinct from those of the other maintenance employees.

While accretions of employees or positions to an existing bargain­ing unit can be ordered under particular circumstances, the circumstances existing in this case do not support the employer’s assertion that the petitioned-for employees should be accreted to the so-called “bargaining unit” represented by the IUOE. RCW 41.56.040 sets forth the general rule, guaranteeing public employees a voice in the selection of their exclusive bargaining representative. Accretions are an exception to that general rule, and are only ordered where the positions involved can neither stand on their own as a separate unit nor properly be added to any other bargaining unit. The party proposing accretion has the burden of establishing that those conditions are met. In the absence of circumstances which warrant depriving the affected employees of their voice on their representation, an accretion must be denied. See, Pierce County, Decision 6051‑A (PECB, 1998) and cases cited therein. See, also, City of Vancouver, supra, rejecting arguments similar to those advanced by the employer in this case. The mechanics at issue in this case could stand alone as a separate community of interest, and there is no support for a conclusion that the IUOE has greater claim to them than any of the other unions now recognized by the employer.

Desires of Employees -

As explained in City of Marysville, Decision 4854 (PECB, 1994), the Commission sometimes finds it necessary and appropriate to assess the “desires of employees” on unit issues. That occurs where either of two or more unit configurations could be appropriate, based upon other unit determination criteria. The Commission then conducts a secret‑ballot unit determination election, giving the employees involved an opportunity to express their desires on their unit placement under the protection of a secret ballot. [3]In the instant case however, there are no alternative units available for these employees. Therefore a unit determination election will not be required.

Conclusions on “Unit” Issue -

The petitioned-for bargaining unit is found to be an appropriate unit for the purposes of collective bargaining. The four factors listed in RCW 41.56.060 are not prioritized. The circumstances of each case determine whether each factor applies, and which factor(s) predominate(s), in reaching a decision. Okanogan School District, Decision 5394‑A (PECB, 1997). The evidence in this case indicates that the petitioned-for employees have distinct duties, skills, and working conditions; the historical arrangements described by the employer clearly exclude the petitioned-for employees; the employer has failed to carry the heavy burden of proof to establish that the petitioned-for unit is inappropriate, or that the petitioned-for employees should be accreted to an existing bargaining unit; no other union has intervened to seek a different unit, so the circumstances for conducting a unit determination election are not present.

Method for Determining Question Concerning Representation

RCW 41.56.060 authorizes the Commission to determine questions concerning representation by conducting a secret-ballot election for that purpose, or by conducting a cross-check of employer and union documents.

Positions of the Parties on Determination Methodology -

The showing of interest presented by the ILWU suggests that it has the support of more than 70% of the employees in the petitioned-for bargaining unit. It has requested that the question concerning representation be determined by a cross-check of employer and union documents, directed under WAC 391-25-391 and conducted under WAC 391-25-410.

The employer asserts that an election should be conducted if this petition is not dismissed. In its brief, the employer argues, generally, that the determination of whether the mechanics are represented for purposes of collective bargaining should only be determined by a secret ballot election.

Discussion on Determination Methodology -

The employer’s general objections to the cross-check procedure are not persuasive. The appropriate uses of the cross-check procedure were thoroughly discussed in City of Winslow, Decision 3520‑A (PECB, 1990). The Commission’s use of the cross-check procedu­re had previously been affirmed by the courts in judicial review proceedings resulting from Evergreen General Hospital, Decision 58‑A (PECB, 1977), in King County Public Hospital District 2 v. Public Service Employees, 24 Wn.App 64 (1979), and in City of Redmond, Decision 1367‑A (PECB, 1982). The Commission had stated in Redmond:

Our conclusion is based on the language of the statute, RCW 41.56.060, as well as considerations of efficiency. RCW 41.56.060 clearly provides three methods for determining a bargaining representative, and does not suggest a legisla­tive preference for any particular method. Contrary to the employer's suggestion, the statute does not prefer the election procedure to other methods. RCW 41.56.070 sets forth election procedures to be used “in the event the commis­sion elects to conduct an election. . . "(emphasis added). This again recognizes the options available to the commission, which have been left to the discretion of the agency to exercise.

The cross‑check has the advantage of being a more efficient procedure than an election, requiring less utilization of this agency's scarce re­sources. On the other hand, an election accu­rately reflects whether any employees who signed authorization cards have changed their minds between the time they signed the card and the election, and would also give the union time to garner further support. Our rule, WAC 391‑25‑391, weighs the advantages and disadvan­tages of the two approaches, and resolves the matter by allowing a cross‑check when the showing of interest indicates that the union has been authorized as the bargaining representative by a "substantial majority of the employees".

The circumstances for direction of a cross-check are met in this case. If any individual employee has had a change of heart since they signed their authorization cards, WAC 391-25-410(2) provides them a procedure to revoke their previous authorization.

The Eligibility List

During the course of the hearing, the employer sought to raise an “eligibility” issue concerning the mechanic foreman, claiming that he should be excluded from the bargaining unit as a supervisor. The Hearing Officer rejected the employer’s claim, reasoning that the employer had waived this eligibility issue by failing to raise it in response to the Commission’s request for a list of eligible employees or at the Investigation Conference.

Positions of the Parties on Eligibility -

The employer renewed its eligibility argument in its post-hearing brief. The employer contends Mark Savage is a supervisor, cites RCW 53.18.060(3),[4] and argues that the Hearing Officer improperly rejected the employer’s attempt to raise this issue at the hearing.

The union contends that the mechanic foreman is merely a working foreman or leadman of the type that is commonly included in the same bargaining unit with other rank and file employees.

The Procedural / Waiver Issue -

Based on review of the pertinent documents, the Executive Director overrules the ruling that the employer waived its right to raise this eligibility issue. While the Commission’s rules and proce­dures encourage stipulations on issues in representation cases, and while precedents such as Community College District 5, Decision 448 (CCOL, 1978) enforce the stipulations made by parties, the documents in this case suggest silence, rather than stipulation.

The employer assertion that its first response to the petition “expressly reserved” a right to modify or amend its position is not conclusive. In actual fact, the June 3, 1999 letter sent by the employer in response to a request made under WAC 391-25-130 for a list of employees only vaguely stated (emphasis by bold supplied):

Secondly, the individuals listed on the petition are as follows: Mark Savage, Steve Handy, Kerry Karschney. This list may be subject to change.

In the context of a collective bargaining process designed to foster good communications, and an investigation conference process designed as a fact-gathering exercise, that response clearly fell far short of providing notice that the employer was claiming that Mark Savage should be excluded from the unit as a supervisor.

Even the employer’s June 22, 1999 letter objecting to some of the language used in the investigation statement fell short of framing the “eligibility” issue which the employer now seeks to litigate. The employer’s letter only stated:

This paragraph limits the issue to timing of the filing of the Petition. However, the Port has other issues, including a critical issue of appropriate bargaining unit.

An Amended Investigation Statement on June 24, 1999, added an “appropriate unit” issue based upon the employer’s June 22 letter. Still, the employer did not file any further objection, or make any explicit request to frame an “eligibility” issue concerning Mark Savage.

What is missing is clear indication that the “eligibility” subject was addressed during the Investigation Conference. The terms of the Investigation Statement and Amended Investigation Statement make clear that they were to control the subsequent course of the proceedings, but that cannot elevate silence to the same dignity as a conscious stipulation. Although the process would certainly have been better served if the employer had given earlier notice of its intention to argue that the mechanic foreman should be excluded from the proposed bargaining unit as a supervisor, the evidence and arguments appear to be sufficient to make a ruling.

The Exclusion of Supervisors -

The Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, is silent on the subject of “supervisors”. In a decision issued early in its administration of the statute, and arising out of a separate unit of supervisors, the Commission ruled that supervisors have the right to organize and bargain under Chapter 41.56 RCW. City of Tacoma, Decision 95-A (PECB, 1977). The Supreme Court of the State of Washington reached a similar conclusion and cited the Commission’s decision with approval in Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977). The METRO decision also concerned a separate bargaining unit of supervisors. In the months that followed Tacoma and METRO, the Commission had occasion to exclude supervisors from the bargaining unit which contained their rank-and-file subordinates, in order to avoid a potential for conflicts of interest which would otherwise exist within the bargaining unit, and that approach was also affirmed by the courts. City of Richland, supra. The Commission and the courts have thus arrived at an interpretation of Chapter 41.56 RCW which both matches the interpretation of the National Labor Relations Act prior to the Taft-Hartley amendments,[5] and the language of RCW 53.18.060.

The Commission’s decisions emphasize the inquiry about potential conflicts of interest which might arise where supervisors and their subordinates are included in the same bargaining unit. See, for example, Spokane International Airport, Decision 2000 (PECB, 1984). The focus of inquiry is on the types of authority outlined in Section 2(11) of the NLRA and in RCW 41.59.020(4)(d) of the Educational Employment Relations Act. Numerous decisions have rejected exclusion of “working foremen” and “lead workers” who lack the authority to act, or the power to make effective recommenda­tions concerning, those types of actions.

Supervision need not be a full-time occupation, if the authority to act is clear. In City of Mukilteo, Decision 2202‑A, (PECB, 1986), a “foreman" was excluded as a supervisor, notwithstanding that he had not exercised his clear authority to evaluate employees. The need for a supervisor of only one subordinate raised suspicion in City of Royal City, Decision 2490 (PECB, 1986), but the actual authority to discipline and exert control created a potential for conflicts of interest damaging to both management and the labor organization. See, also, Inchelium School District, Decision 2395‑B (PECB, 1987). Hence, the result on this issue in this case turns on how much authority the mechanic foreman has and exercises over the utility mechanics.

The Mechanic Foreman -

From a 1997-vintage organization chart entered into evidence, it appears that t­he mechanic foreman is supervised by the superinten­dent of marine facilities. In turn, that superintendent reports to a senior director of operations, who reports to the employer’s executive director. The disputed individual is thus insulated by two levels of supervision from the statutorily-excluded “executive head of the bargaining unit”.

The mechanic foreman maintains records, obtains materials for the utility mechanics and conducts regular safety meetings. None of those support and training activities fall into the “hire, assign, promote, transfer, layoff, recall, suspend, discipline, or discharge” types for which supervisory exclusions are generally reserved under Commission precedent. They are clearly more typical of the “lead worker” role in this small shop.

The mechanic foreman schedules the work assignments of the utility mechanics and reviews their work, but does so in the context that the mechanic foreman is expressly required to possess the same skills as the utility mechanic. The Commission’s precedents impose an “additive” or “cumulative” analysis to the criteria for supervisory status, rather than the “any one” approach used by the NLRB in interpreting the specific language of the NLRA. Thus, the authority to assign work is not compelling in this case.

There is no evidence that Savage has the power to hire, promote, transfer, layoff, recall, suspend, discipline or discharge any employees. Indeed, Senior Director of Operations Walter Morley testified that he has the sole authority to hire, discipline and terminate the mechanics. While Morley added that he would consult with the mechanic foreman concerning decisions on hiring, he emphasized that the final decision would be his alone.

The employer’s own job description for the mechanic foreman position clearly indicates he is a lead worker. In addition to calling for the disputed employee to do exactly the same work as the other two members of the petitioned-for bargaining unit, nothing in that job description provides any indication that his responsibilities include any of the indicia of a supervisor as defined in years of Commission decisions. See, for example, City of Bellingham, Decision 2823 (PECB, 1987) and City of White Salmon, Decision 4370-A (PECB, 1994).

Examination of the exhibits admitted in evidence at the hearing discloses that the employer’s claim that the mechanic foreman should be excluded from the petitioned-for bargaining unit is also inconsistent with its treatment of a carpenter foreman position within its maintenance workforce. Similar to the situation of the petitioned-for mechanics, the employer has three carpente­rs, one of which is classified as a foreman. An exhibit consisting of a chart of wages and fringe benefits shows the union dues deducted by the employer from the pay of represented employees, and it is apparent from that exhibit that the carpenter foreman is represented by the SW District Council of Carpenter’s, Local 1715. The employer has not provided any evidence of distinctions between the mechanic foreman and carpenter foreman positions, or any explanation as to why exclusion of the former is warranted while the latter remains in the same bargaining unit with his subordinates.

Although employers have the responsibility, in the first instance, to assign job responsibil­ities to their employees, it is the responsibility of the Commission to determine the final composition of bargaining units based upon the evidence at hand. In this case, the employer’s concern that the statute clearly forbids inclusion of supervisors in the same bargaining unit with rank and file employees is inapposite here, where the evidence does not support a conclusion that the mechanic foreman is a supervisor. The employer leaps over that part of the analysis.

FINDINGS OF FACT

1.                  The Port of Vancouver is a municipal corporation of the State of Washington organized under Title 53 RCW, and is both a public employer within the meaning of RCW 41.56.030(1) and a port district within the meaning of Chapter 53.18 RCW. The employer operates a marine terminal on the Columbia River.

2.                  International Longshore and Warehouse Union, Local 4, a bargaining representative within the meaning of RCW 41.56.030(3­), filed a timely and properly supported petition for investigation of a question concerning representation, seeking certification as exclusive bargaining representative of maintenance mechanics employed by the Port of Vancouver, excluding supervisors, confidential employees, and all other employees.

3.                  The employer’s maintenance department includes 12 employees who operate equipment and maintain the employer’s facilities, including heavy equipment operators, piledriver operators, carpenters, sprinklerman, laborers, electricians and carpen­ters. Under letters of agreement dating from 1977, the employer has a history of recognizing and deducting union dues for six unions representing those skilled crafts employees. The wages, retirement benefits and medical benefits for those employees have been, and continue to be, provided in accor­dance with area contracts negotiated by those unions with private employers in the Vancouver/Portland area.

4.                  The petitioned-for maintenance shop employees have not been covered by the arrangements described in paragraph 3 of these Findings of Fact. Their wages have historically been estab­lished by this employer alone; their retirement benefits have historically been established by this employer through the Public Employees’ Retirement System; their medical benefits have historically been the same as those provided by this employer for its non-represented employees; no union dues have been deducted from their pay or transmitted to any labor organization.

5.                  The maintenance shop mechanics do all major and minor repairs on the employer’s mechanical and automotive equipment. The maintenance shop mechanics do not interchange work with any of the “craft” employees described in paragraph 3 of these Findings of Fact, nor do they operate any of the same equip­ment except for purposes of moving equipment into or out of the maintenance shop.

6.                  The mechanical foreman performs all of the duties and func­tions of the shop mechanics. In addition, he is responsible for recordkeeping, obtaining supplies, making daily work assignments, and making performance reviews. The mechanical foreman has no authority to hire, promote, transfer, layoff, recall, suspend, discipline or discharge the utility mechan­ics, and such authority is reserved by the employer’s senior director of operations.

7.                  The ILWU has presented the Commission with signed bargaini­ng authorization cards which demonstrate that it has the support of more than 70% of the employees eligible to be members of the petitioned-for bargaining unit.

CONCLUSIONS OF LAW

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

2.                  The petitioned‑for bargaining unit is an appropriate unit for the purposes of collective bargaining under RCW 41.56.060, when described as:

All full-time and regular part-time non-supervisory maintenance shop mechanics employed by the Port of Vancouver, excluding elected officials, the executive head of the bargaining unit, confidential employees, supervisors, and all other employees of the employer.

3.                  A question concerning representation exists, under RCW 41.56.060, in the bargaining unit described in paragraph 2 of these Conclusions of Law.

4.                  The mechanical foreman is a lead worker who is not a supervi­sor within the meaning of RCW 53.18.060 and Commission precedent, and whose inclusion in the bargaining unit de­scribed in paragraph 2 of these Conclusions of Law does not present a potential for conflicts of interest warranting an exclusion under RCW 41.56.060 and interpreting precedents.

5.                  A cross-check conducted under WAC 391-25-410 is the appropri­ate method, under RCW 41.56.0­60 and WAC 391‑25‑39­1, for determination of the question concerning representation in this matter.

DIRECTION OF CROSS-CHECK

1.                  The Port of Vancouver shall immediately supply the Commission with copies of documents in its employment records which bear the signatures of the employees involved in this proceeding.

2.                  A cross-check of records shall be made under the direction of the Public Employment Relations Commission in the bargaining unit described in paragraph 2 of the foregoing Conclusions of Law, to determine whether a majority of the employees in that bargaining unit have authorized the International Longshore and Warehouse Union, Local 4 to represent them for the purposes of collective bargaining.

Issued at Olympia, Washington, on the 24th day of February, 2000.

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.