State - Corrections, Decision 9024-A (PSRA, 2006)

Dennis Lawson, representative, for the union.

Shirley Morstad, representative, for the employer.

International Association of Fire Fighters (union) filed a representation petition with the Public Employment Relations Commission on May 5, 2005, seeking certification as exclusive bargaining representative of employees of the State of Washington (employer) who, with the assistance of inmates, provide fire protection services at the McNeil Island Corrections Center operated by the Washington State Department of Corrections (agency). The Commission staff held an investigation conference, at which an issue was framed as to whether Greg Miller should be excluded from the bargaining unit as a supervisor. The union’s majority status was confirmed by a cross-check conducted by the Commission staff on June 17, 2005. The Executive Director issued an interim certification on June 29, 2005, designating the union as exclusive bargaining representative and reserving the eligibility issue for further proceedings.[1] Hearing Officer Vincent M. Helm held a hearing on December 9, 2005. Acting under WAC 391-25-390(2), the Executive Director delegated the authority to resolve the reserved eligibility issue to the Hearing Officer.

ISSUE

The sole issue reserved under WAC 391-25-270 for supplemental proceedings in this case is: “Is Greg Miller a supervisor within the meaning of RCW 41.80.005(13), and therefore properly excluded from the bargaining unit?” Based on the evidence presented by the parties, the Hearing Officer rules that the disputed employee is properly excluded from the bargaining unit as a supervisor.

APPLICABLE LEGAL PRINCIPLES

The Commission administers representation and unit determination procedures under several state collective bargaining laws, subject to a statutory endorsement of uniformity:

RCW 41.58.005 INTENT — CONSTRUCTION. (1) It is the intent of the legislature by the adoption of chapter 296, Laws of 1975 1st ex. sess. to provide, in the area of public employment, for the more uniform and impartial (a) adjustment and settlement of complaints, grievances, and disputes arising out of employer‑employee relations and, (b) selection and certification of bargaining representatives by transferring jurisdiction of such matters to the public employment relations commission from other boards and commissions. It is further the intent of the legislature, by such transfer, to achieve more efficient and expert administration of public labor relations administration and to thereby ensure the public of quality public services.

(emphasis added). This particular case arises under the Personnel System Reform Act of 2002 (PSRA), which covers state civil service employees and includes:

RCW 41.80.005 DEFINITIONS. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

. . . .

(13) "Supervisor" means an employee who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust employee grievances, or effectively to recommend such action, if the exercise of the authority is not of a merely routine nature but requires the consistent exercise of individual judgment. However, no employee who is a member of the Washington management service may be included in a collective bargaining unit established under this section. . .

…

RCW 41.80.070 BARGAINING UNITS — CERTIFICATION. (1) A bargaining unit of employees covered by this chapter existing on June 13, 2002, shall be considered an appropriate unit, unless the unit does not meet the requirements of (a) and (b) of this subsection. The commission, after hearing upon reasonable notice to all interested parties, shall decide, in each application for certification as an exclusive bargaining representative, the unit appropriate for certification. In determining the new units or modifications of existing units, the commission shall consider: The duties, skills, and working conditions of the employees; the history of collective bargaining; the extent of organization among the employees; the desires of the employees; and the avoidance of excessive fragmentation. However, a unit is not appropriate if it includes:

(a) Both supervisors and nonsupervisory employees....

WAC 391-35-346 is a special rule adopted by the Commission for state civil service employees, to acknowledge that RCW 41.56.005(13) specifically defines the “supervisors” who must be placed in separate bargaining units under RCW 41.80.070(1)(a). It closes any loophole in WAC 391‑35‑340, which is a general rule codifying long-standing precedents that generally require placement of “supervisors” (who have collective bargaining rights under other Washington laws) in separate bargaining units.

Implementing the “uniformity” mission given to it in RCW 41.58.005, the Commission applies precedents developed under the Public Employees’ Collective Bargaining Act (Chapter 41.56 RCW) and the Educational Employment Relations Act (Chapter 41.59 RCW) in determining bargaining unit and eligibility issues arising under the PSRA. Washington State - Natural Resources, Decision 8458-B (PSRA, 2005). With respect to “supervisor” claims, the issue often comes down to whether the disputed individual is better categorized as a “lead worker” having limited authority (such as directing subordinates in their daily assignments or in administrative matters) or as a “supervisor” with independent authority to make meaningful changes in the employment relationship. Grant County, Decision 4501 (PECB, 1993); City of Lynnwood, Decision 8080-A (PECB, 2005).[2]When looking at the types of supervisory indicia, it is important to determine whether a disputed individual has independent authority to act in the interest of the employer. Grant County, Decision 4501; Granite Falls School District, Decision 7719. The individual need not be the final authority on such actions; it is sufficient if the individual makes effective recommendations to a higher authority. Grant County, Decision 4501; Granite Falls School District, Decision 7719.

ANALYSIS

The bargaining unit proposed by the union in this case consisted of five employees with an "assistant fire chief" job title, plus the disputed employee working under a “fire chief” title. As the fire chief, Greg Miller, reports to Marine Operations Manager John Little, who in turn reports to the superintendent of the facility. The superintendent has the authority to hire, suspend, or terminate bargaining unit employees.         

Testimony and exhibits establish that the fire chief has duties, responsibilities and authority with respect to:

•                     Directing fire department operations;

•                     Issuing oral and written reprimands to bargaining unit employees;

•                     Preparing annual written performance evaluations of bargaining unit employees;

•                     Conducting monthly one-on-one conferences with bargaining unit employees, wherein he establishes expectations and standards;

•                     Scheduling bargaining unit employees and approving their leave requests;

•                     Selecting interview panels (which include himself) and preparing questions for employment applicants; and

•                     Developing and revising operational memoranda for bargaining unit employees.

Miller spends only 10 to 15 percent of his work time performing the duties performed by the “assistant chief” employees.

Although Miller has no authority to resolve grievances filed by bargaining unit employees, his authority to direct, schedule, evaluate, and discipline other bargaining unit employees both creates the potential for conflicts of interest that is of concern in Commission precedents, and satisfies the statutory definition of "supervisor" in the PSRA.

CONCLUSION

Miller’s status as a supervisor of the employees in the “assistant chief” classification requires his exclusion from the bargaining unit.

FINDINGS OF FACT

1                    The Washington State Department of Corrections is a general government agency of the State of Washington within the meaning of RCW 41.80.005(1).

2                    International Association of Fire Fighters, an employee organization within the meaning of RCW 41.80.005(7), is the exclusive bargaining representative of all full-time and regular part-time classified employees providing fire protection services at the McNeil Island facility of the Department of Corrections, excluding supervisors, confidential employees, and all other employees.

3                    Greg Miller is described as the “fire chief” at the McNeil Island facility of the Department of Corrections. Acting on behalf of the agency and the employer, he: assigns bargaining unit employees to shifts and approves their leave requests; directs the work activities of bargaining unit employees; makes and issues annual performance appraisals of bargaining unit employees; conducts monthly one-on-one conferences with bargaining unit employees where he establishes his expectations and standards; develops and revises operational memoranda with respect to functions performed by bargaining unit employees; and may issue oral and written discipline to bargaining unit employees.

CONCLUSIONS OF LAW

1                    The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.80 RCW and Chapter 391-25 WAC.

2                    Authority to decide the “eligibility” issue framed as to the fire chief in this case has been delegated to the Hearing Officer under WAC 391-25-390(2).

3                    As described in paragraph 3 of the foregoing findings of fact, Greg Miller is a supervisor within the meaning of RCW 41.80.005(13).

4                    As a supervisor under paragraph 2 of these conclusions of law, Greg Miller is properly excluded from the bargaining unit under RCW 41.80.070 and WAC 391-35-346.

ORDER

1                    The fire chief is excluded from the bargaining unit involved in the above-captioned proceeding.

2                    The interim certification issued in the above captioned matter shall stand as the certification in the case.

Issued at Olympia, Washington, on this 2nd day of February, 2006.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

VINCENT M. HELM, Hearing Officer

This order will be the final order of the agency unless a notice of appeal is filed with the Commission under WAC 391-25-660.