Eatonville School District, Decision 10065 (PECB, 2008)

Vandeberg Johnson & Gandera, by William A. Coats, Attorney at Law, joined on the brief by Daniel C. Montopoli, Attorney at Law, for the employer.

Eric T. Nordlof, Attorney at Law, for the union.

On June 2, 2007, Eatonville School District (employer) filed a unit clarification petition seeking to exclude the position of computer technician from a bargaining unit of classified employees repre­sented by Public School Employees of Washington (union). Hearing Officers Jessica J. Bradley and Sally B. Carpenter heard testimony and took exhibits at a hearing on November 28, 2007. Both parties submitted post-hearing briefs which were considered.

ISSUE PRESENTED

Is the position of computer technician a confidential employee within the meaning of RCW 41.56.030(2)(c) and WAC 391-35-320?

Based upon the entire record, the Executive Director finds the position is not confidential as defined in the law and regulations, and thus, should remain in the existing classified employee bargaining unit.

APPLICABLE LAW

The collective bargaining relationship between the employer and union is governed by the provisions of Chapter 41.56 RCW, known as the Public Employees’ Collective Bargaining Act.

The Commission has adopted WAC 391-35-320 which codifies long- standing precedent regarding the definition of a confidential employee. When determining whether an employee is a confidential employee, the Commission applies the labor nexus test enunciated in City of Yakima, 91 Wn.2d 101 (1978). A confidential employee is an employee whose duties imply a confidential relationship which must flow from an official intimate fiduciary relationship with the executive head of the bargaining unit or public official.” Yakima School District, Decision 9020-A (PECB, 2007). Under WAC 391-35-320(2), an individual who assists an employee with duties directly related to labor relations policy is also excluded from collective bargaining rights.

The specific labor relations-related tasks performed by a position determine whether the position is excluded from collective bargaining rights. A party seeking a confidential exclusion bears a heavy burden of proof because the confidential exclusion deprives the employee of all collective bargaining rights. City of Chewelah, Decision 3103-B (PECB, 1989).

ANALYSIS

The employer’s administrative office consists of a small group of employees in management and clerical jobs, plus the computer technician. The employees are housed in rather cramped quarters. The only classified bargaining unit employee in the administrative office is the employer’s sole full-time computer technician, Kevin Valentine, who has held that position for 13 years - always in the bargaining unit. There have been no significant changes to Valentine’s job in recent years. In April 2006, the union met with the employer to seek an upgrade of the computer technician position to make it an exempt, salaried position at a higher pay rate. The employer declined to make that change.

In early summer 2007, the employer and union commenced bargaining for a successor collective bargaining agreement to the one that expired on August 31, 2007.[1] Valentine was selected to be on the union’s bargaining committee, and a month or so later, Valentine was elected union president. The employer promptly filed this unit clarification petition seeking to remove the computer technician position from the bargaining unit.

There is no claim that Valentine formulates labor relations policy for the employer, prepares for or conducts the employer’s collec­tive bargaining negotiations, or administers collective bargaining agreements on behalf of the employer, or that he assists an administrator in those functions.

Nevertheless, the employer asserts that Valentine is a confidential employee as defined in WAC 391‑35‑320. As evidence of this assertion, the employer lists three items: (1) Valentine has access to confidential collective bargaining information on the employer’s computers; (2) he has no community of interest with bargaining unit employees; and (3) he participates in disciplinary matters.

The employer asserts that, by having computer access, Valentine can pry into confidential labor relations documents. The employer further argues that the fact that Valentine is physically housed in a small building with the central computer server and the em­ployer’s labor relations officials, buttresses its argument that Valentine should be found to be a confidential employee.

Access to confidential bargaining information

Valentine can access any information stored on the employer’s computers. The employer uses its computers to draft collective bargaining proposals. The employer uses emails and attachments, such as spreadsheets, to share information with its bargaining team. Much of the employer’s labor relations policy is developed through the use of computers.

There is a factual dispute regarding Valentine’s access. Valentine testified that he does not have passwords for all employer computers, and seemed unsure of exactly how much access was possible. He testified that he does not have permission, and would be disciplined, for reading other employees’ emails and documents. He also testified that he has no need to read the contents of documents to perform his technician duties.

Even though Valentine does have access to the employer’s computers, he does not need to use that access to perform his job duties.[2] The real issue is whether Valentine has ever used his technical access to pry into employer labor relations policy-making docu­ments. Although the employer fears such an intrusion, no evidence was presented that such an intrusion has ever occurred. The employer noted that it has contracted with an outside part-time computer technician from the Educational Service District (ESD), in part because of concern about Valentine and the district’s labor relations work, and in part to assist with technology growth. No testimony was offered concerning the details of how, or if, the contract ESD technician is used with respect to labor relations policy.

The employer offered no facts to go beyond its allegation of Valentine’s potential access to confidential labor relations documents. An employee simply knowing how or where to access information related to collective bargaining is an insufficient basis to exclude the employee as confidential. State - Natural Resources, Decision 8458-A (PSRA, 2005), aff’d, Decision 8458-B (PSRA, 2005). Whether information can be accessed by computer or through contact with regular mail, unless employees are authorized to regularly access collective bargaining materials, or are authorized to use the information, they cannot be found to be confidential employees. Similar arguments concerning office-clerical employees who might read sensitive materials sent to management officials have repeatedly been rejected as a basis for finding an employee confidential. Clover Park School District, Decision 2243-A (PECB, 1987) and Community College District 14 (Clark College), Decision 10044 (PSRA, 2008).

The testimony regarding cramped quarters is not relevant. If it were, any employer could deny employees the right to join a union based on the physical setting the employer provides. An employer cannot deprive employees of their statutory collective bargaining rights through its location of functions. The circumstances in City of Lynnwood, Decision 8080-A (PECB, 2005) differ from the instant case because the employee in City of Lynnwood actually participated in conversations about employer policies or bargaining positions, and functioned in a support role to persons directly involved in the formulation of the employer’s labor relations policies and preparation for and conduct of collective bargaining. Thus, the employee was excluded under WAC 391-35-320(2).

As cited in the employer’s brief, cases hinge on specific tasks directly related to the employer’s labor relations policy to determine whether a position should be excluded from the bargaining unit. For example, in Concrete School District, Decision 8131-A (PECB, 2004), the individual was called upon to “create wage models and adjust specific data in accordance to [the superintendent’s] specifications.” In Highline School District, Decision 8176 (PECB, 2003), the director of facilities services actively participated in the employer’s labor relations process, including policy discus­sions and negotiation strategy meetings.

The facts in Concrete and Highline differ from the facts in this case. The concern expressed in Concrete and Highline was that the employee would prepare the spread sheets for the employer, then go to a union meeting and have a conflict of interest. Both the employer and the union legitimately aspire to maintain employee loyalty and discretion in protecting the secrets of their side of the bargaining table. Valentine isn’t asked to do anything regarding the employer’s labor relations policy, and there is no evidence that Valentine knows anything that could put him in a conflict of interest situation.

Community of interest with other bargaining unit members

The record failed to establish that Valentine does not share a community of interest with other classified employees. The only significant change in Valentine’s position or status as a bargain­ing unit member is that he has become the union president. Any argument that he no longer shares a community of interest based upon his union status is not convincing.

Participates in disciplinary matters involving unit employees

Valentine’s duties include monitoring for inappropriate computer use by employees. That monitoring was done beginning in 2002 by an employer-purchased software program which screened employee use for pornography, employee discontent, gambling, and financial trading. When the program detected inappropriate use, it apparently advised Valentine and the superintendent. An example of that software’s report was placed in evidence.[3] However, there was no testimony or evidence presented about what Valentine did to obtain information, and no testimony regarding his role, if any, in dealing with employees identified by the computer program. The record is simply silent regarding this issue. Given this lack of evidence, the employer has failed to meet its burden of proof that the computer technician position has a role in investigating and/or disciplining employees.

CONCLUSION

The computer technician position does not participate directly in the formulation of the employer’s labor relations policy, prepare for or conduct collective bargaining for the employer’s negotia­tions, or administer collective bargaining agreements on behalf of the employer, nor does the position assist or act in a confidential capacity to anyone who performs such duties. The employer has not established that the computer technician should be deprived of collective bargaining rights as a confidential employee under WAC 391-35-320.

FINDINGS OF FACT

1.         Eatonville School District is a public employer within the meaning of RCW 41.56.030(1).

2.         Public School Employees of Washington, a bargaining represen­tative within the meaning of RCW 41.56.030(3), is the exclu­sive bargaining representative of a unit of classified employees.

3.         The position of computer technician in the administrative office of Eatonville School District has been included in the classified employees bargaining unit for many years. The duties of that position have not significantly changed in recent years.

4.         Eatonville School District and Public School Employees of Washington had a collective bargaining agreement covering the period from September 1, 2005, to August 31, 2007.

5.         Eatonville School District filed this unit clarification petition seeking exclusion of the computer technician position from the bargaining unit on June 2, 2007.

6.         The computer technician position has access to anything on any employer computer.

7.         The computer technician does not have permission to read content on the employer’s computers without specific authori­zation based on his performance of technical duties.

8.         If the computer technician were to read content beyond any specific and limited permission, he would be subject to discipline.

9.         There is no evidence that the computer technician has ever read content without specific permission to do so.

10.       Kevin Valentine, the employer’s only full-time computer technician, was elected in the summer of 2007 to the position of union president. He was also selected to be on the union’s bargaining committee.

11.       Eatonville School District filed this petition promptly after Valentine’s new union positions were known.

12.       Eatonville School District did not change the computer technician’s job duties except to contract for an outside part-time computer technician from the Educational Service District.

13.       Valentine does not formulate labor relations policy for the employer, prepare for or conduct collective bargaining negotiations, or administer collective bargaining agreements, nor does he assist an administrator in those functions.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and Chapter 391-35 WAC.

2.         The position of computer technician, as described in Findings of Fact 3, 6 through 9, and 13, is not a confidential employee within the meaning of RCW 41.56.030(2)(c) and WAC 391-35-320.

ORDER

Based upon the foregoing and the record as a whole, the unit clarification petition filed by the employer is dismissed. The position of computer technician shall continue to be included in the classified employees bargaining unit.

ISSUED at Olympia, Washington, this 7^th day of May, 2008.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

CATHLEEN CALLAHAN, Executive Director

This order will be the final order of the agency unless a notice of appeal is filed with the Commission under WAC 391-35-210.