STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the Matter of the Petition of:
PASCO ASSOCIATION OF MID-	CASE NO. 1375-E-78-274 DECISION NO. 870-EDUC
MANAGEMENT PERSONNEL
Involving Certain Personnel of:
PASCO SCHOOL DISTRICT NO. 1.	DIRECTION OF ELECTION

Stephanie Tesch, appeared on behalf of the petitioner.

Bruce Bischof, Attorney-at-Law, appeared on behalf of the employer.

Symone Scales, Attorney-at-Law, appeared on behalf of the Intervenor, Pasco Association of Educators.

The Pasco Association of Mid-Management Personnel filed a petition with the Public Employment Relations Commission on January 30, 1978 seeking the creation of a bargaining unit of certificated “supervisors” employed by Pasco School District No. 1. The Pasco Association of Educators, WEA/ NEA had been recognized as majority representative under repealed RCW 28A.72 in a unit which included positions affected by the petition, and that organization intervened in these proceedings. A pre-hearing conference was held on December 11, 1978 and hearing on this matter was held on December 12, 1978 at Pasco, Washington before Rex L. Lacy, Hearing Officer. The petitioner did not file a brief. The employer and intervenor filed post-hearing briefs.

NATURE OF ISSUES:

The issues for decision in the captioned matter involve the identification of “supervisors”. The Commission acts in such matters under RCW 41.59.080 and RCW 41.59.030(4)(d). The positions in dispute are:

1.         Language Arts Coordinator.

2.         CRA Title VI Advisory Specialist.

3.         Athletics Coordinator.

4.         Bilingual Title VII Program Manager.

5.         Title I-A Program Manager.

6.         ESAA Title VII Program Manager.

7.         Special Education Program Manager.

8.         Title I Migrant Program Manager.

9.         Comprehensive Pre-School Program Manager.

10.       Team Leader, Teacher Corps.

11.       Community Development Specialist, Teacher Corps.

POSITIONS OF THE PARTIES:

The employer contends that the employees affected by these proceedings are “supervisors” as defined in RCW 41.59.020; that the affected employees duties, responsibilities, and working conditions are different from certificated classroom education employees; and that the employees involved in these proceedings are members of the Employer’s Administrative Council. The employer also contends that the CRA Title IV Advisory Specialist is a “confidential employee” within the meaning of RCW 41.59.020(4)(c).

The petitioner contends that the Pasco Association of Mid-Management Personnel is a labor organization within the meaning of RCW 41.59; that the employees affected by these proceedings are “supervisors” as defined in RCW 41.59.020; and that the employees desire to be represented in a bargaining unit separate and apart from non-supervisory education employees by a bargaining representative of their own choosing.

The Intervenor contends that the affected employees are not “supervisors” or “confidential employees” as defined in RCW 41.59.020; that the preponderance of their duties are not supervisory as required by RCW 41. 59.020(4)(d); and that the employees community of interest lies with other non-supervisory education employees represented by the intervenor.

STATUTORY AUTHORITY:

“41.59.020 Definitions. As used in this chapter:

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(c)           Confidential employees, which shall mean:

(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 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.

(d)           Unless included within a bargaining unit pursuant to RCW 41.59.080, any supervisor, which means any employee having authority, in the interest of an employer, to hire, assign, promote, transfer, layoff, recall, suspend, discipline or discharge other employees, or to adjust their grievances, or to recommend effectively such action, if in connection with the foregoing the exercise of such authority is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment, and shall not include any persons solely by reason of their membership on a faculty tenure or other governance committee or body. The term “supervisor” shall include only those employees who perform a preponderance of the above-specified acts of authority.

* * *

41.59.080 Determination of Bargaining unit -Standards. The Commission upon proper application for certification as an exclusive bargaining representative or upon petition for change of unit definition by the employer or any employee organization within the time limits specified in RCW 41.59.070(3), and after hearing upon reasonable notice, shall determine the unit appropriate for the purpose of collective bargaining. In determining, modifying or combining the bargaining unit, the commission shall consider the duties, skills and working conditions of the educational employees; the history of collective bargaining; the extent of organization among the educational employees; and the desire of the educational employees; except that:

(1)           A unit including non-supervisory educational employees shall not be considered appropriate unless it includes all such non-supervisory educational employees of the employer; and

(2)           A unit that includes only supervisors may be considered appropriate if a majority of the employees in such category indicate by vote that they desire to be included in such a unit; and”

* * *

DISCUSSION - CONFIDENTIAL EMPLOYEES

The exclusion of “confidential” employees from the coverage of the National Labor Relations Act is well established in the decisional policies of the National Labor Relations Board. The NLRB test for “confidential” status is whether the job normally requires working in a confidential capacity, or working for a person working in a confidential capacity, on behalf of the employer. The information protected from disclosure relates to the formulation, determination and effectuation of the employer’s labor relations policies. B. F. Goodrich Co., 115 NLRB 722, 724 (1956). The legislature has provided in RCW 41.59. 020(4)(c) a similar definition of “confidential”.

The incumbent CRA Title IV Advisory Specialist, Clifford Allford, is responsible for the desegregation and affirmative action programs of the district. He also advises the district on matters relative to Title IX and Public Law 504. Allford participates in all matters relating to the administration of the district including the formulation, effectuation, and implementation of the district’s collective bargaining policies and practices, the handling of grievances for the district’s employees, public relations, and matters relating to the district’s budget.

DISCUSSION - SUPERVISORS

Many of the legal arguments made by the intervenor to the Executive Director in this case are the same, and are based on the same cases, as argued to the Executive Director and to the Commission in previous cases involving supervisor determinations under RCW 41.59. While the NLRB cases involving college and university situations provide an interesting starting point for analysis, the entire practice of NLRB assertion of jurisdiction in colleges and university faculties has recently been rejected by the United States Supreme Court in NLRB v. Yeshiva Univ., __U.S.__; 103 LRRM 2526 (1980). The decisions of the agency in Kelso School District, Decision 303, 303-A (EDUC, 1978); Clover Park School District, Decision 376 (EDUC, 1978), Peninsula School District, Decision 411 (EDUC, 1978) and Tacoma School District, Decision 652, 652-A (1980) constitute the body of precedent controlling the decision in this matter. Thus, supervisors have been identified as such and excluded from rank-and-file certificated bargaining units where they work in support of the administrative function of the school district, while employees whose duties are routinely clerical or ministerial in nature and who serve as resource personnel in support of the educational program have remained in non-supervisory educational employee bargaining units.

Pasco School District No. 1 is a governmental entity established and regulated by statute. The ultimate authority in matters concerning the operation of the district is the district’s Board of Directors. These basic facts necessarily limit district officers, including the Superintendent, to the role of making recommendations to the Board of Directors for final action. As previously noted in a similar situation, the authority to recommend personnel action takes on greater significance in the public sector than is common in the private sector. Clover Park School District, Decision 376 (EDUC, 1978) and Tacoma School District, Decision 652 (EDUC, 1979).

The district’s hiring process consists of an advertisement of the position by the personnel office; screening by the personnel office and then further screening by the Assistant Superintendent; an interview by a team of district employees with the specialist or program manager serving as chairperson; a recommendation by the team to the Assistant Superintendent who selects the individual to be recommended to the Superintendent of Schools, who makes the ultimate recommendation to the Pasco School Board of Directors. Each of the employees at issue herein is involved in the hiring and interview process, due largely to expertise in a given subject area. Their recommendations are subject to approval or rejection by higher authority, but are nevertheless a component of the hiring process.

The assignment, transfer, layoff, recall, promotion, discipline and discharge of employees are all governed by statute and/or the collective bargaining agreement between PAE and the district, and the independent authority of the disputed supervisors in such areas is accordingly limited. The record indicates, however, that the personnel office, assistant superintendent’s office and/or superintendent may solicit input from the individuals at issue in these proceedings when taking any of these types of personnel action. The weight accorded such “input” varies from case to case.

Evaluation of the work performance of certificated non-supervisory employees is required by statute and by the collective bargaining agreement between PAE and the district. Building principals are responsible for the formal evaluation of certificated employees assigned permanently to a specific building. “Itinerant” teachers assigned to work in more than one building are evaluated by building principals, employees at issue in these proceedings, or some combination thereof as designated by the district. The term “evaluator of record” is used throughout the district to designate the person having the responsibility for signing the written evaluation instruments on employees of the district.

The district has numerous programs which are funded from sources other than state basic education funding. Those other sources are federal grants, state grants, local levies, or some combination thereof. Thus, the salary of any individual employee may be funded from several accounts on the district’s books and traceable to several different funding sources. Individuals herein give input into the preliminary budget which is submitted to the Board of Directors. After approval of the adopted district budget by the Board of Directors, employees in these proceedings, along with building principals and other administrators, sign expenditure requisitions against budget allocations.

The normal annual contract for classroom teachers employed by the district is 183 days. The individuals involved in these proceedings all work in excess of 183 days, with some working as much as 210 days per year. The disputed individuals are paid on a separate “administrators” salary schedule.

The types of authority discussed above in general terms are possessed by disputed individuals in varying degrees, and it is concluded that the traditional “administrative” or “mid-management” group must be split in two to properly apply the “supervisor” definition of RCW 41.59.020(4) (d). Although neither the petitioner nor the intervenor expressly anticipates such a result (there were no agreements between the parties on the status of any individual) the split of the traditional group should come as no surprise in view of the previous decisions cited above. The disputed positions are discussed individually below.

District Director of Athletics and Physical Education

The incumbent in this position, Richard King, is responsible for the scheduling of transportation of all athletics, high school sports and in-service training for coaches; placement of physical education teachers; development of courses of study for physical education classes; and the enforcement of district policies on athletics. King serves as the chairman for the committee which conducts interviews in the hiring process and is the current head basketball coach of the district.

Coaching positions are generally positions covered by a supplemental contract with a specified stipend for the positions, but such contracts exist under the terms of the negotiated collective bargaining agreement. King and building principals both sign the evaluation of P.E. teachers and King is the evaluator of record for the elementary P.E. specialists and junior high school P.E. teachers.

Title I Migrant Program Manager

The migrant program manager, April Jones, is responsible for designing, maintaining, and evaluating the district’s educational program for migrant students. The program is federally funded through the office of the Superintendent of Public Instruction. The program includes certificated and non-certificated employees who teach migrant students outside the regular instructional program.

Jones supervises and evaluates the secondary grade exchange program director and the summer school programs director, who are responsible for two sessions for migrant students approximately six weeks in duration. She approves travel vouchers for certificated and classified employees required to visit Hispanic speaking parents at home.

The majority of Jones' work hours are spent in support of the administrative functions of the district.

Special Education Program Manager

The Special Education Program Manager, Douglas Kernutt, is responsible for the development, implementation, and coordination of a program which is funded through state and federal funds.

Kernutt is the direct supervisor and evaluator of record for speech therapists and psychologists. He participates in hiring, assigns the psychologists and speech therapists, and has budgetary responsibilities.

Comprehensive Pre-School Program Manager

The program manager for the pre-school, Mike Prudhomme, is responsible for the operation and direction of a program designed to achieve the state norm level for children entering kindergarten. The staff consists of two certificated employees, six aides, and a part-time secretary in addition to Prudhomme.

Prudhomme is the evaluator of record for one certificated employee and is responsible for the instructional aides productivity. He manages a budget, authorizes travel reimbursements, and is the first level supervisor for employee grievances.

Title VII ESAA Program Manager

Sue Riley is the Emergency School Aid Act Program Manager. This is a federally funded program for desegregating the school district. The funds are used for salaries, benefits, materials, travel contractual services, and other items as determined by the District Advisory Council. Riley is responsible for designing, implementing, and evaluating the instructional and physical aspects of the ESAA Project. She participates in the hiring process, provides training for teachers, monitors teacher activies, prepares budget reports and analyses and approves expenditures.

Riley does not evaluate program employees and is not designated as a Step I supervisor in the collective bargaining agreement. Riley does not meet the preponderance test for the criteria indicia of “supervisory” status as defined by RCW 41.59. The greatest portion of her daily activities are clerical-ministeral and the balance of her time is split amongst providing resource materials, program information, program assessment, teacher training and program reports.

Language Arts Coordinator

Stephanie Tesch serves as the District’s Coordinator of Language Arts. She is responsible for the language arts program of the District, in-service training for teachers, departmental budgeting, preparation of reports required by the district, state or federal government, and coordination of the district testing program.

Ms. Tesch works closely with reading specialists and librarians who serve as resource persons to classroom teachers. She provides in-service training in curriculum goals and assists in implementation of program to fulfill those goals. At least 50 percent of her time is involved with those activities.

Tesch does not serve as the evaluator of record for any district certificated employee. She only provides input to the principal for reading specialists and librarians. Tesch is not one of the designated supervisors in the grievance procedure. Her primary duties are as a resource person supportive of the educational program.

Title IV(a) Program Manager

Michael Lafferty is the district’s Title I(a) program manager. He is responsible for the design, implementation, and evaluation of the instructional and fiscal components of the federally funded program which provides additional learning opportunities in math, reading, and language arts. The training is provided by regular classroom teachers as part of their regular instructional activities and instructional aides who are classified personnel.

Lafferty determines the number of students involved in the program, furnishes the instructional materials, observes the daily activities of the involved employees, and reports the results to the proper administrative persons and the federal government.

Lafferty provides input to principals regarding employees involved in the program; but does not formedly evaluate either certificated or classified employees. He is not a designated “supervisor” in the grievance procedure although he has contacted employees, on behalf of the principal, when a grievance was imminent.

Lafferty’s duties are ministerial in nature. His primary responsibilities are record-keeping to provide the federal government the statistical data necessary to continue funding of the program.

Team Leader, Teacher Corps

The incumbent in this position, Willie Stone, is responsible for training teachers enrolled at Washington State University. The purpose of the program is to augment and increase teaching skills through extension courses. Stone is the coordinator for the student teaching program and for internships of students seeking masters degrees.

The student teachers and interns in the program are not district employees. Stone is not responsible for the evaluation, assignment, hiring,firing, transfer, promotion, layoff, recall or discipline of any academically enrolled district employees in their capacity as district employees.

Community Development Specialist, Teacher Corps

The incumbent in this position, Dick Barker, has duties and responsibilities similar to Willie Stone, except he deals with the community. He is primarily responsible for liason activities that are designed to enhance the awareness of multicultural activities available to teachers and the community.

Barker schedules activities, workshop, and programs designed to improve community and district relations. He has no authority of the types necessary to be accorded supervisory status.

Bilingual, Title VII Program Manager

This position was vacant at the time of the hearing and there was no testimony concerning it. No decision is made herein relative to the inclusion or exclusion of the position. The parties may submit the position for determination by the Commission whenever it is filled.

FINDINGS OF FACT

1.         Pasco School District No. 1 is an employer within the meaning of RCW 41.59.

2.         Pasco Association of Mid-Management filed a timely petition with the Public Employment Relations Commission seeking creation of a bargaining unit of supervisors and certification as the exclusive representatives in such a unit.

3.         Pasco Association of Educators is an employee organization recognized as the exclusive bargaining representative of non-supervisory educational employees of the Pasco School District No. 1; and has been granted intervention in these proceedings on the basis of its claim that some or all of the positions claimed as supervisory in these proceedings were formerly included in the bargaining unit represented by the Pasco Association of Educators.

4.         The positions of Administrative Assistant and Special Projects Evaluator were withdrawn from the proceedings and are not at issue.

5.         The hiring procedures of Pasco School District No. 1 provide for a series of interviews and recommendations up through a line of authority to the Superintendent of Schools, who makes the ultimate recommendation to the Board of Directors. The CRA Title IV Advisory Specialist, District Director of Athletics and Physical Education, Title I Migrant Program Manager, Special Education Program Manager, and Comprehensive Pre-School Program Manager can and have made effective recommendations affecting the employment of employees.

6.         Assignment, transfer, layoff and recall of non-supervisory educational employees are subjects of contractual agreement between Pasco School District No. 1 and the Pasco Association of Educators, and, as such, are beyond the direct authority of any of the individuals in question, but the employees identified in finding of fact 5 are authorized to and can make effective recommendations within the confines of those contractual provisions.

7.         Evaluation, discipline, suspension and discharge of employees of Pasco School District No. 1 are matters controlled by statutes and/or the collective bargaining agreement, and, as such, are beyond the direct authority of any of the individuals in question; but the 5 employees identified in finding of fact 5 are authorized to and can make recommendations of adverse action against employees.

8.         The CRA, Title IV Advisory Specialist participates in and is privy to confidential information concerning the employer’s policies in collective bargaining between the employer and the representatives of its certificated and classified employees; and in the adjustment of grievances of the employees.

9.         The Title VII ESAA Program Manager, Language Arts Coordinator, Title IV(a) Program Manager, Team Leader-Teacher Corp, and Community Development Specialists, Teacher Corps are recognized for their special expertise or knowledge in their respective areas; and they primarily perform support and ministerial functions in support of the educational program of Pasco School District No. 1 for a preponderance of their daily, monthly and yearly working hours.

CONCLUSIONS OF LAW

1.         The CRA, Title IV Advisory Specialist is a confidential employee of Pasco School District No. 1 within the meaning of RCW 41.59. 020(4)(c) and is excluded from the coverage of RCW 41.59.

2.         The occupants of the 5 positions identified in paragraph 5 of the foregoing findings of fact are supervisors within the meaning of RCW 41.59.020(4)(d).

3.         The occupants of the 5 positions identified in paragraph 9 of the foregoing findings of fact are non-supervisory employees of the employer.

4.         A question has arisen concerning the creation of a bargaining unit consisting of supervisors employed by Pasco School District No. 1. The supervisors identified in conclusions of law paragraph 2 will be eligible to vote on the question.

In the event that a majority of all the supervisors employed by Pasco School District No. 1 indicate by vote that they desire to create a bargaining unit under the provisions of RCW 41.59.080, a question concerning representation will exist among such employees.

NOW, THEREFORE, it is

DIRECTED

1.         An election by secret ballot shall be held under the direction of the Public Employment Relations Commission among all certificated supervisors employed by Pasco School District No. 1, excluding the Superintendent of Schools, administrative officers of the district, confidential employees, non-supervisory educational employees and non-certificated employees, to determine whether a majority of the supervisors eligible to vote in such election desire to be included in a bargaining unit of supervisors and to become employees within the meaning of the Educational Employment Relations Act.

2.         An election by secret ballot shall be held under the direction of the Public Employment Relations Commission in the voting group described in paragraph 1 of this direction of election to determine whether a majority of the employees voting desire to be represented by the Pasco Association of Mid-Management, or by the Pasco Association of Educators, or by no representative. The conduct of this representation election is conditioned upon the outcome of the unit determination election directed in paragraph 1 of this Order and, in the event that a majority of those eligible fail to vote in favor of the creation of a unit of supervisors, the ballots cast in this representation election shall be impounded.

DATED at Olympia, Washington, this 30th day of April, 1980.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director