Perkins, Coie, by J. David Andrews, Attorney at Law, appeared on behalf of the employer.

Critchlow and Williams, by David E. Williams, Attorney at Law, appeared on behalf of the union.

On February 7, 1983, International Association of Fire Fighters, Local 1052, filed a petition for investigation of a question concerning representation with the Public Employment Relations Commission, seeking certification as exclusive bargaining representative of a separate bargaining unit of fire department supervisors employed by the City of Richland. A pre-hearing conference was conducted on May 4, 1983. A statement of results of the pre-hearing conference framed disputes concerning the qualifications of Local 1052 to act as exclusive bargaining representative of the petitioned-for bargaining unit and concerning the propriety of the bargaining unit. A hearing was held at Kennewick, Washington, on July 20, 1983, before Rex L. Lacy, Hearing Officer.

BACKGROUND

Since at least 1972, there has been controversy surrounding the collective bargaining rights and bargaining unit status of the battalion chiefs in the Richland Fire Department. A dispute concerning their status was transferrred from the Department of Labor and Industries when the Public Employment Relations Commission assumed jurisdiction for the administration of Chapter 41.56 RCW on January 1, 1976.

In City of Richland. Decision 279-A (PECB, 1978), the Commission concluded that the battalion chiefs were supervisors who were properly excluded under the unit determination provisions of RCW 41.56.060 from the rank-and-file firefighter bargaining unit represented by Local 1052. The Commission's decision was affirmed. 29 Wn.App 599 (Division III, 1981); cert. den., 96 Wn.2d 1004 (1981).

Local 1052 filed a representation petition with the Commission late in 1981, seeking certification as exclusive bargaining representative of a separate unit of supervisors. Case No. 3744-E-81-712. A hearing was held[1] and that petition was dismissed in City of Richland, Decision 1519 (PECB, 1982). Rejecting an employer claim that the battalion chiefs were "confidential" employees excluded from the coverage of Chapter 41.56 RCW, they were found to be public employees entitled to organize for the purposes of collective bargaining in a separate unit of supervisors. It was concluded, however, that a history of domination of Local 1052 by supervisors created a potential for conflict of interest if the same local union were permitted to represent both the supervisory and non-supervisory bargaining units. The employer did not petition for review. The union sought review by the Commission.

The union filed the petition in the instant case without waiting for the Commission's decision on review of Decision 1519 claiming that there had been a change of circumstances. In particular, the union asserted that it had adopted rules which prevented supervisors from dominating the local union in its representation of the rank-and-file bargaining unit.

The Commission affirmed the decision of the Executive Director, City of Richland, Decision 1519-A (PECB, 1983), specifically noting the ruling of the Executive Director on the "confidential" issue and refusing to re-litigate the "supervisor" determination made in Decision 279-A in the absence of claim or evidence of changed factual circumstances. The union petitioned for judicial review.

The hearing in the instant case was completed and briefs were filed, but the matter has been held in abeyance pending the outcome of those judicial review proceedings.

POSITIONS OF PARTIES

The union contends that it is a bargaining representative within the meaning of Chapter 41.56 RCW, that the battalion chiefs are public employees unaffected by the "confidential" exclusion of the statute, and that the union has implemented internal controls to avoid the potential for conflicts of interest that were of concern in the earlier litigation.

In its post-hearing brief, the employer seeks to re-litigate here the "confidential" claims rejected in Decisions 1519 and 1519-A. The employer goes on to re-argue its concerns about separation and conflict of interest which were adopted by the Executive Director and Commission in Decisions 1519 and 1519-A, contending the changes claimed by the union were insufficient to permit a different result than was reached there.

DISCUSSION

The employer's arguments urging "confidential" status for its battalion chiefs were fully considered and rejected in City of Richland, Decision 1519 (PECB, 1982). Classification as "confidential" employees under RCW 41.56.030(2)(c) would have excluded the battalion chiefs from the coverage of the Public Employees Collective Bargaining Act, and would have relieved the employer of any need to rely on policy considerations such as those involved in the "conflict of interest" issue raised in that litigation. Nevertheless, the employer did not exercise its opportunity to petition for Commission review concerning the rejection of its "confidential" arguments. The employer's arguments here do not even mention the rejection of its "confidential" arguments in City of Richland. Decision 1519, 1519-A, let alone distinguish the situations or point out any changed factual circumstances. The employer is not entitled to have a second bite at the issue.

The "conflict of interest" holding of the Commission in City of Richland, Decision 1519-A has been reversed by the courts. ___ Wn.App ___ (Division III, October 16, 1986), cert. den., ___ Wn.2d ___ (March 3, 1987). Since the battalion chiefs had a right under the statute to select Local 1052 as their exclusive bargaining representative in the earlier case, it is clear that they would have a right to select Local 1052 as their exclusive bargaining representative in the instant case.

FINDINGS OF FACT

1.                  The City of Richland is a municipality of the State of Washington, located in Benton County, which is a "public employer" within the meaning of RCW 41.56.020 and .030(1). Among other municipal services, the city maintains and operates a Department of Fire and Emergency Services headed by a director who reports to the city manager.

2.                  International Association of Fire Fighters, Local 1052, a bargaining representative within the meaning of RCW 41.56.030(3), has filed a timely petition seeking certification as exclusive bargaining representative of supervisory firefighter personnel of the City of Richland.

3.                  The petitioned-for individuals were previously held by a final decision of the Public Employment Relations Commission to be public employees within the meaning of RCW 41.56.030(2) who are not "confidential" employees within the meaning of RCW 41.56.030 (2) (c) , and no change of factual circumstances has been claimed or shown.

4.                  The petitioned-for individuals were previously held by a final decision of the Public Employment Relations Commission to be supervisors properly excluded from the bargaining unit of non-supervisory uniformed firefighter personnel of the City of Richland, and no change of factual circumstances has been claimed or shown.

5.                  The petition in this proceeding was supported by a substantial showing of interest. The conduct of an election would unnecessarily and unduly delay the determination of the question concerning representation with little likelihood of altering the results.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW.

2.                  A bargaining unit consisting of:

All supervisory uniformed firefighter personnel of the City of Richland, excluding the director, confidential employees, non-supervisory uniformed personnel and non-uniformed personnel,

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

DIRECTION OF CROSS-CHECK

A cross-check of records shall be conducted by the Public Employment Relations Commission pursuant to WAC 391-25-410 in the bargaining unit described in paragraph 2 of the foregoing Conclusions of Law, to determine whether a majority of the public employees in that bargaining unit have authorized International Association of Fire Fighters, Local 1052 to represent them for the purposes of collective bargaining.

DATED at Olympia, Washington, this 17th day of March, 1987.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This Order may be appealed by filing timely objections with the Commission pursuant to WAC 391-25-590.