STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
WASHINGTON STATE PATROL TROOPERS ASSOCIATION	CASE NO. 6990-E-87-1202
Involving certain employees of:	DECISION 2806-A PECB
WASHINGTON STATE PATROL	ORDER DETERMINING CHALLENGED BALLOTS

Will Aitchison and Robert G. Black, Labor Consultants, appeared on behalf of the petitioner.

Kenneth Eikenberry, Attorney General, by T. G. "Chip" Holcomb, Jr. and Elizabeth J. Erwin, Assistant Attorneys General, appeared on behalf of the employer.

On August 20, 1987, the Washington State Patrol Troopers Association (association or petitioner) filed a petition with the public Employment Relations Commission seeking investigation of a question concerning representation among certain employees of the Washington State Patrol (employer). A pre-hearing conference was conducted on October 12, 1987, at which the petitioner and the employer signed an Election Agreement pursuant to WAC 391-25-230 covering a bargaining unit of non-supervisory commissioned employees.[1] At the same time, the parties entered into a Supplemental Agreement pursuant to WAC 391-25-270 reserving for post-election determination issues concerning the eligibility of employees holding the positions of Sergeant, Legal Specialist, Research and Development Trooper, Inspector, Evidence Officer, Fiscal Officer, and Electronics Services Section Commander for inclusion in the bargaining unit.

An election was conducted by mail ballot in the bargaining unit described as:

All non-supervisory commissioned employees of the Washington State Patrol, excluding: Supervisors, Confidential Employees, Trooper Cadets, Special Deputies, any other employees holding limited commissions, and all other employees of the employer.

The ballots were counted on November 16, 1987, and a tally of ballots was issued showing that the majority of the valid ballots cast were in favor of the Washington State Patrol Troopers Association, and that the challenged ballots cast were insufficient in number to affect the outcome of the election. On November 23, 1987, an interim certification was issued naming the Washington State Troopers Association as the exclusive bargaining representative of the bargaining unit.[2]

A hearing on the Supplemental Agreement was conducted at Olympia, Washington, on December 14 and 15, 1987, before Kenneth J. Latsch, Hearing Officer. At the outset of the hearing, the parties stipulated the bargaining unit status of all disputed positions except "Sergeant". The parties filed post-hearing briefs. Authority to determine the eligibility dispute concerning the inclusion of the Sergeants in the bargaining unit has been delegated pursuant to WAC 391-25-390.

BACKGROUND

State Patrol Organization

The State of Washington provides regulation of its highway system through the Washington State Patrol. The patrol is under the general policy direction of its Chief, George Tellevik, who is appointed by the Governor. The Chief is assisted in his administrative function by an executive staff which includes the offices of Employee Relations, Executive Protection, Public Information, Fiscal Affairs, and Proper Standards. The operations of the Washington State Patrol are conducted through three bureaus: Field Operations, Investigative Services, and Support Services. Each bureau is under the command of a Deputy Chief.

The Field Operations Bureau is responsible for the bulk of the law enforcement activities of the Washington State Patrol. While containing specialized groups such as hostage negotiation, SWAT team, explosive disposal, and the aviation division, the Field Operations Bureau is primarily concerned with highway patrol and traffic law enforcement. The patrol functions are divided into geographic areas for command purposes. Two regional commanders holding the rank of Major report directly to the Deputy Chief in charge of the bureau. Each Major commands four (4) districts, which in turn are commanded by supervisory personnel holding the rank of Captain. The districts are composed of smaller units (detachments) which are located in differing numbers according to the amount of traffic and geographic area to be covered. Troopers in the various detachments typically report directly to a Sergeant.

The Investigative Services Bureau is composed of four (4) divisions, each under the command of a Captain. Investigations can be conducted in such areas as car theft, traffic accidents, vehicle license fraud, narcotics, and organized crime. In addition, units within the Investigative Bureau serve as a clearinghouse for information concerning missing children, criminal identification, and public records concerning patrol activities. The bureau also exerts administrative control over the patrol's various crime laboratories.

The Support Services Bureau is composed of two divisions, each of which is headed by a Major. The Administrative Division consists of four sections: Training, Personnel, Administrative Services, and Records. Additionally, the patrol's psychologist works in the Administrative Division. The Technical Division consists of sections titled: Electronic Services, Communications, Supply, Fleet, and Property Management. The bureau also contains the employer's Research and Development component and Legal Office.

Duties of Sergeants

Hiring -

In some instances sergeants are included in the patrol's hiring procedure. Prior to their involvement, however, all applicants are subjected to a rigorous testing schedule, starting with physical examinations, reference checks, and a series of "common sense" questions. Approximately 50 percent of all applicants are screened out in the initial examination phase. For those applicants that reach the second testing phase, more written tests are administered.

The first involvement of the sergeants involves participation, on a rotating basis, on panels conducting oral interviews of applicants who have cleared the initial screening process. The three-member panels consist of one sergeant and two patrol troopers. The panel uses a prescribed scoring guide to aid them in evaluating how well applicants answer questions put to them during the interview. The sergeant does not have a weighted vote on the panel, and cannot direct the other panel members to vote in any particular way. The panel discusses the applicants interviewed, and prepares a scoring sheet which is forwarded to the employer's personnel section. Applicants that successfully pass the second testing phase then undergo further background checks, psychological and lie detector exams, and physical fitness tests.

The Chief is ultimately responsible for the selection of applicants to become trooper cadets. The Chief may select as many or as few cadets as he desires from the roster of applicants who have been successful up to that point.

Cadets perform a variety of duties under the supervision of a trooper or sergeant. As a practical matter, most cadets are assigned to the employer's communications section located in Tukwila, Washington. After that assignment, the cadets are assigned to "trooper/coaches", who evaluate the cadets' performance. The record indicates that the coaches need not hold the rank of sergeant. Each district provides training for cadets. Training officers selected from the trooper detachments are generally responsible for the level of training received. The sergeants oversee the training officers, but do not have independent authority to have a cadet dropped from the patrol. Rather, the cadets are continuously evaluated until the Chief determines that they should be dropped from the program or allowed to attend the employer's academy.

The academy course takes 19 weeks to complete. During the last four weeks of that course, the cadets are monitored by "field training officers" who are troopers with high qualifications. Daily evaluations are completed on cadets who are near graduation.

Once a cadet graduates from the academy, he or she receives a commission and assumes patrol responsibilities. The new trooper serves a one year probationary period. To monitor the trooper's performance, designated officers evaluate the new employee every 60 days. If the trooper does not pass the probationary period, the Chief can order termination.

Promotion -

After three years of service, a trooper can take the examination for promotion to the rank of "sergeant". During service in the various detachments, sergeants note the trooper's supervisory potential. The comments made by various sergeants are reviewed by district officers, and become part of the record used in determining who is to be promoted. As with other personnel matters, however, the final decision on promotions rests with the Chief. The record indicates that the Chief may "pass over" certain individuals on the promotion roster several times before they finally attain the rank of sergeant.

Evaluation -

Once promoted to the rank, sergeants are usually assigned to one of the employer's many road detachments. The sergeants perform a variety of administrative duties in the detachments. In most cases, detachment sergeants do not patrol highways unless manpower shortages occur. Sergeants sometimes accompany troopers during a portion of their regular patrol day, but such activities are normally for the purpose of evaluating the troopers' performance. These evaluations of work performance and "promot ability" are used to monitor the individual trooper's progress as a law enforcement officer. The "promotability" evaluation determines which trooper has the characteristics desired in a sergeant. The record indicates that lieutenants can comment on the promotion issue, and may make judgments without consulting sergeants in the detachment.

Sergeants typically check troopers' appearance and can order corrections in the way that uniforms are worn. Sergeants suggest training that an individual trooper may need to improve performance and, if the supervising lieutenant agrees with the recommendation, the sergeant monitors the trooper's progress through the suggested training program.

Discipline of Subordinates -

Sergeants deal with a variety of disciplinary matters within the detachments. Sergeants initiate investigations of trooper misconduct, and issue reports reflecting the findings of the investigation. In some cases, sergeants counsel troopers about poor Work performance, and arrange remedial activities designed to correct the deficiency. If it appears that a trooper is unable to perform assigned duties, the sergeant may relieve the trooper of duties for up to 48 hours. A sergeant may give an oral reprimand, which is not reported to the detachment lieutenant. A sergeant may issue a written reprimand to a trooper, and such matters are reported to the detachment lieutenant. But the sergeants do not possess final disciplinary authority. A sergeant's initial reprimand or recommendation for discipline can be superceded by superior officers, and the final authority for all disciplinary matters rests with the Chief of the Washington State Patrol.

Work Scheduling -

Sergeants routinely establish various schedules to be followed in the detachment. Sergeants set work schedules within the detachments, and also have the authority to call back troopers in emergencies. The sergeants also approve overtime requests, but then reports their overtime schedules to the detachment lieutenant, who can modify them as desired. The record indicates that vacation schedules are set using a seniority bidding procedure, and the sergeant is primarily concerned with manpower levels in the detachment during vacation periods.

Grievance Processing -

Sergeants have had a limited role in the "grievance procedure" set forth in the employer's manual. The sergeants can accept the grievance on behalf of the employer, and may discuss the underlying problem with the grievant, but sergeants do not possess independent authority to adjust grievances.

Special Assignments -

Several sergeants work in positions that do not involve the direction of patrol personnel:

One sergeant is assigned to the employer's personnel office. In that capacity, the sergeant performs a variety of duties related to the implementation of the employer's personnel policies. This sergeant does not have a staff of troopers assigned to assist in the performance of personnel duties.

Sergeants can also be assigned to the patrol's internal investigations unit, which is generally responsible for investigations of trooper misconduct. Sergeants assigned to the unit can take part in the investigations, but do not have independent authority to make recommendations outside of the established procedure. Recommendations made by the unit can be forwarded to the Chief for final action.

POSITIONS OF THE PARTIES

The petitioner maintains that the sergeants should be included in the bargaining unit. The petitioner argues that the sergeants do not meet the requirements for exclusion from the unit as "supervisors" under Public Employment Relations Commission precedent. The petitioner contends that the sergeants at issue in these proceedings perform routine and clerical duties associated with the employer's business, and do not possess independent authority to discipline or otherwise direct the work force in a manner consistent with the supervisory standards established by the Commission.

The employer contends that sergeants must be excluded from the bargaining unit. The employer maintains that the sergeants possess supervisory authority as defined in Commission decisions, that they have a unique and separate community of interests from patrol troopers, and that the inclusion of sergeants in the bargaining unit with the troopers would create an inherent conflict of interests.

DISCUSSION

The sergeants are claimed to be supervisors. Unlike the situation existing in the private sector, supervisors are employees within the meaning of the Public Employees' Collective Bargaining Act, Chapter 41.56 RCW. They can organize for the purposes of collective bargaining. City of Tacoma, Decision 95-A (PECB, 1977); METRO v. L&I, 88 Wn.2d 925 (1977).

The Public Employment Relations Commission is charged with the responsibility of determining whether a proposed bargaining unit is appropriate. RCW 41.56.060 specifies the criteria to be applied in such cases:

The commission, after hearing upon reasonable notice, shall decide in each application for certification as an exclusive bargaining representative, 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 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 ... (emphasis supplied)

In this case, the legislation enabling the creation of a collective bargaining relationship is recently enacted, and there is no "history of bargaining" to be considered. Similarly, the "extent of organization" criteria is not particularly applicable to a situation where the petitioner argues that the employer's position would fragment an otherwise wall-to-wall non-supervisory bargaining unit, while the employer argues for grouping of its sergeants with other ranks that are acknowledged to be supervisory. The "desires of employees" criteria would be implemented by a unit determination election only if two or more unit structures were found to be appropriate, but such is not the case here. Given the scope of inquiry granted to the Commission in such cases, analysis of the sergeant's duties, skills, and working conditions thus becomes the critical inquiry.

The issue of excluding supervisors from bargaining units containing their rank-and-file subordinates has been addressed on numerous occasions. Exclusion will be ordered where the exercise by supervisors of their separate duties, skills and authority creates a potential for conflict of interest within a bargaining unit. City of Richland, Decision 279-A (PECB, 1978), aff. 29 Wa.2d 599 (Division III, 1981), pet. rev. den., 96 Wn.2d 1004 (1981). Labeling a position as "supervisory" does not, in and of itself, lead to automatic removal from an existing bargaining unit. See, City of Seattle, Decision 1797-A (PECB, 1985). Rather, the nature of the duties expected of the "supervisor" must be addressed. The parties to this case have cited a number of Commission decisions dealing with "supervisor" eligibility issues. While it would not serve any practical purpose to examine each cited case in detail, it is instructive to review several of the leading cases in the area of supervisory exclusion.

The employer notes the ruling in City of Sunnyside, Decision 1178 (PECB, 1981), where shift sergeants in a small police department were excluded from a rank-and-file bargaining unit. The evidence there showed that the sergeants (who were next in rank to the Chief of the department) trained, supervised, and evaluated employees, as well as possessed authority to discipline employees and to adjust employee grievances. The employer also notes that supervisors were excluded in Mason County, Decision 1649 (PECB, 1983), based upon a conclusion that a separate community of interests existed as evidenced by a higher rate of pay, authority to assign work, authority to schedule vacations and overtime, and authority to impose discipline on subordinates.

The petitioner, on the other hand, cites City of Redmond, Decision 2269-B (PECB, 1986), where the employer's management structure was also considered in determining that employees classified as sergeants should not be excluded from a bargaining unit. Other cases have been decided on the basis of the authority to adjust grievances, Wellpinit School District, Decision 1427 (EDUC, 1982), and the authority to exercise independent judgment or to make effective recommendations on personnel matters, King County Fire District No. 16, Decision 2279 (PECB, 1986).

Taken together, the cited decisions present a rather complete picture of the types of factors that have been considered in supervisory exclusion cases. If the results of the various cases differ, it is only because the degree of supervisory responsibility varied from case to case.

Turning to the instant case, analysis of the evidence indicates that the sergeants undoubtedly perform a variety of duties in furtherance of the employer's operation of the state patrol. The record indicates, however, that a majority of their time is spent in administrative or training duties. In its closing brief, the employer concedes that final personnel action such as hiring, promotion, discipline, and termination rests solely with the Chief.

Sergeants do not make effective recommendations about hiring or promotion, within the meaning of Commission precedent. The record reflects that the sergeants' reports are only one of numerous factors to be considered in such cases. As in other personnel matters, the Chief retains final authority in hiring and promotion matters, even to the extent of retaining exclusive authority to select which trooper cadets are permitted to attend the academy.

While the Chief takes action on the basis of recommendations made by subordinate officers, there is no clear indication that sergeants have any effective recommendation authority in such matters. The oral and written reprimands issued by sergeants may lead, in part, to further disciplinary action, but the final decision is so removed through the chain of command that sergeants play an insignificant role in the patrol's overall personnel structure.

Sergeants can schedule work and overtime, but superior officers can order changes in schedules if they desire. All such schedules must be reviewed before they can take effect, and there is no indication that the sergeants can make work schedules that are not subject to change by superior officers.

At best, the sergeants are akin to "working foremen", directing work crews in their assignments without possessing authority to make meaningful changes in the employment relationship. The sergeants are given independent authority over such a narrow range of employment concerns that they are, for practical purposes, only an administrative step in a personnel system which contains numerous layers of supervision over them. The recommendations made by the sergeants on personnel matters cannot be characterized as "effective", and there is no reason to believe that inclusion of sergeants in the troopers' bargaining unit would create an inherent conflict of interests, as argued by the employer. On the other side of the coin, their inclusion in the unit will not require any significant modification of duties presently performed by the sergeants, nor would it diminish their existing role in the administration of the employer's trooper detachments.

Sergeants shall be included in the bargaining unit granted interim certification in State of Washington, Decision 2806 (PECB, 1987). An amended tally sheet shall be issued to reflect that the challenges to the ballots cast by sergeants have been cleared. However, since the ballots cast by the sergeants were insufficient in number to affect the outcome of the election, they will be impounded to avoid compromise of the secrecy of those ballots.

FINDINGS OF FACT

1.                  The Washington State Patrol provides a number of law enforcement services pertaining to the safe use of the state's highway system, and is a "public employer" within the meaning of RCW 41.56.030 (1).

2.                  The Washington State Patrol Troopers Association was certified in State of Washington, Decision 2806 (PECB, 1987) as the exclusive bargaining representative of a bargaining unit described as:

All nonsupervisory commissioned employees of the Washington State Patrol, excluding: Supervisors, Confidential Employees, Trooper Cadets, Special Deputies, any other employees holding limited commissions, and all other employees of the employer.

The association is a "bargaining representative" within the meaning of RCW 41.56.030 (3).

3.                  The Washington State Patrol is under the general policy direction of the Chief of the Patrol. Operations affecting the instant representation matter are conducted through three (3) bureaus: Field Operations, Investigative Services, and Support Services. Each bureau is under the direction of a Deputy Chief.

4.                  The Field Operations Bureau is responsible for the bulk of law enforcement activities undertaken by the patrol. The employer's highway patrol activities are undertaken within the Field Operations Bureau. The patrol functions are established in geographic segments, and regional commanders holding the rank of Major report directly to the Deputy Chief. Majors, in turn, command "districts", which are under the daily supervision of commanders holding the rank of Captain.

5.                  Districts are further divided into "detachments". While detachments can be supervised by a Lieutenant, most troopers assigned to detachments report to a Sergeant.

6.                  Sergeants perform a variety of duties. In the typical detachment, sergeants prepare forms and other paperwork associated with the operation of the patrol. For the most part, sergeants do not perform active patrol duties, but such work can be done if need arises.

7.                  Sergeants administer a system of seniority preference for vacation and work schedules. Sergeants make work schedules, but such schedules have to be approved by superior officers. Sergeants do not possess independent authority to make schedule changes without approval from higher authority.

8.                  Sergeants conduct evaluations of the troopers measuring work performance and the potential for promotion. The sergeants use prepared forms supplied by the employer. Completed evaluation forms are used as part of a more comprehensive employee evaluation program initiated by the employer.

9.                  Sergeants participate in the employer's hiring procedure to the extent of conducting interviews of applicants who have already passed a series of rigorous examinations. In the interview process, the sergeants are required to use a prescribed form, and only take part as part of a panel which conducts one interview per candidate.

10.              Once hired, a new employee is given the rank of "trooper cadet". Status as a "trooper" is not achieved until after completion of a course at the state's police academy. Sergeants can serve as a "coach" for cadets and, in that position, can monitor the cadet's performance. The Chief of the Patrol retains final authority to name cadets to attend the academy.

11.              Sergeants have authority to send a trooper home for a day if the sergeant believes that the trooper is somehow impaired. However, sergeants do not have authority to impose other forms of discipline except to give oral or written warnings. Final authority to dismiss a trooper rests with the Chief of the Patrol.

12.              The employer has developed a form of a "grievance procedure" that can be used by troopers to appeal certain personnel actions. Sergeants can accept the grievance and discuss the matter with the affected trooper, but sergeants do not have independent authority to adjust grievances.

13.              Several sergeants work in positions that do not involve the direction of patrol troopers. One sergeant is assigned to the patrol's personnel department. In that position, the sergeant performs a number of administrative duties, but does not have any staff to direct. Sergeants can also be assigned to the patrol's internal investigations unit. In this assignment, sergeants can investigate charges of wrongdoing against troopers, but do not have independent authority to recommend disciplinary action.

CONCLUSIONS OF LAW

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

2.                  Sergeants do not possess supervisory authority, and their inclusion in the existing bargaining unit would not create an inherent conflict of interest.

ORDER

1.                  Employees of the Washington State Patrol holding the rank of sergeant are included in the existing bargaining unit of employees described as:

All non-supervisory commissioned employees of the Washington State Patrol, excluding: Supervisors, Confidential Employees, Trooper Cadets, Special Deputies, any other employees holding limited commissions, and all other employees of the employer.

2.                  The interim certification issued in State of Washington, Decision 2806 (PECB, 1988) is hereby made the final certification in the instant representation matter.

DATED at Olympia, Washington, this 27th day of April, 1988.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

KENNETH J. LATSCH, Hearing Officer

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