STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
DRIVER SALES AND WAREHOUSE, LOCAL 117	CASE 9432-E-91-1567
Involving certain employees of:	DECISION 3989-B - PECB
PIKE PLACE MARKET PRESERVATION AND DEVELOPMENT AUTHORITY	ORDER DETERMINING ELIGIBILITY ISSUES

Davies, Roberts & Reid, by Bruce Heller, Attorney at Law, appeared on behalf of the union.

Preston, Thorgrimson, Shidler, Gates & Ellis, by Robert Tad Seder, Attorney at Law, appeared on behalf of the employer.

On October 23, 1991, Driver Sales and Warehouse Local 117, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO, filed a petition for investigation of a question concerning representation with the Public Employment Relations Commission. The union sought certification as exclusive bargaining representative of certain “security” employees of the Pike Place Market Preservation and Development Authority. A pre-hearing conference was held on December 6, 1991, at which time the parties stipulated the jurisdiction of the Commission in the matter, the existence of a question concerning representation, the description of the appropriate bargaining unit, and the list of eligible employees. The parties framed an issue concerning the method for determining the question concerning representation. A statement of results of the pre-hearing conference was issued on December 12, 1991.

The employer subsequently sought to withdraw from the stipulations made at the pre-hearing conference, and to raise an issue concerning the eligibility of employees working under the title of “sergeant” for inclusion in the bargaining unit. By decision dated February 7, 1992, the Executive Director ordered that a cross-check of records be made under the direction of the Public Employment Relations Commission in a bargaining unit described as:

All security personnel below the rank of Lieutenant; excluding supervisors, confidential employees, and all other employees of the employer.

The employer’s claim that the sergeants have “supervisory” status, and should therefore be excluded from the bargaining unit, was reserved for determination after the conclusion of the cross-check. Pike Place Market Preservation and Development Authority, Decision 3989 (PECB, 1992).

A cross-check was conducted on March 10, 1992. There was a total of 14 employees to be considered, including the 3 challenged sergeants. The results of the cross-check indicated that the union was entitled to certification as exclusive bargaining representative, based on having valid authorizations from nine employees, excluding the challenged sergeants. No objections were filed, and an Interim Certification was issued on March 19, 1992, conferring collective bargaining rights for the uncontested positions. Pike Place Market Preservation and Development Authority, Decision 3989-A (PECB, 1992). The case remained open to resolve the eligibility issue raised by the challenge to the inclusion of the sergeants.

A hearing was held at Kirkland, Washington, on April 20, 1992, before Hearing Officer Frederick J. Rosenberry. Post-hearing briefs were submitted by the parties to complete the record. Authority to determine the “eligibility” issues has been delegated to the Hearing Officer, pursuant to WAC 391-25-390.

BACKGROUND

The Pike Place Market Preservation and Development Authority (PDA), operates approximately 300 low income housing units, which provide living quarters for approximately 375 people. The PDA also provides market facilities for approximately 220 merchants, 200 crafts persons, and 100 farmers. Located in downtown Seattle, the housing/market complex, has between 8 and 10 million visitors per year. Shelly Yapp is the Executive Director of the PDA. Robert Squaglia is the Director of Operations.

The employer operates its own security department to augment law enforcement provided by the Seattle Police Department. The chief of security is Sam Buckley. The employer uses a paramilitary chain of command that passes from the chief to the ranks of lieutenant, sergeant, corporal and officer. There is(are) 1 lieutenant, 3 sergeants, 2 corporals, and 11 officers. Two sergeants are employed full-time, and one is employed part-time. The employer refers to the ranking shift officer on a shift (be that a lieutenant, sergeant, or corporal), as the shift supervisor.

The security staff is scheduled to provide patrol coverage 24 hours per day, seven days a week. Chief Buckley testified that, as a matter of policy, the employer attempts to maintain at least four security staff on duty at all times, and that department regulations call for pairing of staff when they are on patrol, for their mutual protection.[1] Some work shifts are staggered so that there is staff overlap. The chief, the lieutenant, and two of the sergeants normally work during daytime hours.[2] The remaining sergeant reports for work at either 6:00 p.m. or 8:00 p.m., for an eight-hour shift. The highest ranking officer on duty is a corporal for a period of two to four hours in the early mornings (i.e., prior to the arrival of day shift personnel). The corporals replace the sergeants on their days off, vacations, and other schedule exceptions.

The chief testified that the department has recently increased in size, and that it has undergone a reorganization that has resulted in a number of changes. According to Chief Buckley, more authority is now being delegated by the chief than in the past, and the number of “sergeant” positions has been increased with the intention that there would be a sergeant assigned to each shift.

POSITION OF THE PARTIES

The union contends that the sergeants should be included in the bargaining unit. According to the union, the duties and limited authority granted to the sergeants are similar to that of the corporals, and there is no claim by the employer that the corporals are supervisors. The union contends that the sergeants do not have effective control over the fundamental terms and conditions of employment of their subordinates, but rather they are “lead” employees who do not meet the requirements for supervisory exclusion under criteria established pursuant to Chapter 41.56 RCW.

The employer maintains that the sergeants should be excluded from the bargaining unit as supervisors. According to the employer, the sergeants assign work to their subordinate officers, evaluate them, and make effective recommendations regarding their hiring, salary, promotions, discipline, and discharge. It is the employer’s position that there is the potential for a conflict of interest between the sergeants and their subordinates, so that their exclusion from the bargaining unit is warranted under criteria established in the administration of Chapter 41.56 RCW.

DISCUSSION

The Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, does not define “supervisors” or exclude them from access to collective bargaining. This differs from the practice in the private sector, under the National Labor Relations Act. Supervisors are employees under Washington law, and they can organize for the purposes of collective bargaining. Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977).

Numerous Commission precedents have established and reiterated the principle that supervisors will be excluded from bargaining units containing their subordinates to avoid an inherent conflict of interest which arises where supervisors are called upon to simultaneously represent management’s interests and act collectively with the rank-and-file employees. City of Richland, Decision 279-A (PECB, 1978), affirmed 29 Wn.App. 599 (Division III, 1981), review denied 96 Wn.2d 1004 (1981). Such separations are accomplished under the unit determination criteria of RCW 41.56.060, and recognize that supervisors have duties, skills and working conditions which are separate from those of their subordinates. Thus, supervisors have a fundamentally different community of interest. Grays Harbor County, Decision 1948 (PECB, 1984). Seattle School District, Decision 2830-A (PECB, 1988).

The Public Employment Relations Commission and the Washington courts have applied federal precedent in the administration of Chapter 41.56 RCW, where compatible with the provisions of the state law. Nucleonics Alliance, Local I-369 v. WPPSS, 101 Wn.2d 24 (1984). The term supervisor is defined in Section 2(11) of the National Labor Relations Act (NLRA) as follows:

The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.

In evaluating a claim of supervisory status and differing community of interest under Chapter 41.56 RCW, the scope of the disputed supervisor’s employment relationships with the alleged subordinates is taken into consideration. Factors such as hiring, assignment of work, direction of the work force, discipline and discharge, evaluation, promotion and reporting relationships are critical.

The Duties of the Sergeants

The record in this proceeding includes two different documents which purport to be the job description for the position of “sergeant”. The effective date is not reflected on either of those documents. It would appear that sergeants have not been provided a personal copy of either job description, but one or both of them may have been posted on a department bulletin board. According to Chief Buckley, the job descriptions were prepared by himself and the lieutenant, with some input from the sergeants. Buckley testified that he believed the current job description to be:

TITLE:                SERGEANT OF SECURITY

REPORTS TO:   LIEUTENANT OF SECURITY

General Responsibilities: Provide specialized security for the Pike Place Market.

Specific Responsibilities:

1.            Make sure all reports are done completely and on the chiefs desk in the morning.

2.             Count parking lot revenues and keep the books on same.

3.             Unlock the market on a daily basis.

4.             Provide escorts to the bank, parking lots, and to the bus.

5.             Taking the PDA deposits to the bank daily.

6.             Pass out crime prevention booklets.

7.             Detain suspects until police arrive.

8.             Keep the market free of all undesirables.

9.             Be available where and when needed once a security problem arises, and handling each situation with a calm and professional manner.

10.           Training new employees.

11.          Give assistance to merchants and the general public as needed.

12.          Report all discrepancies surrounding the market to the PDA staff member concerned.

13.           Respond to fire alarms and give assistance as needed.

14.          Escort the market master when collecting rent from arts & crafts, and farmers.

15.          Keep records of all the keys to the market. Making and issuing keys as approved by the Chief.

16.           Issuing Security equipment and keeping records of same.

17.           Be responsible for every thing and every one on their shift.

18.           Perform the duties of lieutenant in his absence.

There is no substantive dispute regarding the content of that job description. What Chief Buckley believed to be an earlier version of the “sergeant” job description did not contain the provision concerning “issuing security equipment ...” and “responsible for every thing and every one ...”, but had included a provision that stated, “Issue street performers permits.” Even with the update, however, most of the 18 listed functions involve security functions performed directly by the sergeants, and do not involve supervision of subordinate employees.

Hiring -

Applicants for employment as a security officer do not take an examination, but are interviewed to determine their suitability. Approximately 100 applicants were interviewed during the past year. These interviews are normally conducted by either the chief or the lieutenant. There are exceptions, but in one recent case the lieutenant had a corporal conduct two interviews for him, because the lieutenant had a schedule conflict.

The final decision to hire an applicant is shared by the chief and the director of operations. The chief testified that he desires input from as many sources as possible regarding the suitability of applicants for employment, and that corporals or sergeants who are in the area may be invited to observe an interview and comment later regarding their impression of a candidate. The chief estimated that a sergeant has been present as an observer at approximately 80% of the employment interviews in the recent past. Depending on the circumstances, however, the chief and director of operations may accept or reject the recommendations of other security staff on “hiring” matters.

Transfer ... Assign -

Newly hired employees work on the day shift for two weeks, while they undergo initial training under the direction of a sergeant. New officers are provided an extensive memorandum that specifies their duties and work assignments in detail. The memorandum addresses a multitude of subjects, including such matters as internal two-way radio communication, uniform protocol, personal visitor rules, and patrol procedures. After the initial two-week period, training becomes the responsibility of the sergeant or corporal who is the ranking officer on the shift to which the new employee is assigned. The ranking officer may delegate some training to a subordinate officer. The sergeants may give direction to the officers about being street-wise, safety, and specific problems.

Work shifts are determined by the chief and the lieutenant.[3] Although the chief testified of a preference for having four or five employees on duty per shift, the “minimum” appears to be having at least two officers on duty. In the event of short staffing, the sergeant or corporal who is the ranking officer can require an officer to extend a work shift. In such circumstances, however, discretion is limited by a policy calling for the lowest-paid individual to be held over. In the event an officer fails to report for work, someone on the shift (not necessarily a sergeant) would attempt to contact the employee. If necessary, the ranking officer would attempt to obtain a replacement. An officer who had not worked many hours would be called in, and their schedule would be adjusted later. If a shift is overstaffed, the ranking officer has the authority to release an officer. The employer’s policy calls for the release of the highest-paid individual.

Sergeants do not have authority to grant or deny vacation. They do review the staffing level at the time a request is made, and if the staffing will be less than adequate, they bring that fact to the attention of the lieutenant.

Sergeants have authority to grant an officer’s request to leave early, provided that the request is legitimate and there is adequate staff available. If the early release would cause a staff shortage, the sergeant is to notify the lieutenant or the next sergeant coming on duty.

Sergeants assign officers to lock and open the complex each day, under an employer policy which calls for rotation of such assignments so that the officers become familiar with all of the areas of the facility. Sergeants also assign employees to operate a “detex” system which records security data, monitor the telephone for any emergency calls, and perform other tasks as needed.

Suspend ... Discharge ... Discipline -

The chief receives information and recommendations from the entire department staff regarding the maintenance of staff discipline. In the event that a personnel problem is reported, the chief will meet with the individuals involved and investigate the matter before making a determination regarding disposition.

Security officers are subject to oral reprimand for violation of department rules and regulations. A second offense may be noted in writing, and recorded in the officer’s personnel file. A serious offense may result in discharge. The ranking officer on the shift has first-echelon responsibility for maintaining discipline, so the sergeants have the discretionary authority to issue an oral reprimand. In those circumstances where a ranking officer believes that a written warning may be appropriate, however, the matter will be referred to the chief or lieutenant for final determination. The chief testified that he has considered recommendations made by sergeants for personnel actions up to and including discharge, and that he has acted on them if satisfied that the evidence supported the recommendation.

Lay Off ... Recall -

The employer has not had any layoffs among its staff. The chief and the director of operations would share any decision to reduce or increase the size of the department staff. While the chief testified that he “would include a sergeant” at any meeting regarding such a matter, no specific examples were given.

Promote -

As a part of the recent reorganization of the department, a promotional examination was created for the position of sergeant. The third sergeant position was filled by use of that examination. There is no indication that the sergeants have any role in the promotion of subordinates.

Reward -

Periodic salary increases are contingent on a satisfactory performance evaluation. The performance of newly hired employees is evaluated after three months, and again after six months of service. Regular employee performance is appraised annually. Officer performance is normally evaluated by a sergeant. If the sergeant is absent, the evaluation is conducted by either the lieutenant or a corporal. These appraisals are conducted by using a recently redesigned multi-page form that calls for the evaluator to mark the box that most appropriately expresses their rating of the individual’s performance in each of the several factors rated.[4] Written comments may also be made. Appraisals are then submitted to the lieutenant and the chief, for discussion with the evaluator. The chief makes the final determination rating performance, and on whether the employee will be retained. Appraisals are signed by the chief and the evaluator.

Other Duties and Circumstances -

The sergeants regularly engage in patrol duties, respond to emergency calls and security incidents, and respond to fire alarms on the employer’s premises. They write reports and record data with electronic data processing equipment, in much the same manner as the corporals and officers claimed to be under their supervision. The sergeants exercise some discretion in handling emergency calls, but the chief is notified in the event of a serious matter such as a felony or injury.

The sergeants have no special privileges that are not enjoyed by the officers. The employer provides one office that is shared by the entire staff, including the chief. The department does not use vehicles.

All employees in the security department, including the chief, are paid bi-weekly. The chief and the lieutenant are paid a salary, however, and are not compensated for overtime work. Sergeants are paid on an hourly basis, and they are paid for overtime work. Using the highest pay rate for each rank as a benchmark, the employer’s pay scale policy reflects that a corporal is paid 10.8% more than an officer, a sergeant is paid 9.8% more than a corporal, the lieutenant is paid 17.8% more than a sergeant, and the chief is paid 15.1% more than a lieutenant.[5]

Department meetings are conducted once a month, on payday, for the entire staff. According to the chief, he has separate supervisor meetings on an as-needed basis. In the past, such “supervisor” meetings were attended by the lieutenant, sergeants, and corporals.

According to the chief, he runs a small department with an open door policy. It is his desire to make himself accessible to all of the department’s employees, without regard to the chain of command. It is his intention that important matters be brought to his attention by any employee, regardless of rank. Notwithstanding the chain of command, the chief may issue orders directly to officers, including patrol assignments.

Conclusions

Under the best of circumstances, holding a title of “sergeant” in a para-military chain of command is not a conclusive factor in unit determination proceedings. Sergeants who have lead responsibilities in patrol functions have been included in the bargaining units with their subordinates in a number of cases involving “commissioned” law enforcement officers. See, Washington State Patrol, Decision 2806-A (PECB, 1989).[6] Sergeants were excluded from a law enforcement bargaining unit in City of Sunnvside. Decision 1178 (PECB, 1981), but that case is distinguished by the fact that there were no intervening ranks between the sergeants and the chief. In the case at hand, the sergeants align more closely with the corporals and officers in the performance of day-to-day patrol and security functions. On the record made, it appears that the real authority concerning personnel matters lies with the chief and the lieutenant, who make independent review and decisions on matters brought to their attention by their subordinates. The sergeants are not “supervisors” within the meaning of Commission precedent.

FINDINGS OF FACT

1.         Pike Place Market Preservation and Development Authority is a public employer within the meaning of RCW 41.56.02 0 and RCW 41.56.030(1). The employer operates approximately 300 low income housing units, which provide living quarters in downtown Seattle for approximately 375 people. The PDA also provides market facilities in downtown Seattle for approximately 220 merchants, 200 crafts persons, and 100 farmers.

2.         Driver Sales and Warehouse, Local 117, affiliated with the International Brotherhood of Teamsters, et al., is a bargaining representative within the meaning of RCW 41.56.030(3).

3.         Driver Sales and Warehouse, Local 117, was given interim certification in Pike Place Market Preservation and Development Authority. Decision 3989 (PECB, 1992), as the exclusive bargaining representative of a bargaining unit described as:

All security personnel below the rank of Lieutenant; excluding supervisors, confidential employees, and all other employees of the employer.

The proceedings remained open to resolve a dispute concerning the inclusion of sergeants in the bargaining unit.

4.         The employer operates its own security department to augment law enforcement provided by the Seattle Police Department. The employer uses a paramilitary chain of command that passes from the chief to the ranks of lieutenant, sergeant, corporal, and officer.

5.         The security staff is scheduled to provide patrol coverage 24 hours per day, seven days a week. The chief, the lieutenant, and two sergeants normally work during daytime hours. A sergeant reports for work during the evening for an eight-hour shift. For a period of two to four hours in the early mornings, the highest ranking officer on duty is a corporal. The corporals replace the sergeants on their days off, vacations, and other schedule exceptions. The ranking on-duty officer is called the shift supervisor.

6.         Sergeants perform a variety of duties including submitting reports, counting and depositing PDA revenue, securing and opening the market, providing security escorts, crime prevention, detention of criminal suspects, training, responding to fire alarms, and making and issuing keys.

7.         Sergeants and corporals are invited to sit in on employment applicant interviews and comment later regarding their impression of the candidate. The final decision to hire an applicant is shared by the chief and the director of operations, who may accept or reject the recommendation of other security staff.

8.         New hires undergo initial training under the direction of a sergeant. After an initial two-week training period such training may be delegated to a subordinate officer.

9.         Work shifts are determined by the chief or the lieutenant. The shift supervisor (i.e., sergeant or corporal) can require that an officer extend a work shift, release an officer for legitimate reason or because of overstaffing, or call for a replacement. Discretion is limited in the event of overstaffing by a policy calling for the release of the highest paid officer, or in the event of insufficient staff, policy calls for holding over the lowest paid officer.

10.       The chief receives information from the entire security staff regarding staff discipline. In the event that a personnel problem is reported, the chief will meet with the individuals involved and investigate the matter before making a determination regarding the matter. The ranking shift supervisors have first-echelon responsibility for maintaining discipline and have discretionary authority to issue an oral reprimand. In those circumstances where the ranking officer believes that a written reprimand may be warranted, the matter will be referred to the lieutenant or the chief for disposition.

11.       Periodic salary increases are contingent on a satisfactory performance evaluation. Officer performance is normally evaluated by a sergeant or by the lieutenant or a corporal in the sergeant’s absence. Such evaluation is conducted by completing a prepared form that refers to a number of different factors. Performance appraisals are then submitted to the chief who establishes the final rating and determines whether an employee will be retained.

12.       The chief does not require that the security staff observe the chain of command for reporting important matters and may issue orders directly to security officers, included making patrol assignments.

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 sufficient to warrant their exclusion from the existing bargaining unit, and their continued inclusion in the unit would not create an inherent conflict of interest requiring their separation under RCW 41.56.060.

ORDER

1.         Sergeants shall be included in the bargaining unit for which interim certification was granted in Pike Place Market Preservation and Development Authority, Decision 3989-A (PECB, 1992).

2.         Since the number of sergeants involved is insufficient in number to affect the outcome of the question concerning representation, any authorizations for union representation submitted by sergeants will be impounded, to avoid disclosure of the names of sergeants giving representation authorization to the union as required by WAC 391-25-410.

3.         The interim certification issued in Pike Place Market Preservation and Development Authority. Decision 3989-A (PECB, 1992), shall stand as the final certification in the instant representation matter.

Entered at Olympia, Washington, on the 1 6th day of October, 1992.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

[SIGNED]

FREDERICK J. ROSENBERRY, Hearing Officer

This order may be appealed by

filing timely objections with

the Commission pursuant to

WAC 391-25-590.