STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
TEAMSTERS UNION LOCAL 763	CASE 9189-E-91-1522
Involving certain employees of:	DECISION 4027 - PECB
SNOHOMISH COUNTY	DIRECTION OF CROSS-CHECK

Davis, Roberts and Reid, by Bruce E. Heller, Attorney at Law, appeared on behalf of the petitioner.

Perkins Coie, by Thomas E. Platt, Attorney at Law, appeared on behalf of the employer.

On June 4, 1991, International Brotherhood of Teamsters, Local 763, filed a petition for investigation of a question concerning representation with the Public Employment Relations Commission. The union seeks certification as exclusive bargaining representative of corrections sergeants employed by Snohomish County in its Corrections Department. A pre-hearing conference was held on July 19, 1991, at which time the parties stipulated several matters and framed issues for hearing. A statement of results of the pre-hearing conference was made a part of the record in this matter. A hearing was held at Everett, Washington, on September 12, 1991, before Hearing Officer Frederick J. Rosenberry. The parties filed post-hearing briefs.

BACKGROUND

Among other governmental services, Snohomish County has a Corrections Department under the supervision of Director William B. Harper. The department operates a high-security detention facility, which houses between 400 and 500 prisoners in a 12-story structure located in Everett, Washington. Susan Kennedy manages the detention division.

Reporting relationships among employees in the corrections facility follow a traditional paramilitary chain of command. Three lieutenants and six sergeants oversee the work of approximately 84 custody officers and approximately 23 other individuals employed in support positions (e.g., as control room operators, security clerks, etc.). The detention facility operates with three shifts during each 24-hour cycle, with one lieutenant and two sergeants assigned to each shift. Approximately 44 employees work on the day shift, from 8:00 a.m. to 4:00 p.m.; approximately 34 employees work on the “swing” shift, from 4:00 p.m. to midnight; approximately 28 employees work on the “graveyard” shift, from midnight to 8:00 a.m.

Teamsters Local 763 is the exclusive bargaining representative of the non-supervisory employees of the Snohomish County Corrections Department. That bargaining relationship dates back to a certification issued by the Public Employment Relations Commission on April 13, 1984.[1] The unit was described in that certification as follows:

All full-time and regular part-time employees of the Snohomish County Department of Corrections, excluding the Director, Secretary to the Director, Administrative Assistant, Manager of Support Services, Manager of Corrections, Manager of Detention, Supervisors, Confidential employees, registered nurses, and all other employees of the employer.

As used in that certification, the term “supervisors” related to the positions now titled as “sergeant”, but which then were titled “corrections supervisor” or “custody supervisor”.[2] The current “lieutenant” classification was not created until 1985, when it was titled “shift commander”. The current titles were adopted in 1990.

The Sergeants’ Duties -

The employer’s class specification describes the corrections sergeant positions as follows:

BASIC FUNCTION

Supervises booking, releasing and security work on an assigned shift within the Snohomish County jail.

STATEMENT OF DUTIES

1.        Plans, schedules, assigns duties, supervises and evaluates the work of subordinate Corrections Officers and staff; participates in and makes recommendations regarding the selection, discipline and termination of subordinate employees; may assume the responsibility of the Shift commander in his/her absence.

2.        Directs training of all new staff members and assumes responsibility for requests for special training from Department administration; evaluates and counsels Custody Officers in the performance of their duties; conducts on-the-job training for employees as needed.

3.        Reviews Jail records and logs including records for court appearances, makes decisions and approves all questionable bookings or releases of prisoners; reviews all written reports submitted by officers concerning unusual occurrences or rule violations; reports unusual incidents, when appropriate, to supervisors on other shifts or in other agencies.

4.        Makes all medical decisions concerning prisoners being booked or those in custody in the absence of the Jail Nurse; insures that the work environment is maintained in safe and healthful condition; arranges for any needed maintenance work or removal of safety hazards; requisitions supplies and equipment as needed for the work of the Jail.

5.        Interprets Jail policies and directs action taken during emergencies or unusual circumstances.

6.        Intercedes and makes decisions involving problems between prisoners, families, other law enforcement agencies and staff under supervision; recommends modifications or changes in Jail policy and implements new operating procedures and other administrative changes.

7.        Coordinates prisoner transports with courts, hospitals and other agencies; arranges for hospital and special security guards; clears documentation for appearance, transfer and final release of prisoners.

8.        May petform (sic) all the duties of a Custody Officer.

9.        Performs related duties as required.

MINIMUM QUALIFICATIONS

Three (3) years of experience as a Custody Officer in the Snohomish County Jail; OR, any equivalent combination of training and/or experience that provides the required knowledge and abilities. College level course work in criminal justice, criminology, corrections, one of the social sciences or other discipline directly related to detention and corrections management is desirable.

SPECIAL REQUIREMENTS

Candidates for employment must successfully pass an extensive background investigation, a polygraph examination and a psychological examination.

KNOWLEDGE AND ABILITIES

Knowledge of:

*         Jail policies and procedures;

*         Washington State civil and criminal codes and Federal rules and regulations relating to the operation of jails and rights of prisoners.

*         the principles and practices of correctional facility safety and security;

*         local, State and Federal social service resources and agencies;

*         the principles and practices of effective supervision.

Ability to:

*        plan, coordinate, supervise and evaluate the work of subordinate employees;

*        train and instruct new employees;

*        read, interpret and apply work related laws, rules, regulations and other related documents;

*        analyze and solve work related problems and make decisions under pressure;

*        communicate effectively with people of all ages and from a variety of cultural economic and ethnic backgrounds;

*        prepare a variety of reports and other written materials;

*        establish and maintain effective working relationships with prisoners, criminal justice system officials, community agency staff, other County employees and the general public;

*        qualify periodically in weapons and Yoshida use;

*        respond to crisis and emergency situations;

*        work with minimum supervision;

*        plan and coordinate schedules.

SUPERVISION

Employees report to a Corrections Lieutenant. The work is performed in accordance with established policies and procedures. Employees supervise the work of Custody Officers and clerical staff.

WORKING CONDITIONS

The work is performed in a maximum security detention facility. Employees are required to work various shift assignments including weekends, nights and holidays as required.

The sergeants normally are the ranking officer on duty at night and on weekends. They are charged with the responsibility to ensure that the detention facility is operated at all times in accordance with prescribed policy. As a part of their normal duties, the sergeants are the first step in any policy question that may be raised by a member of the corrections staff.

The sergeants assign subordinates to work stations on a daily basis. The sergeants are responsible for maintaining employee time sheets indicating shifts worked, vacations, sick leave, etc., and have the authority to authorize overtime shift holdovers, call-ins, and grant compensatory time off.

The sergeants prepare annual performance evaluations for the employees in their assigned work section. The performance evaluations are then submitted to the section lieutenant for review. The sergeant then conducts a performance review with each subordinate employee, during which the evaluation is discussed and the ratings are explained. The sergeants prepare and conduct more frequent performance reviews on probationary employees.

The sergeants have authority to impose warnings, initiate written warnings and reprimands, and recommend suspension or termination. Although final decisionmaking authority rests with upper management, the sergeants’ recommendations in such matters are normally heeded.

Sergeants’ Contact with Bargaining Information -

Local 763 and the employer have been parties to a series of collective bargaining agreements covering the non-supervisory unit, the most recent of which was for the period from January 1, 1989 through December 31, 1991. The employer has used a three-tiered management structure for purposes of bargaining contracts with that bargaining unit:

The highest tier is composed of elected county officials and executives, who meet with Labor Relations Consultant Charles Dibble to establish the employer’s basic collective bargaining policy and strategy.

The second tier is the employer’s negotiating team, which consists of Dibble, Corrections Director Harper, Detention Manager Kennedy, Program Manager Rick Steel, Administrative Services Manager Kathy Deviny, and a personnel department representative. Those management officials conduct strategy meetings for negotiations, and develop responses to union proposals. Economic and contract terminology issues are discussed at their meetings which take place in advance of and subsequent to negotiating sessions with the union. Dibble normally serves as the employer’s chief spokesman at bargaining sessions with the union.

The third tier consists of other managers and supervisors who have been consulted for their input on collective bargaining negotiations held in 1989 and 1992. A number of such consultations are detailed in the paragraphs which follow.

Both the lieutenants and the petitioned-for sergeants were included in a meeting held on August 10, 1988, under the following agenda:

1.              1989 Union Negotiations; Development of Management Proposals

2.              Opening Jail to Full Capacity: Discussion of Hiring, Training, Classification of 4-SA

3.              Updates: Video Court

Roadside Clean-up Program

Laser Fingerprint

NOTE:      Union staff who ordinarily attend will be excused for this meeting.

The impending negotiations with the corrections bargaining unit were discussed, and those in attendance were invited to comment on what they felt should be raised in negotiations. Sergeants raised matters, such as use of consistent terminology in operational work rules, and other problems that they are faced with in accomplishing their duties, such as scheduling vacations.

The lieutenants and sergeants were also involved in an October 12, 1988 meeting of “managers, shift commanders, supervisors, and lead workers”, for which the announced agenda included:

... 5. Status of 1989 Union negotiations (union personnel will be excused for this portion of meeting).

Among the items discussed on that occasion was a union proposal calling for bidding of shift and work assignments by seniority. Some of those in attendance at the meeting were opposed to the proposal, because they felt that it placed a burdensome limitation on their managerial discretion.

On November 16, 1988, the employer distributed to its supervisory staff, including the lieutenants and sergeants, copies of the proposal previously presented by the employer to the union for the corrections bargaining unit. Inquiries regarding that proposal were to be directed to Harper or a manager.

Dibble addressed a meeting of “corrections supervisors and above” held on August 16, 1989. Both lieutenants and sergeants attended that meeting, where Dibble explained the operative provisions of the 1989-91 collective bargaining agreement recently signed by the employer with Local 763 for the corrections bargaining unit.

As a part of preparation for collective bargaining with the corrections bargaining unit for 1992 and thereafter, a meeting was held on September 6, 1991, for “Manager, Lieutenants, Supervisors and Sergeants”. The following agenda was announced:

1.            1991 union negotiations: preparation for management proposals: please review current agreement and bring written suggestions to meeting.

2.            Progress reports on organizational problem areas identified at the last meeting Be prepared to report by your subject area group; a summary of proposals is included in the enclosed meeting minutes.

3.            Leadership challenges training: one or more follow up modules will be presented by Bridgit Clawsen, Personnel, as time allows.

At that meeting, Director Harper reviewed each section of the collective bargaining agreement covering the non-supervisory corrections employees. A number of suggestions made by those in attendance were relayed to Dibble for consideration by upper management in the development of its proposal to the union.

POSITION OF THE PARTIES

The employer maintains that the petition should be dismissed. It takes the position that the sergeants are supervisors and confidential employees who do not have collective bargaining rights.

The union contends that the sergeants constitute an appropriate unit for collective bargaining. Although it declined to stipulate prior to or at the hearing that the sergeants were properly classed as supervisors, the union stated in its post-hearing brief that it “does not dispute that the sergeants qualify as supervisors”. The union denies that the sergeants are “confidential” employees.

DISCUSSION

Creation of Units of Supervisors

The Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, does not define “supervisors” or exclude them from access to collective bargaining rights. While this differs from practice in the private sector under the National Labor Relations Act, it is beyond reasonable debate under Washington law that a bargaining unit composed of supervisors is appropriate for collective bargaining. Municipality of the City of Seattle v. Department of Labor and Industries. 88 Wn.2d 925 (1978).

Numerous Commission precedents have established and reiterated the principle that supervisors will be excluded from the 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) aff. 29 Wn.App. 599 (Division III, 1981); cert. denied. 96 Wn.2d 1004 (1981).

The record in this case indicates, and the union concedes, that the corrections sergeants exercise substantial supervisory authority in personnel areas such as work assignments, performance evaluations, and discipline. There is no claim that the sergeants should be mixed with other supervisory classifications for the purposes of collective bargaining. It is clear that a separate unit of supervisors can be found appropriate in this case.[3]

The Confidentiality Claim

The definition of “public employee” does exclude “confidential employees” from the coverage of Chapter 41.56 RCW:

RCW 41.56.030 DEFINITIONS. As used in this chapter:

(2) “Public Employee” means any employee of a public employer except any person ... (c) whose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to the executive head or body of the applicable bargaining unit, or any person elected by popular vote or appointed to office pursuant to statute, ordinance, executive head or body of the public employer.

Again, however, the interpretation of the statute is beyond reasonable debate:

When the phrase confidential relationship is used in the collective bargaining act, we believe it is clear that the legislature was concerned with an employee’s potential misuse of confidential employer labor relations policy and a conflict of interest.

...

We hold that in order for an employee to come within the exception of RCW 41.56.030(2), the duties which imply the confidential relationship must flow from an official intimate fiduciary relationship with the executive head of the bargaining unit or public official ... The nature of this close association must concern the official and policy responsibility of the public official or executive head of the bargaining unit, including formulation of labor relations policy. General supervisory responsibility is insufficient to place an employee within the exclusion.

City of Yakima v. IAFF, 91 Wn.2d 101 (1978) [emphasis by bold supplied].

The party proposing a “confidential” exclusion bears the heavy burden of proving the necessity for excluding the employee from the rights of the collective bargaining statute. City of Seattle, Decision 689-A (PECB, 1979). City of Cheney, Decision 3693 (PECB, 1991).

Commission precedent on jail supervisors does not support the employer’s position in this case. In King County. Decision 3338 (PECB, 1990), the employer contended that certain detention facility supervisors were confidential employees. The duties of the disputed employees included making work assignments, imposing discipline, and the application of collective bargaining agreements. In that case, the disputed employees even attended some collective bargaining sessions, and provided some operational information to the employer’s negotiators. The disputed individuals did not have authority to make substantive decisions concerning the course of negotiations, however, and the employer’s request for their exclusion as confidential employees was denied.

Since it is clear that the general supervisory authority of the corrections sergeants at Snohomish County is not a basis for their exclusion from collective bargaining rights,[4] the focus of this inquiry must be on the management meetings in which they have participated. While it is clear that the petitioned-for sergeants have been included in periodic meetings which have occasionally included discussions regarding collective bargaining, and that the employer has used the sergeants as a resource for the evaluation of the proposals made or to be made in contract negotiations, other facts in this record suggest that they remain at a considerable distance from the “fiduciary” level.

It is noteworthy that the actual bargaining proposals were not shared with the sergeants until after they had been passed across the bargaining table in negotiations between the employer and union. The subsequent disclosure of such information by the employer to its supervisors could not place the sergeants in a position of a conflict of interest were they to have their own bargaining unit.

The evidence concerning the three-tiered structure of labor relations administration in Snohomish County strongly suggests that operative policy and strategy decisions are made at the bargaining team and/or top management levels. There is no claim that core economic matters, such as wages and benefits, were ever discussed in any meetings attended by the sergeants.

It is apparent from the published agendas that most of the meetings where collective bargaining was discussed were not called exclusively for that purpose, but rather were for the purpose of discussing a number of general operational matters. Consultation by senior management officials with first-line supervisors is a sensible employment practice, inasmuch as the sergeants are likely to be the most familiar with the actual situation in the workplace. Such familiarity grows out of their general supervisory responsibilities, however, and is not a basis for the exclusion of the supervisors under Yakima.

The record also indicates that solicitation of information by management has not been limited to the ranks of sergeant and above. Union shop stewards have also been consulted for input regarding various detention facility policies and procedures. Such solicitation is evidenced by Director Harper’s announcement, in March of 1990, regarding revisions to rules regarding conduct, discipline and sick leave policies. Those revisions were arrived at after consultation with management and a union shop steward.

The limited evaluative/advisory role of the sergeants in collective bargaining is too remote to justify a finding that there is an intimate fiduciary relationship between the corrections sergeants and the employer’s bargainers. The sergeants do not participate in executive-level discussions regarding management strategy, or bargaining positions, or attend executive-level policy making meetings. Corrections sergeants are not members of the employer’s negotiating team, and do not have knowledge of confidential information concerning areas of potential compromise, “bottom-line” bargaining positions, or other critical policies. In the absence of evidence that they are included in the substantive decision-making process and privy to confidential information that affects the course of collective bargaining, the record is insufficient to justify a finding that they are confidential employees.

Determining the Question Concerning Representation

WAC 391-25-391 authorizes, under certain circumstances, the direction of a cross-check to be conducted under WAC 391-25-410 for the purpose of determining a question concerning representation. The Commission re-examined the cross-check procedure in a trilogy of cases decided just over a year ago. Port of Pasco, Decision 3398-A (PECB, 1990); City of Centralia, Decision 3495-A (PECB, 1990); and City of Winslow, Decision 3520-A (PECB, 1990) . There is only one union involved in this case, and the showing of interest submitted by that union is substantial. Under such circumstances a cross-check is ordered.[5]

FINDINGS OF FACT

1.         Snohomish County is a “public employer” within the meaning of RCW 41.56.030(1). The Snohomish County Corrections Department is responsible for the operation of a jail and related services. The non-supervisory employees of that department are organized for the purposes of collective bargaining.

2.         Public, Professional and Office Clerical Employees and Drivers Local 763, affiliated with the International Brotherhood of Teamsters, et al., a “bargaining representative” within the meaning of RCW 41.56.030(3) has filed a timely and properly supported petition seeking certification as exclusive bargaining representative of a separate bargaining unit of supervisors, consisting of sergeants employed in the Snohomish County Corrections Department.

3.         The petitioned-for sergeants have duties and responsibilities which include the exercise of authority, in the name of and interest of the employer, to prepare and administer performance evaluations, assign jail staff work stations, authorize overtime, call-ins, grant compensatory time off, impose verbal warnings, initiate written warnings and reprimands, and recommend suspension or termination of subordinate employees.

4.         Labor relations policy for Snohomish County is established by elected county officials and executives. Such policy is implemented in collective bargaining negotiations through an outside labor relations consultant.

5.         Working with a committee consisting of the Corrections Director, Detention Manager, a Program Manager, the Administrative Services Manager, and a personnel department representative, the labor relations consultant refines bargaining policies and strategies for use by Snohomish County in developing employer proposals and employer responses to union proposals. These county officials usually accompany the consultant who normally serves as the employer’s chief spokesman at collective bargaining sessions with the union.

6.         The corrections sergeants have had limited participation in the collective bargaining process on behalf of the employer. Such activities are related to their role as first-line supervisors of the jail staff, and to their administration of the jail in conformity with the terms of a collective bargaining agreement.

7.         The corrections sergeants do not have an intimate fiduciary relationship with county elected officials and executives or their bargaining representatives on matters of labor relations policy, do not have authority to make substantive proposals in collective bargaining, and do not have authority to change the labor relations policy of the employer.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW, and a question concerning representation exists.

2.         Employees of Snohomish County in the classification of “corrections sergeants” are public employees within the meaning of RCW 41.56.030(2), and are not confidential employees within the meaning of RCW 41.56.030(2)(c) .

3.         Employees of Snohomish County in the classification of “corrections sergeant” are supervisors within the meaning of established precedent under Chapter 41.56 RCW, so that a bargaining unit described as:

All full-time and regular part-time supervisors in the Snohomish County Corrections Department, excluding elected officials, officials appointed for a fixed term of office, confidential employees and all non-supervisory employees

is an appropriate unit for the purposes of collective bargaining within the meaning of RCW 41.56.060.

4.         A question concerning representation presently exists in the bargaining unit described in paragraph 3 of the foregoing conclusions of law, and all conditions have been met for the conduct of a cross-check pursuant to RCW 41.56.060 and WAC 391-25-410.

DIRECTION OF CROSS-CHECK

A cross-check of records shall be made under the direction of the Public Employment Relations Commission in the bargaining unit described in paragraph 3 of the foregoing findings of fact, to determine whether a majority of the employees in that bargaining unit have authorized Public, Professional and Office Clerical Employees and Drivers Local 763 to represent them for the purposes of collective bargaining.

Entered at Olympia, Washington, on the 3rd day of April, 1992.

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.