Daniel Garcia, Representative, appeared on behalf of the union.

Menke and Jackson, by Anthony F. Menke, Attorney at Law, appeared on behalf of the employer.

On March 30, 1993, Yakima County Sheriff's Management Group (union), filed a petition for investigation of a question concerning representation with the Public Employment Relations Commission, involving certain employees of Yakima County (employer). The union seeks certification as exclusive bargaining representative of supervisors within the Yakima County Sheriffs Department that are commissioned law enforcement officers. A prehearing conference was held on May 3, 1993, at which time the parties stipulated several matters and framed issues for hearing. A hearing was held at Yakima, Washington, on July 21, 1993, before Hearing Officer Kenneth J. Latsch. The parties filed post-hearing briefs.

BACKGROUND

The employer has collective bargaining relationships with several exclusive bargaining representatives, for units which include employees in the Yakima County Sheriff's Department. The Teamsters Union represents certain clerical employees; the Yakima County

Deputy Sheriff's Association represents the corrections officers at the county jail; the Yakima County Deputy Sheriff's Guild represents the non-supervisory deputy sheriffs. Contract negotiations with those organizations are conducted by a management team composed of the sheriff, the director of administrative services for Yakima County, and attorney Anthony Menke.[1]

At the time of the hearing, the Yakima County Sheriff's Department was organized administratively into four divisions: Administrative, Civil, Criminal, and Jail. A chief deputy sheriff was assigned responsibility for each division, reporting directly to the elected sheriff.[2] Various "lieutenant" positions are also excluded from the existing bargaining units.

In its petition, the union sought a separate bargaining unit of supervisors, to include all patrol and detective lieutenants, and the four division chiefs. The parties agree that the lieutenants are properly included in a unit appropriate for collective bargaining, but disagreed only about whether the four chief classifications should be included in the unit.

The division chief within the Yakima County Sheriff's Department are responsible for the day-to-day administration of the various collective bargaining agreements. Taking the division chief positions individually, the evidence also discloses that at least some of them have had some involvement with management preparations for collective bargaining, or the negotiation of collective bargaining agreements:

Chief Civil Deputy -

The chief civil deputy is responsible for supervision of personnel engaged in the service and execution of process issued by the courts in civil matters. Chief Civil Deputy David Thompson has had no exposure to collective bargaining, nor is he privy to any information concerning bargaining strategy or labor relations policy decisions. Thompson supervises clerical employees who are represented for the purposes of collective bargaining, and he has discussed interpretation or application of the contract applicable to them with members of the employer's negotiating team as well as with labor union representatives. He has not been informed of the status of labor contract negotiations, however, nor has he been asked to provide input concerning the impact of employer or union proposals.

Chief Criminal Deputy -

The chief criminal deputy is responsible for supervision of the investigation and preparation of criminal cases, and functions as the personnel officer for the sheriff's department. There is some conflict in the testimony concerning his role in labor relations. Chief Criminal Deputy Bob Regimbal testified that he did not participate in contract negotiations or meetings where management discussed bargaining strategy or labor policy. On the other hand, Sheriff Blair testified that Regimbal attended one collective bargaining meeting with a labor organization, that he had talked to Regimbal about a union proposal on four ten-hour work days, and that the two of them had met with union representatives to discuss working conditions. Attorney Menke also stated, under oath, that Regimbal was present at one management meeting where bargaining strategy was developed.

Chief Jail Administrator -

The chief jail administrator is responsible for the operation of the employer's jail facilities. Chief Michael J. Schreiner has been a member of management negotiating teams for contract negotiations with the organizations representing the jailers and clerical employees. In the course of those negotiations, Schreiner participated in executive level policy and strategy meetings, along with other members of the employer's negotiating team. Specifically, he testified that he was privy to confidential information concerning contract negotiations, such as bottom line positions on issues, prior to their communication to a union.

During the course of contract negotiations, in the absence of the sheriff, Schreiner is regarded by Menke as a resource for evaluating union contract proposals from an operational standpoint. Further, Schreiner is responsible for developing studies concerning wage and benefits comparability with other jurisdictions, for use by the employer in collective bargaining. Schreiner has also drafted language for a provision of an employer proposal.

Chief Administrative Services -

The chief of administrative services is responsible for accounting, budget, computer and fleet operations of the sheriff's office. Sheriff Blair testified that Chief Thuerk participates in management meetings to develop bargaining strategy, generates cost data regarding union contract proposals and, on occasion, has attended contract negotiation meetings.[3]

POSITIONS OF THE PARTIES

The employer contends that each of the four division chiefs are confidential within the meaning of RCW 41.56.030 (2) (c) and therefore should be excluded from the bargaining unit under the terms of the Public Employees' Collective Bargaining Act. The employer maintains that individuals in the disputed positions are privy to management meetings where confidential bargaining strategy is discussed, that they have participated in collective bargaining, that they have developed material used in contract negotiations

(including proposals and financial data), and that they provide information concerning the operational impact of bargaining proposals. The employer relies upon commission precedent, including Richland School District, Decision 3626 (PECB, 1990); Franklin County, Decision 3694 (PECB,1991); City of Lacey, Decision 2112

(PECB, 1985) ; and City of Seattle, Decision 689 (PECB, 1981) .

The union maintains that the chief positions should not be excluded as "confidential", and should be included in the proposed bargaining unit. The union asserts the chiefs' contact with contract negotiations is sporadic and of an advisory nature relative to operational considerations, with no involvement in the formulation of labor policy or bargaining strategy. Among others, the union cites, King County, Decision 4004-A (PECB, 1992) ; Snohomish County, Decision 4027 (PECB, 1992); City of Seattle, Decision 1797 (PECB, 1985); and City of Mercer Island, Decision 725 (PECB, 1979).

DISCUSSION

The Applicable Statute

The issue here is whether four individuals should be excluded from all collective bargaining rights under Chapter 41.56 RCW, because the nature of their work requires their classification as "confidential" employees. RCW 41.56.030(2) provides:

"Public employee" means any employee of a public employer except any person (a) elected by popular vote, or (b) appointed to office pursuant to statute, ordinance or resolution for specified term of office by the executive head or body of the public employer, or (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 or resolution for specified term of office by the executive head or body of the public employer, or (d) who is a personal assistant to a district court judge, superior court judge, or court commissioner. For the purpose of (d) of this subsection, no more than one assistant for each judge or commissioner may be excluded from a bargaining unit.

[Emphasis by bold supplied.]

The Commission has consistently adhered to a "labor nexus" test in resolving confidentiality issues, applying the precedent set by the Supreme Court of the State of Washington in International Association of Fire Fighters v. City of Yakima, 91 Wn.2d 101 (1978), wherein the Court stated:

Those in whom such a trust is continuously reposed could and perhaps would participate in the formulation of labor relations policy. They would be especially subject to a conflict of interest were they to negotiate with an employer on their own behalf. By excluding from the provisions of a collective bargaining act persons who work closely with the executive head of the bargaining unit, and who have, by virtue of a continuous trust relation, assisted in carrying out official duties, including formulation of labor relations policy, such conflict is avoided. And, public trust is protected since officials have the full loyalty and control of intimate associates. 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.

City of Yakima, supra, at 107 (emphasis by bold supplied).

The party asserting that an employee has "confidential" status has a heavy burden of proof. City of Seattle, supra.

The Nature of the Disputed Positions -

While it is clear that the individuals at issue in this Case are "supervisors" this does not, in and of itself, preclude them from collective bargaining rights. Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977) . As further stated by the Supreme Court in Yakima, supra: "General supervisory responsibility is insufficient to place an Employee within the [confidential] exclusion."

General personnel functions, making of contract interpretations, discipline of subordinates, and grievance processing are; common incidents of the exercise of supervisory responsibilities, and do not serve to exclude an individual from a bargaining unit of supervisors on the basis of being a "confidential" employee. City of Seattle, supra. Thus, unless more than the mere exercise of supervisory authority is shown, none of the disputed positions would be excluded as "confidential".

Occasional or incidental involvement in the collective bargaining process is not sufficient to warrant the exclusion of an individual as a confidential employee. Thus, supervisory employees who merely provide input to the employer's labor policy makers or negotiating team concerning the impact of various contract proposals are not regarded as confidential employees. King County, supra; Snohomish County, supra. The reasoning supporting this position is based upon the premise that the furnishing of such support functions is a normal incident of supervisory status and, without more, does not support an exclusion from the bargaining unit based upon "confidential" status. City of Seattle, supra; Mason County, Decision 1552 (PECB, 1983) . Accordingly, while the individuals in the four positions at issue herein may be utilized as a resource in assessing the impact of collective bargaining proposals, this does not automatically confer "confidential" status upon them.

Chief Civil Deputy David Thompson and Chief Criminal Deputy Bob Regimbal do not routinely participate in meetings where labor relations policy is formulated, or collective bargaining strategy developed. Neither do they attend collective bargaining sessions on a routine basis. The emphasis of the Supreme Court in Yakima, supra, was upon whether the individual in the position is involved in the formulation of labor policy, development of bargaining strategy or data, or participates in collective bargaining in a meaningful fashion.[4] That focus has been repeated in numerous decisions of the Commission, including Richland School District, supra; Wahkiakum County, Decision 1876 (PECB, 1984); City of Bremerton, Decision 3176 (PECB, 1989); and City of Richland, Decision 1519 (PECB, 1982). Thompson and Regimbal generally perform only supervisory functions.[5] They are called upon] by the management negotiating team as a resource for evaluating the operational impact of contract proposals, but that too is merely an outgrowth of their expertise as supervisors.

Chief Jail Administrator Michael Schreiner and Chief of Administrative Services Thomas Thuerk hold positions which differ, in significant degree, from the other positions at issue here. In addition to performing normal supervisory functions, they perform duties which are intimately involved in the collective bargaining process. Schreiner participates in executive level labors policy meetings and strategic collective bargaining preparations, along with members of the employer's negotiating committee. In the course of those meetings, he is privy to confidential bargaining information in advance of its communication to the union, including the employer's bottom line bargaining position. Moreover, he has regularly attended collective bargaining sessions, and has been the primary resource for development of comparability data from other jurisdictions. Thuerk participates in management negotiating committee meetings where bargaining strategy is developed, and is responsible for generating data concerning the cost impact 6f union contract proposals. Thuerk has attended collective bargaining sessions on more than an isolated basis. The confidential nature of work of an individual will warrant exclusion from the bargaining unit as a confidential employee, even though work of this nature is not the employee's primary activity. So long as it constitutes necessary, regular and on going support of the parties responsible for labor policy and involves a fiduciary relationship, the person performing such functions is excluded from the bargaining unit as a confidential employee. Franklin County, supra; City of Lacey, supra; and Richland School District, supra.

FINDINGS OF FACT

1.         Yakima County is a "public employer" within the meaning of RCW 41.56.020(1). Among other activities, Yakima County maintains and operates the Yakima County Sheriff's Department.

2.         Yakima County Sheriff's Management Group, a bargaining representative within the meaning of RCW 41.56.030(3), filed a timely and properly supported petition for investigation of a question concerning representation for certain supervisors employed in the Yakima County Sheriff's Department.

3          The Yakima County Board of Commissioners and the Yakima County Sheriff determine labor relations policy for the Yakima County Sheriff's Department. The employer is represented in collective bargaining matters by an attorney, as chief spokesman, and its director of administrative services, with assistance from individuals employed within the department(s) involved.

4.            The Yakima County Sheriff's Department is administratively divided into Criminal, Civil, Administrative Services, and Jail Administration components. Each division is under the direction of an individual holding a "chief" title.

5.            Each of the chiefs functions as a supervisor within his unit, providing day-to-day administration of various collective bargaining agreements. The chiefs are regarded as a resource by the employer's negotiating committee with respect to the impact of union contract proposals upon their spheres of operations.

6.            The chiefs in the civil and criminal divisions have little or no ongoing involvement in collective bargaining negotiations on behalf of the employer. Additionally, they are not privy to the development of labor relations policy or collective bargaining strategy.

7.            The chiefs in the administrative services and jail divisions are intimately and directly involved in the formulation of bargaining strategy, development of data used in collective bargaining negotiations, and in actual participation in contract negotiations on behalf 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 currently exists.

2.            A bargaining unit consisting of all full-time and regular part-time supervisory uniformed personnel within the Yakima County Sheriff's Department excluding the sheriff, confidential employees and all non-supervisory employees, is an appropriate unit for the purposes of collective bargaining under RCW 41.56.060.

3.         Employees of the Yakima County Sheriff's Department holding the "chief" positions in the civil and criminal divisions do not have a fiduciary relationship with the sheriff or county commissioners with respect to labor relations matters sufficient to be deemed "confidential" employees within the meaning of RCW 41.56.030(2) (c) , and are public employees within the meaning of RCW 41.56.030(2).

4.            Employees of the Yakima County Sheriff's Department holding the "chief" positions in the administrative services and jail divisions have a fiduciary relationship with the sheriff or county commissioners with respect to labor relations matters sufficient to be deemed "confidential" employees within the meaning of RCW 41.56.030(2)(c).

DIRECTION OF ELECTION

1.         A representation election shall be conducted by secret ballot, under the direction of the Public Employment Relations

Commission, in the appropriate bargaining unit described in paragraph 2 of the foregoing conclusions of law, for the purpose of determining whether a majority of the employees in that unit desire to be represented for the purposes of collective bargaining by Yakima County Sheriff's Management Group or by no representative.

2.         The employees holding the "chief" positions in the civil and criminal divisions shall be deemed eligible voters in the election directed in this matter.

Issued at Olympia, Washington, on the 18th day of February, 1994.

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.