Thurston County, Decision 10588 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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In the matter of the petition of:
Thurston county sheriff’s Office captain’s association
Involving certain employees of:
Thurston county
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CASE 22412-E-09-3460
DECISION 10588 - PECB
DIRECTION OF ELECTION |
Garrettson, Gallagher, Fenrich & Makler, PC, by Daryl S. Garrettson, Attorney at Law, for the union.
Summit Law Group, PLLC, by Bruce L. Schroeder, Attorney at Law, for the employer.
On April 23, 2009, the Thurston County Sheriff’s Office Captain’s Association (union) filed a Petition for Investigation of Question Concerning Representation seeking to represent a new bargaining unit consisting of operations and corrections captains in the Thurston County Sheriff’s Office (employer). On May 11, 2009, the union amended its petition seeking to include command staff chiefs, as well as operations and corrections captains in the proposed bargaining unit. The employer challenged the eligibility of the chiefs’ inclusion in the proposed bargaining unit.
On June 3, 2009, the Commission’s Representation Coordinator, Sally J. Iverson, held an investigation conference and issued an Investigation Statement pursuant to WAC 10-08-220, in which the parties stipulated to a number of issues. There is no dispute that the five captains employed by the sheriff’s office would appropriately be included in the proposed bargaining unit. A dispute remains as to the appropriateness of including the command staff chiefs in the proposed bargaining unit. The employer’s position is that the command staff chiefs are confidential employees and should be excluded from the proposed bargaining unit. The positions in question are: Chief Deputy - Corrections currently held by Todd Thoma, Chief Civil Deputy currently held by Dave Pearsall, and Chief Criminal Deputy currently held by Jim Chamberlain.
Hearing Officer Claire Nickleberry conducted a hearing on this matter on July 14, 2009. Both parties filed post-hearing briefs which were considered.
ISSUE
Are Chief Deputy - Corrections, Chief Civil Deputy, and Chief Criminal Deputy confidential employees who should be excluded from the proposed Thurston County Sheriff’s Office Captain’s Association?
The employer has not met its burden in establishing that the three chief positions have a labor nexus that would exclude them from collective bargaining rights. Accordingly, the chiefs are appropriately included in the bargaining unit with captains.
APPLICABLE LEGAL STANDARDS
The Commission codified the ‘labor nexus’ standard for exclusion of confidential employees in WAC 391-35-320. which states:
Confidential employees excluded from all collective bargaining rights shall be limited to:
(1) Any person who participates directly on behalf of an employer in the formulation of labor relations policy, the preparation for or conduct of collective bargaining, or the administration of collective bargaining agreements, except that the role of such person is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment; and
(2) Any person who assists and acts in a confidential capacity to such person.
The Commission stated and extensively reviewed the confidential employee standard and its rationale in City of Yakima, Decision 9983-A (PECB, 2008):
This Commission, using established case precedent, applies a labor relations nexus test to determine the confidential status of employees to be included or excluded from a bargaining unit. That test, accepted in International Association of Fire Fighters, Local 469 v. City of Yakima, 91 Wn.2 d 101 (1978), states that a confidential employee is an employee whose duties imply a confidential relationship that must flow from an official intimate fiduciary relationship with the executive head of the bargaining unit or public official. Confidential employees are precluded from exercising their statutory collective bargaining rights, and therefore a heavy burden is placed on the party seeking that confidential determination. City of Seattle, Decision 689-A (PECB, 1979). Any relied upon labor relations responsibilities must be necessary, regular, and ongoing. Yakima School District, Decision 7124-A (PECB, 2001) (citing Oak harbor School District, Decision 3581 (PECB, 1990).
The party asserting confidential status bears a heavy burden of proof in establishing that employees are precluded from engaging in collective bargaining. City of Redmond, Decision 7814-B (PECB, 2003).
ANALYSIS
The Thurston County Sheriff’s Office is composed of four divisions/bureaus: Administration, Corrections, Civil/Services, and Operations/Patrol. Sheriff Dan Kimball, and Undersheriff Brad Watkins lead the department. The Administration Division does not currently have a chief position. There are captains, lieutenants, and sergeants in the divisions who report to the chiefs; however, the proposed bargaining unit would include only captains and chiefs.
In reviewing cases, the Commission looks at the current duties actually being performed by the position in question at the time the petition is filed. City of Yakima, Decision 9983-A (PECB, 2008). Sheriff Kimball became sheriff on January 1, 2007. The employer provided testimony regarding negotiations as far back as 2002, which predate the current administration. The focus here will be on the practices of the current administration which would include the latest bargaining which began in 2007 for the three bargaining agreements covering 2008 – 2010, and other labor relations responsibilities regarding labor/management committees and grievance/discipline procedures.
The employer’s Senior Human Resources Analyst, Wendy Hill, testified that her procedure in setting up meetings for negotiations and labor/management includes sending e-mails to participants. The employer provided extensive evidence showing e-mail invitations to the undersheriff, chiefs, and captains for meetings regarding bargaining and labor relations issues. The employer also provided minutes and meeting notes indicating that the chiefs and captains were present at various times at those meetings, some individuals more frequently than others. The employer provided evidence that former Chief of Corrections Karen Daniels performed at a level that may have been considered confidential when she participated in meetings held directly with county commissioners and by proposing and signing a letter of intent to clarify contract language in 2005. This evidence is irrelevant to the status of the current chiefs because it was performed under a different administration. When he took office in January 2007, Sheriff Kimball delegated the responsibility of labor relations to Undersheriff Watkins.
Testimony from the current chiefs, Sheriff Kimball, and Undersheriff Watkins indicates that the responsibility for labor relations policy setting rests with the sheriff and undersheriff. The chiefs are invited to negotiation sessions, as are captains. The chiefs participate in providing organizational information to the undersheriff in meetings and caucuses during negotiations, as do the captains. Watkins testified that the chiefs’ roles are no different from the captains in providing informational input. The chiefs may participate in labor/management committee meetings, but so do the captains. The undersheriff, as the sheriff’s designee, is responsible for the meetings and the outcome. The fact that employees, and in particular supervisors, are sources of important information to the employer’s bargaining team does not render them to be confidential merely because they might have access to the employer’s confidential labor relations materials or provide input to the employer’s labor relations team. Pierce County, Decision 8892-A (PECB, 2005), citing City of Puyallup, Decision 5460 (PECB, 1996).
The classification specifications dated 1997 for the Chief Deputy - Corrections and Chief Criminal Deputy both state that the chief: “Participates as member of the bargaining team during labor negotiations. Acts as the executive representative during the grievance process involving contract disputes.” The language for the Chief Civil Deputy states, “May participate . . . and May act . . .” The testimony of the sheriff, undersheriff, and chiefs indicate that under this administration, the chiefs only participate in an advisory capacity to the undersheriff. The undersheriff is the decision-maker in negotiations on operations issues and the county’s human resources manager is the decision-maker on economic issues.
The bargaining agreements for all three divisions under the supervision of the chiefs have similar grievance procedure language. The first step is a discussion with the grievant’s supervisor. The immediate supervisor in most cases would be a lieutenant or sergeant. The second step goes to the sheriff or his designee, which according to Watkins could, theoretically, be a chief. However, since Sheriff Kimball has been in his position, Watkins stated, “We’ve had one or two that [have been filed and] have actually been handled by the Sheriff.” He added that investigations of grievances are normally handled by sergeants or lieutenants, not by captains or chiefs. The chiefs’ authority regarding discipline is limited to coaching, counseling, or oral warning. Testimony confirmed that a written warning may be prepared by the chief, but only under the direction of the undersheriff. The chiefs’ primary responsibility is the day-to-day operation of their division/bureau. Both grievance handling and discipline fall into the category of supervisory, rather than confidential, responsibilities. General supervisory responsibility is insufficient to place an employee within the exclusion. City of Yakima, 91 Wn.2d at 106-107.
Although the employer compares this case with Clark County, Decision 10458 (PECB, 2009), where three chief deputy sheriffs of the Clark County Sheriff’s Department were determined to be confidential employees, this case is clearly distinguishable in several ways. Each chief deputy in the Clark County case was individually assigned by the sheriff to negotiate contracts in their divisions with human resource personnel. As stated in that case, “The particular branch chief deputy sheriff represents the sheriff in negotiations and controls the negotiations for the employer regarding contract proposals affecting operation of the branch. . . . The chief deputy sheriff has considerable discretion on how available funds may be used to meet operational needs of the branch. . . . The chief deputy sheriff assigned to the employer negotiating team directly formulates employer position, prioritizes employer negotiating goals as they impact operations. . . .” Each of the chief deputies in the Clark County case has independently negotiated memos of understanding with the union and was the only person signatory on behalf of the department. In this case, this level of responsibility is performed by the undersheriff, not the chief deputies.
CONCLUSION
The employer has failed to meet its burden that the chiefs’ labor relations responsibilities under the current administration in the Thurston County Sheriff’s Office rises to a level that would exclude them from collective bargaining rights. Accordingly, the three chiefs will be included in the proposed bargaining unit with the captains.
FINDINGS OF FACT
1. Thurston County is a public employer within the meaning of RWC 41.56.030(1). The Thurston County Sheriff’s Office is a department within Thurston County.
2. The Thurston County Sheriff’s Office Captain’s Association is a bargaining representative within the meaning of RCW 41.56.030(3) and has filed a petition with the Public Employment Relations Commission seeking certification as the exclusive bargaining representative of a bargaining unit of captains and deputy chiefs.
3. The employer seeks to exclude the position of chief from the bargaining unit on the basis that the chiefs are confidential because of their involvement in labor relations activities.
4. The three employees that occupy the chief positions, Todd Thoma, Dave Pearsall, and Jim Chamberlain, sometimes participate in an advisory capacity in bargaining sessions and labor/management committees. They do not formulate labor policy. That responsibility has been delegated to the undersheriff by the sheriff.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391-25 WAC.
2. The Findings of Fact establish that Todd Thoma, Dave Pearsall, and Jim Chamberlain are not confidential employees within the meaning of RCW 41.56.030(2)(c) and WAC 391-35-320(1).
3. A bargaining unit composed of operations and corrections captains, Chief Deputy - Corrections, Chief Civil Deputy, and Chief Criminal Deputy is an appropriate unit for collective bargaining under RCW 41.56.060.
ORDER
Processing of this case is remanded to the Representation Coordinator for conduct of a secret ballot election in the bargaining unit described in Conclusion of Law 3.
Issued at Olympia, Washington, this 30th day of October, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CATHLEEN CALLAHAN, Executive Director
This order will be the final order of the
agency unless a notice of appeal is filed
with the agency under WAC 391-25-660.