DECISIONS

Kitsap County, Decision 12182 (PECB, 2014)

 

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

In the matter of the petition of:   WASHINGTON STATE COUNCIL OF COUNTY AND CITY EMPLOYEES   Involving certain employees of:   KITSAP COUNTY	CASE 25882-E-13-3808   DECISION 12182 - PECB     DIRECTION OF ELECTION
In the matter of the petition of:   KITSAP COUNTY   For clarification of an existing bargaining unit represented by:   KITSAP COUNTY JUVENILE DETENTION OFFICERS’ GUILD	CASE 26127-C-13-1575   DECISION 12183 - PECB     ORDER OF DISMISSAL

 

 

Audrey Eide, General Counsel, on behalf of the Washington State Council of County and City Employees. 

 

Russell D. Hauge, Kitsap County Prosecuting Attorney, by Jacquelyn Aufderheide, Chief Civil Deputy Prosecuting Attorney, for the employer.

 

Cline and Casillas, by Christopher J. Casillas, Attorney at Law, for the Kitsap County Juvenile Detention Officers’ Guild.

 

 

Kitsap County (employer) operates a Juvenile Department within the Kitsap County Superior Court.  Within the Juvenile Department are Court Services Officers, Probation Officers and Drug and Alcohol Counselors who are responsible for monitoring offender and non-offender services provided by the employer, including probation services, truancy services, at-risk youth assessments, and the employer’s drug and alcohol assessment program (KARS).  These employees are included in the Court Services bargaining unit and have been represented by the Washington State Council of County and City Employees (WSCCCE) since 2013.  Kitsap County, Decision 11822 (PECB, 2013). 

 

The WSCCCE filed a representation petition to include the employees in the Case Monitor and Program Specialist job classes from the employer’s Alternatives to Detention Program (Alternatives Program) into its existing Court Services Division bargaining unit.  Case 25882-E-13-3808.  The Alternatives Program is where juvenile offenders carry out their sentence in non-secure detention, such as home monitoring or work release.  The Case Monitors and Program Specialists are responsible for overseeing offenders assigned to the Alternative Program.  The Alternatives Program is part of the employer’s Detention Division. 

 

The employer objected to the WSCCCE’s petition and argued that the only appropriate bargaining unit for the Case Monitor and Program Specialist job classes was the Juvenile Detention bargaining unit.  The Juvenile Detention bargaining unit contains Juvenile Detention Officers and Food Services employees working in the Detention Division of the Juvenile Department.  These employees all work in a detention facility with certain shared duties and a shared commonality of supervisors.  Those employees are responsible for monitoring and overseeing the juvenile offenders detained in the employer’s secure juvenile detention facility.  The Kitsap County Juvenile Detention Officers’ Guild (Guild) has represented that bargaining unit since 2012. Kitsap County, Decision 11361 (PECB, 2012). 

 

The employer filed its own unit clarification petition seeking to move the Case Monitor and Program Specialist employees into the Juvenile Detention bargaining unit.  Case 26127-C-13-1575.  The Guild opposes the employer’s unit clarification petition and argues that its bargaining unit is not the only appropriate bargaining unit for the petitioned-for employees. 

 

The first issue to be decided in these cases is whether it is appropriate under RCW 41.56.060 to include the employees in the Case Monitor and Program Specialist job classes into the WSCCCE’s Court Services bargaining unit.  If it is inappropriate to include those positions in the existing WSCCCE’s Court Services bargaining unit, the next question to be answered is whether those positions only share a community of interest with the Guild’s Juvenile Detention bargaining unit. 

The Case Monitor and Program Specialist job classes in the Alternatives Program may appropriately be included in the WSCCCE’s Court Services Division bargaining unit.  These positions share a community of interest with the other positions in the Court Services bargaining unit.  It is unnecessary to determine whether the positions only belong in the Guild’s bargaining unit.  The WSCCCE’s representation petition is granted and the employer’s unit clarification petition is dismissed.  

 

BACKGROUND

 

The employer maintains a Juvenile Department as part of the Kitsap County Superior Court.   The Juvenile Department is responsible for housing and monitoring juvenile offenders as well as providing drug and alcohol treatment, counseling, and guardian ad-litem services to juveniles.  The department is composed of two main departments, the Detention Division and the Court Services Division, and is organized as follows:

 

 

 

 

 

Detention Division –

The Detention Division is responsible for overseeing the juvenile offenders that have been assigned to the secured detention facility as well as non-secured detention.  During sentencing, the Juvenile Court will determine whether an offender is assigned to secured or non-secured detention.  Offenders assigned to secured detention will carry out their sentence in the secured detention facility.  The secured detention facility is essentially a jail that houses the juvenile offenders.  The offenders assigned to the secured facility sleep, exercise, eat, and attend school within the confines of the facility.  Employees in the Juvenile Detention Officer job class work in the secured detention facility and oversee the juvenile offenders assigned to the facility.  These employees largely perform this work within the secured facility, although the Juvenile Detention Officers will also transport offenders to and from other detention facilities as well as medical facilities.  The Juvenile Detention Officers are also responsible for staffing the Juvenile Court.  The Juvenile Detention Officers will often communicate with the Court Services Officers in the Court Services Division regarding offenders assigned to the Secured Detention facility. 

 

Offenders assigned to non-secured detention do not serve their sentence in the secured facility.  Rather, the offenders assigned to non-secured detention carry out their sentences through electronic home monitoring, a work crew, and the Kitsap Alternative Transitional School (KATS), which is located in the secure detention facility.  These non-secure detention programs are collectively called the Alternatives Program. 

 

The employees in the Alternatives Program are in two job classes, Case Monitor and Program Specialist.  The Case Monitors and Program Specialists oversee offenders assigned to the Alternatives Program, such as evaluating the offender’s home environment to ensure that it meets the standards for home detention, overseeing the work crew, and transporting offenders on home detention to the KATS.  Although the employees in the Alternatives Program are not assigned to work in the secured facility, the Alternatives Program is part of the Detention Division. The Alternatives Program employees have been historically excluded from the Guild’s detention division bargaining unit and are not currently represented by any bargaining representative. 

 

Court Services Division –

The Court Services Division is divided into three separate units, the Probation unit, the KARS unit, and the Court Services unit.  The employees in the division perform three main functions: offender services, non-offender services, and drug and alcohol assessment services.  The employees in the Court Services Division are in the Court Services Officer and Chemical Dependency Counselor job classes.  The WSCCCE’s bargaining unit is comprised of the non-supervisory employees in all three units.

 

When a juvenile is arrested, he or she is either released to the custody of his or her parents or taken to the secure detention facility.  A Court Services Officer will receive the arrest report and begin to perform an assessment of the juvenile to determine the juvenile’s living arrangements, criminal history, and education background.  The Court Services Officer will make a recommendation as to whether the juvenile should be held in the secure detention facility or released pending a future hearing.

 

When a juvenile offender is sentenced, the Court Services Officer will recommend the type of sentence that should be imposed.  The types of sentences include either secured or non-secured detention, as well as drug and alcohol counseling and mental health services. The Court Services Officer will work with both the Juvenile Detention Officers and the Alternatives Program to determine if the offender could be sentenced to non-secured detention.  If an offender is assigned to non-secured detention, the Court Services Officer will work with the Alternatives Program employees to ensure that the offender’s sentence is carried out. 

 

The Court Services Division also provides non-offender services for dependent children, including guardian ad litem services.  Dependent children are those children who are under court supervision and considered at risk of offending.  The Court Services Officers will also make recommendations to the court concerning dependency, residential placement including foster care, and recommendations concerning the termination of the parent/child relationship. 

 

Finally, the Court Services Division oversees the KARS program.  The KARS programs consists of drug and alcohol counselors who provide outpatient services to juveniles.

 

 

 

 

DISCUSSION

 

Applicable Legal Standard

The determination of appropriate bargaining units is a function delegated to this agency by the legislature.  City of Richland, Decision 279-A (PECB, 1978), aff’d, IAFF Local 1052 v. PERC, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).  The goal in making bargaining unit determinations is to group together employees who have sufficient similarities (community of interest) that indicate they will be able to bargain effectively with their employer.  Quincy School District, Decision 3962-A (PECB, 1993).  When making bargaining unit determinations, the Commission seeks to avoid fragmentation and potential work jurisdiction disputes.  King County, Decision 6696 (PECB, 1999).  Bargaining unit determinations are made on a case-by-case basis.  King County, Decision 5910-A (PECB, 1997).

 

In making bargaining unit determinations, RCW 41.56.060(1) directs this agency to 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.”^[1]  The criteria are not applied on a strictly mathematical basis.  King County, Decision 5910-A.  Not all of the factors will arise in every case, and where they do exist, any one factor could be more important than another, depending on the facts.  Renton School District, Decision 379-A (EDUC, 1978), aff’d, Renton Education Association v. PERC, 101 Wn.2d 435 (1984).

 

When crafting bargaining units, this agency is not required to determine the “most” appropriate bargaining unit.  Rather, it is only necessary that the petitioned-for unit be an appropriate unit.  The fact that there may be other groupings of employees which would also be appropriate, or even more appropriate, does not require setting aside a unit determination.  University of Washington, Decision 8392 (PSRA, 2004); City of Winslow, Decision 3520-A (PECB, 1990). 

The Petitioned-for Bargaining Unit is an Appropriate Unit

The starting point for the unit determination analysis is the unit configuration proposed by the WSCCCE.  University of Washington, Decision 8392.  If including the Case Monitors and Program Specialists in the existing Court Services bargaining unit results in an appropriate unit under the statute, then the analysis ends and the case will be remanded to determine the employees’ desires.  That result also requires the employer’s unit clarification petition be dismissed because the Guild’s bargaining unit is not the only appropriate bargaining unit for the Case Monitors and Program Specialists.  See WAC 391-35-110(2). 

 

The employer argues that the petitioned-for employees are detention officers similar to the other employees in the Detention Division.  To support this argument, the employer points out that the RCW 13.40.090(10) definition of “detention facility” includes “electronic home monitoring.”  Because one of the primary duties of the Case Monitors and Program Specialists is to oversee offenders on electronic home monitoring, the employer asserts that these positions logically belong in the existing bargaining unit with the Juvenile Detention Officers who also work in a detention facility.  The employer also asserts that all of the employees in the Detention Division share commonality of supervision. 

 

The WSCCCE argues that there is significant interaction between the Case Monitors and Program Specialists and the Court Services bargaining unit, while there is little interaction between the employees in the Alternatives Program and the Juvenile Detention bargaining unit.  According to the WSCCCE, these facts support a conclusion that the Alternatives Program employees could be included in its Court Services bargaining unit.  The Guild supports the WSCCCE’s argument and also argues that the employer has not demonstrated a change in circumstances that would warrant accreting the Case Monitors and Program Specialists to its Juvenile Detention bargaining unit.

 

The Case Monitors and Program Specialists work with the Court Services Officers and the Probation Officers on a daily basis to discuss the status of the juvenile offenders, including their behavior and habits while on work crew and getting drug court program updates.  While there is no specific overlap in duties between these two groups, they do interact on a regular basis.  The Case Monitors and Program Specialists do not regularly interact with the Juvenile Detention Officers in a similar manner. 

 

The Case Monitors and Program Specialists are not functionally integrated with the Juvenile Detention Officers working in the secured facility.  They primarily work outside of the secured facility evaluating the offender’s home environment, overseeing the work crew, and transporting offenders to the KATS program.  The Juvenile Detention Officers work primarily inside the secured facility.  Although the KATS school is located within the secured facility, the Juvenile Detention Officers are not responsible for transporting the offenders assigned to home detention to and from the school; that duty is strictly performed by the Alternatives Program employees. 

 

There have been limited instances where a Program Specialist performed Juvenile Detention Officer bargaining unit work, such as operating the controls in the secured facility.  In most instances, this was done because the employee performing the work was a former Juvenile Detention Officer and was trained to operate the controls of the secured facility, and his services were needed due to staffing issues.  These instances do not demonstrate an integration of duties because not every Program Specialist is trained as a Juvenile Detention Officer or trained to operate the secure facility controls.  While the employer has expressed a desire to have every employee in the Alternatives Program attend and be trained at the Juvenile Services Academy, the evidence demonstrates that the employer has not strictly enforced this requirement. 

 

The hours of work for the Case Monitors and Program Specialists are different from the Juvenile Detention Officers.  The Juvenile Detention Officers are required to staff the secured facility on a 24 hour a day, seven days a week basis.  The Juvenile Detention Officers bid for their shifts.  The Case Monitors and Program Specialists normally work a regular 9 a.m. to 5 p.m., Monday through Saturday, schedule.  However, the employees rotate the Saturday shift.  They may also work outside of their regular shift, if necessary.  The Juvenile Detention Officers wear a standard uniform.  The Case Monitors and Program Specialists, as well as the employees in the Court Services Division, have no uniform requirements.

 

 

A comparison of the duties, skills, and working conditions of the Alternatives Program employees and the Court Services bargaining unit demonstrates that the duties of both groups are similar enough to demonstrate a community between the two groups.  Both groups of employees are responsible for monitoring the status of juvenile offenders.  While there is no integration of function, the employees regularly work together.  Furthermore, nothing about the duties of the Case Monitor and Program Specialist demonstrates that they only share a community of interest with the Juvenile Detention Officers.  While the Case Monitors, Program Specialists, and Juvenile Detention Officers all supervise offenders that are considered confined in a detention facility, that alone does not negate the fact that the Case Monitors and Program Specialists share some similarities with the employees in the Court Services Division.  Simply stated, the duties of the petitioned-for employees demonstrate that they could reasonably be included in either the Court Services or Juvenile Detention Officer bargaining units. 

 

The employer also argues that its organizational structure requires the Case Monitors and Program Specialists in the Alternatives Program to be included in the Juvenile Detention bargaining unit.  It points out that organizationally, the Alternatives Program employees are one part of the Detention Division.  All of the employees in the Detention Division share a common supervision.  The employer asserts that it would be improper to divide these employees between two different bargaining units. 

 

Bargaining unit configurations that stretch between two departments have been rejected when the proposed configuration fails to include all personnel in similar classifications.  For example, in King County, Decision 5910-A (PECB, 1997), the proposed bargaining unit configuration was rejected because the proposed bargaining unit configurations would create work jurisdiction issues.  The proposed configuration would also have “at a minimum, require[d] the employer to deal with more than one union regarding similar work.”  King County, Decision 5910-A.

 

Here, the duties and working conditions of the employees do not demonstrate that any work jurisdiction issues would be created by the proposed bargaining unit configuration.  The WSCCCE is seeking to include all, and not just part, of the employees in the Alternatives Program in its existing bargaining unit.  While there may be some recorded instances of other employees performing Juvenile Detention Officer bargaining unit work, these instances were created because the employee performing the work had experience and knowledge from previous  work assignments.  These instances were not the results of the integration of duties between the departments. 

 

The proposed bargaining unit configuration will not encroach on the Superior Court’s ability to manage the Juvenile Court operation.  In WSCCCE v. Hahn, 151 Wn.2d 163 (2004), the Washington State Supreme Court recognized that “the mere requirement that judges engage in good faith collective bargaining does not . . . reduce their control over the working conditions of the courts’ employees.”  Id. at 170.  The court went on to note that the collective bargaining “requirement that a party engage in good faith bargaining does not mean that the party must agree to all proposals that are submitted to it in the course of bargaining.”  Id.  

 

Organizationally, it might be more appropriate for the employees in the Alternatives Program to be included in the Juvenile Detention Officer’s bargaining unit.  While the commonality of supervision may be an indication of community of interest, the lack of commonality of supervision will not necessarily destroy a community of interest.  The statute does not ask this agency to create the most appropriate bargaining unit configuration; it only requires a unit to be an appropriate configuration.  It is organizationally appropriate to include the Case Monitors and Program Specialists in the existing Court Services bargaining unit because no work jurisdiction issues would be created and nothing in the proposed configuration would impede the employer’s authority to manage its Juvenile Court operation. 

 

Finally, the petitioned-for employees are currently unrepresented and do not have a current history of bargaining.  Although the testimony demonstrates that the petitioned-for employees were once part of the Juvenile Detention Officer bargaining unit prior to the Guild’s representation of that unit, those employees certainly were not included in the bargaining unit when the Guild filed its petition in 2012.  Neither the employer nor the Guild raised concerns regarding the unit placement of the Alternatives Program employees at that time.  The employer did not raise this issue until the WSCCCE filed its representation petition.  Because the Alternatives Program employees have been historically unrepresented, it cannot be said that the WSCCCE could not bargain on their behalf.

 

Conclusion

The bargaining unit configuration proposed by the WSCCCE is an appropriate unit under the statute.  Processing of this matter is remanded to the Representation Case Administrator to ascertain whether the Case Monitors and Program Specialists wish to be included in the WSCCCE’s Court Services bargaining unit.  The Direction of Election in this case is an interim order and the parties’ appeal rights in this matter shall be governed by WAC 391-25-590.

 

FINDINGS OF FACT

 

1.      Kitsap County is a public employer within the meaning of RCW 41.56.030(12). 

 

2.      The Washington State Council of County and City Employees (WSCCCE) is a bargaining representative within the meaning of RCW 41.56.030(3). 

 

3.      The Kitsap County Juvenile Detention Guild (Guild) is a bargaining representative within the meaning of RCW 41.56.030(3). 

 

4.      The WSCCCE represents a bargaining unit of Court Services Officers, Probation Officers and Drug and Alcohol Counselors.  (Court Services bargaining unit). The employees in this bargaining unit are responsible for monitoring offender and non-offender services provided by the employer, including probation services, truancy services, at-risk youth assessments, and the employer’s drug and alcohol assessment program (KARS).

 

5.      The Guild represents a bargaining unit of Juvenile Detention Officers and Food Services employees working in the Detention Division of the Juvenile Department (Juvenile Detention bargaining unit).  The employees in this bargaining unit are responsible for monitoring and overseeing the juvenile offenders detained in the employer’s secure juvenile detention facility. 

6.      The employer’s Alternatives to Detention (Alternatives Program) is where juvenile offenders carry out their sentence in non-secure detention, such as home monitoring or work release.  The Case Monitors and Program Specialists are responsible for overseeing offenders assigned to the Alternatives Program.  The Alternatives Program is part of the employer’s Detention Division. 

 

7.      The WSCCCE filed a representation petition to include the employees described in Finding of Fact 6 into its existing bargaining unit described in Finding of Fact 4 through the provisions of WAC 391-25-440.  Case 25882-E-13-3803.

 

8.      The employer filed a unit clarification petition seeking to include the employees described in Finding of Fact 6 into the bargaining unit described in Finding of Fact 5 and argued that this is the only appropriate bargaining unit for these employees.  Case 26127-C-13-1575. 

 

9.      The employees in the Alternatives Program work with the Court Services Officers and the Probation Officers in the Court Services bargaining unit on a daily basis to discuss the status of the juvenile offenders, including their behavior and habits while on work crew and getting drug court program updates.  While there is no specific overlap in duties between these two groups, they do interact on a regular basis.  The Program Specialists and Case Monitors do not regularly interact with the Juvenile Detention Officers in a similar manner. 

 

10.  The employees in the Alternatives Program are not functionally integrated with the Juvenile Detention Officers working in the secured facility.  They primarily work outside of the secured facility evaluating the offender’s home environment, overseeing the work crew, and transporting offenders to the KATS program.  The Juvenile Detention Officers work primarily inside the secured facility.

 

11.  There have been limited instances where the employees in the Alternatives Program performed Juvenile Detention Officer bargaining unit work, such as operating the controls in the secured facility.  In most instances, this was done because the employee performing the work was a former Juvenile Detention Officer and was trained to operate the controls of the secured facility, and his services were needed due to staffing issues.

 

12.  The Juvenile Detention Officers are required to staff the secured facility on a 24 hour a day, seven days a week basis.  The Juvenile Detention Officers bid for their shifts.  The Case Monitors and Program Specialists normally work a regular 9 a.m. to 5 p.m., Monday through Saturday, schedule.  However, the employees rotate the Saturday shift. 

 

13.  The Juvenile Detention Officers wear a standard uniform.  The Case Monitors and Program Specialists, as well as the employees in the Court Services Division, have no uniform requirements. 

 

14.  All of the employees in the Detention Division share a common supervision. 

 

15.  The petitioned-for employees are currently unrepresented and do not have a current history of bargaining.

 

CONCLUSIONS OF LAW

 

1.      The Public Employment Relations Commission has jurisdiction in this matter through the provisions of Chapter 41.56 RCW, Chapter 391-25 WAC, and Chapter 391-35 WAC.

 

2.      Based upon Findings of Fact 9 through 15, including the employees described in Finding of Fact 6 in the bargaining unit described in Finding of Fact 5 would create an appropriate bargaining unit under RCW 41.56.060.

 

ORDER

 

1.      Case 25882-E-13-3808.  The representation petition filed by the Washington State Council of County and City Employees is REMANDED to the Representation Case Administrator for further processing consistent with this decision. 

2.      Case 26127-C-13-1575.  The unit clarification petition filed by Kitsap County is DISMISSED.

 

ISSUED at Olympia, Washington, this  24^th  day of October, 2014.

 

 

                                                PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

                                                MICHAEL P. SELLARS, Executive Director

 

 

This order may be appealed by filing

timely objections with the Commission

under WAC 391-25-590.