DECISIONS

City of Tacoma, Decision 12583 (PECB, 2016)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

In the matter of the petition of:   INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 483   Involving certain employees of:   CITY OF TACOMA

CASE 127700-E-15   DECISION 12583 - PECB     DIRECTION OF ELECTION

 

Cheryl Comer, Assistant City Attorney, for the City of Tacoma.

 

Jacob Black, Attorney at Law, Robblee Detwiler & Black, PLLP, for the International Brotherhood of Electrical Workers, Local 483.

 

On November 3, 2015, the International Brotherhood of Electrical Workers, Local 483 (union) filed a petition to represent certain employees in the City of Tacoma’s (employer) Human Resources Department.  The union’s proposed bargaining unit would include a total of 23 employees in the Human Resources Assistant, Human Resources Specialist, and Human Resources Analyst job classes.

 

The employer agrees to the inclusion of the employees in the Human Resources Assistant and Human Resources Specialist job classes in the proposed bargaining unit, but argues that the six employees in the Human Resources Analyst job class are confidential employees and should be excluded from the proposed bargaining unit.  Hearing Officer Dario de la Rosa held a hearing on January 11 and 12, 2016, and the parties filed post-hearing briefs.

 

The Human Resources Analysts are not confidential employees and are appropriately included in the petitioned-for bargaining unit.  The Human Resources Analysts have no independent ongoing authority to make labor relations decisions, set no labor strategy and policy for the city, and have significantly limited access to sensitive confidential labor information and data.  Rather, the Labor Negotiators in the Labor Relations Division provide the city with this labor relations function, as they negotiate contracts and advise executive level management on labor strategy and policy.  The Human Resources Analysts are responsible for collaborating with managers and advising them on personnel matters and not on labor relations matters.  Processing of this matter is remanded to the Representation Case Administrator to determine if the petitioned-for employees desire to be represented by the union.

 

BACKGROUND

 

The employer’s Human Resources Department is led by Human Resources Director Joy St. Germain.  The department is divided into five separate divisions: 1) Benefits, 2) Training and Development, 3) Risk Management, 4) Labor Relations, and 5) Personnel Services (Human Resources).  The six Human Resources Analysts at issue in this matter work in the Personnel Services Division.

 

The Personnel Services Division provides human resources support for the various city departments including recruitment, testing and selection, community outreach, and performance management.  Included in that division are the employees in the Human Resources Analyst job class.  Each Human Resources Analyst provides these services for an assigned set of city departments such as the Environmental Services Department or Tacoma Public Utilities.  The duties and responsibilities performed by each Human Resources Analyst are generally the same for each department.

 

For recruitment, testing, and personnel selection, the Human Resources Analyst works with the department’s appointing authorities and managers to either identify the need for a new position, to fill a vacancy, or to update a hire list.  The Human Resources Analyst develops a recruitment strategy that includes screening for minimum qualifications, determining tests to administer to potential candidates, and convening subject matter experts to assist in scoring the tests.  The Human Resources Analyst also develops the list of eligible hires for the appointing authority and managers to interview and select.  These duties consume a majority of the Human Resources Analysts time.

 

The Human Resources Analysts’ outreach duties involve interacting with community and labor organizations to educate these groups about city career opportunities.  The outreach duties include attending job fairs, marketing, and advertising job opportunities.  Human Resources Analyst Kat Flores exclusively performs the outreach function and was recently assigned to the city’s general government departments.  Due to the exclusive focus of her position, Flores has virtually no professional interaction with Labor Relations or Labor Negotiators other than sporadically attending a joint Labor Relations/Personnel Services meeting.

 

The Human Resources Analysts also support their respective departments in developing investigation and disciplinary strategies when necessary.  In most instances, a manager brings a performance or misconduct issue to the Human Resources Analyst who will meet with that manager to plan an investigation and develop questions for a Weingarten interview.  He or she will contact the union to schedule the meeting and will then attend the meeting to take notes.  Following the interview, the Human Resources Analyst meets with the manager and the appointing authority to discuss the findings, data from prior disciplinary actions, and recommend a level of discipline.  The same process takes place following a Loudermill hearing, where the Human Resources Analysts attend to open the meeting and take notes, after which the appointing authority will deliberate and make the final decision.  The final decision on whether to discipline always lies with the appointing authority.  The Human Resources Analysts may also receive and pass on information requests from the union to the appropriate Human Resources Specialist.

 

The Human Resources Analysts are not directly involved in negotiating collective bargaining agreements.  The negotiated collective bargaining agreements do, however, impact the work that the Human Resources Analysts perform.  If the Human Resources Analysts encounter a potential labor or collective bargaining issue, he or she will communicate the matter with an appropriate Labor Negotiator in the Labor Relations Division.  The Human Resources Analyst may provide suggestions and input to the Labor Negotiator during the discussions, but the Labor Negotiator ultimately works with the union representative to resolve the issue.

 

Labor Negotiators

The Labor Negotiators in the Labor Relations Division are responsible for negotiating and administering collective bargaining agreements with the various labor unions that represent the city’s employees.  Each Labor Negotiator is assigned to a particular collective bargaining agreement and works primarily with a particular union representative.  This structure allows each Labor Negotiator to build rapport and develop a working relationship with the union representative so that he or she may be productive in negotiations and resolving grievances with the union.

 

The Human Resources Analysts and Labor Negotiators interact on certain issues.  For example, Human Resources Analyst Audrey Hornbuckle worked with Labor Negotiator Jude Kelley on an employee transfer issue where the transfer would have resulted in a reduction in the employee’s pay rate and the removal of certain lead responsibilities.  Hornbuckle recognized that the matter could be an issue for the union and preemptively transitioned the matter to Kelley so that Kelley could work with the union before an official dispute arose.  Hornbuckle was not involved in the negotiations with the union.

 

Other opportunities for interaction between the Labor Negotiators and Human Resources Analysts occur when the city is preparing for negotiations.  The Labor Negotiators ask the Human Resources Analysts about any suggested changes to the collective bargaining agreements.  For example, Human Resources Analyst Teresa Dent testified that her department managers wanted revisions to leave language that was causing problems because it conflicted with Civil Service rules.  She relayed that request to the Labor Negotiator and, over the course of several bargaining cycles, the language issue was eventually addressed.  Other than these suggestions, Human Resources Analysts do not provide data or information to Labor Negotiators for negotiations.

 

The Human Resources Analysts also have contact with the Labor Negotiators during the monthly meetings with the Labor Relations and Personnel services employees.  These meetings allow both divisions to update the other on recent events but have predominately been used as a method for Labor Negotiators to explain what collective bargaining agreements mean and to update Human Resources Analysts on the status of negotiations.  The Human Resources Analysts are limited to offering suggestions or providing input at these meetings.

 

The Human Resources Analysts often handle confidential information.  This confidential information includes applicant information, the identity of subject matter experts for test scoring, the test scores and testing information itself, and other identifying employee information.  This information, however, is related more toward informing personnel actions and is not directly related to the labor relations process.  For labor relations data, Labor Negotiators have their own exclusive hard drive where they store labor relations information to which no other division has access.^[1]

 

DISCUSSION

 

Applicable Legal Standards

The creation and maintenance of appropriate bargaining units is a function of this agency.  RCW 41.56.060.  The purpose of this function is to ensure there is a community of interest among the employees sufficient to enable them to bargain effectively with their employer.  Central Washington University, Decision 9963-B (PSRA, 2010); Quincy School District, Decision 3962‑A (PECB, 1993).  Of those personnel who qualify as a “public employee” may exercise collective bargaining rights under the statute.  RCW 41.56.030(11)

 

Excluded from the definition of public employee are employees whose duties imply a confidential relationship to the bargaining unit or to the executive management of the employer, such as an appointee to a board, commission, or committee for a particular term of an elected official.  RCW 41.56.030(11)(c)(i)-(iii).  Anyone who meets the confidential employee definition is precluded from exercising collective bargaining rights under the statute.  Id.  Because confidential employees are precluded from exercising collective bargaining rights, a heavy burden is placed on the party seeking a determination that the employees at issue are confidential.  State – Natural Resources, Decision 8458-B (PSRA, 2005).

 

A labor nexus test is used to determine whether an employee is confidential under the statute.  The employee’s duties are examined for a labor nexus and whether the employee’s actual duties imply a confidential relationship that flows from an official intimate fiduciary relationship with the executive head of the bargaining unit or public official.  International Association of Fire Fighters, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978).

 

The nature of the close association between the employee and the executive head of the bargaining unit or public official must concern the official and policy responsibilities of the executive head or public official, including formulation of labor relations policy.  International Association of Fire Fighters, Local 469, 91 Wn.2d at 106-107.  If the employee’s official duties require ongoing and regular interaction with the executive head or public official regarding the employee’s collective bargaining position, that employee should not be placed in a position where that employee’s loyalties are tested.  The confidential employee exclusion prevents potential conflicts of interest between the employee’s duty to his or her employer and status as a union member.  Walla Walla School District, Decision 5860 (PECB, 1997).

 

General supervisory responsibility is insufficient to place an employee within the exclusion.  International Association of Fire Fighters, Local 469, 91 Wn.2d at 107.  Employees and particularly supervisors, who are sources of important information to the employer’s bargaining team are not rendered 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.  City of Puyallup, Decision 5460 (PECB, 1996).  Supervisors can provide valuable information if asked questions such as “What do you think of the non-supervisory union’s proposal?” or “How much will our insurance company charge for medical insurance next year?” and still not be aware of an employer’s bargaining position.  Pierce County, Decision 8892-A (PECB, 2005).  Such discussions do not necessarily involve the employer’s own sensitive labor relations materials, even if the employer bases its strategy on the employee’s answer.  Id.  It is important to determine whether confidential information flowed down to the employee, not whether useful information or recommendations flowed up to the bargaining team.  Id.  The quality and quantity of employees’ input and recommendations does not make them confidential employees unless they have also been privy to the employer’s sensitive labor relations information.  Id.

 

Application of Legal Standards

The Human Resources Analysts working in the Personnel Services Department are not confidential employees.  They are responsible for collaborating with managers and advising them on personnel matters and not on labor relations matters.  The Labor Negotiators in the Labor Relations Division provide the city with this labor relations function, as they negotiate contracts and advise executive level management on labor strategy and policy.  Human Resources Analysts have no independent ongoing authority to make labor relations decisions, set no labor relations strategy and policy for the city, and they have significantly limited access to sensitive confidential labor relations information and data.

 

The Human Resources Analysts work primarily on personnel matters, such as filling position vacancies through recruitment and developing selection strategies.  They also assist managers in investigating disciplinary matters and coaching through employee performance issues.  General personnel functions, such as contract interpretation, taking disciplinary actions that could be subjects of grievances, and processing grievances, are not duties that meet the labor nexus test.  City of Redmond, Decision 7814 (PECB, 2002) citing City of Seattle, Decision 689-C, (PECB, 1981).  While the Human Resources Analysts advise managers on matters that relate to language in a collective bargaining agreement, this advice is in relation to implementing a collective bargaining agreement that is already bargained and does not meet the labor nexus test.

 

The Human Resources Analysts also have no independent and ongoing authority to make labor related decisions or advice on labor strategy and policy.  Human Resources Analyst Rodney Croston testified that the employer’s former Labor Relations Manager instructed him to refrain from advising on labor issues.

The monthly Labor Relations/Personnel Services meetings that include employees in the Labor Relations and Personnel Services divisions are not an indication that the Human Resources Analysts are confidential in nature.  Labor policy or strategy is not established at these meetings.  Instead, these meetings allow both divisions the opportunity to share sufficient information for each division to perform its own separate function.  The Labor Negotiators use the shared information and suggestions from the Human Resources Analysts to better understand impacts of the bargaining proposals.  The Human Resources Analysts use the shared information from the Labor Negotiators to better understand what contract language means in order to apply it as personnel issues arise.  Certainly, these meetings add value of coordination to the Human Resources Department, but the meetings are not sufficient to create an implied, fiduciary, confidential relationship to warrant excluding the Human Resources Analysts from the bargaining unit.

 

The employer relies heavily upon State – Department of Labor and Industries, Decision 8437-A (PSRA, 2004) for the proposition that an employee’s duties may be found to be confidential in nature when that employee has consistent and direct exposure to confidential labor relations material, information, and strategies.  In that case, two administrative assistants were found to be confidential because they supported executive positions that were directly involved in determining labor relations policy, strategy, and negotiations.  The administrative assistants managed calendars, drafted correspondence, and had access to information directly related to the formulation, determination, and effectuation of the state’s labor relations policies.

 

The Human Resources Analysts, in this case, serve no such purpose and have no such access.  Their purpose is to assist management with personnel issues and none of them support such a high level individual, such as St. Germain who is the acting Labor Relations Manager and Human Resources Director.  The Human Resources Analysts do not have consistent and direct access to the employer’s labor relations information.  That information exists on a self-contained hard drive system to which only Labor Relations Negotiators have exclusive access.

 

 

CONCLUSION

 

The Human Resources Analysts are not confidential employees within the meaning of Chapter 41.56 RCW and those employees may appropriately be included in the petitioned-for bargaining unit.  Processing of this matter is remanded to the Representation Case Administrator for further processing consistent with this decision.^[2]

 

FINDINGS OF FACT

 

1.                  The City of Tacoma is a public employer within the meaning of RCW 41.56.030(12).

 

2.                  The International Brotherhood of Electrical Workers, Local 483 (union) is a bargaining representative within the meaning of RCW 41.56.030(2).

 

3.                  On November 3, 2015, the union filed a petition to represent certain employees in the City of Tacoma’s (employer) Human Resources Department.  The union’s proposed bargaining unit would include a total of 23 employees in the Human Resources Assistant, Human Resources Specialist, and Human Resources Analyst job classes.

 

4.                  The employer claims the six employees in the Human Resources Analyst job class should be excluded from the proposed bargaining unit because they are confidential employees.

 

5.                  Human Resources Analysts provide these services for an assigned set of city departments such as the Environmental Services Department or Tacoma Public Utilities.  The duties and responsibilities performed by each Human Resources Analyst is generally the same for each department.

 

6.                  For recruitment, testing, and personnel selection, the Human Resources Analyst works with the department’s appointing authorities and managers to either identify the need for a new position, to fill a vacancy, or to update a hire list.  The Human Resources Analyst develops a recruitment strategy that includes screening for minimum qualifications, determining tests to administer to potential candidates, and convening subject matter experts to assist in scoring the tests.

 

7.                  The Human Resources Analysts’ outreach functions involve interacting with community and labor organizations to educate these groups about city career opportunities.  The outreach duties include attending job fairs, marketing, and advertising job opportunities.

 

8.                  The Human Resources Analysts also support their respective departments in developing investigation and disciplinary strategies when employee performance deficiencies or incidences of misconduct arise.

 

9.                  The Human Resources Analysts also have contact with the Labor Negotiators during the monthly meetings with the Labor Relations and Personnel services employees.  These meetings allow both divisions to updates the other on recent events but have predominately been used as a method for Labor Negotiators to explain what collective bargaining agreements mean and to update Human Resources Analysts on the status of negotiations.

 

10.              The Human Resources Analysts often handle confidential information.  This confidential information includes applicant information, the identity of subject matter experts for test scoring, the test scores and testing information itself, and other identifying employee information.  This information, however, is related more toward informing personnel actions and is not directly related to the labor relations process.  For labor relations data, Labor Negotiators have their own exclusive hard drive where they store labor relations information to which no other division has access.

 

11.              Human Resources Analysts also have no independent and ongoing authority to make labor related decisions or advice on labor strategy and policy.

 

CONCLUSIONS OF LAW

 

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and Chapter 391-25 WAC.

 

2.                  Based upon Findings of Fact 5 through 11, the employees in the Human Resources Analyst job class are not confidential employees within the meaning of Chapter 41.56 RCW and WAC 391-35-320.

 

ORDER

 

Processing of this matter is remanded to the Representation Case Administrator for further processing consistent with this decision.

 

ISSUED at Olympia, Washington, this  3rd  day of June, 2016.

 

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

MICHAEL P. SELLARS, Executive Director

 

 

This order will be the final order of the

agency unless a notice of appeal is filed

with the Commission under WAC 391-25-590.