Eric Nordlof, Attorney at Law, Public School Employees of Washington, appeared for the petitioner.

Robert Schwerdtfeqer, Consultant, Schwerdtfeger and Associates, appeared for the employer.

On May 13, 1992, Public School Employees of Pasco, an affiliate of Public School Employees of Washington, filed unfair labor practice charges with the Public Employment Relations Commission, alleging that Pasco School District had violated RCW 41.56.140(4). The union contended the employer had unilaterally eliminated a bargaining unit position of "fiscal services specialist" and transferred the duties and responsibilities to a new position of "fiscal services assistant" which the employer treated as excluded from the bargaining unit. On May 29, 1992, the Executive Director made a preliminary ruling that the complaint stated a cause of action. A hearing was held before Examiner Rex L. Lacy on February 25, 1993, at Pasco, Washington. Post-hearing briefs were filed by both parties.

BACKGROUND

Pasco School District (employer) offers educational services to some 6400 students at a high school, an alternative high school, two junior high schools, and six elementary schools. Dr. Pablo Perez was the employer's superintendent at the time of the hearing,[1] Joel Smith is fiscal services director,[2] and Douglas Kernutt is personnel director. The employer's labor negotiations are handled by a retained consultant.

Public School Employees of Pasco (union) has historically repre­sented a bargaining unit of employees in secretarial-clerical, food services, clerk, aide, and ticket taker positions.[3] The employer has collective bargaining relationships with several other organizations representing its non-supervisory employees.[4]

This is the second round in a controversy between the employer and union over the bargaining unit status of the "fiscal services assistant" position. The parties had agreed the position was exempt when Marty Rose held it. After Ms. Rose left, the employer revised the position, awarded it to Carol Blank during October of 198 9, and continued to treat it as exempt. The union promptly filed a petition for clarification of an existing bargaining unit. After a hearing during September, 1990 (1990 hearing), the position was included in the union's bargaining unit. Pasco School District, Decision 3796 (PECB, May 31, 1991). The employer's request for exclusion was denied because Blank was not performing the full range of duties listed in the job description: Blank had not been given actual negotiation proposals to analyze; had not been asked to cost-out proposals, and had never seen a collective bargaining agreement. Relevant to the Commission's decision was the fact that the exempt payroll specialist had done costing-out in the past and continued to be available to provide those services to the employer. Also contributing to the result was the employer's failure to demonstrate that Blank was privy to, and responsible for keeping secret, the employer's positions and strategies for dealing with the unions representing its employees.

The employer filed a timely appeal of Decision 3796, but withdrew it on September 6, 1991. The employer informed the Commission it preferred to negotiate a resolution to its dispute, and it did propose during negotiations that the union voluntarily exclude the "fiscal services assistant" position from the bargaining unit. When the union refused, the employer reserved its right to file a petition for clarification of an existing bargaining unit with the Commission before it signed the collective bargaining agreement on February 23, 1992.[5] No petition was filed, however.

At some unknown date after Decision 3796 issued, the employer began withholding union dues from Blank's pay. When she objected, Smith and Kernutt decided the responsibilities she had at the time made her position confidential and that the employer should treat it as exempt. Approximately three months after withholding of union dues from Blank's pay had begun, it ceased. The employer did not give the union notice either when it began withholding dues or when it ceased.

The record is confused on the extent of Blank's participation in the negotiations referenced above. It appears these negotiations were ongoing in September of 1991, when the employer withdrew its appeal, and that they continued until the agreement was signed on February 23, 1992. Kernutt testified he had four to six negotia­tions-related meetings with Blank during the period from December of 1991 through February of 1993, but did not specify which bargaining units were involved. Blank first testified she had about six negotiations-related meetings during the two years before February of 1993, then corrected herself to say the six negotia­tions-related meetings had occurred during the single year before February, 1993. She also testified she had participated in negotiations for the classified bargaining unit between April and July of 1992. The collective bargaining agreement had been signed in February, 1992, so it is possible Blank was confused about the year. On the other hand, negotiations on some subsidiary item may have been occurring between April and July, 1992, though no other witness mentioned them.

Some time during April, 1992, the union discovered that dues were not being withheld from Blank's pay. The union filed the present complaint on May 13, 1992. The hearing in this case was held February 25, 1993 (1993 hearing).

POSITIONS OF THE PARTIES

The employer originally contended in the 1993 hearing that the "fiscal services assistant" was a new position created after elimination of Blank's former position of "fiscal services specialist".[6] Now, the employer argues that the "fiscal services assistant" position should be excluded from the union's bargaining unit because it is "confidential" within the meaning of RCW 41.56.030(2) (c). The employer contends the duties of the position have evolved during a period of on-the-job training,[7] and now include labor relations-related matters.

The union originally asserted the employer's unilateral elimination of a bargaining unit position and substitution of an allegedly "confidential" position was an unlawful refusal to bargain. Despite Blank's testimony, the union continues to argue that the employer substituted positions. Additionally, the union contends that the employer has violated the law by adding "confidential" responsibilities to duties found in Decision 3796 to be bargaining unit work. The union objects to the employer's choosing direct action, rather than filing a unit clarification petition. The union also contends the employer has pursued a course of conduct dictated by its determination to exempt the "fiscal services assistant" position from the bargaining unit. Finally, the union requests an award of its attorney fees, as well as an order restoring the bargaining unit work.

DISCUSSION

Prior and Present "Fiscal Services Assistant" Duties

Different versions of the job description for "fiscal services assistant" were introduced in the 1990 and 1993 hearings. Both versions list the same qualifications for the position, though the 1993 version adds supervisory experience. The general responsibil­ities in the 1993 version are broader than in the 1990 version, and emphasize the supervisory aspects of the position. In addition, the specific duties listed in the 1990 version pinpoint particular technical functions while the 1993 version describes responsi­bilities more globally. Aside from these matters of emphasis, the two versions are quite similar. Both job descriptions include the preparation of confidential negotiation and budget materials.

The testimony on confidential, labor relations-related duties is clearer in this case than it was in the 1990 hearing.[8] Blank testified here that she had participated in approximately six meetings related to collective bargaining negotiations with both the certificated and classified bargaining units. Other partici­pants in these meetings included Kernutt, Smith, and Assistant Personnel Director Linda Sue Williams. Kernutt confirmed that he had met with Blank about collective bargaining approximately four to six times. In addition to her involvement in discussions with Kernutt of strategy, proposals, and possible responses, Blank had also costed out bargaining proposals for him during the time since the 1990 hearing, replacing the payroll specialist who had performed that function in the past.[9] Smith testified he had taught Blank about databases, which she had used to compute the effects of negotiating options for Kernutt.

By December of 1991 or February of 1992, Blank clearly qualified for exclusion from the union's bargaining unit as a "confidential" employee pursuant to RCW 41.56.030(2)(c) and the decisions applying that definition. See, particularly, City of Yakima v. IAFF, 91 Wn.2d 101 (1978) and Clover Park School District, Decision 2243-A (PECB, 1987) .[10] Nonetheless, the union finds the change in Blank's duties since the 1990 hearing to be suspicious, and the employer's explanation to be unworthy of credibility.

Smith testified in the 1993 hearing that he chose to replace Rose, who had an accounting background, with an existing employee from the classified ranks who could be trained to assume the technical duties of the position over a period of time. Blank confirmed that she took the position expecting:

[T]o go through a training period where I was going to learn the accounting manual and the functions of budgeting, and going through the whole process of learning what the duties were that were on my job description. And so over time, I have been able to assume those duties. So it was a kind of learning process.

The union's attorney cross-examined Blank as follows:

Q: [By Mr. Nordlof] Now, you've talked about your job evolved somewhat in the past year, and I'm primarily interested in the time since we had our other case, all right?

A: [By Ms. Blank] Okay.

Q: And it's my understanding from your tes­timony that the way it evolved is that you assumed more supervisory duties and you assumed the collective bargaining duties that you've already talked about; would that be -­A: (Interposing) That's correct.

Because Blank's former position had not involved accounting or labor-related responsibilities, the employer's contention that her duties had changed while she was gradually assuming the full scope of her new responsibilities is both reasonable and understandable.

Unilateral Designation of Position as "Confidential"

The union argues that the employer has flouted the Commission's unit determination in Decision 3796, by engaging in a kind of "self-help" that constitutes an unfair labor practice of a type that requires an extraordinary remedy. The union is correct that the employer said it would seek a second unit clarification from the Commission concerning Blank's bargaining unit status, but then acted unilaterally.

Employers and exclusive bargaining representatives cannot compel each other to negotiate over the bargaining unit status of particular positions. Unit determinations are uniquely within the purview of the Commission and do not fit into the "mandatory/per­missive/illegal" continuum of possible subjects of bargaining. City of Richland, Decision 279-A (PECB, 1978).

Employers have the power to create "confidential" positions, and may obtain a determination of "confidential" status directly (by filing a unit clarification petition) or indirectly (by excluding the position and leaving it to the exclusive bargaining representa­tive to file an unfair labor practice charge). In either case, the Commission will have resolved the underlying question. An employer choosing the second course of action will, however, have the question decided in an adversarial proceeding and will have the onus of committing an unfair labor practice if the Commission determines the employee is not "confidential".

The major difference between using the Commission's unit clarifica­tion procedures and engaging in "self-help" will be the harm to the bargaining relationship. In such cases, the employer could reap the harvest from sowing that disruptive seed for a substantial time period. It is not likely that the type of unilateral action taken by the employer in the present case will achieve improved relations between an employer and an exclusive bargaining representative.[11] In order to enhance collective bargaining relationships, the Commission encourages parties to openly communicate their inten­tions to each other, and to employ available procedures to resolve questions such as unit determinations.

No Transfer of Bargaining Unit Work

The union vehemently argued that the employer unlawfully skimmed bargaining unit work when it began treating Blank as a "confiden­tial" employee after the Commission had found her position to be properly included in the bargaining unit. The union apparently interprets Decision 3796 as labeling each of the duties Blank was performing on the date of the hearing as "bargaining unit work", and objects to Blank continuing to perform those duties now that she is a "confidential" employee.

The union unsuccessfully advanced the same argument in Wishkah School District, Decisions 4093, 4093-A (PECB, 1993). In Wishkah, PSE argued the employer had "skimmed" bargaining unit work by permitting a "confidential" clerical employee to continue doing work she had done before she received the duties that made her "confidential". The Executive Director held that it was common for "confidential" employees to perform some tasks that were not labor-related. The Commission affirmed.[12] Therefore, it was not unlawful for a "confidential" position to carry some non-related work out of the bargaining unit. No violation occurred in Wishkah, and no violation occurred in this case, either.

City of Mercer Island, Decisions 1026 (PECB, 1980), 1026-A (PECB, 1981), 1026-B (PECB, 1982), cited by the union in this case, does not require a different result. After Mercer Island's two police lieutenants sought union representation and were included in the police bargaining unit, that employer restructured its force. The two lieutenants were demoted and their former duties given to newly created "confidential" deputies. The timing of the restructuring and the similarity of lieutenant and deputy duties struck the Commission as suspicious, given the negative impact of these changes on the lieutenants. The Commission found the employer had "skimmed" bargaining unit work and ordered the lieutenants' former duties returned to them. If the employer in this case had given Blank bargaining unit work she had not previously performed, a violation would have occurred. The position held by Blank had historically been excluded from the bargaining unit, however, so that its temporary inclusion by Decision 3 796 was the exception rather than the rule.

The record in this case is devoid of the flavor of retaliation that pervades Mercer Island, and so presents an entirely different situation. The employer's representative did suggest in his opening statement that Blank's former position had been eliminated and replaced by a new one, but the evidence did not corroborate that explanation.

Had the union been able to prove the employer ceased withholding union dues from Blank's pay before she began performing "confiden­tial" duties, that could have constituted an unfair labor practice. The record on this issue is impenetrable, however. Not only does confusion exist about when Blank began performing duties connected to labor relations, but dates for the beginning and cessation of dues withholding are utterly lacking. If unlawful employer action exists in this case, the union has failed to sustain its burden of proof.

CONCLUSION

The Examiner concludes that the "fiscal services assistant" position possesses the labor nexus necessary to be excluded from the bargaining unit as a "confidential employee". Therefore, no unfair labor practice was committed when the employer unilaterally removed the "fiscal services assistant" from the bargaining unit.

FINDINGS OF FACT

1.         Pasco School District is a municipal corporation of the State of Washington, and is a public employer within the meaning of RCW 41.56.030(1).

2.         Public School Employees of Pasco, a bargaining representative within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of a bargaining unit of office-clerical employees of the Pasco School District.

3.         At some point after the decision in Pasco School District, Decision 3796 (PECB, 1991), included the "fiscal services assistant" position held by Carol Blank in the bargaining unit represented by Public School Employees of Pasco, the Pasco School District unilaterally began treating her position as exempt and stopped withholding union dues from her pay.

4.         As her position is presently constituted, Carol Blank has duties relating to labor relations and collective bargaining. These duties include participating in the employer's review of bargaining strategy and proposals, and computing the budget impact of various proposals or scenarios. In performing her responsibilities, she has access to confidential labor relations materials.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and Chapter 391-35 WAC.

2.         The "fiscal services assistant" is "confidential employee" within the meaning of RCW 41.56.030(2) (c), and is therefore excluded from the bargaining unit of office-clerical employees of the Pasco School District represented by Public School Employees of Pasco.

3.         Because the "fiscal services assistant" position is "confiden­tial employee" within the meaning of RCW 41.56.030(2) (c), Pasco School District did not violate RCW 41.56.140(4) when it unilaterally removed the position from the bargaining unit represented by Public School Employees of Pasco.

ORDER

The complaint charging unfair labor practices filed by Public School Employees of Pasco on May 13, 1992, is dismissed.

Dated at Olympia, Washington, the 17th day of May, 1994.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

REX L. LACY, Examiner

This order may be appealed by

filing a petition for review

with the Commission pursuant

to WAC 391-45-350.