Appearances:

J. Richard Quirk, attorney at law, for the employer.

John Malgarini, staff representative, for the union.

Lower Snoqualmie Valley School District No. 407 (hereinafter referred to as the employer or the district) filed a letter-petition with the Public Employment Relations Commission on November 29, 1976, wherein it sought to have the position of “accountant” designated as “confidential” within the meaning of RCW 41.56.030(2)(c), and excluded from an existing bargaining unit for which the district recognizes the Washington State Council of County and City Employees as the exclusive bargaining representative. Scheduling of a hearing in the matter was delayed with the consent of the parties during protracted negotiations between the parties. After a hearing was first set, the Commission was notified that the parties had reached an agreement on the matter, and the hearing was cancelled. The settlement failed of ratification, and a hearing was held on January 25, 1979 before Willard G. Olson, Hearing Officer.

At the conclusion of the hearing, both parties indicated a desire to submit briefs, and a deadline of March 1, 1979 was set for the filing of simultaneous briefs. The union’s brief was received on March 2, 1979. When the district’s brief had not been received by March 12, 1979, the Hearing Officer initiated a telephonic inquiry of the employer’s counsel. A copy of the district’s brief was received by the Commission on March 14, 1979 with a post-mark of March 13, 1979. In response to objections raised by the union, the union was afforded an opportunity to file a reply brief by April 10, 1979. In a letter filed with the Commission on April 16, 1979, the union declined to submit a reply brief and requested that the district’s brief be stricken. The motion to strike the employer’s brief is denied on the basis that the union was afforded an ample opportunity to reply and has shown no prejudice.

BACKGROUND

The district and the union have had a collective bargaining relationship for at least seven years, and have a current collective bargaining agreement. The unit covered includes all classified employees of the district, excluding (by agreement of the parties) the Business Manager, the Superintendent’s secretary, and a part-time clerical employee in the Superintendent’s office. Bonnie Drake has held the position of “Accounting Technician” since 1974. Until this dispute arose, she was included in the bargaining unit. The position of Accounting Technician is not among those listed in the 1978-80 collective bargaining agreement, and there is conflicting testimony as to whether that fact results from an agreement or an oversight.

The specifications for the disputed position state, in part:

“Definition:

Perform technical accounting and bookkeeping duties normally required by school districts.

Distinguishing Characteristics:

Incumbents may lead other personnel but emphasis is placed on complex bookkeeping/accounting-assistant work requiring knowledge of municipal accounting practices and the use of judgment in making accounting classification determinations. Positions typically serve under the direction of a professional accountant or in smaller district the administrator in charge of Business Services.”

During negotiations for the current collective bargaining agreement, Drake made one brief appearance at the bargaining table to answer a question. While she did not otherwise participate in the negotiations at the bargaining table, she did confer with the employer’s negotiator and Superintentendent, and she provided them with cost analysis on wage and benefit proposals and counterproposals made and to be made in the negotiations. She has also provided input to the district’s negotiators on the fiscal impact of some so-called non-cost items, such as agency shop. Drake had performed in a similar capacity during the 1975-76 negotiations, and the filing of the employer’s petition is credited at least in part to the Superintendent’s discomfort with her dual capacity as union member and management confidant.

The district hired a Business Manager in September, 1978, and Mrs. Drake now reports to the Business Manager on some items while continuing her direct dealings with the Superintendent on other items. The Business Manager was hired after the conclusion of negotiations for the current agreement, and thus did not participate in those negotiations. The Superintendent testified that he intends to use the Business Manager as a member of the district’s negotiating team in future negotiations with the representative of classified employees. The testimony indicates that the hiring of the business manager has not changed Drake’s role in negotiations, and that the employer intends to use her in the same capacity in the future.

POSITIONS OF THE PARTIES

The district takes the position that the Accounting Technician is a “confidential” employee excluded from the coverage of RCW 41.56 by RCW 41.56.030(2)(c). The district states that Drake is involved in all financial aspects of the negotiations process; serves as an “in-house auditor”; reviews purchase orders; and works closely with employee personnel files. The district cites International Association of Fire Fighters, AFL-CIO v. City of Yakima, 91 Wn.2d 101 (1978) in support of its position.

The union contends that the duties and responsibilities of the Accounting Technician have been changed significantly by the district’s hiring of a Business Manager as a superior to Ms. Drake. The union also relies on IAFF v. City of Yakima, supra, claiming that Drake lacks the intimate fiduciary relationship required by the Court. The union places the focus of its attention on the “necessarily implies” language of RCW 41.56.030(2)(c), and further contends that the information handled by Drake is all public record or that Drake handles confidential information for an insufficient amount of her time to warrant her exclusion from the coverage of the Act.

DISCUSSION

Much, if not all, of the information supplied by the Accounting Technician to the district’s negotiators is or ultimately becomes public record. However, it is the packaging of that information, the identification of particular items of information from among the whole range of public information, the pre-negotiation discussions utilizing that information, and the formulation of bargaining proposals and counter-proposals which are private communications protected by the “confidential” exclusion of the statute.

The president of the local union testified (at page 96 of the transcript) with recognition that Drake would have “some” contact with sensitive labor relations information of the employer. The percentage of time spent working on confidential labor relations matters is not relevant where the employee has some demonstrated involvement with confidential material. City of Tukwila, Decision 451-A (PECB, 1978). It is clear from the record that Drake did serve in a confidential relationship to the Superintendent and the district’s negotiators during the negotiations for both the 1975-76 and current contracts.

If there is any one fact which makes this case “close” or difficult, it is the hiring of the Business Manager. Absent the addition of that position to the management structure of the district, there is little question that the Accounting Technician was a confidential employee at the time the petition was filed and would continue to be a confidential employee at the present time. The union claims that information and negotiating input can now be obtained from the Business Manager, so that there is no need to “necessarily imply” a confidential relationship between the Superintendent and the Accounting Technician.

In its Yakima, supra, decision, the Supreme Court identified a legislative concern with potential misuse of confidential information and employee conflicts of interest. It went on to say:

“This concern is clearly expressed in the Educational Employment Relations Act, RCW 41.59. Although not controlling here, it contains an instructive definition of the confidential employee. It reads:

(i) 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

(ii) Any person who assists and acts in a confidential capacity to such person. (Emphasis supplied).

RCW 41.59.020(4)(c)(i) and (ii).

Were we to significantly alter this definition in interpreting RCW 41.56.030(2), an anomalous result would occur. RCW 41.59 applies only to certificated personnel. RCW 41.59.020(4). And, noncertificated school district secretaries or administrative assistants are conceivably covered by RCW 41.56.030(2). Thus, unless RCW 41.56.030(2) is interpreted consistently with RCW 41.59.020(4)(c), non-certificated personnel who participate in formulation of labor relations policy would be granted the right to collectively bargain. By a consistent interpretation of the two statutes this result would be avoided. Indeed, this has been recent administrative practice. Public School Employees of Washington and Edmonds School District No. 15, Decision No. 231-PECB, May 24, 1977.” IAFF v. Yakima, 91 Wn.2d 101 (1978).

The Superintendent testified that he forsees no change in the role of the Accounting Technician in forthcoming negotiations, even though the district now has a business manager. He testified further that the business manager was expected to be on the district’s negotiating team in the future. Other testimony indicates that if asked for the information heretofore provided by the Accounting Technician, the business manager would have to obtain that information from the Accounting Technician or would have to develop the information on his own at substantial additional effort. Thus, it appears that the Accounting Technician will at a minimum serve in the capacity of one who assists and acts in a confidential capacity to a confidential employee. As noted in Edmonds School District, Decision 231 (PECB, 1977), under such circumstances a subordinate shares the confidential exclusion of his or her superior. Either in her own right or as the confidential assistant to the business manager, the Accounting Technician must, on this record, be excluded from the bargaining unit as a “confidential” employee.

FINDINGS OF FACT

1. Lower Snoqualmie Valley School District No. 407 is a public employer within the meaning of RCW 41.56.020 and RCW 41.56.030(1).

2. Washington State Council of County and City Employees is a labor organization within the meaning of RCW 41.56.010 and a bargaining representative within the meaning of RCW 41.56.030(3).

3. Washington State Council of County and City Employees has been recognized as the exclusive bargaining representative of all classified employees of Lower Snoqalmie Valley School District No. 407. Excluded from the bargaining unit are the Business Manager, the secretary to the Superintendent, and a part-time clerical employee in the Superintendent’s office. A dispute has arisen as to whether the Accounting Technician is a confidential employee who is excluded by RCW 41.56.030(2)(c) from the coverage of the Act and the classified employee bargaining unit.

4. The Accounting Technician has, during negotiations for the 1975-76 and 1978-80 collective bargaining agreements between the parties, provided financial analysis information to the district Superintendent and negotiator, has provided input to the Superintendent and district negotiator on bargaining proposals and counter-proposals of both an economic and non-economic nature, and has been privy to discussions concerning the labor relations policies of the employer.

5. Subsequent to the hiring of a Business Manager, the Accounting Technician reports to the Superintendent on some matters and to the Business Manager on other matters. The evidence of record indicates that the Accounting Technician will continue to provide bargaining information to the employer’s negotiators and will continue to be privy to information concerning the labor relations policies of the employer.

CONCLUSIONS OF LAW

1. No question concerning representation presently exists in the bargaining unit described in paragraph 3 of the foregoing findings of fact, and the Public Employment Relations Commission has jurisdiction in this matter to issue an order clarifying an existing bargaining unit.

2. The Accounting Technician position described in paragraphs 3, 4 and 5 of the foregoing findings of fact is a “confidential” employee and is not a public employee within the meaning of RCW 41.56.030.

ORDER

The bargaining unit described in paragraph 3 of the foregoing findings of fact is clarified to exclude the Accounting Technician.

DATED at Olympia, Washington, this 31st day of May, 1979.

PUBLIC EMPLOYMENT RELATION COMMISSION

[SIGNED]

MARVIN L. SCHURKE

Executive Director