APPEARANCES:

PAMELA G. BRADBURN, attorney at law, for the petitioner.

STEPHEN E. MANSFIELD, attorney at law, for the employer.

On July 5, 1977, the union filed a petition under RCW 41.56.060 and repealed WAC 391-20-151 for clarification of an existing bargaining unit. The proceedings were conducted after February 1, 1978, and this order is issued pursuant to WAC 391-21-300, et. seq. A hearing was held on February 8, 1978 at Anacortes, Washington, before Jack T. Cowan, Hearing Officer.

HISTORY OF BARGAINING

The bargaining unit involved in these proceedings has been in existence for some time, and was the subject of unit clarification proceedings before the Department of Labor and Industries in 1974-75. Representation proceedings initiated by another labor organization in October, 1976 resulted in the issuance of a new certification to the petitioner herein on February 4, 1977 for a bargaining unit described as:

“Included:          Non-uniformed employees of the City of Anacortes, Washington.

Excluded:           Sanitation employees, Fire & Police Department employees, Supervisors & confidential employees.”

(Decision No. 177 (PECB, 1977) in Case 534-E-76-99).

The 1977-1978-1979 collective bargaining agreement entered into by the parties on February 23, 1977 describes the bargaining unit in substantially identical terms.

POSITIONS OF THE PARTIES

The city has taken action to “remove” two positions from the bargaining unit. It contends that the “secretary to the director of public works” is excluded from the bargaining unit under the provisions of RCW 41.56.-030(2) as a confidential employee. The city further contends that the “engineering supervisor” has supervisory duties and responsibilities which require his exclusion from the bargaining unit.

The union disagrees with the position of the employer and seeks to retain both of the disputed positions in its bargaining unit. It filed the petition herein following the city’s purported removal of the positions from the bargaining unit.

DISCUSSION:

The authority of the Public Employment Relations Commission to determine bargaining units is found in RCW 41.56.060:

“41.56.060. Determination of bargaining unit—Bargaining representative. The commission, after hearing upon reasonable notice, shall decide in each application for certification as an exclusive bargaining representative, the unit appropriate for the purpose of collective bargaining. In determining, modifying, or combining the bargaining unit, the commission shall 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. The commission shall determine the bargaining representative by (1) examination of organization membership rolls, (2) comparison of signatures on organization bargaining authorization cards, or (3) by conducting an election specifically therefore.” (Emphasis added).

Parties may agree on units, but such an agreement does not indicate that the unit agreed to is or will continue to be appropriate. The employer and the union involved here stipulated to the unit description during the processing of the representation case which resulted in the most recent certification, and have re-affirmed their agreement to the unit description in their current collective bargaining agreement.

SECRETARY TO DIRECTOR OF PUBLIC WORKS

Cherry Monahan has served as the secretary to the city’s public works director (under her current job title and a previous title) since 1974. The public works director is neither elected nor appointed to office for a specified term of office. Her position had been regarded as one which was included in the bargaining unit, and she was an eligible voter in the representation election conducted by the Commission on January 25, 1977.

The director of public works does not participate in collective bargaining negotiations. Grievances are routed through the director to the city manager and administrative assistant for resolution. A small portion of Ms. Monahan’s time (primarily limited to situations where the city manager’s secretary is absent) is spent on work for the city manager and administrative assistant. The city manager’s secretary and one other clerical employee have previously been excluded from the bargaining unit as “confidential”.

The evidence fails to disclose significant contacts with or access to the city’s confidential labor relations policies. The administrative assistant has not utilized Ms. Monahan’s services on matters relating to labor relations. Ms. Monahan occasionally types grievance materials relating to public works department personnel. The testimony indicates that Monahan’s duties have remained basically unchanged throughout her tenure with the city. Although there was testimony which indicated that she was once involved in at least a part of the preparation of the city’s proposal for another bargaining unit while still regarded as a member of the W.S.C.C.C.E. bargaining unit, the record fails to disclose any significant change of circumstances at or around May, 1977, when the city claimed to remove her from the bargaining unit. The term “confidential” is not defined in RCW 41.56.030, but appears in the provision of the Act which defines “public employee”:

“(2) “Public employee” means any employee of a public employer except any person (a) elected by popular vote, or (b) appointed to office pursuant to statute, ordinance or resolution for a specified term of office by the executive head or body of the public employer, or (c) whose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to the executive head or body of the applicable bargaining unit, or any person elected by popular vote or appointed to office pursuant to statute, ordinance or resolution for a specified term of office by the executive head or body of the public employer.” (Emphasis added).

A position of responsibility and the ability of the employee to maintain the trust of the employer do not necessarily imply the type of confidntiality addressed by the Act. City of Buckley, Decision 287-A (PECB, 1977). The confidentiality exclusion originated in the decisions of the National Labor Relations Board and recognizes the potential or real conflict of interest (with attendant damage to the bargaining process) where an employee represented by a labor organization is privy to the confidential labor relations policies and information of the employer. City of Lacey, Decision 396 (PECB, 1978). The record indicates that such contacts have been at most infrequent, and that Monahan’s primary responsibilities and her primary supervisor are not involved with labor relations matters. Additionally, with two of four city clerical employees already excluded from bargaining as confidential employees, there is no justification for the additional exclusion sought by the city.

ENGINEERING SUPERVISOR

James Pemberton began his city career in 1974 as an engineering aide, later moving up to engineering technician and in April, 1977 to engineering supervisor. The engineering supervisor title was new at that time, and Pemberton assumed the majority of the duties vacated by the former assistant city engineer/director of community development, who terminated his employment in March, 1977. The assistant city engineer/ director of community development was one of several “supervisory” positions excluded from the bargaining unit in the 1974-75 unit clarification proceedings before the Department of Labor and Industries, and the occupant of that position was not eligible to vote in the representation election conducted by PERC in January, 1977. The city’s claim to exclusion of Pemberton’s position from the bargaining unit following his promotion is premised on the “supervisor” exclusion contained in the most recent certification of the unit.

Pemberton reports to the public works director, who in turn reports to the city manager. The engineering supervisor heads the city’s engineering department and has seven subordinates. He has authority to recommend the hiring, firing and discipline of employees, and the testimony indicates that such recommendations are effective. His other duties involve a variety of engineering tasks.

In determining supervisory status, the criterion which is looked to first and most often is the authority of the individual in question to hire or fire employees or to recommend effectively (without further investigation by superiors) such hiring or firing. W. Horace Williams Co., 130 NLRB 223 (1961). The exercise of authority or the authority to exercise authority is sufficient to require classification of an individual as a supervisor even if most of his time is spent in normal production or maintenance duties. NLRB v. Brown and Sharpe Mfg. Co., 169 F.2d 331 (CA 1, 1948). The existence of such authority has been established in the instant case.

Pemberton’s departmental responsibilities most closely align with those of his counterpart supervisors in maintenance and operations, who are excluded from the bargaining unit. Supervisors are employees within the meaning of RCW 41.56. City of Tacoma, Decision 95-A (PECB, 1977); Municipality of Metropolitan Seattle v. Department of L & I, 88 Wn.2d 930 (1977). Supervisors may be included in the same unit with rank and file employees, but will be excluded from rank and file bargaining units where it is found that they have distinct duties, skills and working conditions which require separate unit treatment. See: City of Buckley, supra, as compared with City of Richland, Decision 279-A (PECB, 1978).

The union has argued that Tacoma and Metro, supra, represent a change in the interpretation of the law so that the “supervisor” barrier previously established by the Department of Labor and Industries should be torn down in this case. This case is not an appropriate vehicle for the elimination of the supervisor barrier, as inclusion of the supervisors in any unit would raise a question concerning representation. Additionally, a separate supervisor unit, such as those found appropriate in Tacoma and Metro is an alternative which could be explored, but is not appropriate to decide here.

FINDINGS OF FACT

1. The City of Anacortes is a municipal corporation of the State of Washington.

2. Washington State Council of County and City Employees, Local 307, AFSCME, AFL-CIO is a bargaining representative certified as the exclusive representative of employees of the City of Anacortes in a bargaining unit consisting of all non-uniformed employees, excluding sanitation employees, fire and police department employees, supervisors and confidential employees.

3. The position now known as secretary to the director of public works has historically been included in the bargaining unit. Two other office clerical positions have been excluded from the bargaining unit on the basis of confidentiality.

4. The duties of the secretary to the director of public works have undergone no basic changes since the incumbent began her employment in 1974. The director of public works is not involved in labor relations matters for the employer except for routine processing of grievances for determination at a higher level. The secretary to the director of public works has had only infrequent contacts with confidential information pertaining to the labor relations policies of the employer, and such matters are outside the scope of her primary assignment.

5. The job classification presently known as engineering supervisor is a successor to the former position of assistant city engineer/ director of community development. The predecessor position, along with other “supervisor” positions in the employer’s table of organization, has historically been excluded from the bargaining unit. The engineering supervisor has the authority to recommend effectively the hiring, discipline or discharge of nonsupervisory employees, and directs and assigns members of the bargaining unit.

CONCLUSIONS OF LAW

1. The secretary to the director of public works is and has been a public employee within the meaning of RCW 41.56.030(2) and is not a secretary whose duties necessarily imply a confidential relationship to the executive head or body of the applicable bargaining unit or to any person elected by popular vote or appointed to office for a specified term.

2. The engineering supervisor is a “supervisor” as that term is used in the National Labor Relations Act, the previous decisions of the Department of Labor and Industries and in the recognition article of the collective bargaining agreement between the parties. The engineering supervisor and other supervisors excluded from the bargaining unit have separate and distinct duties, skills and working conditions which warrant their exclusion from a bargaining unit composed primarily of their subordinates.

3. The bargaining unit described in finding of fact 2, above, is a matter of agreement between the parties, and is an appropriate unit for the purposes of collective bargaining.

4. To the extent that supervisors are employees within the meaning of RCW 41.56, any attempt to accrete supervisors, as a class, to the existing bargaining unit or to create a separate unit of supervisors raises a question concerning representation which cannot be resolved in unit clarification proceedings.

ORDER CLARIFYING BARGAINING UNIT

The position of secretary to the director of public works is included in the bargaining unit described in finding of fact paragraph 2, above, and the position of engineering supervisor is excluded from that bargaining unit.

DATED at Olympia, Washington this 15th day of June, 1978.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director