Robert A. Chauvin, Staff Representative, appeared on behalf of the petitioner.

Williams, Lanza, Castner and Gibbs, by Gerard F. Gasperini, Attorney at Law, appeared on behalf of the employer.

On September 14, 1983, Washington State Council of County and City Employees Local 275 (union) filed a petition with the Public Employment Relations Commission seeking clarification of an existing bargaining unit of employees of Grays Harbor County (employer) with respect to the position of assistant deputy to the county assessor. A hearing was held on January 26, 1984, before Frederick J. Rosenberry, Hearing Officer. The parties submitted post-hearing briefs.

BACKGROUND

When the petition was filed, the union and the county were parties to a collective bargaining agreement which was in effect from January 1, 1983 to December 31, 1983. Relevant provisions of the recognition clause of the expiring collective bargaining agreement provided:

The employer recognizes the union as the sole designated representative for all employees of the Grays Harbor Courthouse, in any department represented or funded by the Grays Harbor Board of County Commissioners.

Excluded from the unit were the following:

Deputy Sheriffs; Deputy Prosecutors; Chief Deputies, one (1) in any department; Elected Officials; Appointed Officials, which have been appointed or approved by the county commissioners; Secretary, (2) to county commissioners; Health Department - Director of Nursing, Director of Environmental Health, Director of Family Planning, Provided these excluded employees are free to become members of the union if they so desire. However, they will not be covered by the provisions of this agreement.

At the time of the hearing the parties were engaged in collective bargaining for a successor agreement.

The assessor's office has a staff of 21 employees in addition to the elected assessor and his chief deputy. Ten employees are real property appraisers. The chief deputy, who is excluded from the bargaining unit, is the person in charge in the absence of the elected official, and also serves as office manager.

Prior to the events leading to the present dispute, the department staff included the position of appraisal supervisor, which had been included in the bargaining unit. The county described the job as:

Appraisal supervisor, basic function: Works with the approval of the county assessor to develop, maintain, and supervise the appraisal methods of real property in order to establish its true and fair value according to state laws.

Specific responsibilities: (1) the training of appraisers and periodic checking of their work methods. (2) assists in preparation of data for their appearance before county and state boards of equalization. (3) maintains a current knowledge of the laws as they pertain to the assessment of property. (4) maintains records of appraisal data. (5) must have good "communication" with assessor and chief deputy. (6) the ability to establish and maintain working relations with subordinates and the public.

The position of appraisal supervisor was most recently filled by Gerald Walker, who advanced to the position after serving as an appraiser. While employed as appraisal supervisor, Walker performed employee evaluations, drafted work schedules and made requests for supplies and staffing. Such activity was subject to the approval of the elected assessor, who oversaw Walker's work. Walker testified that in his appraisal supervisor position he did not have authority to hire, fire or provide budgetary input.

The present county assessor, F. Paul Easter, was elected to ofice in 1982 and assumed office in January, 1983. Subsequent to taking office, it came to Easter's attention that Walker's salary was less than that of the highest appraiser category, and that he was included in the bargaining unit. The assessor believed that the position should be excluded from the bargaining unit because Walker, at the assessor's direction, provides supervision, administrative direction and coordination of work for all field personnel. On April 11, 1983, the assessor wrote a letter to the county's board of commissioners, requesting abolition of the position of appraisal supervisor and creation of a new position titled "administrative appraiser-assistant deputy", with a higher salary for expanded responsibilities. On April 25, 1983, the commissioners adopted a resolution granting the assessor's request. The resolution provided, in relevant part, as follows:

... the position of Appraisal Supervisor is abolished and a new position created to include, training and evaluation of the field crew, supervision and review of all field activities, and assisting the Assessor and Chief Deputy in labor relations including assistance in collective bargaining processes, all at the direction of the County Assessor,...

The record indicates that the assistant deputy is also specifically charged with the responsibility of assisting the assessor in determining the cyclical evaluation schedule, providing technical assistance in resolving complex or unusual appraisal problems, developing evaluation data and rates and participation in appraisal program design.

Gerald Walker applied for the position of assistant deputy. He was the only candidate, and he was appointed to the position on May 1, 1983. As assistant deputy he reports directly to the assessor and is the supervisor in charge of the appraisal staff. He administers the collective bargaining agreement, adjusts grievances at the initial level and has authority to enforce provisions of the collective bargaining agreement. Moreover, the assistant designates the appraisers' work assignments, assigns them to training sessions, participates in staff budgeting, conducts pre-hire interviews and assists the assessor in decisions to hire. He has authority to assign overtime, monitor and evaluate appraiser performance, give oral and written reprimands as well as to suspend and effectively recommend discharge^ The assistant deputy is paid on a monthly salary with no prescribed work day or work week. He does not use the timeclock to record work time, as is required for members of the bargaining unit, and is not eligible for overtime pay or compensatory time. He is authorized to make department purchases and commit the county's credit. The assistant deputy also has supervisory authority over the entire office clerical staff in the absence of the assessor and chief deputy. On occasion the assessor has asked for Walker's opinion and input regarding labor relations and union contract negotiations.

Grays Harbor advised the union in contract negotiations that it believed that the assistant deputy position should be excluded from the bargaining unit. The union disagreed, and filed the instant petition.

POSITIONS OF THE PARTIES

The county claims that the disputed position warrants exclusion on the basis of confidentiality because the incumbent has an intimate and fidiciary relationship with the assessor regarding labor relations. The county further contends that the assistant is a supervisor who lacks a community of interest with bargaining employees unit and that his inclusion in it would constitute an inherent conflict of interest. The employer also maintains that because the assistant deputy position is appointed by the commissioners, it is excluded from the bargaining unit by the terms of the collective bargaining agreement.

The union claims that no substanital change of the appraisal supervisor's duties have taken place warranting exclusion from the bargaining unit. Maintaining that the only change has been one of title, the union relies on the fact that the assistant's position has historically been a part of the bargaining unit. The union also charges that the creation of the assistant deputy position is a ploy on the part of the employer to circumvent the collective bargaining agreement and exclude the position from the unit even though the minor change in duties does not warrant it, therefore, the position of assistant deputy should not be excluded from the bargaining unit. According to the union, the assistant does not participate in the county's formulation of confidential labor relations policy, and the final determination to hire, discipline or discharge rests with the assessor.

DISCUSSION

The Confidentiality Claim

An employers' claim of confidentiality requires careful evaluation. In order to establish a claim of confidentiality, there is a heavy burden on the employer. See: City of Seattle, Decision 689-A (PECB, 1981) and Cape Flattery School District, Decision 1249-A (PECB, 1982). In International Association of Firefighters v. City of Yakima, 91 Wn.2d 101 (1978) the court stated:

We hold that in order for an employee to come within the exception of RCW 41.56.030(2), the duties which imply the confidential relationship must flow from an official, intimate fidiciary relationship with the executive head of the bargaining unit or public official. The nature of this close association must concern the official and policy responsibilities of the public officer or executive head of the bargaining unit, including formulation of labor relations policy. General supervisory responsibility is insufficient to place an employee within the exclusion.

There is a difference between supervisory and confidential employees. An employee cannot be considered to be confidential simply because he or she is a supervisor. In Central Kitsap School District, Decision 1296 (PECB, 1982), were the disputed individual was responsible for hiring, assigning work, evaluation, discipline, termination, hearing grievances on behalf of the employer and evaluating staffing needs, and was consulted as a secondary resource by the employer for evaluation of the effects of union proposals made in negotiations, it was nevertheless held that the limited evaluative role in collective bargaining was too remote to justify a finding that there was an intimate fudiciary relationship with the management bargainers. Confidential exclusion was denied. In Cowlitz County, Decision 564-A (PECB, 1979), a claim of confidentiality was raised regarding the position of personal property chief appraiser/auditor. As in the case at hand, the disputed employee reported to the elected assessor, made responses to taxpayer complaints, worked with confidential tax payer documents, attended meetings in the place of the assessor, had responsibility for the annual evaluation of personal property, and participated in the interviewing of prospective employees. In Cowlitz County, the assessor discussed personnel matters with the chief appraiser, but final decisions were made by the assessor. Knowledge of delicate or confidential tax payer matters did not meet the required confidential labor relations test, and it was found that the incumbent did not have an intimate fidiciary relationship with his superior on matters of labor relations policies. The request for exclusion as a confidential employee was denied.

In the instant case the authority to formulate, determine and effectuate labor relations policy is vested in the county's board of commissioners and the other elected officials. The assessors office is only one segment of the county's overall operation. The assessor has, on occasion, discussed labor relations proposals with his chief deputy and with the assistant deputy and he has requested the assistant deputy's opinion, advice, and preference on labor relations matters. However, the record does not reflect that the affected employee has been in direct contact with the board of commissioners, has attended executive level policy making meetings or has been a part of the employer's negotiating team. He has not prepared proposals for negotiations, or adjusted grievances beyond the initial step. The incumbent's conversations with the assessor are thus somewhat remote from the center of labor relations authority and can be viewed as Casual conversation between colleagues in which the assessor acquires personal information from a respected employee. The record made is insufficient to justify a finding that the assistant deputy is a confidential employee.

The Supervisory Claim

Under the principles established in City of Richland, Decision No. 279-A (PECB, 1978) aff. 29 Wn. App. 599 (Division III, 1981); cert. den., 96 Wn.2d 1004 (1981), employees who interview candidates for employment, who make effective recommendations to hire, who are consulted on policy and budgetary matters, and who have and exercise substantial authority over bargaining unit employees, are supervisory employees who are excluded from the bargaining unit which contains their subordinates. The separation is based on the different duties, skills, and working conditions between the supervisors and their subordinates. Thus in City of Bellevue, Decision 1214 (PECB, 1981), employees who performed 40% to 60% bargaining unit work and who also in the course of their duties evaluated or reprimanded employees and assigned work were found to be supervisory employees whose duties and working conditions raised the potential for conflicts which precluded their inclusion in a unit with the employees they supervise. In Mason County, Decision 1649 (PECB, 1983), it was found that the authority to act or to recommend effectively concerning assignment, transfer, scheduling of overtime work, discipline, discharge, and inspection of work peformed, constituted supervisory functions and that continued inclusion of the supervisor in the same bargaining unit with the employees supervised would create potential conflict of interest. City of Kent, Decision 1857, (PECB, 1984), involved a dispute regarding a position that had historically been included as part of a bargaining unit. Over a period of time, however, the position was transformed into a supervisory position and so exclusion from the bargaining unit was warranted. In White Pass School District, Decision 573-A (PECB, 1979), wherein it was determined that the district's claim of confidentiality failed to meet the statutory requirements the Commission found that the district had reorganized its administrative work force to the extent that supervisory exclusion was granted.

The appraisal supervisor position which existed in the past could be characterized as that of a foreman or leadperson. The disputed position has gone through a reorganizational transformation to the extent that the emerging assistant deputy position is one of supervisory responsibility and accountability which would place the incumbent, if he was to continue to be included in the bargaining unit, into a position of potential conflict of interest.

The Appointed Office Claim

Although the assistant deputy position was created pursuant to resolution, the county's claim of exclusion from the bargaining unit as an appointed position fails to meet the definition set forth in RCW 41.56.030(2)(c). The appointment to the assistant deputy position is not for a specified term of office.

FINDINGS OF FACT

1.                  Grays Harbor County is a political subdivision of the State of Washington and is a public employer within the meaning of RCW 41.56.030(1).

2.                  Washington State Council of County and City Employees, Local 275, a bargaining representative within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of a bargaining unit of all employees of the Grays Harbor County Courthouse in any department represented or funded by the Grays Habor County Board of Commissioners.

3.                  Local 275 and Grays Harbor County were parties to a collective bargaining agreement effective for the period from January 1, 1983 to December 31, 1983 encompassing the bargaining unit described in paragraph 2 of these findings of fact.

4.                  A dispute has arisen concerning the propriety of inclusion of the position of assistant deputy to the assessor in the bargaining unit. The position was created by county board of commissioners' resolution which was adopted on April 25, 1983.

5.                  The assistant deputy to the assessor exercises substantial supervisory authority on behalf of the employer. As supervisor of bargaining unit employees he has authority to schedule and assign work, counsel personnel on work performance, impose discipline, interview candidates for employment and effectively recommend the hiring or discharge of employees. The assistant deputy is involved in decisions regarding policy and budget.

6.                  The assistant deputy has not participated in collective bargaining on behalf of the county or participated in executive level meetings concerning the labor relations stratagies and policies of the employer.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and no question concerning representation presently exists.

2.                  The assistant deputy to the assessor does not have an intimate, fiduciary relationship with Grays Harbor County on matters regarding formulation of labor relations policy, and is not a confidential employee within the meaning of RCW 41.56.030(2)(c).

3.                  The assistant deputy to the assessor is a supervisor whose continued inclusion in the same bargaining unit with employees he supervises would create a potential for a conflict of interest such that his exclusion from the bargaining unit it appropriate under RCW 41.56.060.

ORDER

The assistant deputy to the assessor is excluded from the bargaining unit described in paragraph 2 of the foregoing Findings of Fact.

DATED at Olympia, Washington, this 24th day of September, 1984.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

This Order may be appealed by filing a petition for review with the Commission pursuant to WAC 391-35-210.