STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
BENTON COUNTY	CASE 8026-C-89-437
For clarification of an existing bargaining unit of employees of:	DECISION 3565 - PECB
WASHINGTON STATE COUNCIL OF COUNTY AND CITY EMPLOYEES, LOCAL 874-CH	ORDER CLARIFYING BARGAINING UNIT

Menke & Jackson by Anthony F. Menke, Attorney at Law, appeared on behalf of the employer.

Paul R. Sears, Business Representative, appeared on behalf of the union.

On June 8, 1989, Benton County, filed a petition with the Public Employment Relations Commission, seeking clarification of an existing bargaining unit of Benton County employees. A hearing was held at Prosser, Washington on May 18, 1990, before Kenneth J. Latsch. Thereafter, the Executive Director delegated his responsibility for issuance of a decision in this matter to Mr. Latsch. The parties filed post-hearing briefs.

BACKGROUND

Benton County, a county within the meaning of RCW 41.56.020, is headquartered at Prosser, Washington. The county is governed by three elected County Commissioners. Among other services to residents of the county, the employer maintains and operates the Benton County Auditor's Office. Bobbie Gagner, the current county auditor, was elected by popular vote in 1987. The auditor's office employs a licensing supervisor and a elections supervisor.

Washington State Council of County and City Employees, Local 874-CH, a "bargaining representative" within the meaning of RCW 41.56-.030(3), is the exclusive bargaining representative of a bargaining unit of county employees described in the current collective bargaining agreement as follows:

ARTICLE I - RECOGNITION

The Employer recognizes the Union as the exclusive bargaining agent for certain Benton County Employees as previously certified by the Public Employment Relations Commission, Case Number 3068-E-80-591. The Employer and the Union agree that the bargaining unit shall be defined as follows:

INCLUDED: All full time and regular part-time employees of the following offices and departments: Auditor, Assessor, Treasurer, Clerk, Central Services, and clerical employees in the Cooperative Extension Services, Road and Engineering, Prosecuting Attorney, District Courts, Superior Court, Planning and Building Department, and Facilities and Parks Department except as provided herein below.

EXCLUDED: All elected officials and appointed department heads in the above-mentioned departments where there are no elected officials; all administrative assistants in the departments referred to herein above; Chief Accountant/Audit Deputy in the Auditor's Office; Administrative Chief Accountant in the Treasurer's Office; Central Services Director; two (2) confidential secretaries to the Board of County Commissioners and the Administrative Assistant to the Board of County Commissioners; Appraisers of the Assessor's Office and all other employees of the County.

The employer and the union are parties to a collective bargaining agreement effective from January 1, 1989 to December 31, 1990. The collective bargaining agreement was signed by the parties in December, 1989.

The detailed job description of the licensing supervisor, which was prepared in 1987, sets forth the responsibilities of the position as follows:

Plans, organizes, coordinates and supervises all facets of vehicle registration, licensing, sales tax, tonnage and special permit issuance in the Licensing Department of the County Auditor's Office, and two annex offices.

The position acts as agent for the State of Washington, Department of Licensing, performing many responsible duties involving the implementation and enforcement of Washington State Laws and other regulations as they relate to the registration, licensing and title transactions on vehicles and vessels, with authority to notarize signatures on all State Department of Licensing forms.

The position is responsible for supervision of all personnel within the Licensing Department of the Benton County Auditor's Office inclusive of the two (2) annexes.

The specific duties of the position are:

Responsible for daily supervision of Licensing Department personnel inclusive of work performance evaluations, probationary reviews, authorization of vacation leave and sick leave; effective recommendation of hiring; authorized to carry out disciplinary action up to and including effective recommendation of discharge; approves time cards; directs office staff projects and responsibilities and performs other personnel-related functions as directed by the Auditor.

Serves as liaison and provides technical licensing assistance to annex offices, automobile dealerships and financial institutions which process auto license and vessel transactions; insures that employees are properly trained; answers technical questions as required. Establishes both on-site and book audit schedules; performs audits to insure correct procedures are being followed and balances checking accounts.

Supervises the collection and remittance of license fees to the proper government jurisdiction. Responsible for the final say in balancing the accounts.

Trains subordinates to operate computer terminal which is on line to State system. Responsible to insure that computer and all other office equipment are maintained and in good working order.

Responsible for the collection of money from all NSF checks, either form the financial institution, the customer or Olympia.

Maintains daily and monthly inventories and orders all supplies, equipment and repair work as needed to manage the license department.

Provides backup as needed for desk help; prepares remittances and bank deposits.

Ability to direct and coordinate activities of office staff; understand and apply complex laws and rules; develop procedures and forms; maintain favorable public relations; communicate clearly by speaking and writing; analyze complex problems and reach logical conclusions.

Registering and licensing motor vehicles and vessels. Calculate and collect the fees and make change for incoming monies promptly and accurately using a cash drawer. Close out at end of day with responsibility to balance against the days work and make up the deposit for the bank.

Ability to perform all functions of the Licensing Department, including but not limited to, the daily transmittal, ordering of supplies and training new employees. Also responsible for evaluation of employees.

This position also performs a variety of tasks for the Auditor's office as needed including accepting recording documents, accepting marriage licenses and voter registration.

Licensing supervisors are required to be a high school graduate or equivalent and have five years of responsible experience related to motor vehicle administration, including one year in a supervisory capacity.

The current licensing supervisor has 9 employees working at the headquarter office and two annexes in Kennewick and Richland under her direct supervision.

The detailed job description of the election supervisor, which was also prepared in 1987, sets forth the duties of the position as follows:

Plans, directs and supervises all aspects of voter registration; voting records and all public elections in Benton County.

This position is responsible for supervision of all personnel within the Election Department of the Benton County Auditor's Office.

The specific duties of the position are:

Responsible for daily supervision of Election Department personnel inclusive of work performance evaluations, probationary reviews, authorization of vacation leave and sick leave; effective recommendation of hiring; authorized to carry out disciplinary action up to and including effective recommendation of discharge; approves time cards; directs office staff projects and responsibilities; supervises entire staff of Auditor's office in Prosser in the absence of the Auditor and the Chief Accounting and Audit Deputy; supervises entire staff of the Auditor's offices in Kennewick and Richland in the absence of the Auditor and License Supervisor; and performs other personnel-related functions as directed by the Auditor.

Registering voters and typing voter registration cards, reading maps to assign precincts and maintaining voter records by accurate filing.

Responsible for preparation of legal documents required by all elections, preparation and placement of necessary legal ads as mandated by law, and maintenance of official legal files of each election.

Assesses precinct boundaries, determines if boundary adjustments are needed; prepares legal documents pertaining to the change and presents proposal to Board of County Commissioners; supervises implementation of approved changes.

Determines and defines positions up for election each year in all districts; coordinates all information pertaining to candidates filing period. Supervises and participates in registering candidates for elective offices; accepts filing fees and declarations of candidacy.

Coordinates and schedules data processing needs; provides requirements to development and implementation of new election programs; maintains and updates current programs to keep in compliance with legislative changes affecting elections.

Coordinates and supervises maintenance of canceled records and poll books through the statutory period; supervises annual purge of voter registration file.

Provides necessary information pertaining to elections in surveys and information studies and to the news media; issues press releases.

Maintains inventory of supplies, ordering supplies as needed by staff and for use in all elections.

The election supervisor is required to be a high school graduate or equivalent with specialized knowledge of Washington State, county and local taxing laws and election procedures; Washington State, county and municipal governmental structure; sound administrative and staff procedures; methods and form design; and modern office practices and computerization. Additionally, the supervisor must have five years experience demonstrating the required knowledge, skills, and abilities.

The current licensing supervisor has 8 employees at the Prosser, Kennewick, and Richland offices under her direct supervision. The number of employees in the election department varies throughout the year due to the frequency and scheduling of elections.

POSITIONS OF THE PARTIES

The employer contends that the licensing supervisor and election supervisor should be excluded from the bargaining unit because their continued inclusion in the unit creates a conflict of interest and friction with the employees they supervise, and that the petition for unit clarification was timely filed.

The union contends that the petition for unit clarification was not timely filed and does not meet the statutory requirements for having positions excluded from the bargaining unit, and that the licensing supervisor and election supervisor do not have the requisite authority to be excluded from the bargaining unit.

DISCUSSION

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

RCW 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....

Timeliness of the Petition

There are no procedural defects in the processing of this petition for unit clarification. The thrust of the Commission's decision in Toppenish School District, Decision 1143-A (PECB, 1981), and of its subsequent codification of the Toppenish policies in WAC 391-35-020, was to give parties notice of any potential changes to the scope of the bargaining unit, so that bargaining would be realistic in reflecting the actual situation between the union and the employer. It has been established that the local union and the head of the union's bargaining team had actual knowledge of the employer's request to exclude the licensing supervisor and elections supervisor from the bargaining unit prior to the final contract settlement. The union refused to voluntarily exclude the two positions, leaving the matter for this procedure. The petition was also filed well in advance of the contract being signed. No mischief has been done to the bargaining process; the petition for unit clarification is timely.

The Merits

Early in the Commission's history, the Commission and the Washington Supreme Court noted that the Public Employees' Collective Bargaining Act, Chapter 41.56 RCW, differs importantly from the National Labor Relations Act (NLRA), with respect to the status of supervisors. City of Tacoma, Decision 95-A (PECB, 1977); Municipality of Metropolitan Seattle vs. Department of Labor and Industries, 88 Wn.2d 925 (1976). The court noted that the NLRA is concerned with the authority that a supervisor exercises over other employees, and the possible conflict of interest with management. The court saw the Public Employees' Collective Bargaining Act, on the other hand, as being concerned with the relationship between employees and the head of the bargaining unit or other officials described in the act.

In accordance with the theory that "supervisors" are employees within the meaning of Chapter 41.56 RCW, the Commission ruled in City of Richland, Decision 279-A (PECB, 1978); aff. 29 Wn.App. 599 (Division III, 1981); pet. rev. den. 96 Wn.2d 1004 (1981), that:

Where a potential exists for conflicts of interest within the bargaining unit, or within the labor organization certified as exclusive bargaining representative, supervisors will be excluded from the bargaining unit which contains their subordinates.

The exclusion is based upon the unit determination provisions of the statute. RCW 41.56.060.

Duties, skills and working conditions

The licensing supervisor, Sue Johnson, and the election supervisor, Susie Christopher, work at the county administrative offices in Prosser, Washington. They authorize overtime; schedule employees daily, weekly, and monthly work; approve vacation and sick leave requests; participate in hiring; have authority to issue oral and written warnings and to effectively recommend higher amounts of discipline, train and evaluate employees; and can adjust employee grievances at the lowest level of the grievance procedure for employees stationed at all three of the county's facilities.

Testimony and evidence clearly indicate that both of the affected employees have exercised their supervisory authority. Christopher and Johnson have conducted interviews with employees who were being hired and have effectively recommended hiring of the successful candidates, and Johnson has effectively recommended various levels of discipline for subordinates. Christopher testified that she has the authority to discipline employees, but has not had to exercise her authority so far. They replace the auditor, chief accounting and audit deputy, and each other when they are absent from the main office.

Christopher and Johnson have budgetary responsibilities for their departments, train new employees and re-train veterans in new procedures and programs, have record keeping responsibilities, and purchase supplies for their respective departments.

Both of the affected employees testified about conflicts and friction with subordinate employees that arose from questions regarding their authority to make decisions affecting various subjects of employment. They consider their continued inclusion in the bargaining unit to be a conflict of interest with their supervisory duties.

This case is a close parallel to the situation in City of Richland, Decisions 279 (PECB, 1977) and 279-A (PECB, 1978), where battalion chiefs were included in the rank-and-file bargaining unit. In those cases the Examiner and Commission stated:

The problem inherent in grouping supervisors and nonsupervisors in the same bargaining unit are evident in the instant case. The president of the union local is a battalion chief. As a supervisor he owes a certain fiduciary duty to management. As union president he also owes a fiduciary responsibility to the union membership. The dilemma is apparent when an employee under his supervision files a grievance with him. In whose interest should he act? What pressures will he receive from either the City or the Union? Further, is it not more likely that grievances with regard to the battalion chief's actions, including imposed discipline, would not be filed? How could the aggrieved employee count on the support of his union? Wouldn't members of the battalion chief's platoon be hesitant to challenge his union leadership in view of the extent of his authority over them? Wouldn't discussion at union meetings of problems with supervisors be stifled? Supervisors tend to owe a higher degree of allegiance to management than do the rank and file, or at least this is the rank and file's view. The collective bargaining process would best be served by generally excluding supervisory personnel from a unit composed of subordinate employees. This conclusion was reached by the NLRB, prior to the 1947 Taft-Hartley Act's exclusion of supervisors from the ambit of the National Labor Relations Act.[1]

While the two supervisors in this case are not union officials, the same philosophy applies to this matter. Johnson and Christopher are clearly supervisors who should not be included in a unit of rank and file employees they supervise.

The History of Collective Bargaining

The union has represented the clerical employees of the employer since it was certified as exclusive representative by the Public Employment Relations Commission on October 22, 1980.[2] Since that date, the only exclusion in the Auditor's office was the position of chief accountant/audit deputy.

The history of bargaining indicates that since 1980 the union has represented a county-wide clerical employees unit whose function is to license vehicles and vessels, to hold and to conduct elections for municipalities, the county, and the state of Washington, and to provide other administrative functions related to county business. Such a unit is an appropriate bargaining unit under RCW 41.56.060.

The Extent of Organization

The extent of organization among the clerical employees is extensive and cannot be overlooked. Local 874-CH represents virtually all the employer's clerical employees. The only exclusions are for elected officials, department heads without elected officials, administrative assistants, and two (2) confidential employees.

Desires of the Employees

Although Johnson and Christopher testified about conflicts with their subordinates concerning their authority, the desires of the employees is unknown.

FINDINGS OF FACT

1.                  Benton County is a county within the meaning of RCW 41.56.020 and a "public employer" within the meaning of RCW 41.56.030(2). Benton County operates and maintains an auditor's office. The auditor's office employs individuals who hold the job titles of licensing supervisor and elections supervisor.

2.                  Washington State Council of County and City Employees, Local 874-CH, a "bargaining representative" within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of an appropriate bargaining unit of county employees that currently includes the licensing supervisor and elections supervisor.

3.                  The union and employer are parties to a collective bargaining agreement, signed in December, 1989, that is effective from January 1, 1989 to December 31, 1990.

4.                  The petition for unit clarification in this matter was filed on June 7, 1989.

5.                  The current licensing supervisor is Sue Johnson. She is responsible for supervision of licensing department employees at the county administration building and the employer's outlying offices at Kennewick and Richland. Johnson routinely assigns and schedules employees; evaluates departmental employees; can effectively recommend discipline, including discharge; develops and maintains the budget for the licensing department; approves vacation and sick leave; validates time cards including authorizing overtime; and supervises the Auditor's office in the absence of the auditor and chief accountant/audit deputy.

6.                  The current elections supervisor is Susie Christopher. She is responsible for supervision of election department employees at the county administration building and at the outlying offices in Kennewick and Richland. She assigns and schedules employees; can effectively recommend discipline, including discharge; develops and maintains the budget for the election department; approves vacation and sick leave; validates time cards including authorizing overtime; and supervises the auditor's office in the absence of the auditor, chief accountant/audit deputy, and the licensing supervisor.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction over this matter pursuant to Chapter 41.56 RCW.

2.                  The position of licensing supervisor is held by an individual who is a "public employee" within the meaning of RCW 41.56.060, and whose duties and responsibilities as a supervisor indicate a potential for a conflict of interest so that exclusion of the position from the bargaining unit is warranted under RCW 41.56.060.

3.                  The position of elections supervisor is held by an individual who is a "public employee" within the meaning of RCW 41.56.060, and whose duties and responsibilities as a supervisor indicate a potential for a conflict of interest so that exclusion of the position from the bargaining unit is warranted under RCW 41.56.060.

ORDER

The bargaining unit described in paragraph 2 of the foregoing findings of fact is clarified to exclude the positions "licensing supervisor" and "elections supervisor".

Dated at Olympia, Washington, this 29th day of August.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

KENNETH J. LATSCH, Hearing Officer

This order may be appealed by filing timely objections with the Commission pursuant to WAC 391-35-210.