STATE OF WASHINGTON BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
PIERCE COUNTY	CASE 8041-C-89-439
For clarification of an existing bargaining unit of its employees represented by:	DECISION 3870 - PECB
WASHINGTON STATE COUNCIL OF COUNTY AND CITY EMPLOYEES, AFSCME, AFL-CIO	ORDER CLARIFYING BARGAINING UNIT

Richard H. Wooster, Deputy Prosecuting Attorney, appeared on behalf of the employer.

Lori Province. Union Representative, appeared on behalf of the union.

On June 19, 1989, Pierce County filed a petition for clarification of an existing bargaining unit with the Public Employment Relations Commission. The employer seeks to separate employees holding the title of: “correctional sergeant” from a bargaining unit of jail employees represented by the Washington State Council of County and City Employees, AFSCME, AFL-CIO (WSCCCE). A hearing was held on December 13, 1990, in Tacoma, Washington, before Hearing Officer Jack T. Cowan. Final briefs were mailed on March 27, 1991. The authority to determine this “eligibility” dispute has been delegated by the Executive Director to the Hearing Officer, pursuant to WAC 391-35-190.

BACKGROUND

The Pierce County Sheriff’s Department is responsible for the operation of the county correctional facility, which is located at the county seat in Tacoma, Washington. A medical facility is operated in conjunction with the correctional facility. Staffing well in excess of 100 employees includes employees holding paramilitary titles of “captain”, “lieutenant” and “sergeant”, as well as correctional officers, cooks and the staff members in the medical facility.

The WSCCCE is the exclusive bargaining representative of a bargaining unit described as:

... [A]11 full time and regular part-time employees of the Pierce County Corrections and Detention Center, including Correctional Sergeants, Correctional Officers, Cook I, Cook II, Physician Assistant, Staff Pharmacist, and Medical Administrative Assistant as listed in Appendix A, but excluding those employees represented by other labor organizations, supervisors, confidential employees, and all others. [emphasis supplied]

There are eight correctional sergeants, approximately 116 correctional officers, nine cooks, and seven staff members in the medical facility.

At the time the petition was filed, the employer indicated that the parties’ latest collective bargaining agreement had been for the period of January 1, 1986 through December 31, 1988. The parties signed a new contract on January 23, 1990 that was to be effective from that date through December 31, 1990.

The Correctional Sergeants

Testimony received in evidence at the hearing in this proceeding establishes that there is no knowledge of the existence of any class specification or job description for the position of correctional sergeant. Further testimony verified that, in the absence of a formal classification specification, the standard practice in Pierce County personnel affairs has been (and continues to be) that the job announcement for a position or classification serves as the job description. All correctional sergeant positions are filled by promotion. Thus, the recent promotional announcements have served as the description of the classification at issue in this proceeding.

A promotional announcement for the position of “correctional sergeant” dated April 8. 1985’ defines the nature of work as follows:

NATURE OF WORK

This is supervisory correctional work in the Pierce County Jail. Employees are responsible for supervising the booking and releasing of inmates, transporting of inmates, identification processing, maintaining jail records, courtroom security and electronic monitoring of movement within the facility. Responsible for shift assignments of correctional officers. Employees are responsible for the evaluation and counseling of assigned staff and other related duties as assigned. Work is performed under the general supervision of the Associate Administrator of Custody, who reviews work methods and evaluates performance through reports and observation. Employees are required to work on a shift rotation basis.

The “nature of work” defined in a promotional announcement dated June 1. 1987, was identical to the 1985 wording, except the position had come under the supervision of a “correction lieutenant”, rather than the “associate administrator of custody”. That change reflected a change of administrative structure which took place when the new Pierce County Jail became operational.

A job analysis of the “correctional sergeant” position was performed in 1989, in anticipation of a promotional announcement. The detailed job announcement dated August 10, 1989, then set forth the responsibilities of the position, as follows:

NATURE OF WORK

This is supervisory correctional work in the Pierce County Jail. Correctional Sergeants are responsible for supervising the daily operation of the facility including the booking and releasing of inmates, transporting of inmates, identification processing, maintaining jail records, courtroom security and electronic monitoring of movement within the facility. The Correctional Sergeants are responsible for shift assignments of Correctional Officers and are responsible for the evaluation and counseling of assigned staff and other related duties as assigned. Work is performed under the general supervision of a Correctional Lieutenant who reviews work methods and evaluates performance through reports and observation.

KNOWLEDGE. SKILLS AND ABILITIES

Knowledge of modern correctional methods, procedures and philosophies and of the rules and regulations of the Sheriff’s Department; thorough knowledge of applicable laws and ordinances; knowledge of the behavior of criminals and underlying criminality; basic knowledge of and ability to effectively apply supervisory and management techniques; ability to handle situations firmly, tactfully and respectfully; ability to analyze situations quickly and objectively and to determine a proper course of action; ability to effectively and clearly communicate orally and in writing; ability to establish and maintain positive and effective working relationships.

MINIMUM QUALIFICATIONS

General: Two (2) years as a regular* Pierce County Correctional Officer (first year probationary period plus two (2) years continuous service).

*          “Regular Employee” shall mean any employee in the Classified Service who has been permanently appointed after serving a probationary period to a position established by appropriate legislative action and normally involving year-round service.

During the negotiations leading to the parties’ 1990 collective bargaining agreement, the employer proposed to change the first step of the grievance procedure, so that grievances would be initiated with the “lieutenant” instead of with the “sergeant”. The basis for that change was to eliminate any conflict if a member of the bargaining unit needed to process a grievance.

POSITIONS OF THE PARTIES

The employer contends that the employees holding the title of “correctional sergeant” should be excluded from the existing bargaining unit, because their continued inclusion in that unit adversely impacts managerial control, creates unnecessary conflict in the execution of the employer’s policies, and generates labor disputes that would not arise in the absence of the correctional sergeants being included in this bargaining unit.

The union argues that the correctional sergeants are performing administrative and operational work functions for the employer in essentially the same manner as a “working foreman”, and should remain within the existing bargaining unit.

DISCUSSION

The authority of the Public Employment Relations Commission to define 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 the 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 agreements of the parties on unit determination matters are not binding on the Commission. At the same time, absent a change of circumstances warranting a change of the unit status of individuals or classifications, the unit status of those previously included in or excluded from an appropriate unit by agreement of the parties or by certification will not be disturbed. City of Richland, Decision 279-A (PECB, 1978), affirmed 29 Wn.App 599 (Division III, 1981), review denied 96 Wn.2d 1004 (1981).

Commission precedent dating back to City of Tacoma, Decision 95-A (PECB, 1977) has recognized that “supervisors” are employees within the meaning and coverage of Chapter 41.56 RCW. Accord: Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977). At the same time, supervisors will normally be excluded from the bargaining which contains their subordinates, due to the potential for conflicts of interest that would otherwise arise within the bargaining unit. Richland, supra.

Timeliness of the Petition

The Commission has adopted standards for the filing of unit clarification petitions in WAC 391-35-020, codifying the policy first announced in Toppenish School District. Decision 1189-A (PECB, 1981).

The petition to initiate this proceeding appears to be timely and free of procedural defects. Possible exclusion of the sergeants from the bargaining unit was a matter of discussion between the parties during their negotiations in 1989. The union was made aware of the employer’s intent to pursue the matter through the unit clarification process. The employer’s petition was then filed prior to the signing of the new agreement.

Duties. Skills and Working Conditions

The promotional announcement issued in 1989 was developed after a job analysis of the “correctional sergeant” position, and appears to be a realistic portrayal of the duties involved. Based on the fact that all “correctional sergeant” positions are filled by promotion from the “correctional officer” ranks within the bargaining unit, and in the absence of any evidence to the contrary, it appears that the knowledge, skills and abilities of the disputed classification are primarily acquired from previous experience. These facts tend to support a conclusion that a community of interests could continue to exist between the disputed employees and the existing bargaining unit.

While the duties of the classification were never in dispute, the levels of responsibility and an alleged conflict of interest have been debated here. The employer has cited a number of Commission decisions dealing with exclusion of supervisors from bargaining units, including Benton County, Decision 3565 (PECB, 1990), where it was stated:

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

See also, Spokane International Airport. Decision 2000 (PECB, 1984); City of Pasco. Decision 2636 (PECB, 1987). The employer further notes that “working foremen” were excluded from the bargaining unit in Whitman County. Decision 1697 (PECB, 1983), where they exercised independent judgment in numerous personnel matters including “hiring, assignment, promotion, transfer, discipline and work performance”. In contrast, the union relies primarily on Washington State Patrol, Decision 2806-A (PECB, 1988), where it was found that, “Sergeants do not possess supervisory authority, and their inclusion in the existing bargaining unit would not create an inherent conflict of interest”.

The extent of supervisory control and authority varies from case to case, within certain fundamentals in workplace relationships. In every work environment, there must be consummate reliance by superiors on the decisions and judgment exercised by subordinates; a level of trust which assumes knowledge and ability. Reliance of senior officials upon decisions made by first-level supervisors is indicative of such employer dependence on the adequacy of the supervisor’s work performance. Accordingly, subsequent approval of the actions or decisions of the supervisors is often to be for the purpose of overview and coordination, and not merely to identify or prevent possible errors of action or inaction. In other cases, the decisionmaking authority is vested at a higher level than that which deals directly with rank-and-file employees. Thus, each case must be evaluated on its own merits. The titles assigned by employers to positions haye little or no weight in determining their bargaining unit status.

Distinguishing Duties -

The “correctional sergeant” employees at the Pierce County Jail have a responsibility to oversee all matters pertaining to inmates at the facility, including their booking, identification, transportation, monitoring of movement and release. The preponderance of work involving direct contact with inmates is performed by bargaining unit employees in the “correctional officer” classification, allowing the “correctional sergeant” to perform other related duties.

If there has been a change of circumstances, it has been the introduction of lieutenant and captain ranks which have made the proximity of the disputed employees to the elected sheriff more remote. While the employees in the “correctional sergeant” class had once reported directly to the associate administrator of custody, they now report to a lieutenant. The record gives the impression that the employees in the excluded “captain” and “lieutenant” ranks are quite distant from day-to-day handling of prisoners. The mere existence of the lieutenant and the captain in positions of review and approval raises questions as to just how much actual authority has been delegated to the sergeants.

Scheduling of Work -

Sergeants prepare work schedules and assign officers to accommodate shift requirements, although the actual numbers of officers assigned to each shift are determined by the lieutenants. The work schedules prepared by the sergeants are approved by both the lieutenant and captain. While a sergeant could theoretically impact budget and cost factors by scheduling overtime, it appears that the review of the schedules by more senior officers and failsafe supplemental authorization procedures would effectively control or eliminate any cost overrun in this area.

Sergeants initially approve shift trades between employees, and there was some indication that such trades may not require additional authorization.[1] Changes of assignment on a given shift are determined by the sergeant.

Although sergeants initially approve requests for leaves of absence and vacations, final approvals for such transactions are given at a higher level.[2]

Evaluation of Subordinates -

The disputed employees work in close proximity with “correctional officer” employees, and are in an advantageous situation to observe the performance and work efforts of the officers. The sergeants provide a monthly evaluation for each officer during that officer’s probationary period. Such evaluations provide a basis for critique of suitability, as well as performance, and they are also used to identify training needs for the probationary employee.

Evaluations of other “correction officer” employees are prepared by the sergeants on a periodic basis, and can include recommendations for recognition or promotion. The evidence is mixed as to the weight that a sergeant’s evaluation would be given if termination of the employment of a “corrections officer” was being considered. One witness stated that the sergeant’s only recommendation of discipline had been disregarded by his superiors. That supports an inference, at a minimum, that the evaluations and/or recommendations made by the disputed correctional sergeants are reviewed by senior officials as part of an independent decisionmaking process.

Contract Administration

A primary stumbling block between the parties was eliminated when they agreed in their 1990 contract to replace the “correctional sergeant” with a “lieutenant” at the first step of the grievance procedure. Communications between bargaining unit employees and senior officials were thus streamlined, and a way was cleared for correctional officers to file grievances in instances where there was a desire to stimulate or accelerate the independent review of a workplace decision made by a sergeant. Moving the first step of the grievance procedure from the sergeant level to the lieutenant level had a ripple effect, however, as it tended to lessen the credibility of arguments favoring a “supervisor” exclusion for the correctional sergeants.

Conclusions

The activities and authority of the employees in the “correctional sergeant” classification do not merit their exclusion from the existing bargaining unit. The disputed employees occupy responsible, front-line roles in the employer’s operation, much like a sergeant in a military unit; but they have neither the authority nor the responsibility of officer status. The real authority to act on behalf of the employer in personnel matters appears to be vested in the lieutenant and captain ranks. As in City of Redmond, Decision 2269 (PECB, 1985), the alleged conflict of interest has not been substantiated by the evidence. The sergeants are more appropriately aligned with the correctional officers and will so remain.

FINDINGS OF FACT

1.         Pierce County is a political subdivision of the State of Washington, and is a public employer within the meaning of RCW 41.56.030(1). The Pierce County Sheriff’s Department is responsible for the operation of the county correctional facility, which is located in Tacoma.

2.         The Washington State Council of County and City Employees, AFSCME, AFL-CIO, a bargaining representative within the meaning of RCW 41.56.030(3), is the exclusive bargaining representative of a bargaining unit of employees at the Pierce County correctional facility, including correctional sergeants, correctional officers, cooks, physician assistant, staff pharmacist, and medical administrative assistant.

3.         During negotiations in or about 1989, the employer sought removal of employees in the “correctional sergeant” classification from the bargaining unit. Upon the failure of the parties to agree on that matter, the employer filed a petition on June 19, 1989 to initiate this unit clarification proceeding. Such petition was filed prior to the parties’ signing of a collective bargaining agreement effective through December 31, 1990.

4.         The employees in the “correctional sergeant” classification are responsible for overseeing the daily operation of the jail facility, including the booking, identification, transportation and releasing of inmates, maintenance of jail records, maintenance of courtroom security, and electronic monitoring of movement within the facility. Such duties are an extension of the duties of employees in the subordinate “correctional officer” classification, and are distinguished from the duties of the recently-created superior classifications of “captain” and “lieutenant”.

5.         Sergeants prepare work schedules conforming to decisions made by the lieutenant concerning the actual numbers of employees to be assigned to each shift. The work schedules prepared by the sergeants are approved by both the lieutenant and the captain. Sergeants initially approve shift trades between employees, but supplemental authorization is required in at least some such instances. Sergeants initially approve leaves of absence and vacation requests, but final approval of all such transactions is made by the captain or the sheriff.

6.         Although the “correctional sergeant” was formerly the first step in the processing of grievances under the collective bargaining agreement between the employer and union, the parties agreed in their 1990 contract to replace the sergeant classification with the lieutenant as the first step of the grievance procedure.

CONCLUSIONS OF LAW

1.         No question concerning representation currently exists in the bargaining unit involved, and the Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapter 41.56 RCW and Chapter 391-35 WAC.

2.         The employees in the classification of “correctional sergeant” have duties, skills and working conditions and a history of collective bargaining which indicate an ongoing community of interest with the employees in the existing bargaining unit, and their limited authority to act on behalf of the employer does not establish a sufficient potential for conflict of interest to warrant their exclusion from the existing bargaining unit under RCW 41.56.060.

ORDER

The bargaining unit described in paragraph 2 of the foregoing findings of fact is clarified to include the classification of “correctional sergeant”.

Dated at Olympia, Washington, the 26th day of September, 1991.

PUBLIC EMPLOYMENT

RELATIONS COMMISSION

[SIGNED]

J. T. COWAN

Hearing Officer

This order may be appealed by

filing a petition for review

with the Commission pursuant

to WAC 391-35-210.