STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
LEWIS COUNTY (formerly Lewis County Health District)	CASE 10441-C-93-615
For clarification of an existing bargaining unit of employees represented by:	DECISION 5259 - PECB ORDER OF DISMISSAL
TEAMSTERS UNION, LOCAL 252
In the matter of the petition of:
TEAMSTERS UNION, LOCAL 252	CASE 10951-E-94-1811
Involving certain employees of:	DECISION 5260 - PECB
LEWIS COUNTY	DIRECTION OF CROSS-CHECK

Eugene Butler, Deputy Prosecuting Attorney, appeared on behalf of the employer.

Davis, Roberts and Reid, by David Ballew, Attorney at Law, appeared on behalf of the union.

On April 28, 1993, the Lewis County Health District filed a petition for clarification of an existing bargaining unit with the Public Employment Relations Commission, pursuant to Chapter 391-35 WAC. The employer sought a ruling that the employee holding the newly created position of "public health nurse IV" is properly excluded from an existing bargaining unit represented by Teamsters Union, Local 252, due to status as a "supervisor".

On February 7, 1994, Teamsters Union, Local 252, filed a petition for investigation of a question concerning representation with the Commission, pursuant to Chapter 391-25 WAC. The union sought certification as exclusive bargaining representative of a unit of supervisory employees of the Lewis County Human Services Depart­ment, excluding the department head and confidential employees. In a statement attached to that petition, the union set forth the following explanation:

As of January 1, 1994, the Lewis County District Board of Health no longer exists. Lewis County created a Health Department which falls under the jurisdiction of the Human Services Department.

Lewis County has not contested the union's characterization of it as the employer, but it resisted creation of the supervisory unit on the basis that the petitioned-for individuals were "confidential" employees within the meaning of RCW 41.56.030(2) (c) .

The two cases were consolidated for a hearing held at Chehalis, Washington, on November 3, 1994, before Hearing Officer Kathleen O. Erskine. The parties filed post-hearing briefs.

BACKGROUND

Lewis County (employer) is governed by a three-member board of elected commissioners. Among the services provided to local residents, the employer maintains and operates a Human Services Department which is subdivided into five divisions: Juvenile Court Division, Social Services, Environmental Health, Public Health, and Human Services Administration. Richard DeVany is the director of the Human Services Department.

On June 12, 1992, the Commission issued a certification naming Teamsters Union, Local 252 (union) as the exclusive bargaining representative of non-supervisory employees of the Lewis County Health District.[1] The bargaining unit was described as follows:

All full time and regular part-time employees of the employer; excluding supervisors, confidential employees and all other persons.

Lewis County Health District, Decision 4092 (PECB, 1992) .

Included in that bargaining unit are employees who now work for Lewis County, within the Human Services Department.

The employer and union are parties to a collective bargaining agreement which sets forth the wages, hours, and working conditions of the non-supervisory employees. The unit placement of the position at issue in the employer's unit clarification petition in Case 10441-C-93-615 was at issue in the contract negotiations, but was not resolved. Throughout bargaining, the employer maintained that the issue could be referred to the Commission for determination, if the parties could not resolve the issue.

The union's representation petition in Case 10951-E-94-1811 affects all of the divisions of the Human Services Department. The union proposed inclusion of: Division manager in the Juvenile Court Division, assistant administrator in the Juvenile Court Division, coordinator of offender programs, division manager in the Social Services Division, division manager in the Environmental Health Division, and business manager of the Human Services Administra­tion, and a then-vacant director position in the Public Health Division. The employer acknowledged during preliminary processing of the representation petition that the coordinator of offender programs could properly be included in a supervisory unit.

If the position at issue in the unit clarification case was properly excluded from the non-supervisory unit on the basis of supervisory status, it would logically have been included in the supervisory unit. At the outset of the hearing, however, the parties reported that the employer was withdrawing its unit clarification petition. That was recited on the record, without objection from the employer.

POSITIONS OF THE PARTIES

The union contends that the employer has not met the heavy burden required to warrant a "confidential" exclusion for the affected supervisors under RCW 41.56.030(2)(c). It contends the employees who currently fill the positions at issue are not necessarily involved in the formulation, implementation, or effectuation of the employer's labor relations policies, and that all of them should be included in the proposed bargaining unit of supervisory employees.

The employer contends that the individuals holding the positions titled division manager and assistant administrator in the Juvenile Court Division, division manager in the Social Services Division, division manager in the Environmental Health Division, business manager in Human Services Administration, and director in the Public Health Division should be excluded from the petitioned-for bargaining unit of supervisors as confidential employees within the meaning of RCW 41.56.030(2) (c) .

DISCUSSION

Applicable Legal Principles

Different from the situation which exists in the private sector under the National Labor Relations Act (NLRA), a supervisor is a "public employee" within the meaning and coverage of Chapter 41.56 RCW. City of Tacoma, Decision 95-A (PECB, 1977); Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977).

The concept of a separate bargaining unit of supervisors is well-established in the case precedents interpreting Chapter 41.56 RCW. The units involved in both Tacoma and METRO were separate units of supervisors, and the Supreme Court made favorable reference to the decision in Packard Motor Car Co. v. NLRB, 330 U.S. 485 (1947), where the Supreme Court of the United States validated a separate unit of supervisors under the terms of the NLRA as they existed prior to the Taft-Hartley amendments of 1947.

Implementing the authority to determine and modify bargaining units which is conferred upon it by the Legislature,[2] the Commission has recognized that a potential for conflicts of interest is inherent in having both supervisors and their subordinates in the same bargaining unit. Thus, the Commission generally requires the exclusion of supervisors from the bargaining units which include their subordinates. City of Richland, Decision 279-A (PECB, 1978), affirmed 29 Wn.App. 599 (Division III, 1981), review denied 96 Wn.2d 1004 (1981).

The law on "confidential" exclusions is also clear. Under a specific exclusion from the definition of "public employee" found in RCW 41.56.030(2)(c),[3] employers are allowed some reasonable number of personnel who are exempt from the rights of the collective bargaining statute in order to perform the functions of employer in the collective bargaining process. The Supreme Court of the State of Washington interpreted that definition narrowly in City of Yakima v. International Association of Fire Fighters, 91 Wn.2d 101 (1978), where it wrote:

When the phrase confidential relationship is used in the collective bargaining act, we believe it is clear that the legislature was concerned with an employee's potential misuse of confidential employer labor relations policy and a conflict of interest.

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 fiduciary 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 office 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.

In Yakima, the Supreme Court took direction from the definition of "confidential employee" found in the Educational Employment Relations Act, Chapter 41.59 RCW.[4]

Because exclusion as a "confidential employee" altogether deprives the individual of collective bargaining rights under the Public Employees' Collective Bargaining Act, such exclusions are not lightly granted. A heavy evidentiary burden is placed on the party which proposes a "confidential" exclusion. City of Seattle, Decision 689-A (PECB, 1979); Pateros School District, Decision 3911-B (PECB, 1992).

A "confidential employee" need not work exclusively, or even primarily, on "confidential" work, so long as the assignments can be described as "necessary", "regular" and "ongoing". Contrast, for example, Edmonds School District, Decision 231 (PECB, 1977) (examining the status of secretaries who reported to a variety of top school district managers),[5] with Clover Park School District, Decision 2243-A (PECB, 1987) (where the Commission dealt with "confidential" claims regarding the secretaries to a more diverse group of supervisors and managers) . It is quite clear that the incumbent must have more than an incidental involvement with the employer's labor relations policies for a position to be deemed "confidential". Thus, a single involvement by an employee assigned to obtain information used by the employer's labor negotiators will not rise to the labor nexus required by Yakima, supra.

Application of Precedent

Job descriptions for the disputed positions make several references to duties commonly used as indicia of "supervisor" status. Thus:

ENVIRONMENTAL HEALTH SPECIALIST V

Assist the environmental health division supervisor of a local health department, functioning as the (only) "assistant division manager" in program planning and supervision of professional and technical subordinates, usually numbering 21 to 60 plus clerical support.

OR

Plans and conducts the work of an organizational section of an environmental health division, usually supervising 10 to 3 0 professional or technical subordinates plus clerical staff.

OR

Plans and conducts the entire environmental health program of a health department, usually supervising three to nine professional or tech­nical subordinates plus clerical staff.

…

TYPICAL WORK:

…

Exercises principal responsibility in selection of certified candidates for employment in his/ her division. Trains, supervises and evaluates division employees for retention or promotion.

Evaluates division workload and reassigns duties as necessary to accomplish division responsibilities .

 

…

KNOWLEDGE, SKILLS AND ABILITIES:

Knowledge of: current techniques of sanitation and environmental health inspection and enforcement; principal programs of federal, state and local environmental health control agencies; federal and state assistance programs in the field of environmental health and the major provisions of each; assessment and evaluation of environmental health problems; techniques of in-service training, workload management, personnel motivation; application of merit principles in supervision; planned-program budgeting and reporting; techniques for generating and organizing constructive community action. ...

DIRECTOR OF ENVIRONMENTAL HEALTH PROGRAM

DISTINGUISHING FEATURES OF WORK:

The work is performed under the general direc­tion of the Health Officer. The Director of Environmental Health position involves admin­istration and supervision of a staff of profes­sional and technical personnel in the Lewis County Health District.

EXAMPLES OF WORK:

Develops an organizational structure, makes work assignments.

Supervises the work of sanitarians (environmental health specialists) ; evaluates performance. Makes recommendations with respect to the recruitment, selection, assignment or transfer of environmental health personnel.

NECESSARY KNOWLEDGES, SKILLS AND ABILITIES:

Thorough knowledge of modern environmental health principles and procedures; thorough knowledge of the principles and objectives of public health programs and of the relationship of environmental health thereto; knowledge of the chemistry and bacteriology of water, sewerage and liquid wastes and of modern sanitation practices in water supply and purification, disposal of industrial wastes and milk and dairy sanitation. Ability to plan and supervise the work of others; ability to understand, interpret and draft pertinent laws and regulations; abili­ty to recognize, obtain and present admissible legal evidence; ability in the use of epidemio­logical and administrative study procedure and statistical evaluation; ability to work productively with officials, community leaders and other departments and agencies in program planning and implementation. Ability to present information effectively in written and oral form. Ability to provide leadership and exercise good judgment in evaluating situations and making decisions. ...

ASSISTANT ADMINISTRATOR

POSITION SUMMARY:

A management position responsible for assisting the Administrator/Division Manager in coordinat­ing and directing all day-to-day operations of the Juvenile Division. Also responsible for coordinating and directing the day to day oper­ation of the 18 bed maximum security juvenile detention center. Directly supervises 10 full time staff, two part-time staff and five provisional employees.

ESSENTIAL FUNCTIONS

…

2. …

A. Training and evaluation of senior detention officer, detention officers, detention cook, regular part-time and provisional detention staff. Develop, implement, and maintain schedules for all detention staff.

…

D. Submits to Division Manager recommendations on hiring and discipline matters involving Detention personnel.

…

4. Attends the Division bargaining unit negotiations.

…

8. Serve as Training Officer for the Juvenile Division with responsibility to maintain training records of all Juvenile Court staff. Make recommendations on detention staff training to Division Manager.

OTHER RESPONSIBILITIES:

1.       Detention responsibilities:

…

B. Overall responsibility for food services in

detention.

…

E. Schedules and plan monthly detention staff meetings.

…

G. Maintain accurate and current personnel files and evaluations on all staff directly supervised.

…

1. Prepare monthly vouchers and payroll records for detention.

J. Prepare work schedule and assignment of all

duties in detention. K. Give orientation and prepare training

schedule for all new detention staff. ...

2. Attend monthly supervisor and front office staff meetings.

3. Inspect or direct inspection of premises on a regular basis to test fire and security alarms, detect safety hazards, cleanliness or security problems. ...

DIVISION MANAGER

POSITION SUMMARY:

A supervisory and management position responsible for coordinating and directing all day-today operations of the Social Services Division. The person holding the position plans, organiz­es, directs, and/or performs technical and administrative activities in the areas of alcohol and substance abuse, prevention and early intervention, developmental disabilities, mental health, and others as directed.

ESSENTIAL FUNCTIONS:

1. Directly supervises, evaluates and trains Coordinators, Accountant and Secretary.

…

6. Submits to Director recommendations on hiring and discipline matters involving Social Service Division personnel.

…

IX. OTHER RESPONSIBILITIES:

1. Coordinates with staff all planning.

3. Conducts staff and individual update meetings as required. ...

DIRECTOR OF NURSING

PRIMARY JOB RESPONSIBILITIES:

…

Responsibilities are primarily administrative. Directs the personal health division and usually supervises seven or more positions on the level of public health nurse as well as other professional and paraprofessional staff.

DUTIES AND RESPONSIBILITIES:

Determines and evaluates the kind and amount of personal health services required for all programs .

Develops and implements plans for the recruitment and continuing professional education of staff employed in the health department.

Participates in planning, implementing and evaluating staff education in a health department .

Possesses the ability and exercises positive leadership skills. ...

ADMINISTRATOR / DIVISION MANAGER

POSITION SUMMARY:

A Management position responsible for coordinating and directing all day-to-day operations of the

Juvenile Division.

ESSENTIAL FUNCTIONS:

1. Directly supervises, evaluates and trains Detention Supervisor, Legal Administrative

Aide, Probation Counselors and GAL Coordinator.

…

7. Represents the Division at contract negotiations .

8. Submits to Director recommendations on hiring and discipline matters involving Juvenile Division personnel. ...

OTHER RESPONSIBILITIES:

1. Reviews new laws which affect the Juvenile Court and ensures staff are properly-trained in carrying out these laws.

2. Complies with the Lewis County Personnel Policy and Procedures Manual.

5. Conducts monthly supervisor and front office staff meetings.

6. Coordinates with staff all programming.

7. Ensures bargaining unit agreement is carried out in an impartial manner for all employees. ...

POSITION DESCRIPTION: Business Manacrer

PRIMARY JOB RESPONSIBILITIES:

Manages the accounting and at least four of the following agency functions in a county health department or health district: (1) application and administration of federal grants, (2) nego­tiation and administration of contracts for purchase and sale of health services; (3) budgeting; (4) purchasing; (5) personnel; (6) administrative support functions such as building maintenance and management, automotive fleet management, equipment maintenance and management information systems.

DUTIES AND RESPONSIBILITIES:

…

Manages personnel services of the district initiating and completing procedures necessary for recruiting, promoting, laying off, appeal and grievances, affirmative action, merit system compliance, labor relations and fair employment standards. Supervises personnel record keeping. Participates as part of top management in planning staffing changes.

Supervises clerical support functions and manag­es office facilities.

Exercises good judgment in screening candidates for employment. ...

[Emphasis by bold and bold italics supplied.]

As noted above, however, supervisory status is not sufficient to warrant a "confidential" exclusion. The limited passages quoted in . bold italics above are the only references in the voluminous job descriptions to activities falling within the scope of "confiden­tial", as defined by the Supreme Court in Yakima.

The Commission is not bound by the job descriptions promulgated by employers, and bases its decisions on actual facts. In this case, employer representative Brian Baker testified that only two of the disputed individuals had actually been involved in the collective bargaining with the non-supervisory employees bargaining unit:[6]

*          Jeanie D'Amato, who is the assistant administrator for juvenile courts, served on the employer's negotiating team throughout the negotiations with the non-supervisory employees bargaining unit.

*          David Sutherland, who is the business manager of the health department, served on the same negotiations team, but only on an "as needed" basis.

Baker further testified that he understood that meetings with the balance of the disputed employees were conducted to merely "seek input" from them concerning the union's proposals, and to "inform" them of the progress and outcome of negotiations with the union representing the non-supervisory unit. Informational meetings with supervisors, outside the realm of negotiations, are a common and prudent manner of soliciting information regarding the perceived effects of bargaining table proposals that would change the status quo, but do not rise to the level of involvement warranting a "confidential" exclusion. There is no indication here that the supervisors other than D'Amato and Sutherland were in a position to know the employer's bargaining strategies, or to know of the proposals being contemplated by the employer prior to their being communicated to the union.

Finally, but importantly, Baker testified that he meets with the county commissioners to formulate the employer's responses to the union's proposals. The record indicates that Baker receives all his directions from the commissioners. There is no indication that any of the supervisors were privy to those communications.

The ongoing involvement of D'Amato and Sutherland in the negotia­tions with the non-supervisory bargaining unit are exactly the type of responsibilities the Supreme Court indicated was needed to establish a "labor nexus" qualifying those individuals for exclusion from bargaining rights as "confidential employees". As to the remaining employees in the petitioned-for unit, their general supervisory duties do not warrant their exclusion from the rights of the statute.

The Question Concerning Representation

RCW 41.56.060 gives the Commission discretionary authority to determine a question concerning representation by either a secret ballot election or a cross-check comparing the signatures on union authorization cards against the signatures contained on the employer's records. Administration of that discretion is con­trolled by WAC 391-25-391, as well as by long-standing precedent limiting directed cross-checks to cases where there is only one union involved and that organization has a showing of interest in excess of 70% of the employees in the petitioned-for unit.

In this case, Teamsters Local 252 is the only union involved and the showing of interest filed in support of its petition indicates that the conditions precedent to a cross-check are met. The union can, of course, request use of the election procedure under WAC 391-25-410, if turnover of personnel or other reasons intervening since the hearing in this case might affect its chances for success under the cross-check procedure.

FINDINGS OF FACT

1.                                  Lewis County, Washington, is a public employer within the meaning of RCW 41.56.030(1). As a part of its overall services, the employer operates a human services department. The day-to-day operations of that department are under the direction of the director of human services, Richard DeVany.

2.                                 Teamsters Union, Local 252, a bargaining representative within the meaning of RCW 41.56.030(3), was previously certified as the exclusive bargaining representative of non-supervisory employees of the Lewis County Human Services Department.

3.                                 On April 28, 1993, the employer filed a petition for clarifi­cation of the existing non-supervisory bargaining unit, seeking to have the job classification titled "public health nurse IV" excluded from the non-supervisory bargaining unit described in paragraph 2 of these Findings of Fact, on the basis that the position is supervisory.

4.                                 On February 7, 1994, the union filed a representation petition with the Commission, seeking certification as the exclusive bargaining representative of a bargaining unit of supervisory employees of the Lewis County Human Services Department.

5.                                 Employees holding the titles of: "Division manager" in the Juvenile Court Division, Social Services Division, and Environmental Health Division; "assistant administrator" in the Juvenile Court Division; "coordinator of offender programs"; "business manager" in Human Services Administration; and "director" in the Public Health Division all have the authority and responsibility to assign subordinate employees work, schedule their hours of work, grant time off for paid leaves of absence, evaluate subordinates work performance, can discipline subordinates subject to the approval of higher authority, and can effectively recommend more serious discipline .

6.                                 In addition to their duties as supervisors, the individuals holding the titles of "assistant administrator" in the Juvenile Court Division and "business manager" in Human Services Administration serve as members of the employer's negotiations team for collective bargaining with the non-supervisory employees bargaining unit. Jeanie D'Amato and David Sutherland have an ongoing responsibility regarding the formulation, effectuation, or implementation of the employer's labor relations policies and procedures. Additionally, D'Amato and Sutherland have been made privy to confidential information concerning the proposals which will actually be advanced or the strategies which will actually be used by the employer in bargaining.

7.                                 Apart from the responsibilities of D'Amato and Sutherland described in paragraph 6 of these Findings of Fact, the supervisors listed in paragraph 5 of these Findings of Fact have no ongoing responsibility regarding the formulation, effectuation, or implementation of the employer's labor relations policies and procedures. At most, those employees have been consulted by the employer for input and suggestions emanating from their supervisory responsibilities.

8.                                 Teamsters Union, Local 2352, has provided a showing of interest demonstrating that it has the support of more than 70% of the employees in the petitioned-for bargaining unit.

CONCLUSIONS OF LAW

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

2.        The parties have not presented evidence of any case or controversy involving clarification of the existing non-supervisory bargaining unit under Chapter 391-35 WAC.

3.        The individuals holding the titles of "assistant administra­tor" in the Juvenile Court Division and "business manager" in Human Services Administration are confidential employees within the meaning of RCW 41.56.030(2).

4.         The employees holding the titles of: "Division manager" in the Juvenile Court Division, Social Services Division, and Environmental Health Division; "coordinator of offender pro­grams"; and "director" in the Public Health Division are supervisors who are public employees within the meaning of RCW 41.56.030(2), and are not "confidential employees" within the meaning of RCW 41.56.030(2) (c) .

5.         A bargaining unit consisting of all supervisory employees of the Lewis County Human Services Department, excluding elected officials, officials appointed for a fixed term of office, confidential employees and non-supervisory employees, is an appropriate unit for the purposes of collective bargaining under RCW 41.56.060, and a question concerning representation presently exists in that bargaining unit.

6.        The conditions for direction of a cross-check in the bargaining unit described in paragraph 5 of these Conclusions of Law under RCW 41.56.060 are met under WAC 391-25-391.

NOW, THEREFORE, it is

ORDERED

1.        ORDER OF DISMISSAL - Decision 5259 - PECB

The petition for clarification filed in Case 10441-C-93-615 is DISMISSED in the absence of a case or controversy.

2.        DIRECTION OF CROSS-CHECK - Decision 5260 - PECB

A cross-check of records shall be made in Case 10951-E-94-1811 under the direction of the Public Employment Relations Commission in the bargaining unit described in paragraph 5 of the foregoing Conclusions of Law, to determine whether a majority of the employees in that bargaining unit have authorized Teamsters Union, Local 252, to represent them for the purposes of collective bargaining.

Dated at Olympia, Washington, this 19th day of September, 1995.

PUBLIC EMPLOYMENT REBATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

Paragraph 1 of this order will be the final order of the agency unless appealed by filing a petition for review with the Commission pursuant to WAC 391-35-210.

Paragraph 2 of this order may be appealed by filing timely objections with the Commission pursuant to WAC 391-25-590.