Mukilteo School District, Decision 5896-A (PECB, 1997)

David G. Fleming, Attorney at Law, appeared on behalf of the union.

Montgomery Purdue, by Christopher L. Hirst, Attorney at Law, appeared on behalf of the employer.

This case comes before the Commission on a petition for review filed by the Mukilteo School District, seeking to overturn an order clarifying bargaining unit issued by Executive Director Marvin L. Schurke .[1]

BACKGROUND

The Mukilteo School District (employer) and Mukilteo Association of Classified Personnel, an affiliate of Public School Employees of Washington (union) have been parties to a collective bargaining relationship covering classified employees in general job classifications, including transportation.

Prior to negotiations for the parties’ 1992-1995 collective bargaining agreement, two transportation dispatcher positions had been included in the bargaining unit. During the negotiations for the 1992-1995 contract, the employer informed the union that it desired to exclude one of the dispatchers from the bargaining unit as a supervisor. On or about November 4, 1992, the parties executed a letter of agreement concerning the “dispatcher/route supervisor” position, which stated in part:

[D]ue to the inclusion of supervisory duties such as evaluation, hiring/firing and grievance adjustment in the job requirements for the position of Dispatcher, the parties hereby agree to exclude said position from the MACP bargaining unit.

This letter of Agreement shall become effective September 1, 1992; shall remain in effect until August 31, 1995; and shall be attached to the current Collective Bargaining Agreement.

[Emphasis by bold supplied.]

Kathy Nixon had been the incumbent in the affected position since February of 1992.

As described in the job description for the position and the testimony in this proceeding, the typical duties of the dispatcher/route supervisor involve developing bus routes and schedules, assigning regularly-scheduled runs and extra trips to bus drivers, securing and assigning substitute bus drivers, responding to inquiries, and investigating complaints. Nixon reports to the transportation supervisor, Steve Winecoff. Dianne Bailey serves as the driver/trainer and has been assistant supervisor since the 1995-96 school year.

During negotiations for a successor agreement in 1995, the union proposed that the dispatcher/route supervisor position be restored to the bargaining unit. The employer declined the union’s request. On February 20, 1996, the union filed a petition for clarification of existing bargaining unit.

Hearing Officer Frederick J. Rosenberry held a hearing on October 23, 1996, and Executive Director Marvin L. Schurke issued an order clarifying bargaining unit on April 10, 1997. Having concluded that the duties of the dispatcher/route supervisor present only limited potential for conflicts of interest with the other bargaining unit employees, the Executive Director included the disputed position in the existing bargaining unit.

POSITIONS OF THE PARTIES

The employer argues that the incumbent of the disputed position received additional evaluation and interviewing duties after the letter of agreement went into effect, and that she has been involved in disciplinary investigatory conferences. It contends she has substantial authority to recommend the hiring, promotion and discipline of employees. It argues that the union did not demonstrate a significant change of circumstances to justify inclusion of the position in the bargaining unit.

The union argues the letter of agreement was based on assurances that additional supervisory duties would be added to the position, but that those assignments did not materialize. The union contends the disputed individual takes no independent role in hiring, firing, evaluating, approving overtime or vacation, discipline or adjusting grievances, and that the disputed position and the dispatcher position which remained in the unit are largely interchangeable. The union requests the Commission uphold the order including the position in the bargaining unit.

DISCUSSION

The Legal Standard on Supervisory Exclusions

The Legislature has delegated authority to the Commission to determine appropriate bargaining units under Chapter 41.56 RCW:

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. ...

[Emphasis by bold supplied.]

In the exercise of that authority, the Commission will generally exclude supervisors from bargaining units which contain their subordinates, in order to avoid a potential for conflicts of interest which might otherwise occur within the bargaining unit. City of Richland, Decision 279-A (PECB, 1978), affirmed, 29 Wn.App. 599 (Division III, 1981), review denied 96 Wn.2d 1004 (1981).

Because Chapter 41.56 RCW does not contain a definition of the term “supervisor”, the Commission has looked to the definition found in the Educational Employment Relations Act (EERA), at RCW 41.59.020(4) (d) , as suggesting the types of authority which tend to generate conflicts of interest:[2]

[S]upervisor ... means any employee having authority, in the interest of an employer, to hire, assign, promote, transfer, layoff, recall, suspend, discipline, or discharge other employees, or to adjust their grievances, or to recommend effectively such action, if in connection with the foregoing the exercise of such authority is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment .... The term “supervisor” shall include only those employees who perform a preponderance of the above-specified acts of authority.

[Emphasis by bold supplied.]

Except for the “preponderance” test highlighted above, the definition in the EERA is patterned after the exclusionary definition in Section 2(11) of the National Labor Relations Act.

The Letter of Agreement

The employer would have the Commission view the letter of agreement signed by the parties in 1992 as a binding exclusion of the disputed position from the bargaining unit, but it does not address the expiration date within that letter of agreement. Cases such as Olympia School District, Decision 4736-A (PECB, 1994), where prior stipulations have been held to be binding, have generally involved agreements for an indeterminate time. In the case at hand, the letter of agreement has a fixed termination date. The exclusion was to be re-evaluated on or after August 31, 1995. We are reluctant to find a continuing binding stipulation where the agreement was, on its face, to be effective for only a three-year period of time.

Change of Circumstances

Even if the letter of agreement lacked an expiration date, the agreement would not be binding on the Commission.[3] The employer would have the Commission require the union to show a change of circumstances since the letter of agreement was signed by the parties in 1992. It is well established that the unit status of those historically included in or excluded from an appropriate bargaining unit will not be disturbed, absent a change of circumstances.[4] Since the disputed position was included in the bargaining unit up to 1992, and was excluded from the unit without benefit of any unit determination proceedings before the Commission under Chapter 391-35 WAC, it is appropriate to inquire here as to whether the employer provided a sufficient basis (change of circumstances) to warrant the exclusion provided for in the parties’ unusual (temporary) letter of agreement.

Changes Surrounding the Letter of Agreement -

The letter of agreement shows, on its face, that it was developed because the position was to have supervisory duties involving evaluation, hiring, firing, and grievance adjustment. The duties added to Nixon’s job since 1992 are as follows:

•                     Nixon’s involvement with evaluations of drivers in 1995 and 1996 consisted of providing input to the transportation supervisor about how well route books are maintained, attendance records, reliability, and relationships with students. She has been consulted about the knowledge she gains from her close working relationship with the bus drivers, and serves as an occasional resource for information. The record provides no indication that Nixon effectively recommends any part of a final evaluation of any employee,[5] or that she was significantly involved on a continuing basis in the evaluation process of a significant portion of the bargaining unit.[6] The record provides no basis to infer she has responsibility to initiate the evaluation process or is involved in any meetings with the employees in relation to their evaluation.

•                     Nixon’s participation in the hiring process has been limited to serving as a member of a four-person team interviewing substitute drivers for regular bus driving jobs. The hiring team looks to Nixon for information as to whether substitute drivers appear for work on time, and are able to follow a route book. Nixon has participated in scoring the interviews, discussing job candidates, and developing recommendations for hire. The Executive Director inferred that the screening committee process dilutes the authority and influence of the individual committee members, and we agree. The record indicates that the transportation supervisor is not even the hiring authority, so that he would only be recommending appointments. Nixon’s role is thus limited to assisting her superior in developing a recommendation.

•                     Nixon has participated in three discipline situations, attending investigatory conferences and providing her opinion to the transportation supervisor. Her role appears to have been one of providing assistance only.[7] The record does not show she initiated the conferences, or even recommended to her superiors that investigations be held. She has had no involvement in firing of employees.

•                     The evidence before us indicates that Nixon has had no involvement in processing grievances.

The record supports a conclusion that Nixon’ s role is one of providing information to superiors who are either vested with authority in personnel matters or make effective recommendations. She does not act on behalf of the employer in a preponderance of the critical areas detailed in the traditional definitions of “supervisor” (i.e., to hire, assign, promote, transfer, layoff, recall, suspend, discipline, or discharge other employees, or to adjust their grievances, or to recommend effectively such action). See, Island County, Decision 5147-D (PECB, 1996) The record indicates Nixon’s actual authority is less than may have been contemplated by the parties in 1992. Therefore, we are unable to validate the exclusion agreed upon by the parties in 1992.[8]

No Supervisory Authority -

The employer relies on Morton General Hospital, Decision 3521-B (PECB, 1991), in arguing that Nixon has the authority to meaningfully change the relationships between the employer and its bus drivers. The Morton decision observed a distinction between “supervisors” and “lead workers”. Lead workers have authority to direct subordinates’ job assignments, but do not exercise independent judgment in fundamental personnel matters or have authority to make meaningful changes in the employment relationship.[9]

In Morton, the Commission excluded a “billing supervisor” who performed some duties similar to those of her subordinates, largely because the authority of the position exceeded that which was characteristic of lead workers, particularly in the areas of hiring, evaluation and grievance adjustment.[10] Morton is clearly distinguishable from the case at hand, where Nixon has not been given authority to act independently in hiring, setting wage rates, performance evaluations or grievance responses.

The employer urges the Commission to apply indicators used in Montesano School District, Decision 2155-A (PECB, 1985), and Renton School District, Decision 3287 (PECB, 1989), such as authority to schedule bus routes, schedule overtime and vacation, assign substitute bus drivers, receive complaints about other bargaining unit employees, and involvement in the training of bus drivers. A careful review of those decisions shows, however, that they are also distinguishable:

•                     The dispatcher who was excluded in Renton called in substitute drivers, approved leaves, authorized overtime, participated in interviews, provided input on hiring drivers, and performed other dispatching duties, all of which are similar duties assigned to the disputed position at issue here. However, the individual in Renton also served as assistant to the transportation supervisor,[11] filled in when the transportation supervisor was absent from the transportation office,[12] performed all of the evaluation of the drivers,[13] and conducted driver briefings. As distinguished from Nixon, the record in Renton showed that the dispatcher would have been involved in grievances.

•                     A “transportation coordinator” excluded from a bargaining unit in Montesano determined and assigned bus routes and coordinated the transportation of special education students, as does Nixon.[14] In Montesano however, the position reported directly to the superintendent and managed the district’s transportation activities, so that the role aligns more with that of the transportation supervisor in Mukilteo. The person at issue in Montesano reviewed all applications, conducted all interviews, conducted a program to determine actual driving knowledge, and made always-effective recommendations to the superintendent on which drivers should be hired.[15] She performed the only evaluation of the district’s school bus drivers.[16] The person at issue in Montesano established rules and regulations for the drivers. She issued written reprimands, had once suspended a driver, and had recommended the discharge of one driver to a superintendent who routinely followed her suggestions and referred any disciplinary problems to her for resolution.[17]

While Nixon approves leaves and schedules overtime, that activity is not, by itself, sufficient to warrant her exclusion from the bargaining unit. Nixon’s authority is closely circumscribed by the scheduling of drivers and the availability of other drivers to cover the work of the person on leave. The record provides a basis to infer the employer assigns her the task to approve leave and overtime on an as-needed basis as a ministerial function because she works closely with the drivers’ schedules. We infer from the record Nixon has little or no independent judgment in this area, such as might be required to approve unusual types of leave or leave for an unusual length of time.

Alleged Conflict of Interest

The employer appears to base its exclusionary claim on authority exercised in relation to the bus drivers who comprise a substantial proportion of the bargaining unit. In this case, however, we have difficulty determining that bargaining unit positions are supervised. The purpose of the supervisory exclusion under Richland, supra, is to prevent a conflict of interest between a supervisor and employees supervised. If Nixon would have supervisory authority over anyone, it would seem to be the assistant dispatcher, but Nixon appears to be a lead worker for only some of the work of the assistant dispatcher, who also reports directly to the transportation supervisor.[18] In contrast, the dispatcher excluded in Renton, supra, clearly supervised an assistant dispatcher. Nixon has continuing responsibilities to assign bus routes, and she arranges for substitutes, yet she has no input into the hiring of substitutes. As the substitute pool is the main recruitment base for regular bus drivers, she clearly does not have a significant role in the overall hiring process for persons within the bargaining unit. She has consulted with her superior on the hiring of regular drivers, but overall indicia of supervisory authority in regard to the regular drivers is lacking. These facts support a conclusion that her role is not one which presents a substantial potential for conflicts of interest within the bargaining unit.

The record contains no examples of actual or perceived conflicts of interest, and the employer has not provided any instances which might provide a basis to infer a conflict could arise. In Morton General Hospital, supra, the Commission considered whether the incumbent in a disputed billing supervisor position could act against a fellow bargaining unit member without fear of reprisal from the union. We have no basis for a similar analysis here. We find no evidence that the disputed position would be compromised if the position is returned to the bargaining unit. Absent a showing of conflict of interest, or a sufficient change of circumstances to correspond with the 1992 letter of agreement, the previous inclusion of the dispatcher/route supervisor position in the bargaining unit remains appropriate.

NOW, THEREFORE, it is

ORDERED

The order clarifying bargaining unit issued by Executive Director Marvin L. Schurke in the above-captioned matter on April 10, 1997, is AFFIRMED.

Issued at Olympia, Washington, on the 19th day of August, 1997.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARILYN GLENN SAYAN, Chairperson

[SIGNED]

SAM KINVILLE, Commissioner

[SIGNED]

JOSEPH W. DUFFY, Commissioner