City of Wenatchee, Decision 6099 (PECB, 1997)

STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
WASHINGTON STATE COUNCIL OF COUNTY AND CITY EMPLOYEES, LOCAL 846-W	CASE 12596-C-96-00789 DECISION 6099 - PECB
For clarification of an existing bargaining unit of employees of:
CITY OF WENATCHEE	ORDER CLARIFYING BARGAINING UNIT

John Cole, Deputy Director, Washington State Council of County and City Employees, appeared on behalf of the union.

Mark Cassidy, Labor Relations Representative, appeared on behalf of the employer.

On July 11, 1996, Washington State Council of County and City Employees, Local 846-W, filed a petition for clarification of an existing bargaining unit with the Public Employment Relations Commission under Chapter 391-35 WAC, seeking a determination regarding the bargaining unit status of an employee filling a newly-created position of “recreation specialist” at the City of Wenatchee. A hearing was held on January 22, 1997, before Hearing Officer Frederick J. Rosenberry. The union submitted a brief.

BACKGROUND

The Parties and Their Bargaining History

The City of Wenatchee (employer) recognizes Washington State Council of County and City Employees, Local 846-W (union), as the exclusive bargaining representative of a bargaining unit described in the parties’ collective bargaining agreement for the period from January 1, 1996 through December 31, 1998, as follows:

The Employer recognizes the Union as the sole and exclusive Bargaining Agent for the purpose of establishing wages, benefits and other conditions of employment for all of its permanent outside employees employed in the Street, Water, Sewer, Parks, Cemetery, Sanitation and Shop Departments as certified by the Department of Labor and Industries in work classifications set forth in Appendix “A” , and all permanent inside employees as certified by the Department of Labor and Industries and employed in the Police, Finance, Fire and Public Works Departments in work classifications set forth in Appendix “A”.

Appendix “A” of the parties’ contract is a salary schedule that establishes rates of pay for the following classification titles:

Engineer Technician    Water Service Specialist

Permit Specialist         Utility Worker/Water

Traffic Light Technician         Cemetery Foreman

Traffic Safety Specialist         Mechanic

Fire Prevention Secretary        Equipment Operator

Receptionist/Secretary            Utility Worker Streets

Secretary/Parks           Lab Technician

Groundskeeper            Facility Maintenance Technician

Customer Service Representa-            Building Maintenance

tive      Assistant to ER&R

Museum Curator         Traffic Bureau Clerk

Museum Projects Coordinator            Police Records

Museum PR Coordinator        Police Dispatcher

Museum Secretary      911 Dispatcher

Gallery Coordinator    Parking Control Officer

Maintenance Worker/WWTP  Utility Data Processor

Wastewater Operator  Records Coordinator

Regional Water Operator        Accounting Technician

In addition to the descriptive job titles contained in the collective bargaining agreement, the employer has published a bargaining unit seniority roster that contains the names of approximately 85 employees and their job titles. Review of that roster suggests that occupied positions exist in all of the job classifications listed in the contract. There are four “customer service” classifications in the bargaining unit: Customer service/fire; customer service/PW, customer service/CH, and customer service/museum. There are two “permit specialist” classifications in the bargaining unit: Permit specialist/planning; and permit specialist/building.[1]

The employer has collective bargaining relationships with unions representing two other bargaining units of its employees:

•    A unit of law enforcement officers who are “uniformed personnel” within the meaning of RCW 41.56.030(7); and

•    A unit of fire fighters who are “uniformed personnel” within the meaning of RCW 41.56.030(7).

Human Resources Manager Sandra Smeller testified that the employer also has (an unspecified number of) unrepresented employees that she characterized as administrative and management, including supervisors, administrative assistants, managers, directors, planners, engineers, accountants, inspectors, and other professional and technical employees.[2]

The Disputed Position

The employer’s Community Services Department, formerly known as the Parks and Recreation Department, is headed by Chuck Largent. There are three divisions in that department: Maintenance, Facilities, and Recreation Services. The Recreation Services Division, headed by Recreation Coordinator Caryl Morell, provides youth, adult and special needs leisure activity programs. Among the types of activities offered, are:

•           Winter Special Olympic games;

•           Seasonal activities (e.g., Easter egg hunts, Halloween carnival, and Christmas celebration);

•           Athletic events (e.g., NFL punch-pass-kick competition, and hoop shoots);

•           Summer programs (e.g., sport camps, teen programs, and summer day camp); and

•           Teen dances, music, dancing, dog obedience, and teen “night court” athletic program.

Most of these activities take place at city parks or at school facilities in the community. The division employs full-time and part-time temporary staff to help with many of these programs. The size of the temporary staff varies; there may be 20 or 30 employed for varying periods of time, depending on the nature of the program. The division also maintains a roster of up to approximately 100 volunteers who are called upon for assistance in providing the offered programs.

Because the division is funded by the employer’s general fund, Morell submits a proposed budget to Largent. Some programs, such as day camp, are supported by revenues from participants. Morell has also applied for and acquired grant funding for some programs. The volume of work in the division has steadily increased over an undisclosed period of time. In 1995, Morell requested and was granted authorization to hire a full-time recreational specialist.

After reviewing about 45 applicants for the position, Morell hired Tina Gisvold to fill the position on or about June 1, 1996. Morell is Gisvold’s immediate supervisor. The position now held by Gisvold is at issue in this proceeding.

POSITIONS OF THE PARTIES

According to the union, the duties, skills and responsibilities of the recreation specialist are substantially similar to those of members of the existing bargaining unit, so that the new position should be included in the city-wide unit. The union argues that the basic hours of work, overtime, compensatory time, sick leave, and vacation applicable to the recreation specialist are generally consistent with those offered to the bargaining unit. The union urges that the recreational specialist does not serve in a unique position that warrants exclusion from the existing bargaining unit.

According to the employer, the duties and responsibilities of the recreation specialist are those of a professional position that shares a community of interest with the employer’s unrepresented professional and technical employees. The employer contends that the qualifications, skills, and training required of the recreational specialist distinguish it from the positions that are in the bargaining unit, and that the recreation specialist is a unique classification that should not be placed in that bargaining unit.

DISCUSSION:

Applicable Statutes, Rules and Precedents

The purpose of unit determination is to group together employees who have sufficient similarities (community of interest) to indicate that they will be able to bargain collectively with their employer. The determination of appropriate bargaining units is a function delegated by the legislature to the Public Employment Relations Commission. City of Richland, Decision 279-A (PECB, 1978), affirmed 29 Wn.App. 599 (Division III, 1981), review denied 96 Wn.2d 1004 (1981). RCW 41.56.060 provides:

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 representative; the extent of organization among the public employees; and the desire of the public employees.

The Commission has generally sought to avoid the fragmentation of public employer workforces and bargaining structures. Ben Franklin Transit, Decision 2357-A (PECB, 1986).

Timeliness of the Petition -

The parties had a collective bargaining agreement in effect when this petition was filed, but that filing came shortly after the disputed position was filled. Accordingly, the petition appears to be timely under WAC 391-35-020, which permits a unit clarification mid-term in a collective bargaining agreement upon a change of circumstances.

Statutory Exclusions are Limited -

Finding the Public Employees’ Collective Bargaining Act, Chapter 41.56 RCW, to be remedial in nature, the Supreme of the State of Washington has given a very narrow reading to exclusions from the coverage of that statute. The statutory exclusion of “confidential employees” was confined to those having a labor nexus in IAFF, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978). Different from the National Labor Relations Act (NLRA) provisions which exclude them, “supervisors” were found to have bargaining rights under Chapter 41.56 RCW in Municipality of Metropolitan Seattle (METRO) v. Department of Labor and Industries, 88 Wn.2d 925 (1977), in the absence of any expressed exclusion in the statute.

No Separate Treatment for “Professional” Employees -The employer argues that the recreation specialist should be excluded from the bargaining unit because she serves in a professional capacity.[3] The NLRA permits “professional” employees to organize and bargain, but requires that they be placed in separate bargaining units unless they have voted for inclusion in a unit with other employees.[4] Chapter 41.56 RCW does not, however, define or make special provisions for professional employees. See , City of Vancouver, Decision 440-A (PECB, 1978). Accordingly, the unit placement of professional employees must be determined under the same “duties, skills and working conditions” criteria universally applicable to all employees covered by the statute. Professional and technical employees have, in fact, been commingled to avoid fragmentation of workforces. See, for example, Ritzville Memorial Hospital, Decision 3607 (PECB, 1990); City of Moses Lake, Decision 3322 (PECB, 1989).

Application of Standards

Bargaining History -

The certifications cited in the parties’ contract are of little utility, because they are years old and lack detail. In the absence of a clear unit description in a certification or voluntary recognition agreement, the scope of a bargaining relationship is properly gleaned from the recognition clause, wage appendices, and other relevant provisions of the parties’ collective bargaining agreement. King County, Decision 5820 (PECB, 1997).

These parties have a long standing bargaining relationship for a multi-departmental bargaining unit that can be best described as a “horizontal” unit,[5] or as a “wall-to-wall non-uniformed” unit.[6] It is an inherent characteristic of such bargaining unit structures that there is a great deal of diversity among the employees they encompass. The record in this case also reflects that the job duties of the members of this bargaining unit vary extensively, including: (1) highly technical work (e.g., traffic safety specialist, 911/police dispatch); (2) artistic and cultural endeavors (e.g., gallery coordinator, museum curator, museum projects coordinator); (3) traditional “blue collar” functions (e.g., groundskeeper, utility worker); and (4) office-clerical support functions (e.g., receptionist/secretary, secretary/parks).

All of the employees in the existing bargaining unit have a common primary duty of providing municipal services, and the recreation specialist shares that general purpose with the other employees in the broad-based bargaining unit. The disputed classification has existed only for a brief time, there is no history of separate bargaining, and no other labor organization has sought to represent the position. The inclusion of the disputed position in this bargaining unit is thus consistent with its diverse nature.

Duties, Skills and Working Conditions -

The employer’s formal job announcement and job description for the disputed position states:

RECREATION SPECIALIST

Community Services Department

Salary Range: $2180 - $2523

NATURE OF WORK

This is professional recreation work coordinating and conducting the activities of a year-round program in specific phase of recreation at one or more facilities. Work requires the application of specialized skills and training and the ability to meet the particular needs of the group being serviced.

EXAMPLES OF WORK

Instructs, conducts, and participates in specific programs in one or more recreation facilities; prepares schedules of events and secures necessary supplies for daily and special activities.

Assists in planning, scheduling, organizing, and conducting various activities and services for the special recreational needs of the group being served.

Assists in recruiting, training, and supervising volunteers and temporary employees.

Assists in maintaining attendance, registration, equipment and other applicable records.

Assists in budget preparation and control.

Communicates and works with community groups, governmental and private agencies to obtain services, programs and support. Solicits community participation.

Cooperates with public and private groups; deals with a wide variety of persons in conducting activities for special groups.

Assists in the preparation of publicity release, reports and brochures and the general promotion of the program.

Maintains safety standards, equipment and provides training to the staff and volunteers.

Handles disciplinary problems in assigned areas of responsibility.

Opens and closes facilities; prepares facilities for use and sets up recreation areas for public use, preforming routine custodial work as needed.

Performs related work as required. Evening and weekend work and some lifting required.

Plans and develops social or cultural activities for supervisors approval.

REPORTING RELATIONSHIPS

Under supervision, the employee develops and conducts programs within the guidelines of established policy and instructions. Unusual problems or special requirements are referred to the supervisor for resolution. Work is reviewed through close observation of activities and results and through periodic discussion. An employee may supervise temporary, part-time, seasonal, and volunteer recreation personnel. Reports directly to the Recreation Coordinator.

KNOWLEDGE. SKILLS AND ABILITIES

Knowledge of:

•  Principles and practices of organizing programs in a specialized recreation field.

•  Recruiting, training, and supervising employees.

•  Park and Recreation Department policies, procedures, and operations.

Ability to:

• Plan and lead programs with minimal supervision .

• Deal effectively and courteously with program participants, co-workers and general public.

• Instruct and present ideas in a comprehensive manner.

• Communicate in Spanish is a preference.

EDUCATION AND EXPERIENCE

Bachelor’s degree in Recreation and one year full-time paid experience in a public recreation agency; or Bachelor’s degree in related field and two years of full-time paid experience in a public recreation agency preferred. Two years of college-level course work in recreation or closely related field and three years recreation recreational work experience in one or more phases of community recreation; or additional recreational experience may be substituted for up to one year of the education requirement.

CERTIFICATION OR LICENSE REQUIRED

• Valid Washington State driver’s license.

• Industrial first aid certificate and CPR training, or the ability to obtain a certificate within six months.

• Additional certification may be required in the area of specialization.

The employer’s written summary of the disputed position is generally consistent with the duties described by the testimony.

The “Professional” Claim is a subjective characterization that is open to interpretation, and is not supported by the evidence. The definition of “professional” found in Section 2(12) of the NLRA includes features such as a “prolonged course of intellectual instruction and study … as distinguished from a general academic education”, and is usually applied to physicians, dentists, nurses, attorneys, teachers and similar groups for which some sort of state certification or license is required. In contrast, the incumbent has not even completed the bachelor’s degree called for as the primary qualification in the job description,[7] and no special license or certification is required by this job description. While the employer is completely free to accept training and experience as sufficient to meet its written requirements (or to waive any of its own requirements when not met), neither the job description nor the actual training and experience of the incumbent meet the definition of “professional”.[8] Moreover, the employer’s human resources director acknowledged that some positions that she characterized as “professional” are included in the bargaining unit, citing the museum coordinator as an example.

Unique duties performed by the recreation specialist do not warrant exclusion. It may be that the incumbent has the capability of exercising independent judgement, and the ability to operate independently, so that her qualifications go beyond her occupation, but unit determinations are based on the requirements of the job rather than on the qualifications of the employee. In addition to the diverse nature of the bargaining unit, comparisons are particularly apt to at least the museum and gallery staffs within the bargaining unit. Although new to the position, the employer’s human resources director was under the impression that recreational activities is the only division now employing a specialist who has not been included in the petitioner’s bargaining unit.

Supervision of Temporary Employees is not a basis for an exclusion here, even though the recreation specialists comes in frequent contact with and directs the activities of the temporary help used by the division. No potential for intra-unit conflicts of interest is presented, since the temporary workers are not within the bargaining unit. There is no evidence that the recreation specialist has authority to hire, promote, transfer, lay-off, recall, discipline, or discharge other bargaining unit employees or adjust their grievances.

Interaction with temporary employees is not unique to the disputed position. The record fairly reflects that bargaining unit employees oversee temporary help in several other areas of the employer’s operation. The recreation specialist and other members of the bargaining unit serve in “lead” roles and as a source of personnel information for management officials regarding temporary worker performance.

Compensation comparisons do not support exclusion. The recreation coordinator reviewed the salary schedules of other cities in determining an appropriate rate of pay for the disputed position. This technical approach is consistent with the parties’ collective bargaining agreement, which contains a list of 10 cities located throughout Washington state whose salary schedules are looked to for guidance in determining rates of pay at Wenatchee. The salary assigned by the recreation coordinator and the personnel manager is the same as is contained in the parties’ collective bargaining agreement for the classifications of museum secretary, assistant to ER&R, and water service specialist.

Benefits are comparable to bargaining unit jobs. The recreation specialist is normally scheduled to work forty hours per week. Her schedule may vary to cover evening and weekend work, but she is allowed to take compensatory time-off in lieu of overtime pay.

Paid vacation is allowed according to the same schedule as is contained in the parties’ collective bargaining agreement.

FINDINGS OF FACT

1.         The City of Wenatchee, Washington, is a “public employer” within the meaning of RCW 41.56.030(1).

2.         Washington State Council of County and City Employees, Local 84G-W, a bargaining representative within the meaning of RCW 41.5G.030(3) , is the exclusive bargaining representative of full-time and regular part-time employees of the City of Wenatchee, excluding “uniformed personnel”.

3.         The employer and union are parties to a collective bargaining agreement which is effective for the period from January 1, 199G to December 31, 199G. That contract and the parties’ previous contracts: Have covered employees in the employer’s parks functions, which are now administered by the Community Services Department; have covered employees in program specialist positions, such as “permit specialist”, “traffic safety specialist”, and “water service specialist”; and have covered employees in cultural endeavors, such as “museum curator”, “museum PR coordinator”, and “gallery coordinator”.

4.         The employer created a new position titled “recreation specialist” in the Recreation Services Division of its Community Services Department, and filled that position on or about June 1, 1996. The position does not require prolonged academic preparation or a state license.

5.         While many duties assigned to the recreation specialist are unique to that position, such is the case for other program specialist positions included in the existing bargaining unit.

6.         While the recreation specialist directs and oversees the work of temporary employees and volunteers, such persons are not included in the existing bargaining unit. Additionally, similar interaction with temporary employees and volunteers is among the responsibilities of other bargaining unit employees.

7.         The members of the existing bargaining unit have a common primary duty of providing public services, including leisure time activities. The recreation specialist is employed for the same general purpose as the other municipal employees.

8.         The wages, hours, and other terms and conditions of employment offered the recreation specialist are generally consistent with those offered the members of the bargaining unit. No specific exceptions were identified.

CONCLUSIONS OF LAW

1.         The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391-35 WAC.

2.         The petition filed to initiate this proceeding was timely under WAC 391-35-020(2) (b) , in response to the recent creation and filling of the recreation specialist position, and is properly before the Commission.

3.         The recreation specialist has a community of interest with, and is properly included under RCW 41.56.060 in, the existing bargaining unit described in paragraphs 2 and 3 of the foregoing Findings of Fact.

ORDER CLARIFYING BARGAINING UNIT

The recreational supervisor shall be, and hereby is, included in the existing bargaining unit represented by the Washington State Council of County and City Employees, Local 846-W.

Issued at Olympia, Washington, on the 4^th day of November, 1997.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

[SIGNED]

MARVIN L. SCHURKE, Executive Director

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.