City of Tukwila, Decision 10587 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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In the matter of the petition of:
city of tukwila
For clarification of an existing bargaining unit represented by:
teamsters locaL 763
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CASE 22216-C-09-1393
DECISION 10587 - PECB
ORDER CLARIFYING
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Kenyon Disend, PLLC, by Kari L. Sand, Attorney at Law, for the employer.
Reid, Pedersen, McCarthy and Ballew, LLP, by Kenneth J. Pedersen, Attorney at Law, for the union.
The City of Tukwila (employer) filed a petition for clarification of a bargaining unit represented by Teamsters Local 763 (union) on January 20, 2009. The petition sought to exclude the position of Payroll Fiscal Coordinator (PFC) from a unit of professional/supervisory employees. A hearing was held on March 24 and 25, 2009, before Hearing Officer Sally B. Carpenter. The parties submitted post-hearing briefs which were considered.
ISSUE
Should the position of Payroll Fiscal Coordinator be excluded from collective bargaining rights as a confidential employee under RCW 41.56.030(2)(c)?
The Executive Director finds that the employer did not meet its burden by establishing that the Payroll Fiscal Coordinator position meets the labor nexus test set forth in WAC 391-35-320. Therefore, the position should remain in the bargaining unit.
LEGAL PRINCIPLES
Public employees have collective bargaining rights under Chapter 41.56 RCW. There are limited exceptions excluding public employees from those rights. RCW 41.56.030 contains the following definitions:
(2) "Public employee" means any employee of a public employer except any person . . .
(c) whose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to (i) the executive head or body of the applicable bargaining unit . . . .
The Washington State Supreme Court, in International Association of Fire Fighters, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978), held that a confidential employee is an employee whose duties imply a confidential relationship that must flow from an official intimate fiduciary relationship with the executive head of the bargaining unit or public official. The Court’s holding is described as the “labor nexus” test, and is summarized in the following Commission rule.
WAC 391-35-320 EXCLUSION OF
CONFIDENTIAL EMPLOYEES.
Confidential employees excluded from all collective bargaining rights shall be
limited to:
(1) Any person who participates directly on behalf of an employer in the formulation of labor relations policy, the preparation for or conduct of collective bargaining, or the administration of collective bargaining agreements, except that the role of such person is not merely routine or clerical in nature but calls for the consistent exercise of independent judgment; and
(2) Any person who assists and acts in a confidential capacity to such person.
The Commission places a heavy burden of proof on an employer seeking confidential status for a position because it excludes the individual holding that position from all collective bargaining rights. Colfax School District, Decision 10474 (PECB, 2009).
A confidential employee must exercise independent judgment on behalf of the employer. If the employee’s assignments are necessary, regular and ongoing, the labor nexus test is met, even if the employee does not work full-time on such assignments. But if the work is sporadic without a showing of necessity, it does not meet the labor nexus test. Yakima School District, Decision 7124-A (PECB, 2001).
The employer must show that an exclusion from bargaining rights is appropriate in each individual case. Yakima School District, Decision 7124-A. A person will not be excluded as a confidential employee without a record having been made on current confidential labor relations responsibilities. Colfax School District, Decision 10474.
The Commission will not speculate as to future duties which an employee may or may not be assigned. King County Fire Protection District 13, Decision 9845 (PECB, 2007). It is long-standing policy of the Commission that positions are included or excluded from bargaining units based on the actual duties of incumbent position holders. In Everett Community College, Decision 10392 (PECB, 2009), the Executive Director noted: “Likewise, the Commission does not determine unit placement of a position that is new, newly filled, or unfilled because it is critical to assess the actual duties of an employee, rather than base a decision upon speculation about what future duties might entail.”
An employee who gives information to the employer’s bargaining team is not necessarily a confidential employee. In Pierce County, Decision 8892-A (PECB, 2006), the Commission stated: “To find employees confidential simply because they provide input and recommendations to the bargaining team would unnecessarily broaden the definition of confidential employees, and go against established Commission precedent.” The Commission reaffirmed this principle in City of Yakima, Decision 9983-A (PECB, 2008), stating:
Employees, and in particular supervisors, who are sources of important information to the employer’s bargaining team are not rendered confidential merely because they might have access to the employer’s confidential labor relations materials or provide input to the employer’s labor relations team.
ANALYSIS
The employer employs about 340 employees throughout its various departments. There are several divisions in its finance department, three of which are headed by Fiscal Coordinators. The three Fiscal Coordinator positions are included in the professional/supervisory employee bargaining unit. All finance department employees are represented by the union except the director and deputy director. The employer seeks to remove the one fiscal coordinator position from the professional/supervisory bargaining unit -- the Payroll Fiscal Coordinator.
The Position at Issue – Payroll Fiscal Coordinator
Linda Grage was the PFC just before the petition in this case was filed. The employer promoted Grage out of the PFC position in November 2008. The employer filed this petition in January, while the position was vacant. A new person was hired into the PFC position three weeks prior to the March hearing.
New Position Holder’s Bargaining Unit Status
The record for the new employee’s labor nexus work is blank. The new employee in the PFC position did not testify at the hearing. Testimony about her duties by others was that she had not been asked to do any work that would touch on labor relations matters. The employer’s labor relations consultant, Cabot Dow, testified he had not met nor talked to the new PFC. This case is controlled by the holding in Everett Community College, Decision 10392 (PECB, 2009) that “the Commission does not determine unit placement of a position that is new, newly filled, or unfilled because it is critical to assess the actual duties of an employee . . . .”
Former Position Holder’s Bargaining-Related Tasks
The employer presented substantial evidence detailing Grage’s work as Payroll Fiscal Coordinator; however, because Grage no longer holds the position, this evidence is not material to or dispositive in making a determination regarding the current PFC position.
Grage was a long-time finance employee. She oversaw the work of five payroll staff members and did the higher level duties of those functions. Grage’s expertise and work duties required her to respond to complex information requests, determine whether or not the payroll system was capable of providing a suggested type of payroll function, and apply contract provisions to payroll to effectuate the intent of multiple collective bargaining agreements. She provided information to the employer’s bargaining team. She sat in on at least one employer caucus during bargaining to provide payroll information. She has never been on the employer’s bargaining committee. She was never at the bargaining table for the employer during negotiations.
Provision of information and recommendations to the bargaining team is not sufficient to exclude an employee from collective bargaining rights. The confidential employee test in WAC 391-35-320 is limited; the individual’s role must call for “the consistent exercise of independent judgment.” The holdings in Pierce County and City of Yakima apply; input, access, and supplying information do not rise to the level required to meet the labor nexus test.
CONCLUSION
The employer did not meet its burden of proof to remove the Payroll Fiscal Coordinator position from the bargaining unit. This petition is premature with respect to making a determination regarding removal of the new employee’s Payroll Fiscal Coordinator position from the bargaining unit as a confidential employee. Even considering the duties performed by the predecessor in the position, should the duties by the new incumbent of the PFC position be similar to those performed by the predecessor, they may not meet the labor nexus test.
FINDINGS OF FACT
1. The City of Tukwila is a public employer within the meaning of RCW 41.56.030(1).
2. Teamsters Local 763 is a bargaining representative within the meaning of RCW 41.56.030(3), and represents a bargaining unit of professional/supervisory employees.
3. On January 20, 2009, the employer filed a unit clarification petition to exclude the position of Payroll Fiscal Coordinator from the bargaining unit.
4. Linda Grage was the Payroll Fiscal Coordinator before the petition described in Finding of Fact 3 was filed. The employer promoted Grage out of the position in November 2008. The position was vacant for several months. A new person was hired into the position three weeks prior to a March 2009 hearing conducted by the Commission.
5. The newly-hired person did not testify at the hearing. No labor nexus activities or assignments of the new person were provided in evidence. The employer did not carry its burden of proof with respect to confidential status of this position.
6. The petition was filed prematurely. There are no facts upon which a decision could be made regarding whether the position as fulfilled by the new hire meets the labor nexus test.
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 position of Payroll Fiscal Coordinator is not a confidential employee under RCW 41.56.030(2)(c) and WAC 391-35-320, and shall remain in the professional/supervisory employees bargaining unit.
ORDER
The position of Payroll Fiscal Coordinator is not a confidential employee and shall remain in the professional/supervisory employees bargaining unit.
ISSUED at Olympia, Washington, this 30th day of October, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CATHLEEN CALLAHAN, Executive Director
This order will be the final order of the
agency unless a notice of appeal is filed
with the Commission under WAC 391-35-210.