State – Enterprise Services, Decision 11665-A (PSRA, 2013)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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In the matter of the petitions of:
state – enterprise services (facilities division)
and
washington federation of state employees
For clarification of an existing bargaining unit.
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CASE 24598-C-12-1484 DECISION 11665-A - PSRA
CASE 24629-C-12-1494 DECISION 11669-A - PSRA
CASE 24594-C-12-1480 DECISION 11667-A - PSRA
CASE 24599-C-12-1485 DECISION 11668-A - PSRA
CASE 24635-C-12-1499 DECISION 11666-A - PSRA
DECISION OF COMMISSION
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Younglove & Coker, P.L.L.C., by Edward Earl Younglove III, Attorney at Law, for the union.
Robert W. Ferguson, Attorney General, by Kara A. Larsen, Senior Counsel, for the employer.
On May 5, 2013, the Department of Enterprise Services (employer) appealed the Executive Director’s decision[1] ordering non-represented employees that are within the bargaining unit description to be included in the bargaining unit without an election and appealed the bargaining unit placement of four employees. The Washington Federation of State Employees (union) supports the Executive Director’s decision.
The Executive Director’s decision explains the situation giving rise to the petitions for clarification. Briefly, the Legislature passed, and the Governor signed, Engrossed Substitute Senate Bill (ESSB) 5931, which consolidated certain state agencies. Recognizing that collective bargaining relationships existed, the Legislature provided a mechanism for this agency to review and, if necessary, modify the existing bargaining units. RCW 41.80.911 provides as follows:
(1) By January 1, 2012, the public employment relations commission may review the appropriateness of the collective bargaining units transferred under RCW 43.19.900, 43.19.901, 43.19.902, 43.330.910, and 43.41A.900. The employer or the exclusive bargaining representative may petition the public employment relations commission to review the bargaining units in accordance with this section.
(2) If the commission determines that an existing collective bargaining unit is appropriate pursuant to RCW 41.80.070, the exclusive bargaining representative certified to represent the bargaining unit prior to January 1, 2012, shall continue as the exclusive bargaining representative without the necessity of an election.
(3) If the commission determines that existing collective bargaining units are not appropriate, the commission may modify the units and order an election pursuant to RCW 41.80.080. Certified bargaining representatives will not be required to demonstrate a showing of interest to be included on the ballot.
(4) The commission may require an election pursuant to RCW 41.80.080 if similarly situated employees are represented by more than one employee organization. Certified bargaining representatives will not be required to demonstrate a showing of interest to be included on the ballot.
Both the employer and the union filed petitions to clarify the bargaining units existing in the Facilities Division of the Department of Enterprise Services. After a hearing and review of the matter, the Executive Director determined that it was appropriate to modify the bargaining units. The Executive Director created three bargaining units.
The Facilities Maintenance and Operations Non-Supervisory bargaining unit was described as:
All non-supervisory employees covered by Chapter 41.06 RCW and Chapter 41.80 RCW employed by the Department of Enterprise Services in the Custodial & Refuse/Recycle, Buildings & Grounds, Building Automation, Management Services, and Construction Compliance Inspectors sections, including the employees at the Kelso, Seattle/Tacoma, Yakima, and North Cascades Gateway Center facilities in the Asset Management Section, excluding supervisors, confidential employees, members of the Washington Management Service, and all other employees.
The Facilities Maintenance and Operations Supervisory bargaining unit was described as:
All supervisory employees covered by Chapter 41.06 RCW and Chapter 41.80 RCW employed by the Department of Enterprise Services in the Custodial & Refuse/Recycle, Buildings & Grounds, Building Automation, and Management Services sections, excluding non-supervisory employees, confidential employees, members of the Washington Management Service, and all other employees.
The Facilities Professional Non-Supervisory bargaining unit was described as:
All non-supervisory civil service employees covered by Chapter 41.80 RCW and Chapter 41.06 RCW of the Washington State Department of Enterprise Services in the Facilities Senior Planner job class in the Property Management Section, Engineering & Architectural Services and Real Estate Section of the Facilities Division, including the non-supervisory employees Facilities Senior Planner job class in the Property Management Section, excluding supervisors, confidential employees, members of the Washington Management Service, administrative employees, and all other employees.
The employer’s appeal raises four issues.
1. Whether it was appropriate for the Executive Director to order non-represented employees to be accreted to the bargaining units without an election?
2. Whether the Construction and Maintenance Superintendent 3 positions in the property management section were properly included in the Facilities Maintenance and Operations Non-Supervisory bargaining unit?
3. Whether the Construction and Maintenance Superintendent 3 position held by John Wiggins is supervisory and should be included in the Facilities Maintenance and Operations Supervisory bargaining unit?
4. Whether the Facilities Senior Planner position held by Nick Cockrell is supervisory and should be included in the Facilities Professional Supervisory bargaining unit?
ISSUE 1:
Consistent with the principles of accretion, the Executive Director determined that non-represented positions should be accreted into the bargaining unit rather than conducting an election. The employer has appealed this aspect of the decision.
Accretion is the exception to the statutory general rule of employee free choice, as it deprives employees of a vote in the determination of whether they are represented for purposes of collective bargaining. City of Auburn, Decision 4880-A (PECB, 1995). Accretions can be ordered when changed circumstances lead to the existence of positions which logically belong only in one existing bargaining unit. City of Auburn, Decision 4880-A. Accretion will be denied if the positions could stand on their own as a separate bargaining unit or could appropriately be included in any other bargaining unit. City of Auburn, Decision 4880-A. An accretion cannot be ordered where the number of employees to be added to the bargaining unit is so large as to call into question the union’s majority status in the enlarged unit. Port of Seattle, Decision 11131 (PORT, 2011). In light of this fact, the party seeking an accretion has the burden to demonstrate that the conditions for accretion are present. City of Auburn, Decision 4880-A.
The Executive Director properly ordered an accretion of the non-represented employees into the modified Facilities Maintenance and Operations Non-Supervisory and Supervisory bargaining units. In this case, including the non-represented positions in the modified bargaining units is appropriate because no other bargaining unit would be appropriate for the positions and the positions could not stand alone. The addition of the non-represented employees to the bargaining units will not call into question the union’s majority status.
When a bargaining unit is created that would encompass all positions performing certain job functions, it is necessary to include all of the positions performing bargaining unit work in the bargaining unit. Otherwise, work jurisdiction issues would arise. Including the non-represented positions in the bargaining unit will prevent work jurisdiction issues from arising.
The Commission “may modify the units and order an election pursuant to RCW 41.80.080” if the existing bargaining units were not appropriate. RCW 41.80.911(3). The term “may” in a statute generally confers discretion. Nat’l Elec. Contractors Ass’n v. Riveland, 138 Wn.2d 9, 28 (1999). The statute does not require the Commission to order an election if the bargaining unit is modified.
ISSUE 2:
The Commission reviews conclusions and applications of law, as well as interpretations of statutes, de novo. We review findings of fact to determine if they are supported by substantial evidence and, if so, whether those findings in turn support the Examiner’s conclusions of law. C-Tran, Decision 7088-B (PECB, 2002). Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise. C-Tran, Decision 7088-B. Unchallenged findings of fact are accepted as true on appeal. C-Tran, Decision 7088-B. The Commission attaches considerable weight to the factual findings and inferences, including credibility determinations, made by its examiners. Cowlitz County, Decision 7210-A (PECB, 2001).
When making bargaining unit determinations, the Commission’s goal is to group together employees who have sufficient similarities (community of interest) to indicate that they will be able to bargain effectively with their employer. See Quincy School District, Decision 3962-A (PECB, 1993). The criteria are applied collectively to discern the existence of a community of interest among the employees of a particular employer, and no one criteria is of greater import than the others. RCW 41.80.070 directs the Commission to consider the duties, skills, and working conditions of employees, the history of collective bargaining, the extent of organization among the employees, the desires of employees, and the avoidance of excessive fragmentation.
The employer argues that the Construction and Maintenance Superintendent 3 positions held by Richard Thomas, John Weldon, and James Beckman share a community of interest with the Facility Senior Planners and should be included in the Facilities Professional Non-Supervisory Bargaining unit. According to the employer, these three Construction and Maintenance Superintendent 3 positions are building managers and are more akin to the Facilities Senior Planners.
Construction and Maintenance Superintendent 3 positions held by Thomas, Weldon, and Beckman manage employer owned facilities in Seattle, Tacoma, Kelso, and Yakima. Management of the facilities includes performing some maintenance work; managing contracts for other work to be performed at the facility such as ventilation, fire protection, and elevator maintenance; and interacting with the building tenants. Employees in the Facilities Maintenance and Operations Non-Supervisory bargaining unit perform a range of duties including maintaining the infrastructure of buildings and parks owned by the employer, processing maintenance requests from tenants of state owned facilities, procuring materials and services, and monitoring and maintaining the HVAC and fire alarm systems in employer owned facilities, among other duties. The Construction and Maintenance Superintendent 3 positions held by Thomas, Weldon, and Beckman share a community of interest with the Facilities Maintenance and Operations Non-Supervisory bargaining unit.
The Facilities Senior Planners manage facilities owned by Enterprise Services, develop and negotiate leases, and monitor and schedule maintenance work. Facilities Senior Planners are responsible for capital planning and must understand facilities planning and long range management. The employees share some similar duties with the Facilities Senior Planners, such as monitoring and scheduling maintenance of the assigned building.
The Executive Director split the Facilities Division bargaining units into two groups: employees responsible for maintaining and operating the buildings and grounds of state owned facilities and employees responsible for acquiring, planning, and managing state owned and leased facilities. The Executive Director’s decision is supported by substantial evidence. We affirm the Executive Director.
ISSUES 3 AND 4:
RCW 41.80.005(13) defines supervisor as:
an employee who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust employee grievances, or effectively recommend such action, if the exercise of the authority is not merely routine in nature but requires the consistent exercise of individual judgment. However, no employee who is a member of the Washington management service may be included in a collective bargaining unit established under this section.
Supervisors are statutorily excluded from bargaining units containing their subordinates. RCW 41.80.070(1)(a).
Supervisors are distinguishable from lead workers, who are included in bargaining units with employees they lead. A lead worker is an employee who performs some supervisory duties, but does not meet the statutory definition of supervisor. City of Lynnwood, Decision 8080-A (PECB, 2006). Discretionary authority in administrative matters or the ability to direct employees in daily job assignments may not rise to the level of possessing independent authority to act or effectively recommend personnel actions. Ronald Wastewater District, Decision 9874-C (PECB, 2009), citing Granite Falls School District, Decision 7719-A (PECB, 2003) and City of Gig Harbor, Decision 4020-A (PECB, 1992). Lead workers lack the true authority and independent judgment that are the hallmarks of supervisory power. In order to be considered a supervisor, the employee’s power to exercise the employer’s authority must be effective. King County, Decision 10075 (PECB, 2008).
While a job title may suggest supervisory status, the job title is not dispositive. The employee’s actual duties must be examined in order to determine whether the position possesses sufficient authority to be excluded from the rank-and-file bargaining unit as a supervisor. Morton General Hospital, Decision 3521-B (PECB, 1991). Additionally, job descriptions may not reflect the employee’s job duties.
Is John Wiggins a supervisor?
The employer argues that Wiggins should be included in the Facilities Maintenance and Operations Supervisory bargaining unit.
We have reviewed the record. Thomas Henderson, Assistant Director for the Facilities Division, testified about Wiggins’ job duties. Wiggins does not have authority to hire or fire employees. Wiggins has authority to discipline and direct the work of the employees that report to him. Cockrell testified that Wiggins evaluates employees and may spend up to 40 percent of his time directing employees’ work. Henderson testified that Wiggins has almost total autonomy to direct the day-to-day operations of the facility at which he works. Wiggins does not have the independent authority to make meaningful changes to the employment relationship of subordinate employees. The Executive Director properly concluded that Wiggins does not meet the statutory definition of a supervisor.
Is Nick Cockrell a supervisor?
The employer argues that Cockrell is a supervisor and should be included in the Facilities Professional Supervisory bargaining unit.
The Executive Director determined that no alleged supervisory employee had been included in any of the transferred bargaining units. Thus, the union would need to file a representation petition if it wished to represent those employees.
We have reviewed the record. Five employees, Beckman, Thomas, Weldon, Wiggins, and an administrative assistant, report to Cockrell. Cockrell evaluates those employees and reviews evaluations conducted by those employees. Cockrell testified that he spends more time evaluating or understanding and trouble-shooting the work of the employees who report to him than writing evaluations.
Cockrell has had occasion to issue corrective action. In doing so, he worked with the employer’s human resources staff and generated a letter of expectation. Cockrell has not had an incident that would require termination.
Cockrell participated in hiring. He has written and reviewed job specifications. Cockrell participated in interviews. Cockrell, and other members of the interview panel, make recommendations on who should be hired to human resources. Cockrell discusses hiring recommendations with Bonnie Scheel, Asset Manager in the Facilities Division. Henderson has hiring authority.
The majority of Cockrell’s work involves his other duties. Cockrell is a Facilities Senior Planner and manages the employer’s property portfolio outside of Thurston County. The majority of Cockrell’s time is spent dealing with tenant issues and determining how work is to be delivered.
Cockrell does not have the independent authority to make meaningful changes to the employment relationship of subordinate employees. The Executive Director properly concluded that Cockrell does not meet the statutory definition of a supervisor.
CONCLUSION
The Executive Director did not err when he ordered non-represented employees to be included in the modified bargaining units without an election. The Executive Director did not err in the bargaining unit placement of Beckman, Thomas, and Weldon. The Executive Director did not err in the bargaining unit placement of Cockrell or Wiggins. Neither Cockrell nor Wiggins are supervisors.
NOW, THEREFORE, it is
ORDERED
The Findings of Fact, Conclusions of Law, and Order issued by Executive Director Michael P. Sellars are AFFIRMED and adopted as the Findings of Fact, Conclusions of Law, and Order of the Commission.
ISSUED at Olympia, Washington, this 15th day of August, 2013.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MARILYN GLENN SAYAN, Chairperson
PAMELA G. BRADBURN, Commissioner
THOMAS W. McLANE, Commissioner