City of Tukwila, Decision 12860 (PECB, 2018)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

Mark Dunlap, Secretary, for Tukwila Police Sergeants Association.

John Perry, President, for Tukwila Police Officers Guild.

Stephanie Brown, Human Resources Director, for City of Tukwila.

On December 5, 2017, the Tukwila Police Sergeants Association (association) filed a unit clarification petition seeking clarification of a bargaining unit of police officers at the City of Tukwila (employer).  The bargaining unit in question is currently represented by the Tukwila Police Officers Guild (guild) and includes rank-and-file police officers as well as law enforcement officers holding the rank of sergeant.  The association’s petition seeks to remove the sergeants from the existing bargaining unit and to place those employees in a separate bargaining unit represented by the association.  The association and guild jointly stipulate that the sergeants no longer share a community of interest with the rank-and-file bargaining unit because the duties of the sergeants bring those positions into conflict with the rank-and-file employees.  The employer supports the outcome of the petition.

The issue to be decided is whether the parties’ stipulations to remove the sergeants from the existing bargaining unit should be accepted.  The parties’ stipulations are accepted, and the sergeants will be removed from the existing bargaining unit and placed in their own separate bargaining unit.

BACKGROUND

The guild represents the bargaining unit of police officers at the City of Tukwila.  City of Tukwila, Decision 5964 (PECB, 1997).  When the bargaining unit was originally created, all of the non‑supervisory police officers were included in the unit, including employees holding the rank of sergeant.  The police sergeants are responsible for directing and coordinating the activities of the rank-and-file officers, including determining case priorities and assigning investigatory activities.  The sergeants assign and evaluate the work of the rank-and-file police officers, review reports prepared by the patrol officers, and make recommendations based upon those reports.  The police sergeants also monitor and observe patrol officer investigatory activities, and they review body camera footage to ensure that patrol officer conduct meets departmental standards concerning use of force, arrests, vehicle pursuits, and searches and seizures.

The sergeants coordinate activities with other supervisors in other city departments to ensure that services are delivered efficiently and effectively.  The sergeants also obtain advice from the city attorney, court administrator, and court prosecutor’s office regarding cases and are responsible for conducting internal affairs investigations of rank-and-file officers.  They also join in the department’s long-term strategic planning and budget activities.  Should the need for discipline arise, the sergeants participate on behalf of the employer in all disciplinary actions as well as any grievances that result from the disciplinary process.  However, they do not have the independent authority to issue written discipline, and all disciplinary actions must be approved by the chief of police.

The rank-and-file police officers take direction from the sergeants and are required to follow their directions.  They do not coordinate activities with the other departments, and they do not obtain advice from the city attorney, court administrator, and court prosecutor’s office regarding cases.  The rank-and-file officers do not participate in the development of department policies and are not responsible for the implementation of those policies, nor do they have a role in the internal investigation or disciplinary processes.

ANALYSIS

Applicable Legal Standards

The determination of appropriate bargaining units is a function delegated to this agency by the Legislature.  City of Richland, Decision 279-A (PECB, 1978), aff’d, International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).  The goal in making bargaining unit determinations 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.  Quincy School District, Decision 3962-A (PECB, 1993).

A petition to sever employees from an existing bargaining unit seeks to disrupt the status quo of the existing bargaining unit.  State – Social and Health Services, Decision 12542-B (PSRA, 2016).  To obtain severance, the petitioner must overcome the stability and maturity of relationships usually present in established bargaining units that lead to sound labor relations.  Id.  The petitioner must establish either that (1) the petitioned-for employees no longer share a community of interest with the existing bargaining unit or (2) the incumbent bargaining representative has inadequately represented the petitioned-for employees.  Id.

The petitioner must show that a change in the community of interest has occurred to make the existing bargaining unit inappropriate.  This is usually demonstrated by substantial changes to the job duties or working conditions of the petitioned-for employees or substantial changes in the employer’s operations.  King County, Decision 11441-A (PECB, 2013).

To show inadequate representation, the petitioner must demonstrate more than a short-term inability of the incumbent union to achieve the bargaining goals of the petitioned‑for employees or the employees’ dissatisfaction with their bargaining representative’s accomplishments.  Inadequate representation may be shown by factors such as lack of opportunities to participate in union affairs, lack of collective bargaining agreement provisions addressing specific concerns of the employees at issue, lack of involvement by the petitioned-for employees in negotiation processes, and lack of any formal or informal efforts by the incumbent union to resolve issues of concern to the employees at issue.  Where a bargaining relationship has been in existence, the “history of bargaining” weighs against its disruption by severing the unit into two or more components.  Cowlitz County, Decision 4960 (PECB, 1995).  These considerations should not be read as a mechanical test, as each case is fact dependent and may present different variables worthy of consideration.

If the petitioner meets its burden of proof and the conditions for severance are met, the Commission will evaluate the appropriateness of the petitioned-for bargaining unit and whether the residual unit would maintain its appropriateness.  If either of the resulting bargaining units would be inappropriate under the statute, then severance shall not be granted and the original unit shall be maintained.  If severance is appropriate and the petitioned-for bargaining unit is an appropriate unit, an election—which includes the incumbent union on the ballot—must be conducted among the petitioned-for employees.

Application of Standards

The request to remove the sergeants from the guild’s existing non-supervisory bargaining is granted.  The recent expansion of the police sergeant’s duties has led to conflicts between the rank-and-file officers and the sergeants that did not exist when the bargaining unit was originally created.  The sergeants now obtain advice from the city attorney, court administrator, and court prosecutor’s office regarding cases and are responsible for conducting internal affairs investigations of rank-and-file officers.  They also join in the department’s long-term strategic planning and budget activities.  Additionally, the sergeants now participate on behalf of the employer in all disciplinary actions as well as any grievances that result from the disciplinary process.

These conflicts demonstrate that the sergeants no longer share a community of interest with the existing non-supervisory bargaining unit.  In order to minimize conflicts between the various ranks and to ensure the continued appropriateness of the bargaining unit, the sergeants and rank‑and-file officers agreed that the association would petition this agency for the creation of a sergeants’ bargaining unit to be represented by the association.

The duties performed by the sergeants also demonstrates that those positions now share their own community of interest.  The sergeants are responsible for overseeing and monitoring the activities of subordinate employees; they also play a substantial role in the disciplinary process.

CONCLUSION

The sergeants are placed in their own bargaining unit separate and apart from the existing bargaining unit, and the existing bargaining unit definition shall be modified to reflect the change in circumstances.  The Association shall represent this bargaining unit.

FINDINGS OF FACT

1.                  The City of Tukwila is a public employer within the meaning of RCW 41.56.030(12).

2.                  The Tukwila Police Officers Guild (guild) is a bargaining representative within the meaning of RCW 41.56.030(2).

3.                  The Tukwila Police Sergeants Association (association) is a bargaining representative within the meaning of RCW 41.56.030(2).

4.                  The guild currently represents a bargaining unit of police officers at the City of Tukwila.  City of Tukwila, Decision 5964.  When the bargaining unit was originally created, all of the nonsupervisory police officers were included in that bargaining unit, including employees holding the rank of sergeant.

5.                  The police sergeants are responsible for directing and coordinating the activities of the rank-and-file officers.  The sergeants assign and evaluate the work of the rank-and-file police officers, review reports prepared by the patrol officers, and make recommendations based upon the reports.  The police sergeants also monitor and observe patrol officer investigatory activities, and review body camera footage to ensure that patrol officer conduct meets departmental standards concerning use of force, arrests, vehicle pursuits, and searches and seizures.  The sergeants also are responsible for conducting internal affairs investigations of rank-and-file officers and participate in the department’s long-term strategic planning and budget activities.

6.                  The sergeants coordinate activities with other supervisors in other city departments to ensure that services are delivered efficiently and effectively.  The sergeants also obtain advice from the city attorney, court administrator, and court prosecutor’s office regarding cases.

7.                  The rank-and-file police officers take direction from the sergeants and are required to follow their directions.  They do not participate in the development of department policies and are not responsible for the implementation of those policies.  The rank-and-file officers have no role in the internal investigation or disciplinary processes.

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.                  Based upon Findings of Fact 5 through 7, the police sergeants no longer share a community of interest with the rank-and-file police officers bargaining unit described in Finding of Fact 4.

ORDER

1.                  The police officers bargaining unit represented by the Tukwila Police Officers Guild is clarified to remove the employees holding of the rank of sergeant.  That bargaining unit shall now be described as “All commissioned officers employed by the City of Tukwila Police Department below the rank of sergeant, excluding confidential employees, supervisors, employees holding the rank of sergeant and commander, and all other employees.”

2.                  The Tukwila Police Sergeants Association shall now represent a bargaining unit of corporals and sergeants.  That bargaining unit shall be described as “All police officers holding the rank of sergeant employed by the City of Tukwila, excluding police officers below the rank of sergeant, employees holding the rank of commander supervisor, confidential employees, and all other employees.”

ISSUED at Olympia, Washington, this  20th  day of April, 2018.

PUBLIC EMPLOYMENT RELATIONS COMMISSION

MICHAEL P. SELLARS, 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.