City of Tacoma, Decision 13342 (PECB, 2021)

STATE OF WASHINGTON

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

In the matter of the petition of: PROTEC17 Involving certain employees of: City of Tacoma

CASE 132998-E-20 DECISION 13342 - PECB Order on Eligibility

Paul Marvy, Counsel, for PROTEC17.

Cheryl Comer, Deputy City Attorney, for the City of Tacoma.

On August 28, 2020, PROTEC17 (union) filed a petition seeking to represent a bargaining unit of all employees in the Financial Manager, Forensics Manager, and Office Manager job classes working for the City of Tacoma’s (employer) Police Department. The employer objected to the inclusion of the Office Manager and Financial Manager in the proposed bargaining unit, asserting that they are confidential employees who are exempt from collective bargaining under RCW 41.56.030(12)(c). Hearing Officer Elizabeth Snyder conducted a hearing by videoconference on December 2 and 17, 2020. Prior to the hearing, the employer asserted the Forensics Manager is also a confidential employee. The parties submitted filed post‑hearing briefs on February 4, 2021, to complete the record.

Based upon the documentary evidence and testimony, the Financial Manager, Forensics Manager, and Office Manager are not confidential employees under RCW 41.56.030(12)(c). None of these positions participate in the formulation of bargaining strategy or proposals, sit at the bargaining table, edit proposals, or otherwise have a labor relations nexus. These positions are appropriately included in the bargaining unit, and processing of this matter is remanded to the Representation Case Administrator for further processing.

BACKGROUND

The employer provides law enforcement and public safety services to the residents of the City of Tacoma. The Chief of Police heads the Police Department. Three separate bureaus[1] comprise the Police Department: Operations, Administrative Services, and Investigations. An Assistant Police Chief leads each bureau. The Assistant Chiefs are included in a bargaining unit of Assistant Police Chiefs, Assistant Fire Chiefs, and Deputy Fire Chiefs represented by the Professional Public Safety Management Association.

The Administrative Services Bureau is responsible for training logistics, administration of public information, and internal affairs. The Financial Manager is included in the Administrative Services Bureau. The Operations Bureau consists of community policing, patrol, and all uniformed police officers. The Investigations Bureau includes the detectives, the Forensic Service Unit, and the Special Investigations Unit. The Forensics Manager is included in the Investigations Bureau. The Office Manager position reports directly to the Chief of Police (Chief) and is not assigned to a specific bureau.

The Chief holds command staff meetings every other month, which consist of all Lieutenants, Captains, and Assistant Police Chiefs; the Financial Manager; the Forensics Manager; and the Office Manager. The purpose of the command staff meetings is to discuss updates and emerging issues. Each bureau provides an update at the meeting. With the exception of the Chief and the disputed positions, all attendees at the command staff meetings are represented.[2] While the status of ongoing bargaining may be mentioned, the Chief testified that no labor strategy or bargaining proposals are discussed at these meetings. Rather, the Chief or the Chief’s designee, or both, will work with a Labor Relations Specialist employed by the employer to develop bargaining strategy and engage in collective bargaining.

The employer operates on a biennial budget. When the City Manager provides budget instructions to the departments, the Chief convenes separate budget meetings with the Assistant Police Chiefs, Captains, Financial Manager, and Office Manager to develop the budget that the Police Department will propose to the City Manager. Those discussions also discuss ways to implement the budget instructions, such as reductions, directed by the City Manager. While there may be discussions about the impact of cuts on bargaining units or the costs of current provisions in collective bargaining agreements, no labor strategy or bargaining proposals are discussed at the budget meetings. All attendees at the meeting give input and suggestions at the meetings, including the disputed positions.

Office Manager

The Office Manager manages the daily operations of the Chief’s office. Jeanette Blackwell has held this position since 1997. Blackwell assists the Chief and the department in various administrative duties and spends a majority of time as a liaison between the Chief and the other bureaus. Blackwell is also responsible for budget and personnel tracking and organizing meetings between the Chief and senior command staff and executives. As Office Manager, Blackwell supervises two other employees who are in the Public Administrative Support Specialist job classes. The Public Administrative Support Specialists manage record requests and department personnel files.

Blackwell has a close working relationship with the Chief.[3] The Chief gains feedback from Blackwell before making personnel decisions such as promotion, moving personnel, budget, and training. Blackwell, who has been with the department since 1991, provides the Chief with a historical perspective for the department and knowledge of current events throughout the agency. Blackwell has access to the Chief’s email but only for scheduling or public request purposes.

The Office Manager neither participates in the development of bargaining strategy nor in contract negotiations. Blackwell does not edit or give feedback on proposals and does not have access to any collective bargaining agreements before they are made available to the public. The Office Manager only participates in the grievance process in an administrative capacity. Blackwell will log a grievance, prepare an acknowledgment letter, and send the grievance to the appropriate Assistant Chief. The designated Assistant Chief will prepare and send a grievance response. Blackwell will log the response.

Financial Manager

The Financial Manager operates the department’s finance office and oversees all financial activities for the Police Department, including budget, payroll, accounts receivable/payable, purchasing, and drug find deposits. Francesca Heard is the current Financial Manager and has held this position for 15 years. Heard supervises three employees.

During command staff meetings, Heard runs reports for different budget scenarios. Heard also provides input during budget meetings on where money can be transferred for different budget proposals so that meeting participants understand how these proposals impact other departments. Heard works with city finance and budget personnel to verify budget numbers. The final budget is prepared by the employer’s finance department.

The Financial Manager neither participates in the development of bargaining strategy nor in contract negotiations. Heard does not edit or give feedback on proposals. Heard may give a preliminary cost of proposals to an Assistant Chief when asked, but more detailed financial impacts are prepared by a budget staff member who is assigned to each negotiation. Heard has provided information where dollars could be sourced in relation to a proposal.

Forensics Manager

The Forensics Manager is responsible for administering policies and procedures relating to compliance of accreditation standards within the Forensic Services Unit and for managing the budget. Paul Depoister is the current Forensics Manager. Three sections report to the Forensics Manager: Crime Scene Technicians, Latent Print Examiners, and Forensic Specialists. Depoister reports to Captain Charles Taylor, who reports to Assistant Chief Scruggs.

Employees who report to Depoister are represented by either Teamsters Local 117 or the union. Depoister administers both of these collective bargaining agreements through various acts such as conducting performance evaluations, issuing certain levels of discipline, and processing grievances. The Forensics Manager does not sit at the bargaining table, assist in the preparation of bargaining materials, or formulate bargaining strategy or proposals. Depoister will provide, as necessary, information to Taylor or Scruggs regarding the Forensic Services Unit. At command staff meetings, Depoister does not participate except to give updates on forensic issues. The Forensics Manager does not attend the biennial budget meetings.

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 purpose of this function is to ensure there is a community of interest among the employees sufficient to enable them to bargain effectively with their employer. Quincy School District, Decision 3962-A (PECB, 1993).

In making bargaining unit determinations, this agency considers “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.” RCW 41.56.060(1). These criteria are not applied on a strictly mathematical basis. King County, Decision 5910-A (PECB, 1997). Not all factors will arise in every case, and where they do exist, any one factor could be more important than another, depending on the facts. Renton School District, Decision 379-A (EDUC, 1978), aff’d, Renton Education Association v. Public Employment Relations Commission, 101 Wn.2d 435 (1984).

This agency’s role is to determine whether there is a community of interest, not the best community of interest. Consequently, the fact that other groupings of employees may also be appropriate, or even more appropriate, does not render the proposed configuration inappropriate. State – Secretary of State, Decision 12442 (PSRA, 2015) (citing Snohomish County, Decision 12071 (PECB, 2014), and City of Winslow, Decision 3520-A (PECB, 1990)).

Confidential Status

Only those personnel who qualify as “public employee[s]” may exercise collective bargaining rights under the statute. RCW 41.56.030(12). Excluded from this definition are employees whose duties imply a confidential relationship to the bargaining unit or to the executive management of the employer, such as an appointee to a board, commission, or committee for a particular term of an elected official. RCW 41.56.030(12)(c)(i–iii). Accordingly, anyone who meets the confidential employee definition is precluded from exercising collective bargaining rights under the statute. Id. Because confidential employees are precluded from exercising collective bargaining rights, a heavy burden is placed on the party seeking that confidential determination. City of Seattle, Decision 689-A (PECB, 1979).

A confidential employee is further defined as any employee who participates directly on behalf of the employer in the formulation of labor relations policy, the preparation for or conduct of collective bargaining, or the administration of collective bargaining agreements. WAC 391‑35‑320(1). The nature of the work that creates the confidential status should be more than routine or clerical in nature. Rather, the work must call for the consistent exercise of independent judgment. Id.; see also City of Lynden, Decision 7527-B (PECB, 2002).

In determining whether the work performed by an employee is confidential in nature, a labor relations nexus test is used to examine the employee’s current duties. City of Yakima, Decision 9983-A (PECB, 2008). The labor relations nexus test examines whether the employee’s current duties imply a confidential relationship that flows from an official intimate fiduciary relationship with the executive head of the bargaining unit or public official. International Association of Fire Fighters, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978).

The confidential exclusion depends on the particular association of the persons involved, rather than on any arbitrary test including title, position on organization chart, job description, or role. See Shelton School District, Decision 1609-B (PECB, 1984). “The nature of this close association must concern the official and policy responsibilities of the public officer or executive head of the bargaining unit, including formulation of labor relations policy.” City of Yakima, 91 Wn.2d at 107. The exclusion prevents potential conflicts of interest between the employee’s duty to their employer and to their status as a union member. Walla Walla School District, Decision 5860-A (PECB, 1997). An employee’s official duties may provide them with access to sensitive information regarding the employer’s collective bargaining position. In that case, the employee’s loyalties should not be placed in a position where they could be questioned by either the employer or the bargaining unit. State – Natural Resources, Decision 8458-B (PSRA, 2005). Any relied‑upon labor relations responsibilities must be necessary, regular, and ongoing. Yakima School District, Decision 7124-A (PECB, 2001) (citing Oak Harbor School District, Decision 3581 (PECB, 1990)).

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. Pierce County, Decision 8892-A (PECB, 2006). General supervisory responsibility is insufficient to render an employee confidential. City of Yakima, 91 Wn.2d at 107. Furthermore, an employer must communicate to an employee its expectation that the labor relations information or material be kept confidential. See, e.g., Pateros School District, Decision 3911-B (PECB, 1992) (finding the employee was not confidential where the record was void of any indication that the employer expected the information prepared should be kept confidential at any time). Finally, an employer may not obtain an excessive number of confidential exclusions by spreading out confidential duties to a large number of employees. See, e.g., Clover Park School District, Decision 2243‑A (PECB, 1987), aff’d, Decision 2243‑B (PECB, 1987).

Application of Standards

The Financial Manager, Forensics Manager, and Office Manager are not confidential employees excluded from coverage under chapter 41.56 RCW. None of the positions have a sufficient labor relations nexus to require exclusion. None of the positions participate in bargaining, edit proposals, make recommendations, or participate in meetings where bargaining strategy or proposals are formulated or developed.

FWhile the Office Manager has a close working relationship with the Chief and has served as a sounding board, there is no evidence of a labor relations nexus based upon that close working relationship or role as a sounding board. Blackwell’s participation in the grievance process is limited to logging the grievance, preparing an acknowledgment letter, forwarding the letter to the appropriate Assistant Chief, and logging the Assistant Chief’s response. These administrative acts are insufficient to render Blackwell confidential.

The Financial Manager ensures payroll accurately pays staff according to terms of a collective bargaining agreement and may be asked to identify the cost of contract provisions. Heard has, on occasion, given preliminary costs of a bargaining proposal to an Assistant Chief or identified sources of funds to pay for a proposal. A budget officer assigned to specific negotiations will provide a more detailed cost of bargaining proposals and associated impacts. The information provided by Heard is insufficient to render the Financial Manager’s position confidential.

To support its assertion of a labor relations nexus and confidential status, the employer relies extensively upon each position’s participation in command staff meetings as well as the Financial Manager’s and Office Manager’s participation at budget development meetings. However, no labor relations strategy is developed or formulated at these meetings. While budget proposals may be developed and discussed at the budget meeting, bargaining proposals are not discussed.

Moreover, except for the disputed positions and the Chief, all other participants in the command staff and budget development meetings are represented. The employer objected to the admission of testimony and evidence about the representational status of other participants in these meetings. The employer argues that such evidence is not probative or relative to the confidential status of the disputed positions. The employer’s argument strains credulity.

By asserting confidential status, the employer is arguing to exclude these employees from exercising collective bargaining rights in order to prevent potential conflicts of interest between the employee’s duty to the employer and status as a union member. Walla Walla School District, Decision 5860-A. The representational status of the other participants in the same meetings creating the alleged conflict of interest is relevant. The other employees at the meeting have not been excluded from exercising their collective bargaining rights. Not only is that fact relevant, but it completely undercuts the employer’s position.

The Forensics Manager’s role in administering a provision of the collective bargaining agreement that is applicable to employees in the Forensic Services Unit does not render the Forensics Manager confidential. See Pierce County, Decision 8892-A. In that case, the Commission expressly addressed the issue of contract administration with respect to supervising employees.

The duties of supervising bargaining unit members inherently includes some contract administration, such as hiring and firing, without necessarily knowing any of the employer’s confidential labor relations material. If a labor nexus test did not apply to supervisory employees, then almost all supervisors would lose their collective bargaining rights. Only those supervisors who have an actual conflict of interest because they were privy to the employer’s confidential labor management materials should be confidential.

Id. There is no evidence that the Forensics Manager is privy to the employer’s confidential labor management material and thus should be excluded as confidential.

Conclusion

The Office Manager, Financial Manager, and Forensics Manager are not exempt from collective bargaining under RCW 41.56.030(12)(c). None of the positions have a sufficient labor relations nexus to exclude them from collective bargaining.

Findings of Fact

1.                  The City of Tacoma is a public employer within the meaning of RCW 41.56.030(13).

2.                  PROTEC17 is a bargaining representative within the meaning of RCW 41.56.030(2).

3.                  PROTEC17 (union) filed a petition seeking to represent a bargaining unit of all employees in the Financial Manager, Forensics Manager, and Office Manager job classes working for the City of Tacoma’s (employer) Police Department. The employer objected to the inclusion of the Office Manager and Financial Manager in the proposed bargaining unit, asserting that they are confidential employees who are exempt from collective bargaining under RCW 41.56.030(12)(c).

4.                  The Chief holds command staff meetings every other month, which consist of all Lieutenants, Captains, and Assistant Police Chiefs; the Financial Manager; the Forensics Manager; and the Office Manager. The Financial Manager, Forensics Manager, and Office Manager positions attend biennial budget and command staff meetings. The purpose of the command staff meetings is to discuss updates and emerging issues. While the status of ongoing bargaining may be mentioned, the Chief testified that no labor strategy or bargaining proposals are discussed at these meetings. Rather, the Chief or the Chief’s designee, or both, will work with a Labor Relations Specialist employed by the employer to develop bargaining strategy and engage in collective bargaining.

5.                  The employer operates on a biennial budget. When the City Manager provides budget instructions to the departments, the Chief convenes separate budget meetings with the Assistant Police Chiefs, Captains, Financial Manager, and Office Manager to develop the budget that the Police Department will propose to the City Manager. Those discussions also discuss ways to implement the budget instructions, such as reductions, directed by the City Manager. While there may be discussions about the impact of cuts on bargaining units or the costs of current provisions in collective bargaining agreements, no labor strategy or bargaining proposals are discussed at the budget meetings. All attendees at the meeting give input and suggestions at the meetings, including the disputed positions.

6.                  The Office Manager manages the daily operations of the Chief’s office. Jeanette Blackwell has held this position since 1997. Blackwell assists the Chief and the department in various administrative duties and spends a majority of time as a liaison between the Chief and the other bureaus. Blackwell is also responsible for budget and personnel tracking and organizing meetings between the Chief and senior command staff and executives.

7.                  Blackwell has a close working relationship with the Chief. The Chief gains feedback from Blackwell before making personnel decisions such as promotion, moving personnel, budget, and training. Blackwell, who has been with the department since 1991, provides the Chief with a historical perspective for the department and knowledge of current events throughout the agency. Blackwell has access to the Chief’s email but only for scheduling or public request purposes.

8.                  The Office Manager neither participates in the development of bargaining strategy nor in contract negotiations. Blackwell does not edit or give feedback on proposals and does not have access to any collective bargaining agreements before they are made available to the public. The Office Manager only participates in the grievance process in an administrative capacity.

9.                  The Financial Manager operates the department’s finance office and oversees all financial activities for the Police Department, including budget, payroll, accounts receivable/payable, purchasing, and drug find deposits. Francesca Heard is the current Financial Manager and has held this position for 15 years.

10.              During command staff meetings, Heard runs reports for different budget scenarios. Heard also provides input during budget meetings on where money can be transferred for different budget proposals so that meeting participants understand how these proposals impact other departments. Heard works with city finance and budget personnel to verify budget numbers. The final budget is prepared by the employer’s finance department.

11.              The Financial Manager neither participates in the development of bargaining strategy nor in contract negotiations. Heard does not edit or give feedback on proposals. Heard may give a preliminary cost of proposals to an Assistant Chief when asked, but more detailed financial impacts are prepared by a budget staff member who is assigned to each negotiation.

12.              The Forensics Manager is responsible for administering policies and procedures relating to compliance of accreditation standards within the Forensic Services Unit and for managing the budget. Paul Depoister is the current Forensics Manager.

13.              Employees who report to Depoister are represented by either Teamsters Local 117 or the union. Depoister administers both of these collective bargaining agreements through various acts such as conducting performance evaluations, issuing certain levels of discipline, and processing grievances. The Forensics Manager does not sit at the bargaining table, assist in the preparation of bargaining materials, or formulate bargaining strategy or proposals. Depoister will provide, as necessary, information to Taylor or Scruggs regarding the Forensic Services Unit. At command staff meetings, Depoister does not participate except to give updates on forensic issues. The Forensics Manager does not attend the biennial budget meetings.

Conclusions of Law

1.                  The Public Employment Relations Commission has jurisdiction in this matter pursuant to chapter 41.56 RCW and chapter 391-25 WAC.

2.                  Based upon findings of fact 4 through 13, the Financial Manager, Forensics Manager, and Office Manager job classes are not confidential employees within the meaning of RCW 41.56.030(12)(c).

Order

Processing of this matter is remanded to the Representation Case Administrator for further processing consistent with this decision.

ISSUED at Olympia, Washington, this  6th  day of May, 2021.

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 391-25-660.