City of Lynnwood, Decision 10069-A (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
CITY OF LYNNWOOD ) CASE 21595-E-08-3343
)
Involving certain employees of: ) DECISION 10069-A - PECB
)
WASHINGTON STATE COUNCIL OF ) ORDER DETERMINING
COUNTY AND CITY EMPLOYEES ) ELIGIBILITY ISSUE
___________________________________)
Inslee, Best, Doezie & Ryder, P.S., by Katherine F. Weber,
Attorney at Law, for the employer.
David M. Kanigel, Legal Counsel, for the union.
On March 14, 2008, the Washington State Council of County and City
Employees (union) filed a petition seeking to represent maintenance
mechanics employed by the City of Lynnwood (employer).
On April 2, 2008, Sally J. Iverson, Representation Coordinator for
the Commission, conducted an investigation conference during which
the employer asserted that the position of Automotive Shop
Supervisor, currently held by Brian Barrett, should be excluded from
the proposed bargaining unit as a supervisor. The union asserted
that the position should be included as Barrett's position is not
supervisory.
On May 2, 2008, the Commission conducted a representation election
to determine if the employees would be represented by the union. On
May 13, 2008, the Commission issued an interim certification
certifying the union as the representative of the bargaining unit
and deferring the unit placement of the shop supervisor to this
proceeding.(fn:1) The interim certification described the bargaining
unit as:
____________________
fn:1 City of Lynnwood, Decision 10069 (PECB, 2008).
ALL FULL-TIME AND REGULAR PART-TIME MAINTENANCE MECHANICS OF
THE CITY OF LYNNWOOD, EXCLUDING SUPERVISORS, CONFIDENTIAL
EMPLOYEES AND ALL OTHER EMPLOYEES.
On October 13, 2008, Hearing Officer Emily Martin conducted a
hearing on whether Barrett should be excluded from the bargaining
unit as a supervisor. Both the employer and the union filed
post-hearing briefs.
ISSUE
Is the position of Automotive Shop Supervisor appropriately excluded
from the bargaining unit as a supervisor?
The Executive Director holds that the Automotive Shop Supervisor
exercises sufficient authority on behalf of the employer over
subordinates for the position to be excluded from the bargaining
unit as a supervisor.
APPLICABLE LEGAL PRINCIPLES
Supervisors are employees within the meaning of Chapter 41.56 RCW
and are entitled to organize for the purpose of collective
bargaining. Municipality of Metropolitan Seattle (METRO) v.
Department of Labor and Industries, 88 Wn.2d 925 (1977). In order
to prevent a conflict of interest, supervisors are separated from
the bargaining units that contain the employees they supervise.
City of Richland, Decision 279-A (PECB, 1978), aff'd, 29 Wn. App.
599 (1981), review denied, 96 Wn.2d 1004 (1981). This principle has
been codified in WAC 391-35-340 which states:
It shall be presumptively appropriate to exclude persons who
exercise authority on behalf of the employer over subordinate
employees (usually termed "supervisors") from the bargaining
units containing their rank-and-file subordinates, in order to
avoid a potential for conflicts of interests which would
otherwise exist in a combined bargaining unit.
The determination about whether an employee is a supervisor is based
on an examination of their actual duties, and not merely on their
job title or description. Community College District 28 (Bates),
Decision 10155 (PECB, 2008).
As Chapter 41.56 RCW does not explicitly define the term
"supervisor," the Commission has often applied the definition found
in the Educational Relations Act, RCW 41.59.020(4)(d). Granite
Falls School District, Decision 7719-A (PECB, 2003). According to
that definition, a supervisor is:
any individual having authority, in the interest of the
employer, to hire, assign, promote, transfer, layoff, recall,
suspend, discipline, or discharge other employees, or to adjust
their grievances, or to recommend effectively such action, if
in connection with the foregoing the exercise of such authority
is not merely routine or clerical in nature but calls for the
consistent exercise of independent judgement . . . the term
"supervisor" shall include only those employees who perform a
preponderance of the above-specified acts of authority.
A supervisor can perform a "preponderance" of the supervisory duties
in two ways. If a majority of an individual's time is spent on
supervisory duties, that individual is a supervisor. Richland
School District, Decision 10151 (PECB, 2008). Alternatively, an
individual who spends less time performing supervisory duties but
performs a preponderance of the enumerated duties, is also a
supervisor. King County, Decision 10075 (PECB, 2008).
In contrast, a lead worker is an employee who performs some
supervisory duties but not enough to qualify as a supervisor. Lead
workers may remain in a rank-and-file bargaining unit as they do not
have a sufficient conflict of interest to warrant their exclusion.
City of Lynnwood, Decision 8080-B (PECB, 2006).
ANALYSIS
The position at issue, the Automotive Shop Supervisor, works in the
employer's automotive repair shop along with other employees. The
shop maintains and services the employer's fleet which includes
motorcycles, automobiles, fire trucks, backhoes, bulldozers,
graders, dump trucks, hydraulic and air pumps, compressors,
generators and fire apparatus. The fleet is used mostly by the
employer's fire, police and public works departments.
Four positions work in the shop: the shop supervisor, two heavy
equipment mechanics and a vehicle service technician. The shop
supervisor performs administrative tasks, such as scheduling repairs
and ordering spare parts, and works in the repair shop with the
mechanics. The mechanics repair and maintain the existing fleet.
The vehicle service technician customizes new equipment, such as
adding specialized equipment to new police cruisers or fire
apparatus.
The automotive shop is part of the employer's public works
department. Barrett's supervisor is Deputy Director of Public Works
Lester Rubstello. Rubstello is a mid-level manager who reports to
the employer's director of public works who, in turn, reports to
the elected mayor. Rubstello oversees five departments: Water and
Sewer Maintenance, Water Treatment, Streets and Stormwater, Traffic
and the Automotive Repair Shop. He typically spends only fifteen
minutes per day in the automotive shop.
Barrett has been the automotive shop supervisor since November 2007.
Before November 2007, he served as the interim shop supervisor for
several months after his promotion from a heavy duty mechanic
position in the same shop.
Analysis of the Standards of RCW 41.59.020(4)(d)
Assignment of Work
Barrett is responsible for assigning all work in the shop. He
authorizes and pre-approves overtime work, and approves employees'
leave requests. He has assigned each mechanic to speciality work
within the shop and adjusts the mechanics' assignments so that the
public safety vehicles are quickly repaired.
Hiring
The testimony establishes that since becoming the shop supervisor, Barrett
has been involved in the hiring of a heavy equipment mechanic and the
vehicle service technician. In these situations, Barrett worked with the
employer's human resources department to advertise the available position
and to convene an interview panel. Barrett then served on the panel which
interviewed the candidates. The panel then made a hiring recommendation
which was approved by the directors of the public works and human resources
departments. Rubstello served on one of the hiring panels with Barrett and
testified that Barrett had the overriding voice on the panel, while he was
there to assist Barrett who would be responsible for the newly hired
employee.
Barrett was responsible for checking references and communicating the
employer's job offer to the selected applicant. He was authorized to
negotiate the starting position on the salary schedule within a range
determined by the human resources department. Barrett checked references,
communicated the offer, and negotiated the starting salary in the hiring of
the heavy equipment mechanic. But for an injury which kept him from work
for an extended period of time, Barrett would have also performed these
tasks when the vehicle service technician was hired.
Transfers, Promotions, and Performance Evaluations
No employees in the automotive shop have been transferred since Barrett has
become the shop supervisor. Barrett testified that he expects to have input
in any transfer of automotive shop employees to other departments. As
Barrett has the only position in the shop that is not entry level, there is
no opportunity for Barrett to authorize promotions.
Barrett plays an extensive role in the shop employees' performance
evaluations. In cases where employees are not at the top of their pay
range, the employer uses the performance evaluations to determine whether
the employees will receive a step increase. Thus, the evaluations have a
definite impact on employees' wages. Barrett drafts the evaluations, both by
writing comments and making ratings. He then confers with the evaluated
employee and they both sign the evaluation. Afterwards, the public works
director and the human resource director review the evaluation. The
evaluation is reviewed for defects, such as being incomplete or containing
comments inconsistent with the ratings. Rubstello and the other directors
sign the evaluations, but they do not amend or supplement them. For
example, in one instance when the director of public works noticed that
Barrett's comments were too sparse on an evaluation, he returned it to
Barrett for additional comments.
The facts in this case regarding performance evaluations are distinguishable
from an earlier case involving the same parties. See City of Lynnwood,
Decision 8080-B (PECB, 2006). In the earlier case, the Commission affirmed
the Executive Director's determination that the employees at issue were lead
workers rather than supervisors. That decision was partially based on the
lead workers' lack of independence regarding performance evaluations. The
lead workers drafted evaluations and reviewed them with their department
directors. The department directors could modify the evaluations prior to
signing them. For most of the lead workers, the modifications would be made
before the evaluation was discussed with the evaluated employee. One lead
worker did review draft evaluations with the employees prior to giving the
drafts to his department director. Even in that situation, supervisors
could make changes to evaluations "as they see fit."
In contrast, Barrett's supervisors do not modify the evaluations. Rubstello
testified that "the shop supervisor is solely responsible for performing the
annual evaluation" and "essentially, all I try to do is to make sure that
the checkbox answers and the text descriptions are supposed to match."
Therefore, while Rubstello, the director of public works and the human
resource directors sign evaluations before they are placed in the employees'
files, it is Barrett's independent judgement that is reflected in the
performance evaluation process of the automobile shop.
Discipline, Suspension and Discharge
Only one instance of employee discipline has occurred since Barrett became
the shop supervisor. Barrett independently conducted a verbal counseling
and worked with the employee to provide additional training to correct the
performance issues.
From the evidence presented by his supervisors, Barrett has the authority to
recommend the most serious levels of discipline, such as suspension and
discharge. During the tenure of the previous shop supervisor, an employee
was terminated. The previous shop supervisor documented the employee's
performance problems and effectively recommended the discipline that
ultimately ended with the termination. The record indicates that Barrett
has the same authority as the prior shop supervisor.
Adjustment of Grievances
No grievances have been filed by automotive shop employees since the
creation of the shop supervisor position. Prior to this union being
certified, the employer's grievance procedure for non-represented employees
applied to all the shop employees. According to this procedure, Barrett has
the initial responsibility to respond to employees' grievances. Rubstello
does not have a role. If a grievance is not resolved with Barrett, the next
step in the grievance process calls for a written complaint to be submitted
to the public works director.
CONCLUSION
The totality of the evidence in the record shows that Barrett is a
supervisor whose presence in the bargaining unit would create a conflict of
interest with the rank-and-file employees represented by the union. He
assigns the work of the current employees, and is largely responsible for
hiring new employees. He is responsible for drafting performance
evaluations that determine whether employees receive pay raises. Barrett
would have input in the event of an employee transfer. Barrett has
conducted verbal counseling and could effectively recommend an employee's
termination or suspension. Under the present circumstances, Barrett is
responsible for addressing employee's grievances at the first step. In all,
Barrett performs a preponderance of the supervisory functions. Because of
these supervisory responsibilities, the position is appropriately excluded
from the bargaining unit.
FINDINGS OF FACT
1. The City of Lynnwood is an employer within the meaning of RCW
41.56.030(1).
2. The Washington State Council of County and City Employees is a
bargaining representative within the meaning of RCW 41.56.030(3) and is
the exclusive representative of all the employees classified as
maintenance mechanics.
3. Brian Barrett currently holds the position of Automotive Shop
Supervisor.
4. Barrett reports to the deputy director of public works who is
responsible for four other departments and reports to the director of
public works. The director of public works reports to the mayor.
5. Barrett assigns the work to the employees in the automotive shop and
schedules repairs. He approves overtime and leave requests.
6. Barrett is very involved in the hiring in the automotive shop. He
works with the human resources department to advertise positions. He
is part of the interviewing panel and the evidence showed that his
input is the most influential. He checks references, presents the
offer of employment, and negotiates the starting position on the salary
schedule.
7. Barrett is responsible for performance evaluations, which are signed by
his supervisors only after the employee and Barrett discuss and sign
them. These evaluations are used to determine whether employees will
receive a step increase in their wages.
8. Barrett would have input in the transfer of an employee from the
automotive shop to another department.
9. Barrett has the authority to discipline employees. He can
independently issue verbal counseling and effectively recommend serious
discipline, such as termination or suspension.
10. Barrett is the first step of authority to resolve employee
grievances.
CONCLUSION OF LAW
1. The Public Employment Relations Commission has jurisdiction in this
matter under Chapter 41.56 RCW and Chapter 391-25 WAC.
2. The position of Automotive Shop Supervisor is a supervisor under WAC
391-35-340 and is appropriately excluded from the automotive shop
bargaining unit represented by the union.
ORDER
The Automotive Shop Supervisor is excluded from the automotive shop
bargaining unit represented by the Washington State Council of City, County
and State Employees.
Issued at Olympia, Washington, on the 3rd day of March, 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 391-25-660.