Everett Community College, Decision 10392 (PECB, 2009)

 

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

In the matter of the petition of:                                  )

)

AMERICAN FEDERATION OF TEACHERS       )

WASHINGTON                                                        )           CASE 21765-E-08-3367

)

Involving certain employees of:                                  )           DECISION 10392 - PECB

)

EVERETT COMMUNITY COLLEGE                    )           ORDER FOR FURTHER

(COMMUNITY COLLEGE DISTRICT 5)              )           PROCEEDINGS

)

__________________________________________)

 

 

Nancy Kennedy, Labor Relations Specialist, for the union.

 

Rob McKenna, Attorney General by Scott Majors, Assistant Attorney General, for the employer.

 

 

The American Federation of Teachers Washington (union) filed a representation petition on June 6, 2008, seeking to represent over thirty-five AEverett Community College administrative exempt, excluding those excepted by 41.56 - vice-presidents, deans, confidential employees, etc.@  Hearing Officer Terry Wilson held a hearing on the matter on the following dates: July 23 -24, August 4-6, September 5, and September 10-11, 2008.  The parties submitted briefs on November 13, 2008.

 

ISSUE

 

The only issue before the Executive Director is whether the positions at issue should be excluded from collective bargaining rights under RCW 41.56.021(1).       

 

A significant number of the petitioned-for positions either direct administrative units or manage, administer, and control programs, and therefore, are encompassed by the exclusions set forth in RCW 41.56.021(1)(b)(i) or (ii).  Because they are excluded as managers under the specific terms of the statute, they are not privileged to be represented for purposes of collective bargaining.  It is unknown whether the union wishes to proceed in a much diminished unit. 

 

Should the union wish to proceed, two other issues must first be addressed: First, although supervisors may be represented for purposes of collective bargaining pursuant to Chapter 41.56 RCW, supervi­sors may not be included in the same bargaining unit as nonsupervisors.[1]   This determination is unrelated to the analysis of RCW 41.56.021 as it applies to the petitioned-for employees because this principle applies to all statutes administered by the Commission.

 

Furthermore, the record did not establish whether the petitioned-for employees who are eligible to engage in collective bargaining share a community of interest that would enable them to effectively bargain their terms and conditions of employment with the college.  It cannot be assumed that the Legislature intended to waive the Commission=s obligation to determine appropriate collective bargaining units with the passage of RCW 41.56.021.  Nor can it be assumed that the Legislature intended that all exempt employees automatically share a community of interest simply because they are exempt.  In order for a bargaining unit to be found appropriate, the petitioned-for employees must share a community of interest with respect to their terms and conditions of employment such that a bargaining representative may effectively bargain on their behalf.  RCW 41.56.060 dictates that when determining, modifying or combining bargaining units, the Commission shall consider 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.  Informa­tion concerning these factors does not appear in sufficient detail in the record made to date.  Therefore, before determining whether the proposed unit is appropriate for purposes of collective bargaining, more information is needed concerning the community of interest factors.

 

APPLICABLE LEGAL STANDARDS

 

This case arises under the Public Employees= Collective Bargaining Act as codified in Chapter 41.56 RCW.  Prior to 2007, employees at institutions of higher learning who were exempted from civil service pursuant to RCW 41.06.070(2) were not entitled to be represented for purposes of collective bargaining. See University of Washington, Decision 9410 (PSRA, 2006).  Community college academic employees, on the other hand, have long been afforded collective bargaining rights pursuant to Chapter 28B.52 RCW.  Likewise, faculty at the state=s four-year universities were granted collective bargaining rights with the passage of Chapter 41.76 RCW in 2002.  Classified employees at state educational institutions have long had the right to collectively bargain, most recently codified and expanded with the passage of the Personnel System Reform Act (PSRA) in 2002 (Chapter 41.80 RCW) which granted full scope collective bargaining to state employees.  However, employees exempted by RCW 41.06.070(2) lost the right to engage in collective bargaining when they lost their civil service status.  The Legislature intended to restore those rights to certain exempt employees at institutions of higher learning in 2007 when it enacted RCW 41.56.021(1).  

 

This is a case of first impression that requires careful attention to the interpretation and application of RCW 41.56.021.[2]   That statute reads in part:

 

(1) In addition to the entities listed in RCW 41.56.020, this chapter applies to employees of institutions of higher education who are exempted from civil service pursuant to RCW 41.06.070(2).

 

 

However, the statute goes on to specifically exclude from coverage five classes of employees:

 

 

(a)  Executive employees, including all members of the governing board of each institution of higher education and related boards; all presidents and vice presidents; deans, directors, and chairs; and executive heads of major administrative or academic divisions;

(b)  Managers who perform any of the following functions:

(i)  Formulate, develop, or establish institu­tional policy, or direct the work of an admin­istrative unit; or

(ii) Manage, administer, and control a pro­gram, including its physical, financial, or personnel resources; or

(iii) Have substantial responsibility for human resources administration, legislative relations, public information, internal audits and investigations, or the preparation and administration of budgets; or

(iv) Functionally is above the first level of supervision and exercises authority that is not merely routine or clerical in nature and requires the consistent use of independent judgment;

(c) Employees who, in the regular course of their duties, act as a principal assistant, administrative assistant, or personal assistant to employees as defined by (a) of this subsection;

(d) Confidential employees; and

(e) Employees who assist assistant attorneys general who advise and represent managers or confidential employees in personnel or labor relations matters, or who advise or represent the state in tort actions.

 

 

ANALYSIS

 

The employer asserts that all positions at issue must be excluded from the proposed bargaining unit of exempt staff under the provisions of RCW 41.56.021(1)(a­) and (b), which excludes executive employees and managers, respectively.

 

The union contends that the positions at issue do not meet the exclusion criteria established in the statute.  It asserts that no position at issue is a board member and no incumbent is head of a major administrative unit or academic division, which the union would have the Commission strictly define as the four vice presiden­tial offices that report directly to the president.

 

In addition, the union contends that the disputed positions are not managers, for no incumbent actually establishes institutional policy.  At most, according to the union, a select few may help establish policy for their department, but not for the institution, and most incumbents actually establish procedures for their departments as opposed to policy. 

 

Furthermore, the union asserts that no incumbent position substan­tially fulfills any of the responsibilities set out in RCW 41.56.021(1)(b)(ii) through (iv).  While a few may exhibit some control over a few budgetary items, the union contends that none has substantial control over a program=s budget or multiple budgets.  A program, the union argues, must be akin to an administrative unit or an academic unit, and not a small, narrowly focused entity.

 

Finally, the union argues that the word Aprogram@ in RCW 41.56.021(1)(b)(ii) is a word with specific meaning.  It asserts that to further the true intent of the statute, a program must be a unit that is akin to an academic unit, as a college in a univer­sity system, or a major administrative division.

 

Statute is Disjunctive

 

The parties both spent considerable time discussing whether this group of employees should be excluded on the basis of their executive status set forth in RCW 41.56.021(a).  Because the statute is constructed in a disjunctive fashion, unless noted otherwise, it is not necessary to reach a conclusion concerning employees= executive status if they are excluded because they direct an administrative unit, or manage, direct and control a program under RCW 41.56.021(b)(i) or (ii).

 

Additionally, sections 1(b)(i) and (ii) are most critical to the analysis in this case due to the nature of the work performed by the majority of the petitioned-for employees.  The statute provides no assistance in defining such terms as Aadministrative unit@, and managers are excluded if they perform any of the duties set forth in RCW 41.56.021(1)(b)(i) through (iv). Simply put, the criteria for exclusion from coverage under the statute set forth in RCW 41.56.021(b)(i) through (iv) are disjunctive; thus, a manager under this statute is excluded from collective bargaining if he/she performs only one of the duties therein.

 

Definition of Administrative Unit

 

Due to the unfortunate absence of legislative guidance concerning certain terms used in the statute, the analysis must begin with an understanding of the statutory language.[3] Because RCW 41.56.021(1)(b) uses the term Aadministrative unit@, the terms Aadministra­tive@ and Aunit@ are at issue.

 

From an etymological standpoint, administer is the root of adminis­trative, and Amanage@ is synonymous with Aadminister@.  Turning to Aunit@, Webster=s II New Riverside University Dictionary (1994) defines it as 1) an individual group, structure, or other entity regarded as an elementary structural or functional constituent of a whole, or 2) a group regarded as a distinct entity within a larger group.  It can be inferred from the ordinary meaning of administer, and the dictionary meaning of Aunit@ that an Aadministrative unit@ is a unit that is administered or managed as a distinct office, department, subdivision, or program that is part of a larger entity, in this case the community college. This working definition is not inconsistent with the definition of Aadministrative unit@ codified by Green River Community College. [4]

 

Furthermore, the union=s argument regarding the word Aprogram@ must be rejected because according to the language of the statute, a manager is either defined by one who directs the work of an administrative unit or one who manages, administers, and controls a program.5  Thus, in order to be excluded as a manager under RCW 41.56.021(b)(i) or (ii), one can either direct an administrative unit, in general terms, or have a significant amount of specific control over a program.  There is simply no basis to conclude that the true intent of the statute intends that a program must be a unit that is akin to an academic unit, as a college in a university system, or a major administrative division.  Indeed, community colleges offer numerous programs for students that fall far short of a college within a university system or a major administrative division.  One clear example might be the athletic department in which many students participate.  It is not a college or an administrative division, yet it is a definite program devoted to a particular field or interest.  The director of this college=s athletic department is one of the positions the union seeks to represent. 

 

Job Titles Not Dispositive

 

Most of the petitioned-for positions have the word Adirector@, Amanager@, or Aassistant@ within their job title. The title of a position is not dispositive of the unit placement of a position because, when interpreting statutes, making unit determinations, and resolving representation issues, the Commission is not controlled or governed by titles given to a particular position.  Washington State University, Decision 9613-A (PSRA, 2007); City of Winslow, Decision 3520-A (PECB, 1990).  Rather, the Commission examines the actual duties of employees when determining whether a position is included or excluded from a bargaining unit.

 

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.  For these reasons, the positions of Director of Work First, Custodial Supervisor, Director for International Education, Director of Information Technology, and Director of Campus Safety cannot be decided at present and may be subject to further proceedings. State - Natural Resources, Decision 8458-B (PSRA, 2005), City of Redmond, Decision 7814-B (PECB, 2004).

 

Accordingly, it is first necessary to examine the petitioned-for employees to ascertain which ones were contemplated by the statute to be eligible for representation for purposes of collective bargaining. The conclusions reached herein only concern the eligibility of employees to be represented for purposes of collective bargaining.  Whether one or more bargaining units are appropriate will be determined after a subsequent hearing is held and a record is developed concerning whether these employees share a community of interest and whether two units are required based upon supervisor status of the employees at issue.  

 

The analysis of the various positions at issue will be viewed under their respective divisions of the college:  The Office of Instruc­tion, Student Services, Administrative Services, College Advance­ment, Enrollment Services, University Center, and the President=s Office. 

 

Office of Instruction

Those positions at issue are:    Director of International Education, Executive Director of Corporate Training, Director of Institutional Research, Director of Continuing Education, Director of Work First Programs, Director of E‑Learning, Director of Early Learning Center, Director of Tutoring Center, Director of ORCA Program, Director of Emergency Services Program, Director of Customized Training/TRIAD Grants, Director of East County and Tech Prep, and Assistant Director of Learning Services.

 

Director of International Education

The position of Director of International Education is a new position that was filled about a week prior to the day that Vice President for Instruction Sandra Fowler-Hill testified concerning the position.  The incumbent, Visikan Ganeson, was not available to testify.  While Fowler-Hill testified concerning her intentions for the position, which she created, the testimony was based upon intended duties rather than actual duties performed by Ganeson.  As set forth above, the Commission does not make unit determinations based upon intended duties or speculation of future duties.  Such determinations are made upon actual duties performed; thus, the unit placement of the Director of International Education cannot be determined at this time. 

 

Executive Director of Corporate Training

One of the primary functions of the corporate training program is to offer training for businesses and industries in the Puget Sound area.  The executive director of corporate training is responsible for developing training to meet individual business needs, negotiating contracts to provide this service, hiring instructors, negotiating leases, managing facilities, and developing and managing budgets.  This position is currently filled by John Bonner, who, in addition to managing the corporate training program, also manages the college-in-high school program and the continuing education program.  As the director, Bonner supervises another exempt staff position, the Director of Continuing Education.

I find that this position must be excluded as a manager under RCW 41.56.021(b) (i), (ii), (iii) and (iv) because the incumbent employee directs an administrative unit, develops business plans and budgets for his programs that he manages, administers, and controls.  The record establishes that Bonner has free reign to implement his plans with very little oversight.  Additionally, because he exercises supervisory authority over an exempt employee who in turn supervises other employees, that supervision is considered to be above the first level of supervision.

 

Director of Institutional Research

The goal of institutional research program is to provide data and research to the community college.  This may include surveys of faculty and students, analysis of enrollment behavior, studies of student performance, and research in support of a college initiative.  The vast majority of the work is generated by requests from staff in other departments or programs. 

 

The position is currently filled by Daryl Dieter.  Dieter testified that he provides data to the college, but does not make decisions based on that data.  And although he has provided information to people involved in policy making, he has not been involved in any actual decision making.  Dieter, who directs the work of one classified employee, testified that his role as supervisor was limited and that he did not administer discipline.

 

The employer=s challenge fails under all provisions of RCW 41.56.021.  The evidence has not established that the position is an executive or director as construed by the statute, and Dieter does not formulate, develop or establish institutional policy, nor does he appear to direct an administrative unit.  His role is limited to providing data, upon request, to others at the community college.  Evidence was insufficient to establish that Dieter manages, administers, and controls a program including its physical, financial, or personnel resources.  Dieter does not have any substantial budgetary responsibilities and his supervisory duties are limited to a single classified employee.

 

Director of Continuing Education

The program for Continuing Education provides non-academic workshops and short-term classes for professional development and personal interests.  The program is financially self sufficient as the revenue for the program is generated by student fees.  Karen Landry, the current director, reports weekly to John Bonner, the Director of Corporate Training. 

 

As part of her duties, Landry aids in determining the feasibility of a class or workshop.  She assists in hiring instructors by making recommendations to the college president.  According to Landry, these recommendations are generally followed.  Landry is responsible for negotiating instructor contracts and setting fees.  Upon completion of a course, she solicits evaluations from students, and based upon those evaluations, she works with the instructors to improve their performance. 

 

Concurrent with her duties regarding the continuing education program, Landry directs the Acollege in high school program@, where she is responsible for enrollment processing, developing a budget, and signing off on all expenditures.  Landry testified that she has significant budgetary control over the program.  Landry also manages the rooms used by this program and oversees the physical operation of the Applied Technology Center where she handles maintenance and security issues.  Landry works with tenants in the center to meet their renovation or space needs. 

 

The position of Director of Continuing Education must be excluded under RCW 41.56.021(1)(b)(i), (ii) and (iii).  Landry administers an administrative unit with little oversight.  She manages and administers the program and has significant control over the financial resources of the program and its facilities. 

 

Director of Work First Program

Although the Hearing Officer accepted testimony concerning the position, it is noted that the position is a new position that remained unfilled throughout the hearing.  During the hearing the college was in the midst of recruiting for the position.  Again, the Commission will not ordinarily make rulings on new and vacant positions because rulings in such a context would call for speculation. This Commission has long held that when determining bargaining units or unit placement, it will not consider speculation, but only duties that are actually performed.

 

Director of E-Learning

One of the primary goals of the E-Learning program is to provide on-line courses to students.  While the faculty determines the content of the courses, the Director of E-Learning is responsible for the delivery and technical support of on-line courses.  The position is currently filled by Sara Frizelle. 

 

Frizelle reports regularly to the Dean of Library/Media and E-distance Learning, who has the budget authority for the program.  When securing software programs for the E-Learning program, Frizelle provides technical input for those negotiating on behalf of the college.  She does not assist in the negotiation process.

 

It appears that Frizelle provides support for a program but does not formulate, develop, or establish institutional policy.  In addition, she does not direct the work of an administrative unit; rather, she provides technical expertise in delivering courses that are determined by others. Frizelle has no substantial control over the program as dictated by the statute, and she does not have any significant responsibility for human resource, legislative relations, public information, internal audits, or budgets.  The position is not functionally above first level supervision.  Thus, Frizelle does not fall under any of the exclusions set forth in RCW 41.56.021(a) or (b) and may be included in an appropriate collective bargaining unit.

 

Director of Early Learning

The primary responsibility of the Early Learning Program is to provide on-campus childcare.  Kelly Davidson is the director, and she is responsible for all operations of the childcare program, including participation in the USDA food program and the ECEAP program, as well as the management of the Early Learning Center.6  Davidson ensures compliance with state laws and regulations, and she supervises 17 classified employees.

 

Davidson testified that she creates and manages the budget.  She has control of the program=s finances, and she is responsible for generating ideas and methods to increase revenue for the Early Learning program, a self-supporting program outside the instructional and operational budgets of the college.  According to Davidson, she is the ultimate budget authority for the program.

 

I find that the position must be excluded as a manager under RCW 41.56.021(1)(b)(i), (ii) and (iii). In addition to directing an administrative unit, she manages, administers, and controls the program which includes management of the day-to-day functions of the program, and delivering service to clients.  Davidson is the budget authority; she independently develops and manages the budget.

 

Director of the Tutoring Center

One of the primary goals of the tutoring program is to provide assistance to students in their studies.  Sharon Wellman is the current director.  She reports to the Dean for Learning Services.  Her duties include hiring and evaluating 40-45 tutors and supervising three classified employees.  Wellman is responsible for long-range planning, and works independently.  She is proactive in working with faculty when there are changes in instruction and when new textbooks issue.  Using her own initiative, Wellman recently joined a consortium of colleges offering on-line tutoring and funded the program by obtaining start-up costs from another department on campus.  Otherwise, Wellman=s control of her budget is limited.  Any expenditure over $250 must be signed off by the vice president of instruction.

 

Wellman works independently and does not meet regularly with the Dean.  She appears to have significant autonomy in her management of the program and is therefore excluded under RCW 41.56.021(b)(i) and (ii) because she directs the work of an administrative unit and manages, administers, and controls the program and its personnel resources.

 

Director of the Ocean Research Academy (ORCA)

The ORCA program is an early entry program for high school students.  Upon completion of the program, students receive an Associate in Science degree.  The designated director of the program is Ardith Kveven.  As director, she is responsible for conducting outreach and recruiting potential students, developing curriculum, and organizing the field research.  Kveven testified that the biggest component of her job is the ongoing hiring of faculty to teach in the program.  She makes the decision to hire, although she noted that the Dean of Math and Sciences, Al Friedman, to whom she reports, could overrule her if he disagreed with her decision.

 

Kveven also testified that she functions quite independently.  She independently develops curriculum and the budget for the program.  She seeks grant resources to fund aspects of the program, and she has taken the initiative to locate real property to be gifted for the program=s use.  She noted, however, that although she is the budget authority for the program, Friedman can change aspects of budget proposal, and capitol improvements and acquisitions are made by the Board of Trustees.  Karen Landry, Director of Continuing Education, is responsible for the facility housing the program.

 

The record established that Kveven administers a unit and manages, directs, and controls the ORCA program, having substantial control over the financial resources of the program as dictated under the statute.  Thus, the position of Director of ORCA is a manager as defined by the statute and must be excluded from engaging in collective bargaining under RCW 41.56.021(b)(i) and (ii).

 

Director of Emergency Service Program

The Director of the Emergency Service Program is responsible for curriculum development of the fire science degree program.  The position is currently occupied by Russell Colmore, who reports to the dean of math and sciences.  Colmore testified that, as director, he advises students, assists in developing courses, purchases equipment, and makes hiring recommendations for instructors.

 

His authority and decision-making are limited.  He does not supervise staff.  The ultimate decision to hire an instructor is made by the Dean of Math and Sciences.  Colmore testified that he does not have a significant role in the development of the budget.  Rather, the dean develops a budget, and it is given to him.  Colmore monitors the budget.

 

The employer=s challenge fails under all exemptions set forth in RCW 41.56.021.  There is no evidence that the position has formulated, developed, or established institutional policy, that it directs the work of an administrative unit, or exercises substantial control over the program or its personnel, financial resources or physical resources as dictated by the statute.  This position does not meet any of the exemption standards set forth in the statute and is eligible to participate in collective bargaining in an appropriate unit.

 

Director of Customized Training Grants/TRIAD Grants

As Director of Customized Training Grants/TRIAD Grants, Melissa Helminstine is responsible for budget oversight for an advanced manufacturing grant. The purpose of the grant is to fill in the gap between the skills needed in industries, such as manufacturing, and the skill level of the employment pool in Snohomish County.  Helminstine works directly under Sheila Dunn, Director of East County and Tech Prep.  Helminstine has no budget authority.  She monitors and tracks grant charges.  She may sign off only on very small expenditures.  In addition, while she supervises one classified employee and one part-time employee, her authority in controlling personnel resources is limited.  She can only make hiring recommendations.  The position of Director of Customized Training Grants/TRIAD Grants is included in an appropriate bargaining unit because it does not meet any of the exemption tests set forth in the statute.

 

Director of East County and Tech Prep

Sheila Dunn has been designated the Director of East County and Tech Prep.  She testified that 75 percent of her time is spent as the Director of East County programs where she is responsible for the development and oversight of an agreement that outlines the use of Monroe School District facilities by the college.  On behalf of the college, Dunn negotiates costs, including technology support, cost of copies, and fee waivers.  Dunn also develops class schedules subject to approval by the dean=s council, and she schedules instructors for the adult education classes.  Some instructors report directly to Dunn, others do not.  Dunn supervises a part-time classified employee and the Director of Customized Training Grants, an exempt position who supervises other employees.

 

The remaining 25 percent of Dunn=s time is spent as the Director of Tech Prep.  The Tech Prep program is a federally funded program in which high school students receive college credit for vocational classes.  The director is responsible for growing the program and has increased the number of students from 100 to several thousand participants during her tenure.  Dunn is responsible for applying for grants for the program, and administering and managing them as the budget authority.  Dunn exercises a great deal of autonomy in both positions.  Dunn reports directly to the Dean of Workforce Development.  

 

Based upon the responsibilities and autonomy that Dunn is given, it can be concluded that Dunn directs the work of an administrative unit and manages, administers, and controls the two programs in terms of their personnel resources, funding, and/or facilities.  Additionally, she supervises an exempt employee, which in addition to her exclusion under RCW 41.56.021(b)(i) and (ii), excludes her from the collective bargaining process under  RCW 41.56.021(b)(iv).

 

Assistant Director of Learning Services

This position is occupied by Phyllis Bagwell, who testified that it was her overall responsibility to provide administrative support for the Dean for Learning Services, including correspondence and maintaining the calendar for Learning Services.  According to Bagwell, she handles the scheduling for many programs, coordinates the use of physical space, coordinates faculty assignments, supervises classified staff, manages budget encoding, and keeps the dean informed of operations. This position must be excluded under RCW 41.56.021(c).  The record reflects that Bagwell=s sole job is be the principle assistant to the Dean, an exempt employee under RCW 41.56.021(a), with the management and day-to-day operations of the college.

 

Student Services

The positions at issue are: Associate Dean for Diversity, Director of the Center for Disabilities Services, Director of Student Financial Services, Director of Student Activities, Director of Student Athletics, the Assistant Director for Financial Aid and the Director of TRIO Student Support Services Program.  The employer argues that these positions must be excluded as executive employees and/or managers under RCW 41.56.021(1)(a) and (b), respectively.

 

Associate Dean for Diversity

The position of Associate Dean for Diversity is currently held by Christina Castoreno.  As associate dean, Castoreno has two primary duties.  Her first primary duty is to increase the presence of persons of color on the campus.  To accomplish this goal, she initiated a program that increases the number of minorities in teaching programs and she has created and implemented many funding programs to provide money to various campus programs targeting specific populations.  As the programs were her creations, Castoreno developed the criteria for the use of the funds and made decisions as to which programs would get funding.  She reports directly to the college president, and she is required to attend weekly meetings of the college=s vice presidents. 

 

Castoreno=s second primary duty is to direct the operation of the Equity and Diversity Center that provides support to target populations.  Castoreno is responsible for developing programs to provide academic support, academic advising and counseling, and personal counseling to target populations.  She has the freedom to use independent judgment in developing programs and recommending new services.  All of her recommendations have been followed.  Castoreno supervises two staff members:  one faculty member and one part-time employee who are both responsible for providing direct services to the students.  Castoreno is responsible for the overall program.  When functioning as the director of the center, she reports to the vice president of student services.  Castoreno testified that she and the vice president do not have regular meetings.  Rather, she consults the vice president when necessary.

 

The position must be excluded as a manager under RCW 41.56.021(1)(b)(i), (ii) and (iii).  Castoreno uses independent judgment and control in developing and implementing programs.  Clearly, this position administers units and manages, administers, and controls programs, including their financial resources.

 

Director of the Center for Disability Services

The goal of the Center for Disability Services is to provide accommodations to students with disabilities.  As its director, Kathy Cook manages and directs the manner in which the center provides these services to students.  Cook supervises two classified staff and one part-time hourly employee who are responsible for providing direct services to students.  Cook testified that the vice president has the final authority over the budget, but she participates in developing and managing the budget.  However, Cook has no spending authority over $250.  While Cook testified that she independently determines how the Center operates and is not closely supervised, she also provided testimony that she has bi-weekly meetings with the vice president and other student services directors.

While there is no evidence that the position has formulated, developed, or established any institutional policy or that Cook has any significant responsibility for human resources, legislative relations, public information, or internal audits,  Cook administers the unit and uses her discretion in determining how the center operates.  She manages, administers, and controls the program.  Even though her authority to spend is limited, she has input into development and management of the budget. The position occupied by Cook is therefore exempt from collective bargaining under RCW 41.56.021(b)(i) and (ii).

 

Director of Student Financial Services

The position of Student Financial Services Director is occupied by Laurie Franklin whose primary duty is to provide financial aid services to students and to ensure that the college complies with all state and federal laws and institutional policies.  Franklin directs a staff of seven classified employees and one exempt employee, who manage and administer seven million dollars in financial aid and scholarships.  Franklin hires staff, prepares job descriptions, determines qualifications, and prepares evaluations of her staff.  Franklin also manages a budget of $450,000 and is responsible for preparing and developing budget proposals.  Although she reports to the vice president for student services, Franklin testified that she works with very little oversight.

 

The Director of Student Financial Services must be excluded under RCW 41.56.021(1)(b)(i), (ii), (iii) and (iv).  Franklin administers her unit and manages the financial services program with very little oversight.  She has significant control over the financial resources of the program.  She develops the budget and supervises an exempt employee.

 

Director of Student Activities

Joann Ashlock is the current Director of Student Activities, and she is responsible for directing all student activities on campus including student government, student clubs and organizations, and publicity services for student organizations.  Ashlock testified that she serves as a liaison between the college administration and student organizations and plays a key role in advising and directing students regarding the formation of student government.  According to Ashlock, she can overrule student actions if they are not in compliance with policies.

 

It is Ashlock=s staff who handles the day-to-day functions of the office.  Ashlock oversees two classified employees.  One employee is responsible for oversight of student clubs and student activities= boards, while the other employee is responsible for office functions such as monitoring budget paperwork and working with student office assistants.

 

Ashlock is responsible for the overall direction of the department and is the budget authority for her department.  Her input to the $1.9 million budget is significant as it affects not only student programs, but the program run by Athletic Director Larry Walker, who submits his budget to Ashlock.  Given that Ashlock clearly administers a unit and manages a program and its budget, the position of director of student activities and programs is excluded as a manager under RCW 41.56.021 (1)(b)(i), (ii) and (iii). 

 

Director of Student Athletics

As the Director of Student Athletics, Larry Walker is responsible for eleven intercollegiate sports, intramural sports, and campus and off-campus facilities.  He evaluates coaches and makes recommendations concerning who should be hired as coaches. Walker supervises one classified employee and reports directly to the Vice President for Student Services.  Walker testified that he often works with the financial aid office and enrollment services with respect to athletic scholarships and tuition waivers.  He scouts and recruits athletes, monitors the budget expenditures for uniforms, travel, and equipment rentals, and prepares proposed budgets to submit to student government which funds 70 percent of the athletic programs.  The athletic program generates about $1.5 million per year in revenue.  He is also responsible for ensuring that the college complies with the regulations of the Northwest Association of Community Colleges. 

 

It is clear that Walker administers the athletic program, a unit of student services.  He acts independently in managing, administering, and controlling the athletic program, its eight coaches and its facilities, and ensures that the college is in compliance with sporting regulations.  He prepares and submits a budget for the program and is responsible for administering the budget. The Director of Student Athletics is excluded from participating in collective bargaining pursuant to RCW 41.56.021(b)(i), (ii) and (iii).

 

Director of TRIO Student Support Services Program

TRIO is a federal grant given to the college to provide support services such as tutoring and counseling for low income and first generation students.  Cynthia Shaw is the current director of the program and is responsible for drafting the grant, overseeing the grant, running the program=s day-to-day operations, and supervising those who implement services funded by the grant, including two classified staff and four faculty members. One of her employees has authority to hire, but Shaw retains final decision-making authority and can overturn the hiring decision made by her subordinate.  She drafts proposals for grant renewals, monitors the grant expenditures, and reviews the effectiveness of the program.  Shaw reports directly to the Vice President for Student Services and although she does not meet regularly with him, she consults with him when she feels it necessary. Based upon the fact that Shaw exercises discretion in directing the unit, and manages, administers, and controls the program and its personnel, her position is excluded pursuant to RCW 41.56.021(b)(i) and (ii).

 

Assistant Director for Financial Aid

The position of Assistant Director for Financial Aid is occupied by Sharon Parks.  According to the employer, Parks acts as a principal assistant to the Director of Student Financial Services, Laurie Franklin, and in her absence she assumes the responsibilities for the office of Student Financial Services.  As such, the employer asserts that she should be excluded from the bargaining unit under RCW 41.56.021(1)(c), which excludes employees who, in the regular course of their duties, act as a principal assistant, administrative assistant, or personal assistant to executive employees as defined by (a) of this subsection.

 

Parks testified that she manages all aspects of customer service in the financial aid office and the day-to-day activities of the financial aid office.  In addition, she coordinates scholarships, makes presentations to area high schools regarding financial aid, evaluates financial aid files, and supervises the front counter staff of the office.  Parks also testified that the Director of Financial Aid is ultimately responsible for the discipline of the departmental staff and assigns goals and responsibilities for the staff.  Her budgetary role is to track those excursions already in process.

 

The employer=s challenge fails under RCW 41.56.021(1)(c).  Laurie Franklin, the Director of Financial Aid, is not an executive employee under the statute.  Therefore, Shaw does not provide assistance to an executive.  Moreover, Parks is not excluded under the other provisions of the statute as she does not direct an administrative unit or manage, administer, and control a program as set forth in the statute.  Because Parks does not meet any of the statutory criteria for exclusion, she is eligible to be represented for purposes of collective bargaining in an appropriate unit. 

 

Administrative Services

The following positions are at issue: Director of Information Technology, Director of Payroll and HR Operations, Director of the Bookstore, and Director of Campus Safety.  The employer argues that the positions should be excluded as directors and managers under RCW 41.56.021(1)(a) and (b).

 

This section also refers to the following managerial positions: Associate Director of Information Technology, Budget Manager, Revenue Accounting Manager, General Ledger Manager, Cashier Manager, Facilities Maintenance Manager, and Custodial Supervisor.  The employer argues that these positions should be excluded under RCW 41.56.021(1)(b).

 

Director of Information Technology

This position of Director of Information Technology is now occupied by Michael Kim who did not testify at the hearing.  Margery Wyatt, who served as Interim Director in 2008, testified about the duties of the director.  At the time of her testimony, Kim had been in his position for about three weeks.  While it appears, based upon the testimony proffered by Wyatt, that this position may be excluded from participation in collective bargaining, the best record would be developed by the testimony of the incumbent, Michael Kim, concerning his actual duties.  Therefore, a final decision concerning this position will be reserved until a record is made at a subsequent proceeding.

 

Director of Payroll and HR Operations

The Director of Payroll and HR Operations directs the work of all payroll activities at the college, represents the college at unemployment compensation hearings, decides whether the college will protest an unemployment claim, and is responsible for the college=s compliance with regulations involving employee compensation and benefits.  The position is currently occupied by Janice Paulsen, who testified that, as Director, she plays an active role in collective bargaining and is privy to the college=s negotiating strategy.  Paulsen also works with the Attorney General=s Office in responding to public records requests and legal actions, including tort claims.

 

The position of Director of Payroll and HR Operations must be excluded under RCW 41.56.021(1)(d) as a confidential employee.  Based on the record, Paulsen is active in assisting management in preparing for negotiations and is privy to information that could significantly effect the course of collective bargaining.

 

Director of the Bookstore

This position is currently occupied by Kerri Kirk, who reports to the Assistant Administrative Officer, Pat Sisneros.  Kirk is responsible for the overall operation of the bookstore and ensuring that the bookstore is a profitable retail operation.  Kirk is responsible for developing and managing a financial plan for the bookstore, purchasing, implementing cash flow accounting systems, supervising the store=s financial accounts, maintaining staff levels, and supervising staff.

 

This position must be excluded under RCW 41.56.021(1)(b)(i), (ii) and (iii).  The statute requires that the incumbent manage, administer, and control a program including its physical, financial, or personnel resources.  Kirk is the budget authority of the bookstore, a separate administrative unit, and is responsible for administrative, operational, and financial resources of the bookstore.  Accordingly, this position is excluded from participation in collective bargaining. 

 

Director of Campus Safety

Campus Safety is a distinct and separate department that reports to Michael Kearns, Executive Vice President of Administrative Services.  During the first part of the hearing, Marc Tolle, who was the Interim Director for approximately one year, testified concerning his duties.  When Tolle returned to testify at the end of the hearing, he was no longer the interim incumbent, but had moved to the lieutenant position.  Generally, it is critical to have actual incumbents of a position testify.  See City of Tenino.  While Interim Director, Tolle supervised four classified staff, five part-time hourly guards, and approximately four to nine students.  One of the classified staff is a sergeant/lieutenant position that supervises the classified patrol officers, their training, and day-to-day operations.  The Director is ultimately responsible for all aspects of campus security, emergency management, traffic and parking, and general safety issues, has authority to expel individuals from campus and conducts investigations of criminal misconduct on campus, and has testified on behalf of the college in civil and criminal cases.

 

As Interim Director, Tolle bore some responsibility in preparing budget proposals and he managed the budget, including daily expenditures within the budget.  Annual purchase orders, such as phone bills are billed automatically, but administrative signatures are needed on charges other than annual purchase orders.  Tolle testified that he was required to ask Kearns to sign off on expenditures exceeding $250.

 

While it appears the Director of Campus Safety would be excluded pursuant to RCW 41.56.021-(b)(i) and (ii) because this position directs of the work of the administrative unit, and manages, administers, and controls the program and its personnel, further testimony is needed from the incumbent to ascertain whether the incumbent=s duties are consistent with those exercised by Tolle while he served as interim director.

 

Associate Director of Information Technology

This position is currently occupied by Margery Wyatt who testified that she is responsible for running the day-to-day functions of the department, including supervision of staff.  Wyatt also testified that she handles discipline of the staff, but that her decisions are subject to the approval of the director and the human resource department.  The ultimate goal of the Associate Director is to implement the plans developed by the Director of Information Technology.  The Director of Information Technology is the budget authority for the department.

 

The employer=s challenge fails on all counts.  Wyatt is not an executive employee under the statute, nor does she direct the administrative unit or manage a program.  Accordingly, the position of Associate Director of Information Technology will be included in an appropriate bargaining unit.

 

Budget Manager

As Budget Manager, Suanne Streby is responsible for maintaining and monitoring all college budgets, including budget controls implemented in 2007.  Streby testified that she advises budget authorities about budget management and sometimes makes recommendations regarding budget policies for the college.  Her recommendations may or may not be followed.  In addition, she testified that she has the authority to make budget transfers from one budget to another, with no oversight, and she prepares salaries and benefits estimates as needed.  Streby reports to the Director of Accounting Services and supervises one classified person.

 

Streby does not formulate, develop, or establish institutional policy.  In addition, Streby=s unit does not rise to the level of an administrative unit; but rather is a function of the accounting services department.  Streby does not manage, administer, and control a program, including its physical, financial, or personnel resources, and there is no evidence that she should be excluded on any other basis set forth in the statute. 

 

Revenue Accounting Manager

As the Revenue Accounting Manager, Mary Hawkins is responsible for revenue accounting at the college.  She compiles fiscal data, performs analysis of revenue, and prepares reports for the state board.  Hawkins is responsible for ensuring that the college complies with state fiscal rules and regulations.

 

Hawkins supervises two fiscal technicians, who primarily handle general accounting functions.  Hawkins also supervises Tammy Wood, the cashier manager, an exempt position at the college, who in turn supervises employees.  The position of Revenue Accounting Manager is excluded under RCW 41.56.021(1)(b)(iv) because the position functions above first level supervision.

 

General Ledger Manager

This position is occupied by Greg Walthew.  As the General Ledger Manager, Walthew is responsible for all expenditure related activities of the college and the accurate operation of the college=s financial management system.  He also handles risk management and compliance with tax reporting requirements.  Walthew testified that his budget responsibilities include monitoring nondiscretionary accounts and some internal auditing.  He directs the work of two classified workers.  Walthew, like the Budget Manager and the Revenue Accounting Manager, reports to the Director of Accounting Services.

 

Walthew does not formulate, develop, or establish institutional policy, nor does he direct the work of a division that is akin to an administrative unit.  He does not manage, administer, and control a program or its resources.  Even though Walthew performs an important function within the Accounting Services Department and may be involved with audits, the record did not establish, and the employer did not argue, that Walthew bears substantial responsibility for audits as enunciated in RCW 41.56.021(b) (iii).  Walthew=s supervision of two classified employees does not place him above first level supervision. In light of all the evidence, the position of General Ledger Manager may be included in an appropriate bargaining unit.

 

Cashier Manager

As Cashier Manager, Tammy Wood is responsible for petty cash funds across campus.  Her office serves as the custodian for college funds (from a variety of sources including tuition and parking tickets) and is also responsible for the processing and physical deposit of moneys collected by the college.  Wood supervises the work of one full-time classified cashier and two part-time hourly cashiers.  She has no budget authority and no significant responsibilities relating to human resources.

 

Wood does not formulate, develop, or establish institutional policy, nor does she direct the work of a division that is akin to an administrative or academic unit, or manage, administer, and control a program. Therefore, the position of Cashier Manager will be included in an appropriate unit. 

 

Facilities Maintenance Manager

As the Facilities Maintenance Manager, Thom Watson is responsible  for the maintenance of all buildings owned by the college.  As part of his duties, Watson reports to the Facilities Director every other day to obtain specific directions about work and to discuss any problems.  Watson also screens some maintenance requests, determines whether the request can be completed by in-house staff, and assigns the requests to a trades team.  Watson supervises nine full-time classified staff and four part-time employees.  He testified that he has no budget authority, nor does he have a significant role in policy making. 

 

Watson does not formulate, develop, or establish any institutional policy, nor does he direct the work of a division that is akin to an administrative or academic unit.  Watson does not have significant budgetary responsibilities or any substantial responsibility over public information, internal audits, or legislative relations.  In addition, he does not exhibit significant control over personnel resources.  Based upon all the facts, this position will be included in an appropriate bargaining unit.

 

Custodial Supervisor

During the hearing, the employer hired a Custodial Supervisor, who was unavailable for the hearing. Although the Hearing Officer accepted testimony concerning the position, the Commission will not ordinarily make rulings on new and vacant positions because rulings in such a context would call for speculation. The testimony regarding this position was speculative and based upon the intentions or plans of the Director of Facilities and Grounds, not on actual duties already being performed by the custodial supervisor.  As stated earlier, the Commission has long held that a unit determination must be made based upon actual duties performed.  Therefore, it is not possible to make a unit determination at this point.  Such a determination will be left until a record is fully developed at a subsequent proceeding.

 

College Advancement

The following positions are at issue: Annual Giving Coordinator and Director of Alumni and College Relations.  The employer argues that the positions should be excluded as directors and managers under RCW 41.56.021(1).

 

Annual Giving Coordinator

This position is the principle fund raiser for the college.  The position is currently occupied by Sharon Johnson, whose duties include directing fund raising activities, soliciting potential donors, and managing scholarship funds.  Johnson also helps donors establish scholarships and ensures that the scholarships are in line with state and federal law.  In addition, she participates in feasibility studies for capital projects by gathering data on possible projects, demographics, and identifying potential donors.  She reports weekly to John Olsen, the Vice President for College Advancement, to discuss overall strategy for fund-raising activities.

 

Johnson does not formulate, develop, or establish institutional policy.  The program does not rise to the level of an administrative unit nor is Johnson a manager since she does not manage, administer, and control a program, including its physical, financial, or personnel resources.  Based on the record, the position does not have significant budgetary or personnel responsibilities. Johnson does not meet any of the exclusionary criteria set forth in the statute.  Therefore, this position may exercise collective bargaining rights and will be included in an appropriate bargaining unit.

 

Director of Alumni and College Relations

As the Director of Alumni and College Relations, Deborah Bolton is responsible for fostering relations within the community on behalf of the college and building a sustainable alumni association to support the College Foundation.  Bolton testified that she reports to the Vice President of College Advancement, John Olsen, on a weekly basis and works with the college advancement team on a variety of activities, including fund raising.

 

The record did not indicate that Bolton formulates, develops, or establishes  institutional policy, nor does she direct the work of an administrative unit or manage, administer and control a program. The position does not exercise any of the criteria set forth in the various exclusions of the statute, and, therefore, will be included in an appropriate bargaining unit.

 

Enrollment Services

The following positions are at issue: Registration and Records Manager and Entry Services Manager.  The employer argues that these positions should be excluded as managers under RCW 41.56.021(1)(b)(i) and (iv).

 

Registration and Records Manager

As the Registration and Records Manager, Bobbie Nelson is responsible for the college=s registration activities, student records, and transcripts.  As part of her duties, she manages the computerized student management system and decides who may access the records.  She provides training on the use of the computer and the management system. 

 

Nelson supervises a staff of ten people, which includes three classified workers.  She reports to the Vice President for Enrollment Services, Christine Kerlin.  Although she usually has no significant budget authority, she has signature authority in the absence of the Vice President for Enrollment Services.

 

Nelson does not formulate, develop, or establish institutional policy.  She does not direct an administrative unit or manage, administer, and control a program.  The employer=s challenge also fails under RCW 41.56.021(b)(1)(iv), as the record does not support that Bolton is functionally above first level supervision.  The position occupied by Nelson will be included in an appropriate bargaining unit. 

 

Entry Services Manager

Linda Baca is the current Entry Services Manager at the college and is responsible for providing outreach and recruitment services for new and prospective students, including speaking engagements at local schools. The position provides services to prospective and new students of the college.  She reports, on an as needed basis, to Christine Kerlin, Vice Presided of Enrollment Services.  Baca is also responsible for admission and enrollment processing and decisions regarding residency status for the purpose of setting tuition rates.  In addition, Baca oversees the testing center, the Running Start Program, and the Tribal Enterprise Program.  The day-to-day functions of these programs, however, are run by the nine classified workers and three part-time hourly employees she supervises.  Baca reports, on an as needed basis, to the Christine Kerlin, the Vice President of Enrollment Services.

 

This position is excluded from participating in collective bargaining under RCW 41.56.021(b)(i) and (ii) because the incumbent employee directs the work of at least one administrative unit, and manages, administers, and controls one or more programs, including personnel resources.  

 

 

University Center

The following positions are at issue: Student Services Coordinator, Coordinator of Information of Technology Services, and Assistant to the Executive Director of the University Center.  The employer argues that the first two positions should be excluded as managers under RCW 41.56.021(1)(b)(i) and (iv) and that the Assistant to the Executive Director of the University Center should be excluded under RCW 41.56.021(1)(c).

 

Student Services Coordinator

This position is currently held by Karen Stephens.  Stephens is responsible for an area of student services in, and the maintenance of, the University Center, which is a regional higher education center.  She is responsible for outreach and recruitment.  Stephens also coordinates academic advising, pre-college advising, and develops orientation programs.  Stephens supervises one classified employee, and she reports to the Vice President of Enrollment Services, Christine Kerlin. 

 

The record does not support a finding that this position meets any of the criteria for exclusion.  Stephens does not formulate, develop, or establish institutional policy, nor does her program rise to the level of an administrative unit.  She does not manage, administer, and control the finances, personnel or facilities of a program and because she directs a classified employee, Stephens is not functionally above the level of a first line supervisor.  The Student Services Coordinator will be included in an appropriate bargaining unit.

 

Coordinator of Technology Services

John Reeg is the Coordinator of Technology Services at the college.  Reeg is responsible for all technology and information that supports the University Center.  He works independently from the information department on the main campus, and he reports to Christine Kerlin, the Executive Director of the University Center and Vice President for Enrollment Services.  Reeg testified that Kerlin gives him broad goals and that he has some latitude in deciding how best to achieve those goals.  Reeg trains and directs the work of approximately three part-time workers, who are often students and temporary workers.

 

As the Coordinator of Technology Services, Reeg advises the college administration on policies regarding technology and equipment use.  He also advises the college administration on technology needs for the University Center.  He participates in developing bid proposals for equipment acquisitions, responding to counter offers, and making recommendations as to which vendor should be offered the contract.

 

The employer=s challenge fails under all exclusionary language of RCW 41.56.021.  Reeg does not formulate, develop, or establish institutional policy.  Coordinating the technology of the University Center does not rise to the level of administering an administrative unit or managing, administering, and controlling a program.  There is no evidence that he is excluded under any other provision so the position will be included in an appropriate unit.

 

Assistant to the Executive Director of the University Center

Kathleen Baringer is the Assistant to the Executive Director of the University Center, Christine Kerlin.  Like Stephens, Baringer is responsible for an array of student services in and the maintenance of the University Center.  She is responsible for outreach and recruitment and coordinates academic advising, pre-college advising, and developing orientation programs.  In addition, her responsibilities include providing administrative support to Kerlin.  Examples of the support include maintaining Kerlin=s calendar, making travel arrangements, maintaining her e-mail, scheduling use of facilities at the University Center, and signing time sheets. 

 

The employer asserts that the position should be excluded as a principle/administrative assistant under RCW 41.56.021(1)(c), which excludes employees who, in the regular course of their duties, act as a principal assistant, administrative assistant, or personal assistant to executive employees.  As a vice president in charge of a major administrative or academic division, there is no dispute that Kerlin is an executive employee as defined by RCW 41.56.021(a).   The record reflects that Baringer is an administrative assistant to Kerlin.  Therefore, the position occupied by Baringer must be excluded as an administrative assistant under the statute.

 

President=s Office

The position at issue is: Administrative Assistant to the President of the College which the employer argues should be excluded from collective bargaining rights under RCW 41.56.021(1)(c).

 

Joanne Flemings is the current Administrative Assistant to the President of the college.  She reports directly to the president=s Executive Assistant, Cheryl Blackburn, and to a lesser extent, to the President of the college.  Flemings testified she reports primarily to Blackburn.  She also testified that most of her assignments involve maintaining the president=s calendar, typing correspondence on his behalf, and handling travel arrangements and expense reimbursements for him and the Board of Trustees.  Flemings also added that she has sat in on grievances, where her role was to take notes for the President.  She noted that she did this in the absence of Blackburn, who normally takes notes for the President in meetings.

 

The employer challenges the inclusion of this position under RCW 41.56.021(1)(c) as a principle assistant to an executive employee; however, Flemings is not the principle assistant to the President.  Rather, she is the principle assistant to the executive assistant to the President.  Therefore, the employer=s challenge fails and the position will be included in an appropriate bargaining unit.

 

CONCLUSIONS

 

The following positions are eligible for collective bargaining rights under RCW 41.56.021(1):

 

Director of Institutional Research

Director of E-Learning

Director Emergency Services Program

Director of Customized Training Grants

Assistant Director of Financial Aid

Associate Director of Information Technology

Budget Manager

General Ledger Manager

Cashier Manager

Facilities Maintenance Manager

Director of Alumni & College Relations

Annual Giving Coordinator

 

 

Registration & Records Manager

Student Services Coordinator

Coordinator of Tech Services

Administrative Assistant to the President 

 

The statute excludes the following positions from collective bargaining rights:

 

Executive Director of Corporate Training

Director of Continuing Education

Director of Early Learning

Director of the Tutoring Center

Director of ORCA

Director of East County and Tech Prep

Assistant Director of Learning Services

Associate Dean for Diversity

Director of Center for Disability Services

Director of Student Financial Services

Director of Student Activities

Director of Student Athletics

Director of TRIO

Director of Payroll & Human Resource Operations

Director of the Bookstore

Director of Campus Safety

Revenue Accounting Manager

Entry Services Manager

Assistant to Executive Director of University Center 

 

No conclusions can be made concerning the unit placement of the positions of Director of International Education, the Director of Work Force Program, the Director of Information Technology, and Custodial Supervisor because they are were new unfilled positions or newly filled at the time of the hearing.  Additionally, testimony is required concerning the Director of Campus Safety to ensure that duties of the new Director do not substantially differ from those performed by Tolle as Interim Director.  Such determination may be made following development of a sufficient record setting forth the actual duties of the incumbent employees in these positions. 

 

Additionally there were five positions that were not challenged by either party and considered to be eligible voters should an election be held.  These positions are held by Cirrus Ervin, Roy Fentress, Carla Shafer, Ariana Stafford, and Karena Hooks.  Because the community of interest of the petitioned-for employees is uncertain, it is necessary to ascertain the duties and relationships of these positions to others who may be included in appropriate bargaining unit(s). 

 

FINDINGS OF FACT

 

1.         Everett Community College (Community College District 5) is an employer within the meaning of RCW 41.56.030(1).

 

2.         The American Federation of Teachers Washington is an employee organization within the meaning of RCW 41.56.030(3).

 

3.         In 2007 the Washington State Legislature adopted RCW 41.56.021 to afford collective bargaining rights to certain employees in exempt positions at higher institutions of learning.  The statute, however, excludes five classes of exempt employees from receiving collective bargaining rights.  They include: executive employees, managers, principle assistants to executive employees, confidential employees, and employees who assist the attorneys general.       

   

4.         In June 2008, the union filed a petition to represent administrative  exempt employees at Everett Community College. 

 

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 following positions are eligible for collective bargaining rights under RCW 41.56.021(1):

 

            Director of Institutional Research

            Director of E-Learning

            Director Emergency Services Program

            Director of Customized Training Grants

            Assistant Director of Financial Aid

            Associate Director of Information Technology

            Budget Manager

            General Ledger Manager

            Cashier Manager

            Facilities Maintenance Manager

            Director of Alumni & College Relations

            Annual Giving Coordinator

            Registration & Records Manager

            Student Services Coordinator

            Coordinator of Tech Services

            Administrative Assistant to the President

 

3.                  The statute excludes the following positions from collective bargaining rights:

 

            Executive Director of Corporate Training

            Director of Continuing Education

            Director of Early Learning

            Director of the Tutoring Center

            Director of ORCA

            Director of East County and Tech Prep

            Assistant Director of Learning Services

            Associate Dean for Diversity

            Director of Center for Disability Services

            Director of Student Financial Services

            Director of Student Activities

            Director of Student Athletics

            Director of TRIO

            Director of Payroll & Human Resource Operations

            Director of the Bookstore

            Revenue Accounting Manager

            Entry Services Manager

            Assistant to Executive Director of University Center

 

4.               The positions of Director of International Education, Director of Work First Program, Director of Information Technology, Director of Campus Safety, and Custodial Supervisor were unfilled or newly filled at the time of the hearing and a determination regarding unit determination cannot be made based upon speculation, but must be made upon actual duties performed.

 

5.      The record did not establish whether the employees who are eligible for collective bargaining share a community of interest that would enable a collective bargaining representative to bargain with their employer over terms and conditions of employment.

 

ORDER

 

1.                  This case is remanded to the Hearing Officer for the purpose of developing a record establishing whether a) the unit sought by the union included all exempt Aadministrative@ employees employed by the employer, and b) whether those employees deemed eligible for collective bargaining in this decision share a community of interest that would enable a collective bargaining representative to effectively bargain with the employer regarding their terms and conditions of employment. 

 

Evidence bearing upon the community of interest includes, but is not limited to:  Evidence showing how employees interact or interconnect with each other in the employer=s administrative framework; whether employees work in geographical proximity to each other; whether they share common supervision; how their wages, benefits and other terms and conditions of employment are similar and/or different, their work duties, schedules, education, degree of interchange and the extent and frequency of such interchange. 

 

2.                  The record indicates that most employees found eligible herein are supervisors, however because the hearing did not focus on the supervisory status of the employees, the record should be so clarified.  Parties should be mindful that supervisors and non-supervisors may not be included in the same bargaining unit.

 

3.                  Testimony will be taken from the incumbents of the positions of the Director of International Education, Director of Work First, Director of Information Technology, Custodial Supervisor, and the Director of Campus Safety to develop a record concerning actual duties presently performed by the incumbents. 

 

4.                  Five employees were unchallenged in this proceeding: Cirrus Ervin, Roy Fentress, Carla Shafer, Ariana Stafford, and Karena Hooks.  Parties should be prepared to provide job descriptions and/or other evidence establishing the duties of these positions and their relationships/community of interest with other employees found eligible to be represented for purposes of collective bargaining.

 

Dated at Olympia, Washington, this  8th  day of May, 2009.

 

 

                                                PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

                                                CATHLEEN CALLAHAN, Executive Director


[1]           Supervisors have collective bargaining rights under Municipality of Metropolitan Seattle (Metro) v. Department of Labor and Industries, 88 Wn. 2d 925 (1977), but they are normally placed in separate bargaining units of supervisors under WAC 391-35-340 and City of Richland, Decision 279-A (PECB, 1978), aff=d, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).

[2]           The first case that litigated the unit issue under this statute was Central Washington University, Decision 10336 (PECB, March, 2009); however, the issue in that case involved the propriety of the bargaining unit, rather than whether the employees were exempted by the language of the statute.  Unlike the present case, the employees at Central Washington University were clearly those contemplated by the legislature when it enacted RCW 41.56.021, although the proposed unit would likely have created jurisdictional disputes and unnecessary fragmentation because the union did not petition to represent all similarly situated employees performing the same duties. 

[3]           Legislative history is often helpful in determining the meaning of terms used in statutes; however, with respect to this case, legislative history provides no such guidance. 

[4]           It does not appear that Everett Community College has developed rules addressing pertinent definitions, but I find instructive the codification of the definition of Administrative Unit adopted by Green River Community College:  “WAC 132J-164-020 Definitions:  (1) ‘Administrative unit’ shall mean any one of a number of offices under the direction of a particular administrator, and set up to maintain a variety of records and processes for the college.”

5           It should also be noted that the definitions used herein comport in large part with the definition of Amanager@ used in RCW 41.06.022.

6           USDA refers to the United States Department of Agriculture food program while ECEAP refers to Early Childhood Education and Assistance Program.