Kittitas County, Decision 10412 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
WASHINGTON STATE COUNCIL OF COUNTY )
AND CITY EMPLOYEES, COUNCIL 2, )
AFSCME, AFL-CIO, LOCAL 792-CH ) CASE 21980-C-08-1384
)
For clarification of an existing ) DECISION 10412 - PECB
bargaining unit of employees of: )
) ORDER CLARIFYING
KITTITAS COUNTY ) BARGAINING UNIT
___________________________________)
Audrey B. Eide, General Counsel, for the union.
Menke Jackson Beyer Ehlis & Harper, by Rocky L. Jackson,
Attorney at Law, for the employer.
On September 17, 2008, the Washington State Council of County and
City Employees, Council 2, AFSCME, AFL-CIO, Local 792-CH (union)
filed a unit clarification petition concerning the business manager
position in the Kittitas County Public Health Department (employer).
The union requested that the position be included in its existing
courthouse bargaining unit. On January 22, 2009, Hearing Officer
Jessica Bradley conducted a hearing. Both parties filed
post-hearing briefs which were considered.
ISSUE PRESENTED
The only issue in this proceeding is whether the business manager
position in the Public Health Department should be excluded from the
bargaining unit based on supervisory status.
The Executive Director finds that the business manager position is
not a supervisory position. The position is included in the
bargaining unit.
Applicable Legal Principles
In 2001, the Commission adopted WAC 391-35-340, codifying the
principle that supervisors are excluded from bargaining units that
contain their rank-and-file subordinates. Supervisors are separated
from nonsupervisory employees to limit or prevent conflicts of
interest. City of Puyallup, Decision 5639-B (PECB, 1997) (citing
City of Richland, Decision 279-A (PECB, 1978), aff'd, 29 Wn. App.
599 (1981), review denied, 96 Wn.2d 1004 (1981)).
Because Chapter 41.56 RCW does not contain a definition of
supervisor, the Commission looks to the definition of supervisor set
forth in RCW 41.59.020(4)(d):(fn:1)
____________________
fn:1 City of Lynnwood, Decision 8080-B (PECB, 2006).
[S]upervisor . . . means any employee having authority, in the
interest of an 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 judgment. . . . The term "supervisor" shall
include only those employees who perform a preponderance of the
above-specified acts of authority.
The "preponderance" term is an important modifier. In this context,
preponderance means "that the disputed employee either spends a
preponderance of his/her work time engaged in supervisory indicia or
engages in a preponderance of the types of supervisory indicia."
City of Lynnwood, Decision 8080-A (PECB, 2005), aff'd, Decision
8080-B (PECB, 2006), citing Granite Falls School District, Decision
7719 (PECB, 2002), aff'd, Decision 7719-A (PECB, 2003). "The
determination of whether an individual possesses sufficient
authority to be excluded from a rank-and-file bargaining unit as a
'supervisor' is made on the basis of the actual duties and authority
exercised by that individual, not on the basis of his or her title
or job description." Morton General Hospital, Decision 3521-B
(PECB, 1991).
The Commission distinguishes between supervisors and employees who
are "lead workers." As the Commission explained in City of
Toppenish, Decision 1973-A (PECB, 1985): "In a hierarchical
organization, certain employees may be given some supervisory
responsibilities, but not a full complement, or they may be allowed
to share supervisory responsibilities with their own supervisors."
These employees, who are often referred to as lead employees or
working foremen, lack the true authority and independent judgment
that is the hallmark of supervisory status.
When looking at the "types" of supervisory indicia, it is important
to determine whether a disputed position has independent authority
to act in the interest of the employer. As the Commission recently
explained in Ronald Wastewater District, Decision 9874-C (PECB, 2009):
Discretionary authority in administrative matters or having the
ability to direct employees in daily job assignments may not
rise to the level of possessing independent authority to act or
effectively recommend personnel actions. Granite Falls School
District, Decision 7719-A (PECB, 2003); City of Gig Harbor,
Decision 4020-A (PECB, 1992).
APPLICATION OF STANDARD
The union is the exclusive bargaining representative of a bargaining
unit commonly referred to as the courthouse bargaining unit. The
courthouse bargaining unit is composed of certain non-supervisory
employees in the Kittitas County Assessor's Office, Auditor's
Office, Clerk's Office, Community Development Services, District
Court, Fairgrounds Office, Probation Services, Public Health, Public
Works, Solid Waste, Treasurer's Office, and WSU Extension. The exact
positions included in the bargaining unit are listed in Appendix A
of the parties' collective bargaining agreement).(fn:2)
____________________
fn:2 There is no record that the existing bargaining unit was
certified by the Commission. The parties speculate that the unit
was formed by voluntary recognition, but do not know the date of its
creation. The unit dates back to at least the 1980's.
The parties' current collective bargaining agreement, is effective
from January 1, 2008 through December 31, 2010. According to the
agreement, the only Public Health Department position included in
the courthouse bargaining unit is the accountant.(fn:3) Accountants in
the Auditor's Office and Public Works Department are also included
in the bargaining unit.
____________________
fn:3 There were no Public Health Department positions listed in the
unit description in the 2007 collective bargaining agreement.
According to the local union president, Paula Hiatt, this omission
was an oversight which the parties corrected in the 2008-2010
collective bargaining agreement.
From 2004 through June of 2006, the Public Health Department
employed a business manager who performed the department's financial
work. The business manager position was not represented by any
labor organization. In late 2006, after unsuccessfully trying to
fill the vacant business manager position, the employer created a
new accountant position in the Public Health Department. At that
time, the union and employer discussed the fact that accountants in
other departments were included in the courthouse bargaining unit.
The employer offered to voluntarily recognize the union as the
exclusive bargaining representative of the new public health
accountant position. The parties agreed to add the position to the
courthouse bargaining unit when the position was filled in January
2007. The business manager position was not utilized.
When the first public health accountant vacated the position, the
employer hired Amber Simon as a replacement on October 31, 2007.
Simon worked as the public health accountant until August 25, 2008,
when the employer changed Simon's job classification to business
manager. The employer has not utilized the public health accountant
job classification since it changed Simon's position to business
manager. Simon was represented by the union while she was employed
as a public health accountant. The employer determined that Simon
became unrepresented when her title changed to business manager.
The union argues that the accounting work now performed by the
business manager position is the same work that was performed by the
accountant position. Because accounting work is bargaining unit
work, the union believes the business manager position should be
added to the existing unit.
The employer argues that the business manager position is properly
excluded from the bargaining unit as a supervisor. Specifically, the
employer argues that the business manager supervises three public
health clerks. The employer also makes a historical exclusion
argument, pointing out that it used the business manager position
from 2004 to 2006, during which time the position was not included
in the bargaining unit.
Application of Supervisor Indicia in RCW 41.59.020(4)(d)
As business manager for the Public Health Department, Simon is
responsible for managing the department's accounting and finance
system. Simon reviews finance records for accuracy, prepares the
department's budget, and administers grant funding. Simon also
writes fiscal policies for the department, trains employees on the
policies, and oversees implementation of the policies.
Simon has never hired an employee. Simon was told by her supervisor
that, as business manager, she will be involved with reviewing
resumes and interviewing applicants for accounting clerk positions.
Since Simon became business manager, the employer has not hired any
new public health accounting clerks. Simon anticipates that when a
public health clerk position becomes vacant, she will participate on
a hiring committee that will also include her direct supervisor,
someone from human resources, and a few other employees in the
department. The department head is also involved in all hiring
decisions.
Simon does not design any employee work schedules, nor does she
decide whether or not an accounting clerk's leave request will be
approved. That decision is up to the administrative assistant who,
in considering a leave request, may consult Simon about the workload.
Simon is responsible for giving finance-related work assignments to
the public health clerks. Simon directs clerks to complete Medicaid
billing and provides training on how to complete this type of
billing. Simon sets the deadlines for completion of financial work
by clerks.
The public health clerks perform a variety of tasks, both financial
and non-financial, for the public health department. The clerks are
responsible for maintaining and providing the public with birth and
death certificates. They also handle the county's food handler card
certification and testing program. Additionally, public health
clerks act as receptionists for the county's health clinic and are
responsible for scheduling clinic visits and general oversight of
the medical office facility. In terms of financial work, the clerks
maintain billings for clinic visits and act as cashiers for payments
from the clinic and other public health programs. Simon estimates
that she spends about one-third of her work time training public
health clerks, giving them work assignments, and reviewing their work.
Simon cannot promote employees into other job classifications.
There is nothing in the record to indicate that Simon has the
ability to transfer employees. Simon does not have the authority to
lay off employees or recall employees from a layoff. In the fall of
2008, Simon helped the employer calculate the cost savings that
would be generated by a variety of layoff scenarios. The county
commissioners told Simon which scenarios to calculate. Simon
provided the county commissioners with cost savings data. Simon did
not decide which employees would be laid off or make effective
recommendations on which layoff scenario the employer should
implement.
Simon has provided training to clerks to prevent cash shortfalls.
Simon developed a form for reporting shortfalls and a procedure that
requires clerks who have a shortfall in their cash drawer to
document the shortfall on a form and obtain signatures from both
Simon and the Director of Public Health, Cathy Bambrick.
As business manager, Simon has never disciplined an employee. Simon
explained that if one of the public health accounting clerks had a
performance problem, she would not discipline the employee. Rather,
Simon would bring the problem to the employee's direct supervisor
and work with the supervisor and employee to resolve the problem.
The public health clerks are directly supervised by either the
administrative assistant II, Candi Blackford, or the environmental
health specialist II, James Rivard.
Simon does not have the ability to suspend or terminate employees.
Suspension and termination decisions are up to Bambrick.
Simon has never adjusted an employee grievance. Simon believes that
employees are supposed to approach their direct supervisor if they
have a grievance, or a higher level supervisor if the grievance
involves a first-level supervisor. Simon explained that an employee
probably would not come to her with a grievance because the public
health clerks report directly to either the administrative assistant
II or environmental health specialist II. Simon speculates that she
could be involved with a grievance, but has never had anyone in
management train her on how to deal with grievances or explain how
she would be involved.
According to Simon, when her title changed from accountant to
business manager, her actual job duties remained the same. She
continued performing the same workload and her monthly wage rate
stayed the same. Simon did not receive any new or additional
benefits or privileges when she became business manager. The main
difference between the two positions was compensation for overtime.
The accountant position had to be paid for overtime and the business
manager is an overtime exempt position. As business manager, Simon
now works overtime but is not given additional compensation.
Commission Evaluates Job Duties, Not Job Titles
The Commission has been clear that it will only evaluate an
employee's actual job duties at the time the petition is filed. The
Commission will not consider speculative testimony regarding
potential future duties. Ronald Wastewater District, Decision
9874-C; State - Natural Resources, Decision 8458-B (PSRA,2005). The
Commission stated: "[W]here an employer has assigned a particular
function to an employee that has never been exercised, such as
laying off or terminating employees, there must be actual evidence
demonstrating that the employee is assigned that duty." Ronald
Wastewater District, Decision 9874-C.
For example, in Ronald Wastewater District, Decision 9874-B (PECB,
2008), aff'd, Decision 9874-C (PECB, 2009), the accounting
supervisor was responsible for overseeing financial work performed
by three other employees. The accounting supervisor gave the
employees work assignments and reviewed their financial work for
accuracy. The accounting supervisor was also involved in hiring and
assisted the employer with evaluating other employees' job
performance. The accounting supervisor in Ronald Wastewater
District was found to be a lead employee, and not a supervisor for
the purpose of bargaining unit placement. The accounting supervisor
did not promote, transfer, layoff, recall, suspend, or discharge
employees, and did not adjust employee grievances. The accounting
supervisor spent less than fifty percent of her time performing
supervisory duties. The accounting supervisor's duties did not call
for the consistent use of independent judgement or independent
authority to act in the interest of the employer, which is required
for supervisory status.
CONCLUSION
Simon's duties do not meet the preponderance test for supervisory
duties. She does not promote, transfer, layoff, recall, discipline,
suspend, or discharge employees, and does not adjust employee
grievances. Simon also lacks the authority to effectively recommend
a preponderance of the types of supervisory authority specified in
RCW 41.59.020(4)(d). The business manager does not spend a
preponderance of work time engaged in the supervision of other
Kittitas County employees.
Other Employer Arguments
During the October 27, 2008 prehearing conference, the parties
agreed that the sole issue in dispute is whether or not the business
manager position should be excluded from the nonsupervisory
courthouse bargaining unit based on supervisory status. Despite
this stipulation the employer raised the following arguments:
Timeliness -
The employer argues that the petition should be dismissed as
untimely. Specifically, the employer points out that the business
manager has been excluded from the bargaining unit since it began
employing someone in that position in 2004. The employer argues that
there is no change in circumstances to justify the inclusion of the
historically-excluded position.
Under WAC 391-35-020(2):
A unit clarification petition concerning status as a
supervisor under WAC 391-35-340, or status as a regular
part-time or casual employee under WAC 391-35-350, is subject
to the following conditions:
(a) The signing of a collective bargaining agreement will
not bar the processing of a petition filed by a party to the
agreement, if the petitioner can demonstrate that it put the
other party on notice during negotiations that it would contest
the inclusion or exclusion of the position or class through a
unit clarification proceeding, and it filed the petition prior
to signing the current collective bargaining agreement.
(b) Except as provided under subsection (2)(a) of this
section, the existence of a valid written and signed collective
bargaining agreement will bar the processing of a petition
filed by a party to the agreement unless the petitioner can
demonstrate, by specific evidence, substantial changed
circumstances during the term of the agreement which warrant a
modification of the bargaining unit by inclusion or exclusion
of a position or class.
In this case, a substantial change in circumstances occurred in
August of 2008, when the employer reclassified Simon from public
health account to business manager and removed Simon from the
bargaining unit. The fact that the business manager position was
not previously included in the bargaining unit does not preclude the
union's petition. The scope of the bargaining unit changed in late
2006 when the employer voluntarily accreted the public health
accountant to the courthouse bargaining unit.
Accretion of Accountant -
The employer argues that the original accretion of the public health
accountant into the bargaining unit was improper because there was
no showing of interest. This argument falls outside the scope of
this petition. In late 2006 the employer and union agreed that the
newly-created accountant position should be included in the existing
bargaining unit. Although parties' agreements on unit placement are
not binding on the Commission, nothing has come to my attention
during the course of this proceeding to indicate that the parties'
agreement to include the public health accountant in the bargaining
unit resulted in an inappropriate unit. Moreover, voluntary
recognition is not precluded under Chapter 41.56 RCW.
Community of Interest -
The employer takes the position that the business manager should be
excluded from the courthouse bargaining unit because the position
does not share a community of interest with the rest of the
bargaining unit.
The record shows that the business manager performs the same work
that was previously performed by the public health accountant.
Furthermore, Simon testified that she interacts with the accountants
in the Auditor's Office almost daily. The accountants in the
Auditor's Office and Public Works Department are included in the
courthouse bargaining unit. Simon shares a community of interest
with other employees in the courthouse bargaining unit.
FINDINGS OF FACT
1. Kittitas County is a public employer within the meaning of RCW
41.56.030(1).
2. Washington State Council of County and City Employees, Council
2, AFSCME, AFL-CIO, Local 792-CH, is a bargaining
representative within the meaning of RCW 41.56.030(3).
3. Washington State Council of County and City Employees, Council
2, AFSCME, AFL-CIO, Local 792-CH, is the exclusive bargaining
representative of a bargaining unit commonly referred to as the
courthouse bargaining unit. The unit is composed of certain
nonsupervisory employees in the Kittitas County Assessor's
Office, Auditor's Office, Clerk's Office, Community Development
Services, District Court, Fairgrounds Office, Probation
Services, Public Health, Public Works, Solid Waste, Treasurer's
Office, and WSU Extension. The exact positions included in the
bargaining unit are listed in Appendix A of the parties'
collective bargaining agreement.
4. In 2006, the employer created a new accountant position in the
Public Health Department. The employer voluntarily recognized
the union as the exclusive bargaining representative of the new
public health accountant position. The parties, by agreement,
added the position to the bargaining unit described in Finding
of Fact 3.
5. According to the parties' 2008-2010 collective bargaining
agreement, the only Public Health Department position included
in the bargaining unit described in Finding of Fact 3, is the
accountant position. Accountants in the Auditor's Office and
Public Works Department are also included in the bargaining unit.
6. On August 25, 2008, the employer changed Amber Simon's position
title from public health accountant to business manager.
7. When Simon's job classification changed from accountant to
business manager, her actual duties remained the same. She
continued performing the same work and her monthly wage rate
stayed the same.
8. The business manager's duties do not meet the preponderance
test for supervisory duties. The business manager does not
spend a preponderance of work time engaged in the supervision
of other Kittitas County employees. The business manager does
not promote, transfer, layoff, recall, discipline, suspend, or
discharge employees, and does not adjust employee grievances.
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 petition was timely filed under WAC 391-35-020(2). As
described in Findings of Fact 4, 6, and 7, there was a
significant change in circumstances which allowed the union to
file the petition.
3. As described in Finding of Fact 8, the business manager in the
Public Health Department is a public employee within the
meaning of RCW 41.56.030(2), and is not a supervisor under RCW
41.59.020(4)(d) or WAC 391-35-340.
ORDER
The bargaining unit involved in this proceeding is clarified to
include the business manager position in the Public Health Department.
Issued at Olympia, Washington, this 27th day of May, 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 agency under WAC 391-35-210.