Bates Technical College, Decision 10421 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
TACOMA ASSOCIATION OF )
PROFESSIONAL-TECHNICAL EMPLOYEES ) CASE 22137-C-08-1390
)
For clarification of an existing )
bargaining unit of employees of: ) DECISION 10421 - PECB
)
BATES TECHNICAL COLLEGE ) ORDER CLARIFYING
(COMMUNITY COLLEGE DISTRICT 28) ) BARGAINING UNIT
)
________________________________________)
Vickie Lackman, Vice President of Human Resources, for the
employer.
Eric Hansen, Attorney at Law, Washington Education
Association, for the union.
On November, 26, 2008, the Tacoma Association of
Professional-Technical Employees (union) filed a petition seeking to
clarify a nonsupervisory bargaining unit of professional and
technical employees working at the Tacoma campus of Bates Technical
College (employer). Specifically, the union seeks to clarify
whether or not the manager of local programming at KBTC public
television is a supervisor and/or confidential employee, and
therefore excluded from the bargaining unit.
Hearing Officer Jessica Bradley held a hearing in Tacoma,
Washington, on February 27, 2009. The parties filed post-hearing
briefs which were considered.
ISSUES PRESENTED
1. Should the manager of local programming position be excluded
from the bargaining unit as a confidential employee?
The Executive Director finds that the manager of local programming
is not a confidential employee and should not be excluded from the
bargaining unit on that basis.
2. Should the manager of local programming position be excluded
from the bargaining unit based on supervisory status?
The Executive Director finds that the manager of local programming
is a supervisor and is properly excluded from the nonsupervisory
bargaining unit on that basis.
ISSUE 1: Confidential Employee Status
Applicable Legal Principles
Under RCW 41.56.030(2)(c), confidential employees are excluded from
bargaining units. The Commission places a heavy burden of proof on a
party seeking to categorize an employee as "confidential" because
such status deprives the individual of all collective bargaining
rights. City of Chewelah, Decision 3103-B (PECB, 1989), citing City
of Seattle, Decision 689-A (PECB, 1979); State - Natural Resources,
Decision 8711-B (PSRA, 2006).
When determining whether a position should be excluded from a
bargaining unit as a confidential employee, the Commission utilizes
a labor nexus test.
WAC 391-35-320 EXCLUSION OF CONFIDENTIAL EMPLOYEES.
Confidential employees excluded from all bargaining rights
shall be limited to:
(1) Any person who participates directly on behalf of an
employer in the formulation of labor relations policy, the
preparation for or conduct of collective bargaining, or the
administration of collective bargaining agreements, except
that the role of such person is not merely routine or
clerical in nature but calls for the consistent exercise of
independent judgment; and
(2) Any person who assists and acts in a confidential
capacity to such person.
An employee does not have to work exclusively, or even primarily, on
labor nexus work in order to be excluded as a confidential employee,
so long as the assignments can be described as necessary, regular,
and ongoing. Oak Harbor School District, Decision 3581 (PECB,
1990); City of Redmond, Decision 7814-B (PECB, 2003). Sporadic
contacts and limited back-up work are not sufficient to meet the
test for exclusion. Clover Park School District, Decision 2243-A
(PECB, 1987), aff'd, in relevant part, Decision 2243-B (PECB, 1987);
Yakima School District, Decision 7124-A (PECB, 2001).
Analysis
KBTC is a public television broadcasting station operated by the
employer. Phil Kane is the interim general manager of KBTC. The
union has represented the professional and technical employees
bargaining unit since 1993. The union and employer have a
collective bargaining agreement that is effective from July 1, 2008
through June 30, 2012.
The employer created the manager of local programming
position at KBTC in May of 2008. Daniel Kopec was hired
into the position. The position description lists five
percent of the position's work time as: "Represent Bates
Technical College and KBTC's philosophy and mission in all
outreach activities. Participate in labor negotiations."
Despite this reference in the position description, Kopec
has not participated in collective bargaining and has not
formulated any labor relations policy.(1) Kopec has not
assisted or acted in a confidential capacity to any person
who participates directly in the formulation of labor
relations policy or the preparation for or conduct of
collective bargaining.
____________________
fn:1 In February 2009, Kopec was scheduled to participate
in an employer meeting about the upcoming contract
negotiations for a bargaining unit of maintenance and
custodial employees represented by the International Union
of Operating Engineers. Due to unforseen circumstances
Kopec was unable to attend the meeting. This fact was not
considered because it occurred after the petition was
filed.
The employer bears the burden of proof in this matter
because it asserts the manager of local programming should
be excluded from the bargaining unit as a confidential
employee. Based on the record, I find that the manager of
local programming does not play a necessary, regular, and
ongoing role in collective bargaining. The employer's
arguments are based on duties it expects Kopec to perform
in the future. As the Commission recently reiterated in
City of Yakima, Decision 9983-A (PECB, 2008), it "will
only consider the current job duties of the employee or
employees as they exist at the time that the
representation petition is filed." The Commission
requires that confidential exclusions be based on an
employee's actual duties and responsibilities, and not on
speculation about the employee's future duties and
responsibilities. City of Spokane Valley, Decision 10158
(PECB, 2008); King County Fire Protection District 13,
Decision 9845 (PECB, 2007); State - Natural Resources,
Decision 8458-B (PSRA, 2005).
Conclusion
The employer failed to satisfy its burden of proof with
respect to the manager of local programming's confidential
employee status. The position's anticipated future
involvement with labor negotiations does not meet the
labor nexus test set forth in WAC 391-35-320 and,
therefore, the manager of local programming position may
not be excluded from the bargaining unit on this basis.
ISSUE 2: Supervisory Status
Applicable Legal Principles
In 2001, the Commission adopted WAC 391-35-340 codifying
precedent that excludes supervisors 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:2)
____________________
fn:2 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 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.
In order to determine whether an individual possesses
sufficient supervisory authority to be excluded from a
rank-and-file bargaining unit, the actual duties and
authority exercised by that individual must be examined.
Such determinations are not made on the basis of titles or
job descriptions. King County, Decision 7053 (PECB,
2000); Morton General Hospital, Decision 3521-B (PECB, 1991).
Analysis
Much of the work of the KBTC operation is performed by
bargaining unit employees. KBTC employs approximately 11
bargaining unit employees, including a videographer/editor
and a temporary associate producer.
In December 2007, the union filed a petition to clarify
whether or not the creative content manager position held
by Daniel Kopec was a supervisor. In Community College
District 28 (Bates), Decision 10155 (PECB, 2008), the
position was determined not to be a supervisor and
clarified the bargaining unit to include the creative
content manager position.
In 2008, three management positions at KBTC became vacant.
As a result of the vacancies, a number of positions and
reporting relationships at the television station were
restructured. The employer eliminated the creative
content manager position and created a new manager of
local programming position. Kopec was selected and
started his new position in or around May of 2008 without
a break in service. Kopec's rate of pay did not change
when he began the new position.
When Kopec was the creative content manager, he reported
to the director of programming and production. As manager
of local programming, he reports directly to the interim
general manager.
Supervisory Factors
The manager of local programming is responsible for all of
the locally produced KBTC programming. The bargaining
unit videographer/editor and temporary associate producer
report to the manager of local programming. If any of the
local programming produced by the videographer/editor and
the temporary associate producer were not in compliance
with Public Broadcasting System (PBS) or Federal
Communications Commission (FCC) regulations, Kopec would
be held responsible.
Authority to Hire - As manager of local programming, Kopec
has the authority to select and hire temporary employees.
In the summer of 2008, Kopec and Interim General Manager
Kane decided that the workload of the production
department warranted an additional employee. Because
immediate assistance was needed, Kane created a temporary
associate producer position. The intent was to start the
position as temporary and subsequently requisition a
regular full-time position.
After Kane gave Kopec permission to hire a temporary
associate producer, Kopec contacted an intern he had
worked with in the past. In September 2008, without any
additional approval from management, Kopec interviewed and
hired the former intern.
The process for hiring a regular full-time employee is
more complex and involves a hiring committee comprised of
several managers, the human resources director, and other
employees. The committee makes a recommendation on who
should be hired, but the ultimate decision is made by the
president of the college. Kopec has not been involved
with hiring a regular full-time employee since becoming
manager of local programming.
Assignment of Work - Kopec is responsible for assigning
work to the videographer/editor and the temporary
associate producer. Kopec closely directs the work of
both employees on a daily basis. Kopec tells the
videographer/editor what type of approach to take in
different video shots, including the mood and lighting.
Kopec closely monitors the video footage taken by the
videographer/editor and provides direction and feedback.
Kopec also tells the videographer/editor how the footage
should be edited and closely reviews all editing work.
Kopec directs the work of the temporary associate
producer. Kopec gives the temporary associate producer
specific research assignments, transcription assignments
and direction to contact individuals about scheduling
shoots. The temporary associate producer performs an
assortment of other support functions at Kopec's request.
Kopec describes the creation of local programming as a
team effort that requires him to work closely with the
videographer/editor and temporary associate producer.
Kopec estimates that he spends more then half of his work
time directing and reviewing work performed by the
videographer/editor and temporary associate producer.
This estimate was consistent with the testimony of the
videographer/editor and the interim general manager.
Promote and Transfer - Kopec has never promoted or
transferred an employee. Nothing in the record indicates
that Kopec has the authority to promote or transfer
employees.
Layoff and Recall Kopec has not been involved in making
layoff or recall decisions. Kopec believes that these type
of decisions can only be made by the president of the
college.
Discipline, Suspension or Discharge - Since becoming the
manager of local programming, Kopec has initiated two
conversations with employees that were disciplinary in
nature.(fn:3) In October of 2008, Kopec spoke with the
videographer/editor about use of the internet and personal
phone calls. Kopec describes this exchange as a corrective
action conversation, which is less serious than a verbal
warning.
____________________
fn:3 The February 2008 example provided by Kopec is not
relevant to this decision because it occurred prior to the
time Kopec assumed the manager of local programming
position.
On November 17, 2008, Kopec gave an official verbal
warning to the temporary associate producer. Kopec shared
his concerns with Kane prior to issuing the verbal warning
to the employee, but did not ask Kane for permission to
issue the warning. Kopec kept written notes documenting
the verbal warning. Kopec informed Kane of the verbal
warning after he had issued it so that Kane would be aware
that the action had been taken.
Kopec has never issued or recommended discipline beyond a
verbal warning, but he has the authority to do so. If a
problem persisted after a written warning were issued,
Kopec would have to contact the human resources department
to get advice on what action to take next.
Kopec does not have the authority to terminate an
employee. Termination decisions can only be made by the
president of the college.
Adjustment of grievances - Kopec has not had any
involvement with processing or adjusting grievances.
Kopec thinks he could resolve a grievance at the verbal
level. Kopec has not received any training or instruction
on how to handle grievances. If an employee had a
grievance that Kopec were unable to resolve at an informal
level, Kopec would contact the human resources department.
Conclusion
Kopec is involved in hiring employees, assigning and
directing the work of employees, and disciplining
employees. Kopec uses independent judgement in giving
employees work assignments and directing their work. Kopec
spends a preponderance of his work time engaged in these
supervisory duties. Under the preponderance of work time
test, Kopec is a supervisor. The fact that Kopec is held
accountable for the work of his subordinates is also
indicative of his supervisory status.
Based upon the record, the applicable statutes, rules and
case precedents, the Executive Director rules that the
manager of local programming is a supervisor. Kopec is
properly excluded from the existing nonsupervisory
bargaining unit.
FINDINGS OF FACT
1. Bates Technical College is a public employer within
the meaning of RCW 41.56.030(1).
2. Tacoma Association of Professional-Technical
Employees is a bargaining representative within the
meaning of RCW 41.56.030(3) of an appropriate unit
of certain nonsupervisory professional and
technical employees of the employer.
3. The employer and union are parties to a collective
bargaining agreement effective July 1, 2008 through
June 30, 2012.
4. The employer operates a public television
broadcasting station known as KBTC.
5. The employer created the manager of local
programming position at KBTC in May of 2008.
6. The manager of local programming has not
participated in collective bargaining and has not
formulated any labor relations policy.
7. The manager of local programming has not assisted
or acted in a confidential capacity to any person
who participates directly in the formulation of
labor relations policy or preparation for or
conduct of collective bargaining.
8. The manager of local programming does not play a
necessary, regular, and ongoing role in collective
bargaining.
9. The manager of local programming is involved in
hiring employees, assigning and directing the work
of employees, and disciplining employees. The
manager of local programming uses independent
judgment in giving employees work assignments and
directing their work.
10. The manager of local programming spends a
preponderance of work time engaged in the
supervisory duties described in Finding of Fact 9.
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. As described in Findings of Fact 6 through 8, the
manager of local programming position is a public
employee within the meaning of RCW 41.56.030(2) and
is not a confidential employee under RCW
41.56.030(2)(c) or WAC 391-35-320.
3. As described in Findings of Fact 9 and 10, the
manager of local programming position is a
supervisor under RCW 41.59.020(4)(d) and WAC
391-35-340, and is appropriately excluded from the
nonsupervisory professional and technical employee
bargaining unit represented by the union.
ORDER
The manager of local programming position currently held
by Daniel Kopec is properly excluded from the bargaining
unit.
Issued at Olympia, Washington, on the 4th day of June, 2009.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
CATHLEEN CALLAHAN, Executive Director
This order will be the final order of the agency
unless a notice of appeal is filed with the
Commission under WAC 391-45-350.