Clark County, Decision 10458 (PECB, 2009)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
CLARK COUNTY SHERIFF'S ) CASE 22160-E-08-3422
ADMINISTRATOR'S ASSOCIATION ) DECISION 10458 - PECB
)
) CASE 22167-E-08-3424
Involving certain employees of: ) DECISION 10459 - PECB
)
CLARK COUNTY ) ORDER OF DISMISSAL
)
___________________________________)
Garrettson, Gallager, Fenrich & Makler, by Mark J. Makler,
Attorney at Law, for the union.
Clark County Prosecuting Attorney Art Curtis, by Gene A.
Pearce, Deputy Prosecuting Attorney, for the employer.
On December 19, 2008, the Clark County Sheriff's Administrator's
Association (union) filed two petitions for investigation of
questions concerning representation with the Public Employment
Relations Commission. The petitions seek to add five unrepresented
employees of Clark County (employer) to two existing bargaining
units by self-determination elections pursuant to WAC 391-25-440.
The petition in Case 22160-E-08-3422 seeks to add all enforcement
chief deputy sheriffs and assistant chief deputy sheriffs to an
existing bargaining unit consisting of all enforcement commanders of
the Clark County Sheriff's Office. The petition in Case
22167-E-08-3424 seeks to add all custody chief deputy sheriffs and
assistant chief deputy sheriffs to an existing bargaining unit
consisting of all custody commanders of the Clark County Sheriff's
Office.
Hearing Officer Paul T. Schwendiman conducted a hearing on February
13, 2009. Both parties filed briefs.(fn:1)
____________________
fn:1 The brief filed by the union is a single-spaced sixteen-page
document and therefore, fails to conform to the Commission's length
and format requirements codified in WAC 391-25-350. Absent
alternative arrangements made with the Hearing Officer, briefs must
be double-spaced, twelve-point type and may not exceed twenty-five
pages in length. In the future, briefs that do not comply with the
rule may be returned, disregarded, or only partially considered.
ISSUES
1. Are Chuck Atkins and Richard Bishop eligible to vote in a
self-determination election seeking to add chief deputy
sheriffs and assistant chief deputy sheriffs to existing units
of commanders?
2. Are Michael Evans, Erin Nolan, and Jackie Batties confidential
employees?
Atkins and Bishop are no longer employed as chief deputy sheriffs or
assistant chief deputy sheriffs, and are not eligible to vote in
either self-determination election. Evans, Nolan, and Batties are
confidential employees who are not eligible for inclusion in a
bargaining unit. Accordingly, both petitions are dismissed.
ISSUE 1. Are Chuck Atkins and Richard Bishop eligible to vote in a
self-determination election seeking to add chief deputy
sheriffs and assistant chief deputy sheriffs to existing
units of commanders?
APPLICABLE LEGAL STANDARDS
WAC 391-25-440 controls elections for the inclusion of unrepresented
employees in an existing bargaining unit:
Where only one employee organization seeks to add an employee
or group of previously unrepresented employees to an
appropriate bargaining unit, which it already represents, under
this chapter and the relevant statute, the organization may
petition for a self-determination election to ascertain the
employees' desire to be included in its existing bargaining
unit.
WAC 391-25-440(1).
In the absence of an agreement or determination otherwise, employees
eligible to vote in an election "are limited to those who continue
to be employed within the bargaining unit when they cast a ballot."
WAC 391-25-430(3).
ANALYSIS
Bishop was a chief deputy sheriff and Atkins was an assistant chief
deputy sheriff on December 19, 2008, the date the petitions for
self-determination election were filed. However, on January 1,
2009, the employer eliminated the chief deputy sheriff position
occupied by Bishop and the assistant chief deputy sheriff position
occupied by Atkins. Both Bishop and Atkins exercised their civil
service right to return to their positions as commanders, positions
included in the existing enforcement commanders unit represented by
the union.
The union unpersuasively argues that Bishop and Atkins should be
restored to their former positions and allowed to vote in a chief
deputy sheriff and assistant chief deputy sheriff self-determination
election. The union argument is based on Commission precedent
codified in WAC 391-25-140(2):
Changes of the status quo concerning wages, hours or other
terms and conditions of employment of employees in the
bargaining unit are prohibited during the period that a
petition is pending before the commission under this chapter.
However, WAC 391-25-140(2) must be read in light of Commission
guidance, most recently given in City of Seattle, Decision 9938-A
(PECB, 2009):
We determine the status quo as of the date the union filed the
representation petition.
In addition to the above "general status quo" obligation,
Commission precedent also requires employers to maintain the
"dynamic status quo." This "dynamic status quo" concept
recognizes that occasionally the status quo is not static and
the employer needs to take action to follow through with
changes that were set in motion prior to the union filing a
representation petition.
As of December 18, 2008, when the union filed the representation
petitions, the employer had already made its decision to eliminate
Bishop's civil service exempt position of Chief Administrative
Deputy and Atkins' civil service exempt position of Assistant Chief
Criminal Deputy effective January 1, 2009. The process began as
early as November 5, 2008, when Sheriff Gary Lucas responded to a
request for a six percent baseline budget reduction by proposing to
eliminate 31 positions, including the positions occupied by Bishop
and Atkins. Verbal notification that their positions of Chief
Administrative Deputy and Assistant Chief Criminal Deputy would be
eliminated was provided to Bishop and Atkins on December 8, 2008.
On December 15, 2008, Bishop and Atkins received written
notification that their positions were to be eliminated effective
January 1, 2009.
The written notices acknowledged receipt of Bishop's and Atkins'
requests to be reassigned to their previous positions as commander
under the civil service statute. The written notices acknowledged
that their requests to revert to commander were being processed. On
January 1, 2009, Bishop's and Atkins' chief deputy sheriff and
assistant chief deputy sheriff positions were eliminated and both
Bishop and Atkins were restored to their former civil service rank
of commander in positions in the enforcement division.
A "dynamic status quo" existed on December 19, 2008, the date the
petitions were filed. Prior to the union filing representation
petitions, the employer had already set in motion the elimination of
Bishop's and Atkins' civil service exempt chief deputy sheriff and
assistant chief deputy sheriff positions and their return to their
civil service rank of commander on January 1, 2009.
CONCLUSION
Under Commission rules, employees are eligible to vote in an
election only if they continue to be employed within the bargaining
unit when they cast a ballot. Here, only chief deputy sheriffs and
assistant chief deputy sheriffs are eligible to vote in the
petitioned-for self-determination elections. Both Bishop and Atkins
are no longer employed as chief deputy sheriff or assistant chief
deputy sheriff. Thus, they are not entitled to vote in a
self-determination election.
ISSUE 2. Are Michael Evans, Erin Nolan, and Jackie Batties
confidential employees?
APPLICABLE LEGAL STANDARDS
The Commission codified its standard for determining confidential
employee status by adopting WAC 391-35-320:
Confidential employees excluded from all collective 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.
The Commission stated and extensively reviewed the confidential
employee standard and its rationale in City of Yakima, Decision
9983-A (PECB, 2008):
This Commission, using established case precedent, applies a
labor relations nexus test to determine the confidential status
of employees to be included or excluded from a bargaining unit.
That test, accepted in International Association of Fire
Fighters, Local 469 v. City of Yakima, 91 Wn.2d 101 (1978),
states that a confidential employee is an employee whose duties
imply a confidential relationship that must flow from an
official intimate fiduciary relationship with the executive
head of the bargaining unit or public official.
Confidential employees are precluded from exercising their
statutory collective bargaining rights, and therefore a heavy
burden is placed on the party seeking that confidential
determination. City of Seattle, Decision 689-A (PECB, 1979).
Any relied upon labor relations responsibilities must be
necessary, regular, and ongoing. Yakima School District,
Decision 7124-A (PECB, 2001)(citing Oak Harbor School District,
Decision 3581 (PECB, 1990).
ANALYSIS
Collective Bargaining within the Sheriff's Department
Sheriff Lucas does not participate on employer collective bargaining
negotiating teams. Instead, he assigns Sheriff's Department Human
Resource Manager Candy Arata and a chief deputy sheriff to represent
him during bargaining. Brianne Nelson, a support person from the
Sheriff's human resources office, is routinely assigned to assist
the employer team.
Arata serves as spokesperson for the employer team. However, Arata
is not well versed in the operations of the three branches of the
Sheriff's Department: enforcement, support/civil, and jail. The
particular branch chief deputy sheriff represents the Sheriff in
negotiations and controls the negotiations for the employer
regarding contract proposals affecting operations of the branch.
Negotiation of operational and minimal cost provisions of a new
collective bargaining agreement are normally conducted first by
Arata and the branch chief deputy sheriff. However, when salaries
and benefits are negotiated, Arata, and the branch chief deputy are
joined by Clark County Human Resource Manager Francine Reis or her
designee.
Reis controls the amount of money that is available to fund salaries
and other items significantly impacting the county budget. The
chief deputy sheriff has considerable discretion on how available
funds may be used to meet operational needs of the branch.
One of the first things the members of the employer's negotiating
team in the Sheriff's Department do at the start of contract
negotiations is to sit down and walk through the existing contract.
Arata asks the branch chief deputy sheriff "what are issues in the
contract that are bothersome, that you're having difficulty with."
The chief deputy sheriff actively participates in initially
formulating what is desirable for the employer to achieve in
bargaining.
The chief deputy sheriff assigned to the employer negotiating team
directly formulates employer positions, prioritizes employer
negotiating goals as they impact operations, and is privy to
discussion prior to negotiations and in caucus during negotiations
regarding the employer's negotiating strategy.
Chief Criminal Deputy Sheriff Michael Evans
Evans has been chief criminal deputy sheriff of the department's
enforcement branch since 1999. He has been on five employer
negotiating teams including the teams that negotiated the 2006-2008
Deputy Sheriff's Guild (DSG) collective bargaining agreement. He
has also negotiated memorandums of understanding with the DSG to
resolve bargaining issues that occurred during the term of the
collective bargaining agreement, including a four-page memorandum of
understanding dated June 23, 2004 regarding overtime. Evans
negotiated this memorandum of understanding without the assistance
of the Sheriff or human resource personnel. The memorandum is
signed for the employer only by Evans. Evans was also assigned by
the Sheriff to the employer's negotiating team that negotiated the
2007-2009 Clark County Sheriff's Administrator's Association
collective bargaining agreement covering both the enforcement and
custody commanders bargaining units.
The 2007-2009 Sheriff's Administrator's Association collective
bargaining agreement is a first agreement covering the two separate
bargaining units of commanders. One bargaining unit is the custody
commanders unit that is supervised by Chief Custody Deputy Sheriff
Jackie Batties. The other bargaining unit is the enforcement
commanders unit that is supervised by Evans. The employer's
bargaining team for negotiation of this agreement also included
Undersheriff Joe Dunegan and Sheriff's Department Human Resource
Manager Arata.
I find these and other labor relations duties performed by Evans
establish a confidential relationship that flows from an official
intimate fiduciary relationship with Sheriff Lucas that is
necessary, regular, and ongoing. Evans is a confidential employee.
Support/Civil Branch Chief Civil Deputy Sheriff Erin Nolan
Nolan became Chief Civil Deputy Sheriff of the department's
support/civil branch in 2007. Nolan was assigned by the Sheriff to
the employer's negotiating team for the 2008-2010 Sheriff's Support
Guild collective bargaining agreement. The employer team consisted
of Arata, her support person Nelson, Nolan, and Keith Larson from
Clark County Human Resources. Nolan negotiated a memorandum of
understanding with the Sheriff's Support Guild regarding deployment
in records effective dated February 13, 2008. The memorandum is
signed for the employer only by Nolan.
I find these and other labor relations duties performed by Chief
Nolan found in the record establish a confidential relationship that
flows from an official intimate fiduciary relationship with Sheriff
Lucas that is necessary, regular, and ongoing. Nolan is a
confidential employee.
Chief Jail Deputy Sheriff Jackie Batties
Batties became Chief Jail Deputy Sheriff in 2005. She is in charge
of the department's jail branch. Batties was assigned by the
Sheriff to negotiate the 2008-2010 Custody Officer's Guild (COG)
collective bargaining agreement. Batties also individually
negotiated a mid-term memorandum of understanding with the COG
regarding mandatory overtime that became effective March 1, 2008.
The memorandum is signed only by Batties for the employer. Batties
was assigned by the Sheriff to the employer negotiating team for the
2007-2009 Sheriff's Administrator's Association collective
bargaining agreement covering both the enforcement and custody
commanders bargaining units.
I find these and other labor relations duties performed by Batties
found in the record imply a confidential relationship that flows
from an official intimate fiduciary relationship with Sheriff Lucas
that is necessary, regular, and ongoing. Batties is a confidential
employee.
CONCLUSION
Evans, Nolan, and Batties are confidential employees who are not
eligible for inclusion in a bargaining unit. Evans, Nolan, and
Batties participate directly on behalf of the employer in the
preparation for or conduct of collective bargaining, and assist in
the formulation of labor relations policy.
FINDINGS OF FACT
1. Clark County is a public employer within the meaning of RCW
41.56.030(1).
2. On December 19, 2008, the Clark County Sheriff's
Administrator's Association, a bargaining representative within
the meaning of RCW 41.56.030(3), filed two petitions for
investigation of questions concerning representation with the
Public Employment Relations Commission.
3. The petition in Case 22160-E-08-3422 seeks to add all
enforcement chief deputy sheriffs and assistant chief deputy
sheriffs to an existing bargaining unit consisting of all
enforcement commanders of the Clark County Sheriff's Office, by
a self-determination election pursuant to WAC 391-25-440.
4. The petition in Case 22167-E-08-3424 seeks to add all custody
chief deputy sheriffs and assistant chief deputy sheriffs to an
existing bargaining unit consisting of all custody commanders
of the Clark County Sheriff's Office by a self-determination
election pursuant to WAC 391-25-440.
5. Neither Chuck Atkins nor Richard Bishop are an enforcement
chief deputy sheriff, an enforcement assistant chief deputy
sheriff, a custody chief deputy sheriff, or a custody assistant
chief deputy sheriff. Atkins and Bishop are commanders.
6. Evans, Nolan, and Batties are the only enforcement chief deputy
sheriffs, enforcement assistant chief deputy sheriffs, custody
chief deputy sheriffs, and custody assistant chief deputy
sheriffs employed by the employer.
7. Evans, Nolan, and Batties actively participate with the
employer's bargaining teams, provide input about collective
bargaining proposals, have access to confidential information,
and assist in formulating labor policy.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.56 RCW and Chapter 391-25 WAC.
2. Based upon Finding of Fact 7, Michael Evans, Erin Nolan, and
Jackie Batties should be excluded from the petitioned-for
bargaining units as confidential employees within the meaning
of RCW 41.56.030(2)(c) and WAC 391-35-320.
3. Based on Findings of Fact 3 through 6, Chuck Atkins and Richard
Bishop are not eligible to vote in a self-determination
election under WAC 391-25-440.
ORDER
The petitions for investigation of questions concerning
repre-sentation in Case 22160-E-08-3422 and Case 22167-E-08-3424
are DISMISSED.
Issued at Olympia, Washington, this 29th 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 391-25-660.