Community College 14 (Clark), Decision 10044 (PSRA, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
WASHINGTON PUBLIC EMPLOYEES )
ASSOCIATION ) CASE 21236-C-07-1312
)
For clarification of an existing ) DECISION 10044 - PSRA
bargaining unit of employees of: )
)
COMMUNITY COLLEGE DISTRICT 14 ) ORDER CLARIFYING
(CLARK COLLEGE) ) BARGAINING UNIT
___________________________________)
Herb Harris, Organizer, for the union.
Attorney General Rob McKenna, by Rachelle L. Wills, Assistant
Attorney General, for the employer.
On August 31, 2007, the Washington Public Employees Association
(union) filed a unit clarification petition seeking to include five
employees of Community College District 14 (Clark College -employer)
in the bargaining unit. Previously, the employer and the union
agreed the positions at issue in this petition were confidential.
Hearing Officer Lisa Hartrich held a hearing on November 27, 2007.
ISSUES
1. Does Laura Elwood-Klein have standing to challenge the
proceedings?
2. Is a change in circumstances required for the union to
challenge the status of confidential employees when the
employees were previously excluded by agreement?
3. Are five employees in the employer's human resources office
confidential employees under RCW 41.80.005(4)?
Issue 1
Does Laura Elwood-Klein have standing to challenge the proceedings?
Analysis
Laura Elwood-Klein, one of the employees whose position is at issue
in this proceeding, sent a letter to the Hearing Officer on January
31, 2008, after the close of the hearing including her "Statement of
Protest Against Forcibly Joining the WPEA."
Challenges to the status of a confidential employee may be made only
by the employer or the union representing such an employee. WAC
391-35-010. Only evidence presented at the hearing will be
considered by the Executive Director in determining the outcome of
whether Elwood-Klein is a confidential employee. The letter will
not be considered.
Issue 2
Is a change in circumstances required for the union to challenge the
status of confidential employees when the employees were previously
excluded by agreement?
Legal Standard
In accordance with WAC 391-35-020(1)(e), the Commission allows
petitions regarding confidential status to be filed at any time.
State - Labor and Industries, Decision 8437-A (PSRA, 2004). The
party seeking a confidential exclusion bears a heavy burden of proof
because the confidential exclusion deprives the employee of all
collective bargaining rights. City of Chewelah, Decision 3103-B
(PECB, 1989).
Analysis
The employer relies on Olympia School District 111, Decision 4736-A
(PECB, 1994), to argue that a change in circumstances is required to
alter a prior agreement between the parties regarding a confidential
position.
In Olympia School District 111, the Commission held that the
employer's heavy burden of proving a position is confidential may be
met by parties' prior agreements recognizing the confidential nature
of the position. The Commission further held that, absent an
exclusion abhorrent to Commission policy, the petitioning party must
demonstrate a change of circumstances to avoid a binding effect of
the prior agreement. In Yakima School District, Decision 7124-A
(PECB, 2001), the Commission overruled Olympia School District 111
to the extent it was inconsistent with WAC 391-35-020.
It would be inconsistent with WAC 391-35-020 and Commission policy
to require a change in circumstances to challenge the confidential
status of a position. It would also be inconsistent with Commission
policy to exclude as confidential a position that is not
confidential.
While an employer and a union may agree to exclude a position as
confidential, WAC 391-35-020 is the applicable standard for all
clarification cases regarding confidential exclusions, regardless of
the parties' previous agreement. The fact that the positions at
issue were previously excluded, by agreement, from the bargaining
unit does not allow the employer to automatically meet its heavy
burden of proof.
Issue 3
Are five employees in the employer's human resources office
confidential employees under RCW 41.80.005(4)?
Legal Standards
An employer will be allowed a reasonable number of personnel who are
exempt from collective bargaining rights in order to perform the
employer's functions in collective bargaining. Clover Park School
District, Decision 2243-A (PECB, 1987). There is no magic formula
for determining how many employees may be excluded.
Under the Personnel System Reform Act (PSRA or Chapter 41.80 RCW), a
confidential employee is one
. . . who, in the regular course of his or her duties, assists
in a confidential capacity persons who formulate, determine,
and effectuate management policies with regard to labor
relations or who, in the regular course of his or her duties,
has authorized access to information relating to the
effectuation or review of the employer's collective bargaining
policies, or who assists or aids a manager. "Confidential
employee" also includes 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.
RCW 41.80.005(4). In order to be excluded as a confidential
employee, the employee must satisfy the labor nexus test. State
-Department of Information Services, Decision 8629-A (PSRA, 2006).
In cases under the PSRA, the Commission has applied the labor nexus
test enunciated in City of Yakima, 91 Wn.2d 101 (1978). An employee
is a confidential employee if he or she participates directly on the
employer's behalf either: (1) in the formulation of labor relations
policy; or (2) in the preparation for or conduct of collective
bargaining; or (3) in the administration of collective bargaining
agreements. City of Lynden, 7527-B (PECB, 2002). Under the PSRA,
the centralization of negotiations substantially limits the
potential for application of the labor nexus test at the agency
level, because bargaining is not conducted at the agency level.
State - Department of Labor and Industries, Decision 8437-A.
Not all human resources functions meet the labor nexus test, and
personnel functions not related to labor relations are irrelevant in
determining confidential exclusions. Washington State Patrol,
Decision 8469-A (PSRA, 2006). Routine clerical duties will not
warrant a confidential exclusion; the employee must consistently
exercise independent judgment. City of Lynden, Decision 7527-B.
Access to personnel files and current payroll data is insufficient
to exclude an employee. Olympia School District 111.
Facts Relevant to All Employees
The five employees at issue work in the employer's human resources
office. Vice President of Human Resources, Katrina Golder,
supervises three employees: Human Resource Consultant Assistant 1,
Laura Elwood-Klein; Human Resource Consultant 1, Page Pallamounter;
and Human Resource Consultant Assistant 2, Megan Brooker. Associate
Director of Human Resources, Sue Williams, supervises two employees:
Human Resource Consultant Assistants 1, Laura Likes and Dennis "Sam"
Osaki.
Currently, there are three bargaining units at the employer's
facility: faculty, classified, and classified supervisors. The
union represents the classified employees. The Office of Financial
Management's Labor Relations Office (LRO) represents the employer
during bargaining with the union. Golder did not represent the
employer at the bargaining table during negotiations for the
2005-2007 or 2007-2009 collective bargaining agreements; however,
she provided information, upon request, to the state negotiating
team. Williams administers faculty and administrative contracts but
does not represent the employer at the bargaining table during
negotiations.
All employees working in the employer's human resources office have
access to the I-drive, where Golder stores negotiations material.
An employee simply knowing how or where to access information
relating to collective bargaining is insufficient to exclude that
employee as confidential. State - Natural Resources, Decision
8458-A (PSRA, 2005). It is incumbent on the employer to keep
confidential labor relations materials secure. Access to the
I-drive is not enough to deprive the employees at issue of their
bargaining rights.
Human Resources Consultant Assistant 1 Laura Elwood-Klein
Laura Elwood-Klein is the primary support to Katrina Golder and also
supports Page Pallamounter. In support of Golder, Elwood-Klein
schedules appointments, answers the phone, edits correspondence, and
prepares files. In support of Pallamounter, Elwood-Klein prepares
memoranda of pay for employees, creates benefit letters for
employees, creates files for benefits, and edits correspondence.
Additionally, Elwood-Klein maintains the office supplies. These
duties are routine clerical duties, and do not qualify Elwood-Klein
for exclusion as a confidential employee.
In support of Golder's labor relations functions, Elwood-Klein has
prepared documents, gathered information at Golder's request, typed
Golder's notes from collective bargaining, and prepared grievance
responses. Elwood-Klein reads all of Golder's correspondence,
including disciplinary notices and grievances. Depending on the
type of information Elwood-Klein gathers, gathering materials may be
related to confidential labor relations activity. As Golder
currently does not serve on the state bargaining team, there would
currently be no notes from collective bargaining negotiations for
Elwood-Klein to type. Confidential status depends on the employee's
current duties.
The employer offered documents that Elwood-Klein had access to and
may have used when gathering information for Golder. The email
examples included requests for policies, Washington Personnel Review
Board or Commission decisions, and ground rules used in local
bargaining. Such information would be available to the union upon
request or is public record. Absent analysis or formulation of
employer policy by the employee at issue, gathering such information
does not support a finding that Elwood-Klein is a confidential
employee.
According to Golder, Elwood-Klein proof-read and copied a 2003
internal memorandum to the employer's interim president recommending
the employer bargain under the Governor. The letter is an internal
recommendation on how the employer should proceed with bargaining
under the PSRA, and the letter is related to the employer's labor
relations functions. However, the letter is evidence of duties
Elwood-Klein previously performed. The employer failed to offer
current examples of work Elwood-Klein has performed relating to
confidential labor relations.
Elwood-Klein attends labor-management meetings as Golder's assistant
and takes notes on Golder's behalf. The union is present at
labor-management meetings. Attending a meeting where both the
employer and the union are present, for the purpose of taking notes
and not advancing positions on the employer's behalf, is not a
confidential duty.
The documentary evidence submitted in support of Elwood-Klein's
exclusion from the bargaining unit included letters shared with and
addressed to the union. If the union is privy to documents, such
evidence is irrelevant for determining whether an employee is
confidential.
The document most relevant to Elwood-Klein's status as a
confidential employee is a 2003 email and attachment including
updates and issues for discussion at the bargaining table. The
email, from Lorna Ovena, a member of the 2003 state bargaining team
for classified employees, addressed to Golder, sought input on the
issues to be discussed during negotiations. Golder testified that
Elwood-Klein would potentially have had access to the document
because Golder kept the document in her files. Golder did not
indicate whether Elwood-Klein filed the document. Having access to
the files is not enough to warrant exclusion as a confidential
employee. Golder must authorize Elwood-Klein to access information.
It is unclear from Golder's testimony what involvement Elwood-Klein
actually had with the document. Further, the document, from 2003,
is not indicative of confidential duties Elwood-Klein currently
performs.
Elwood-Klein's job duties include routine clerical support of Golder
and Pallamounter. Elwood-Klein is privy to labor relations
materials when Golder provides them to her. While gathering
information that Golder may need to pass along to the state
bargaining team is a component of Elwood-Klein's duties in support
of Golder, Golder is not directly involved in bargaining.
Elwood-Klein is not a confidential employee.
Human Resources Consultant 1 - Page Pallamounter
Page Pallamounter's primary duty is administering employee benefits.
Pallamounter determines whether employees are eligible for benefits
and leave, updates summaries of benefits for new employees,
processes Labor and Industry claims, and orients new employees to
benefits. Providing new employees with orientation does not warrant
a confidential exclusion. Franklin County, Decision 6350 (PECB,
1998). Through the administration of benefits and leave,
Pallamounter has access to private employee personnel files. To
warrant a confidential exclusion, an employer must show more than an
employee having access to private information concerning matters
other than labor relations. Clover Park School District, Decision
2243-A. Possession of information that is not to be disclosed to
the public, but would not damage the collective bargaining process
if disclosed, does not meet the standard for exclusion. City of
Chewelah, Decision 3103-B.
Pallamounter performs some duties concerning labor relations. Using
the collective bargaining agreement, Pallamounter answers employee
questions about benefits and leave. If Pallamounter cannot answer
an employee's question, she seeks advice from Golder. Pallamounter
is not engaged in an activity that would qualify as independent
judgment.
Pallamounter assists Golder with grievances by gathering
information, but that information is limited to her correspondence
with the grievant. Pallamounter testified on the employer's behalf
at an arbitration, but the employer presented no evidence that she
assisted an Assistant Attorney General in preparation for the
arbitration. Pallamounter neither responds to grievances on the
employer's behalf, nor makes employer policy. Rather, once a
grievance has been filed, she provides Golder with documents she
also provides to the grievant. By itself, grievance processing is
generally insufficient to meet the labor nexus test. State - Labor
and Industries, Decision 8437-A (PSRA, 2004) citing City of Seattle,
Decision 689-C (PECB 1981).
When asked, Pallamounter provides Golder with suggestions about
changes that could be made to the collective bargaining agreement or
employer policies. The use of an employee as a sounding board is
insufficient to deprive an employee of his or her bargaining rights.
State - Department of Information Services, Decision 8629-A. An
employer may discuss ideas and ask an employee questions based on
the employee's knowledge without disclosing the employer's
bargaining position. Pierce County, Decision 8892-A (PECB, 2005). A
critical question is whether information travels to the employee,
rather than from the employee. Pierce County, Decision 8892-A. If
Golder sought information from Pallamounter about how the benefits
administration worked, the information went to the employer, not to
the employee. Confidential labor relations information must flow to
the employee to deprive an employee of his or her bargaining rights.
While Pallamounter has access to documents that could not be
disclosed to the general public, such as medical benefit files,
access to this type of information does not make an employee
confidential. Confidentiality stems from an employee's access to
labor relations materials not shared with the union and
participation in the labor relations process on behalf of the
employer. Based upon her stewardship of confidential employee
files, answering questions using the collective bargaining agreement
as a guide, and providing input to Golder upon request,
Pallamounter's duties do not warrant exclusion from the bargaining
unit.
Human Resources Consultant Assistant 2 - Megan Brooker
Megan Brooker's duties include maintaining leave records,
maintaining lists of employees for the employer, inputing data, and
supporting hiring. Brooker maintains lists of classified employees,
including their pay range and step; lists of classified employee
seniority; lists of adjunct and affiliated faculty; and lists of
probationary employees. These duties are routine personnel
functions, thus not determinative of Brooker's status as a
confidential employee.
Some of Brooker's duties relate to labor relations. Like
Pallamounter, Brooker uses the collective bargaining agreement to
answer employee questions, and consults with Golder if a question
raises issues not previously encountered. Brooker does not exercise
independent judgment when making a decision based on the existing
collective bargaining agreement or Golder's advice.
Brooker tells Golder if the employer's policies or the collective
bargaining agreement raise concerns about leave administration. The
information is traveling to the employer, not from the employer to
the employee. Brooker's raising concerns or answering questions
about her job functions would not be enough to exclude Brooker from
the bargaining unit.
Brooker maintained a list of employees at pay step L that were
impacted by a pay increase. At some point in time, either during or
after the last round of bargaining, Brooker gave the L list to the
accounting office, where the impact of the pay increase was
determined. Maintaining a list of employees at a certain pay level
is a personnel function, not a labor relations function. Brooker
had no involvement beyond maintenance of the list. Brooker did not
use the list to cost the effects of the raise, nor was there
evidence she conducted analysis based on the list. Maintenance of
the list is not determinative to her status as a confidential
employee.
Golder testified, based on emails from 2003 and 2004, as to what
information she might ask Brooker to gather. Brooker was not
employed by the employer at the time the emails were sent, thus the
documents are not representative of Brooker's actual duties. Only
the duties the employee currently performs are relevant to the
employee's status as confidential.
Based upon Brooker's current job duties, she is not a confidential
employee.
Human Resources Assistant - Laura Likes
Likes' duties include assisting in recruitment, backing up
reception, assisting with faculty salary advancement, editing
Williams's correspondence, creating appointment letters, and
developing job announcements. Likes gathered salary data for the
faculty employees that may have been used in faculty collective
bargaining. Likes uses the collective bargaining agreement to
answer employee questions. Likes' duties involving the faculty
bargaining unit have no bearing on her confidentiality for
membership in the classified bargaining unit. Likes' duties are
personnel functions unrelated to labor relations, and do not warrant
her exclusion from the bargaining unit. Likes is not a confidential
employee.
Human Resources Assistant - Dennis "Sam" Osaki
Osaki is the receptionist in the employer's human resources
department. Osaki's duties include date stamping, sorting, and
distributing mail; answering the phone; posting jobs on the
internet; and greeting people. Golder testified that Osaki must
read the mail to determine the proper recipient. However, Osaki
testified that based on where the mail is coming from, he generally
knows who the recipient should be and needs only to glance at the
mail to determine the recipient. Osaki's job duties are routine
clerical duties, thus, Osaki is not a confidential employee.
Conclusion
None of the positions at issue perform confidential labor relations
duties.
FINDINGS OF FACT
1. Community College District 14 (Clark College) is an employer
within the meaning of RCW 41.80.005(8).
2. The Washington Public Employees Association is an employee
organization within the meaning of RCW 41.80.005(7).
3. The Office of Financial Management's Labor Relations Office
(LRO) represents the employer during bargaining with the union.
4. Vice President of Human Resources Katrina Golder did not
represent the employer at the bargaining table during
negotiations of the 2005-2007 and 2007-2009 collective
bargaining agreements.
5. Associate Director of Human Resources Sue Williams does not
represent the employer at the bargaining table during
collective bargaining negotiations.
6. Human Resources Consultant Assistant 1 Laura Elwood-Klein is
the primary support to Katrina Golder. Elwood-Klein schedules
appointments, answers the phone, prepares files, attends labor
management meetings as Golder's assistant and takes notes,
reads correspondence, types notes from collective bargaining,
gathers information, and prepares grievance responses.
7. Human Resources Consultant 1 Page Pallamounter handles employee
benefits, determines whether employees are eligible for
benefits and leaves, uses the collective bargaining agreement
to answer employee questions, makes suggestions on changes that
could be made to the collective bargaining agreement or
employer policies, and has access to employee personnel files.
8. Human Resources Consultant Assistant 2 Megan Brooker maintains
leave records and lists of employees, inputs data, and supports
hiring. Brooker answers employee questions using the
collective bargaining agreement. Brooker tells Golder if she
has concerns about how the collective bargaining agreement or
employer policies affect leave administration.
9. Human Resources Consultant Assistant 1 Laura Likes supports
Williams, assists with recruitment, backs up reception, edits
Williams's correspondence, creates appointment letters, and
assists in developing job announcements. Likes uses the
collective bargaining agreement to answer employee questions.
10. Human Resources Consultant Assistant 1 Dennis "Sam" Osaki is
the receptionist. Osaki answers phones, sorts and distributes
mail, greets people, and posts jobs on the internet.
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in
this matter under Chapter 41.80 RCW and Chapter 391-35 WAC.
2. As described in Finding of Fact 6, Laura Elwood-Klein is not a
confidential employee within the meaning of RCW 41.80.005(4).
3. As described in Finding of Fact 7, Page Pallamounter is not a
confidential employee within the meaning of RCW 41.80.005(4).
4. As described in Finding of Fact 8, Megan Brooker is not a
confidential employee within the meaning of RCW 41.80.005(4).
5. As described in Finding of Fact 9, Laura Likes is not a
confidential employee within the meaning of RCW 41.80.005(4).
6. As described in Finding of Fact 10, Dennis "Sam" Osaki is not a
confidential employee within the meaning of RCW 41.80.005(4).
ORDER
1. The Human Resources Consultant Assistant 1 position, currently
held by Laura Elwood-Klein, is included in the bargaining unit.
2. The Human Resources Consultant 1 position, currently held by
Page Pallamounter, is included in the bargaining unit.
3. The Human Resources Consultant Assistant 2 position, currently
held by Megan Brooker, is included in the bargaining unit.
4. The Human Resources Consultant Assistant 1 position, currently
held by Laura Likes, is included in the bargaining unit.
5. The Human Resources Consultant Assistant 1 position, currently
held by Dennis "Sam" Osaki, is included in the bargaining unit.
Issued at Olympia, Washington, this 18th day of April, 2008.
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 391-35-210.