City of Yakima, Decision 9983 (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
TEAMSTERS UNION, LOCAL 760 ) CASE 21235-E-07-3294
)
Involving certain employees of: ) DECISION 9983 - PECB
)
CITY OF YAKIMA ) ORDER DETERMINING
) ELIGIBILITY ISSUE
___________________________________)
Reid, Pedersen, McCarthy & Ballew, L.L.P., by Kenneth J.
Pedersen, for the union.
Sofia D. Mabee, Assistant City Attorney, for the employer.
On August 31, 2007, Teamsters Union, Local 760 (union) filed a
petition seeking certification as the exclusive bargaining
representative of certain employees of the Police Department of the
City of Yakima (employer).
Specifically, the union seeks to represent the supervisors, the
police captains, and the lieutenants in the department.
Representation Coordinator Sally J. Iverson held an investigation
conference on October 1, 2007. The employer argued that the police
captains should be not be part of the proposed bargaining unit, as
they are confidential employees as defined by the Washington
Administrative Code. A hearing was held on the issue on October 17,
2007, before Hearing Officer Robin A. Romeo. The parties submitted
post-hearing briefs which were considered.
ISSUE
Whether the police captains are confidential employees within the
meaning of Chapter 41.56 RCW and therefore excluded from a
supervisory bargaining unit?
Based upon the record, the applicable statutes, rules, and case
precedent, the Executive Director rules that the position of police
captain is confidential, and therefore the three police captains are
properly excluded from the bargaining unit because they formulate
labor policy, prepare for or conduct collective bargaining, and
administer collective bargaining agreements.
APPLICABLE LEGAL STANDARDS
The Commission has a long history of using a labor nexus test in
determining the issue of an employee's status as confidential. In
2001, the Commission adopted WAC 391-35-320 which codified the
confidential employee test into its own rules. Pursuant to WAC
391-35-320(1), an employee is confidential if they participate
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.
The Commission has interpreted WAC 391-35-320 to mean that an
employee's work assignments need not be exclusively or primarily
confidential, but they must be necessary, regular and ongoing. City
of Redmond, Decision 7814-B (PECB, 2003). The Commission also
distinguishes labor relations functions from personnel functions.
Washington State Patrol, Decision 8469-A (PSRA, 2006). The labor
relations duties must be actual duties, not just speculative. Chelan
County Public Utility District, Decision 8496-B (PECB, 2006). The
party seeking a confidential exclusion has a heavy burden of proof
because an individual's status as a confidential employee deprives
the person of all bargaining rights under state law. Yakima School
District, Decision 9020-A (PECB, 2007).
In Yakima School District, Decision 9020-A (PECB, 2007), the
Commission affirmed a decision by the Executive Director finding an
employee to be confidential where the employee handled confidential
labor relations materials and attended meetings involving collective
bargaining issues within the district. She processed documents and
correspondence regarding personnel issues, grievances, proceedings
before this Commission, and was privy to sensitive salary
information that she was instructed to keep confidential.
In City of Bellevue, Decision 6699-A (PECB, 1999), the Commission
affirmed a decision of the Executive Director finding the position
of police major to be confidential. In that case, the employees
were assigned to sit at the bargaining table, were given information
on the amount of funding available for the agreement, and had input
on how the package was formulated. They discussed issues with the
union negotiators at the bargaining table, with the city manager and
the labor relations consultant. They provided operational advice
and participated in management team discussions of strategy,
proposals, and packaging alternatives. The union's argument that
they were not confidential and were merely "observers" on the
bargaining team was rejected.
ANALYSIS
The City of Yakima's Police Department is composed of a chief, three
captains, five lieutenants, 15 sergeants, 101 police officers, and
other non-commissioned, non-uniformed employees. There are currently
two bargaining units in the Police Department, one represented by
the Yakima Police Patrol Association (YPAA) composed of sergeants
and police officers, and an AFSCME unit representing the
non-commissioned, non-uniformed employees.
Evidence was presented that the three captains have been assigned to
collective bargaining duties on a necessary, regular, and ongoing
basis. They are assigned one at a time to each of the employer's
two bargaining teams; one for the commissioned officers'
negotiations and one for the non-commissioned employees'
negotiations. Captain Jeff Schneider was on the employer team that
bargained in 2003 in the YPAA negotiations, Captain Greg Copeland
was on a team that bargained in 2006 in the YPAA negotiations, and
Captain Rod Light was on a team that bargained in 2005 in the AFSCME.
There was testimony detailing Copeland's participation in
bargaining. He attended bargaining sessions, including private
employer caucuses and meetings where confidential information was
discussed. He received confidential emails and written information
related to bargaining. He discussed the employer's position in
bargaining with the police chief and when the bargaining resulted in
interest arbitration, he attended as the employer's representative.
There was testimony about Schneider's participation in bargaining.
He provided input to the employer's opening proposal and reviewed
the proposal prior to submission to the union. He attended every
bargaining session and spoke on the employer's behalf at the table.
He was privy to financial information and the employer's
counter-proposals prior to it being submitted to the union. He
attended executive sessions and provided input regarding bargaining
proposals to the city council.
There was also testimony about Schneider's involvement in
grievances. Schneider had issued a memo concerning the assignment of
overtime which led to the filing of an unfair labor practice
complaint by the YPAA with this Commission. He assisted the
employer in responding to the unfair labor practice proceeding.
There was testimony regarding Light's participation in bargaining.
He attended bargaining sessions as the police department
representative, provided input in the drafting of employer
proposals, and attended caucuses and meetings where confidential
strategies and counter-proposals were discussed.
There was also general testimony that the police captains routinely
respond to grievances filed by employees and that they are involved
in disciplinary matters which have included the termination of a
police officer. They also fill in for the police chief in his absence.
CONCLUSION
As stated previously, the employer bears a heavy burden of proof in
seeking confidential status as it deprives an employee of all
bargaining rights under state law. Yakima School District, Decision
9020-A (PECB, 2007).
The employer has met the burden of proof here. As in Yakima School
District and City of Bellevue, the police captains participate in
the formulation of labor policy, preparation for or conduct of
collective bargaining and the administration of collective
bargaining agreements.
The police captains participate in bargaining. Although they are
assigned one at a time to a bargaining team, taking all of their
experience together, the type and amount of information that they
are exposed to creates a potential conflict of interest. If they
were in a bargaining unit and assigned to an employer bargaining
team, they could be privy to information of the employer that their
union would desire or vice versa. This type of "exposure" warrants
their exclusion.
The testimony that the captains sat at the bargaining table, but 99
percent of the time didn't really do anything or didn't participate,
does not negate the fact that they were part of the employer's
bargaining team. They were exposed to confidential information.
They attended confidential meetings.
The police captains assist in the formulating and administering of
labor policy. They formulate labor policy and administer the
collective bargaining agreement as shown by the participation in the
unfair labor practice proceeding, the determination of the
assignment of overtime, adjustment of grievances, and disciplinary
matters.
The union argues that because the police captains are entitled
"deputies" as used in RCW 41.56.030(2)(c), they are not
confidential. The fact that they do not have the title "deputy" is
not relevant. An employee's designation as confidential is
determined by actual duties not the job title. Chelan County Public
Utility District, Decision 8469-B. The test is codified in the
Commission's rules in WAC 391-35-320(1) and does not define the test
by title.
The union also argues that the possible creation of a deputy chief
position precludes a finding that the police captains are
confidential in that the deputy chief will act as the chief's
representative in collective bargaining and fill in for the chief
when he is absent. However, these future duties are speculative and
speculation alone cannot form the basis of a determination of an
employee's confidential status. Chelan County Public Utility
District, Decision 8469-B.
Using the labor nexus test, the employer has satisfied its burden of
proof that the position of police captain is confidential and
properly excluded from the bargaining unit.
FINDINGS OF FACT
1. The City of Yakima is a public employer within the meaning of
RCW 41.56.030(1). The employer maintains and operates a police
department.
2. Teamsters Union, Local 760, is a bargaining representative
within the meaning of RCW 41.56.030(3) and has filed a petition
with the Public Employment Relations Commission seeking
certification as the exclusive bargaining representative of a
supervisory bargaining unit of police lieutenants and captains.
3. The employer has contended that the position of police captain
is confidential as defined by statute and should be excluded
from the bargaining unit.
4. The three employees who occupy the position of police captain,
Greg Copeland, Jeff Schneider, and Rod Light, sit on the
employer's bargaining teams, provide input to the city's
proposals and have access to confidential information. They
formulate labor policy and administer the collective bargaining
agreement in that they assign overtime, process grievances and
make recommendations on discipline.
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. The Findings of Fact establish that the employees with the
title of police captain are confidential employees within the
meaning of RCW 41.56.030(2)(c) and WAC 391-35-302(1).
ORDER
The position of police captain shall not be included in the
bargaining unit involved in this proceeding.
Issued at Olympia, Washington, this 22nd day of February, 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 agency under WAC 391-25-660.