King County, Decision 10075 (PECB, 2008)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of: )
)
TEAMSTERS LOCAL 117 ) CASE 21480-E-08-3331
)
Involving certain employees of: ) DECISION 10075 - PECB
)
KING COUNTY ) DIRECTION OF ELECTION
)
___________________________________)
Tracey Thompson, Senior Staff Attorney, for Teamsters Local 117.
David Levin, Labor Negotiator, for the employer.
Cline and Associates, by James Cline, for the incumbent,
Technical Employees Association.
On January 17, 2008, Teamsters Local 117 (Teamsters) filed a
petition to represent a group of nine supervisory employees of the
design and construction section of the transit division of the King
County Department of Transportation (employer). These employees are
currently represented for purposes of collective bargaining by the
Technical Employees Association (TEA). The employer and TEA were
parties to a collective bargaining agreement covering these
employees which expired on December 31, 2007. The TEA also
represents the employer's non-supervisory employees (approximately
65) in the same division.
Representation Coordinator Sally Iverson conducted an investigation
conference on February 15, 2008, and issued an Investigation
Statement on February 18, 2008. The parties did not stipulate to
the propriety of the bargaining unit nor to the supervisory status
of several employees included in the eligibility list submitted by
the employer.(fn:1) Hearing Officer Carlos R. Carrion-Crespo conducted
a hearing on this matter on March 10, 2008, during which the TEA
limited its objection to the eligibility of five employees. The
employer and the Teamsters filed briefs.
____________________
fn:1 Although the Investigation Statement indicated that the
parties had not agreed on the eligibility of three employees, the
TEA submitted a letter on February 27, 2008, stating that it had not
intended to stipulate to the eligibility of any of the employees
until the bargaining unit had been defined.
ISSUES
1. Are the following positions supervisory?
a. supervisor of the facilities group;
b. supervisor of civil engineering;
c. supervisor of mechanical engineering;
d. supervisor of structural engineering and facilities; and
e. supervisor of electrical engineering.
2. Is the existing supervisory bargaining unit appropriate?
The Executive Director holds that the five positions at issue
exercise authority on behalf of the employer over subordinate
employees, and are therefore appropriately included in the existing
supervisory bargaining unit. The Executive Director also holds that
the existing supervisory bargaining unit described in the petition
is appropriate.
ANALYSIS
Issue 1. Supervisory Status
Applicable Legal Principles
The Commission has adopted a rule requiring exclusion of supervisors
from bargaining units containing their subordinates:
WAC 391-35-340 UNIT PLACEMENT OF SUPERVISORS--BARGAINING
RIGHTS OF SUPERVISORS. (1) It shall be presumptively
appropriate to exclude persons who exercise authority on behalf
of the employer over subordinate employees (usually termed
"supervisors") from bargaining units containing their
rank-and-file subordinates, in order to avoid a potential for
conflicts of interest which would otherwise exist in a combined
bargaining unit.
In the absence of a test within Chapter 41.56 RCW, Commission
precedents adopt the test set forth in RCW 41.59.020(4)(d) which
provides a distinction between supervisors and employees who are
merely "lead workers." City of Lynnwood, Decision 8080-B (PECB,
2006). RCW 41.59.020 requires that the excluded employee have the
authority:
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 . . . .
Therefore, only "the possession and exercise of employer authority
over subordinate employees . . . warrants an exclusion." City of
Union Gap, Decision 8619-A (PECB, 2005). There must be a
preponderance of supervisory duties to warrant separating lead
workers from the rank-and-file employees they lead. City of
Lynnwood, Decision 8080-B. The excluded employees must have
"independent authority to make meaningful changes in the employment
relationship that is the hallmark of 'supervisor' status and the
basis for concern about conflict of interest within a bargaining
unit." City of Lynnwood, Decision 8080-A, aff'd, Decision 8080-B
(PECB, 2006).
In order to be considered a supervisor of other employees, the
employee's power to exercise the employer's authority must be
effective. In City of Union Gap, the employees were included in the
non-supervisory bargaining unit because the employees did not have
the authority to hire, assign, promote, transfer, layoff, recall,
suspend, discipline or discharge subordinates. In City of Lynnwood,
Decision 8080-B, three positions were included in the
non-supervisory bargaining unit because they did not make final
decisions or sign reports and evaluations even though they filled
out and reviewed them. They also helped screen and interview
employment applicants, but the department director almost always
agreed with their recommendations regarding applicants' technical
qualifications. However, the director interviewed applicants for
other qualifications and made final decisions regarding discipline.
In the public sector setting, where final authority is often vested
in an elected board or elected official, the power to make effective
recommendations is very important in determining supervisory status.
Island County, Decision 5147 (PECB, 1995).
Application of Standards
The Transit Design and Construction Section
The existing unit includes the supervisory employees of the design
and construction section of the transit division of the employer's
department of transportation. In order to provide context, a short
description of the organizational structure follows.
The department of transportation reports directly to the office of
the county executive. The transit division is one of five divisions
within the department, and it has its own human resources office.
The employer hires outside contractors to build transit facilities
that cost more than 15 million dollars, but the design and
construction section builds facilities that cost less. This section
also inspects all the work performed for the transit division. The
section is divided in five sub-groups: technical support, real
estate and environmental planning, project management, engineering
and design, and construction services. The transit design and
construction section employs 77 persons, of which three positions
are excluded as confidential, 65 positions belong to the staff
bargaining unit, and nine positions are presently considered
supervisors in the unit at issue. Eight of these supervisors work
in the managing and design unit. The supervisor of the facilities
group in project management is the ninth member of the supervisory
bargaining unit.
Positions Stipulated to be in the Bargaining Unit
The parties agree that the following positions belong in the
existing supervisory bargaining unit:
* The supervisor of real estate and planning, who supervises ten
employees;
* The managing engineer of program and project management, who
supervises the supervisor of the facilities group and twelve
employees in the project management team;
* The managing engineer of construction services, who supervises
eleven employees; and
* The managing engineer of engineering and design, who supervises
three employees and four supervisors.
Positions Not Stipulated to be in the Bargaining Unit
The TEA argues that the following five positions are incorrectly
placed in the supervisory bargaining unit because they do not have
effective authority over employees to qualify them as supervisors,
and therefore are more correctly classified as lead employees:
* The supervisor of the facilities group, Donald Campbell,
classified as Capital Projects Managing Supervisor, who
supervises three employees;
* The supervisor of civil engineering and CADD, Paul Eng,
classified as Transit Engineer VI(fn:2), who supervises seven
employees;
____________________
fn:2 Transit Engineer IV or V indicates pay grade.
* The supervisor of mechanical engineering, Ronald Quist,
classified as Transit Engineer V, who supervises four employees;
* The supervisor of structural engineering and facilities, John
Davis, classified as Transit Engineer V, who supervises five
employees; and
* The supervisor of electrical engineering, Charles Reynolds,
classified as Transit Engineer V, who supervises five employees.
The parties stipulated that the job descriptions entered into
evidence accurately describe the duties of the positions.
Supervisor of the Facilities Group
The TEA argues that this position, currently occupied by Donald
Campbell, is not supervisory because its occupant is actually a
"lead worker." The job description states that the occupant
supervises the work of departmental staff members, hires personnel,
assigns and schedules work, evaluates performance, and initiates
disciplinary action when appropriate. The position also administers
and monitors the unit's operating budget, and acts as program
manager for programs with multiple dimensions or projects. The
employer and TEA agreed on June 12, 2007, that this position
belonged in the supervisory bargaining unit, asserting that they had
reviewed its job description and that it was a more appropriate
placement.
Although that agreement does not bind the Commission, the evidence
leads the Executive Director to the same conclusion. Besides the
indicia of supervision provided by the job description, the
testimony shows that Campbell has authority to accept or reject the
transfer of an employee from other sections of the division, and has
the duty to address grievances at the first step. The manner in
which Campbell manages projects and directs the personnel assigned
to these projects is regarded and compensated at the same level as
an Engineer VI, most of whom are included in the supervisory
bargaining unit. In light of all these factors, the position will
remain in the the existing supervisory bargaining unit.
Supervisor of Civil Engineering and CADD
This position is occupied by Paul Eng, an Engineer VI, whose job
description states that he manages a "large work unit, i.e. the
Engineering Unit, the Project Management Unit, the Construction
Unit." The incumbent plans, organizes, and directs the work of
staff and monitors the distribution of work. Eng evaluates the
progress of the projects and initiates changes to achieve the
objectives. The position requires six years of experience
supervising employees. The parties agree that all the other
positions in Engineer VI class are supervisory, except for the one
occupied by Paul Eng. The TEA argues that the employer allowed Eng
to keep the title, but that only his supervisor, managing engineer
of engineering and design, David Crippen, effectively exercises the
employer's authority over these employees.
Eng testified that he decides when to hire employees, drafts job
descriptions, interviews applicants, and makes effective
recommendations to hire specific individuals. Crippen occasionally
participates in these interviews, but not in the evaluation of the
applicants. Eng's recruitment decisions are subject to review by
either Crippen or transit design and construction manager Judy
Riley; however, the employer only hired an applicant not recommended
by Eng when another candidate was mandated by the collective
bargaining agreement. In that case, the employer also hired the
candidate that Eng recommended, and later complied with Eng's
request that the internal candidate be transferred from Eng's team.
This indicates that Eng's authority to transfer employees is
effective. The TEA's argument that it took several months to
convince the employer to transfer the employee misrepresents the
process in which Eng actually negotiated the transfer with other
supervisors.
Eng testified that he also evaluates employees on his team and meets
with them to correct performance issues, as he had done repeatedly
before requesting the employee transfer mentioned above.
Additionally, he monitors the schedules of the members of his team,
ensures that they perform their duties within the required
timelines, and reorders their job priorities, if needed. On two
occasions, Eng asked the employer's human resources office to
explore terminating an employee. He declared that he spent
approximately half his time supervising team members.
The evidence indicates that Eng performs predominantly supervisory
functions, which would place him in conflict with the members of his
team if they were included in the same bargaining unit. Therefore,
Eng occupies a supervisory position.
Supervisor of Mechanical Engineering
Ronald Quist occupies this position, which is classified as Transit
Engineer V, as are the incumbents of the two remaining positions in
dispute. According to the job description, each Transit Engineer V
supervises "an engineer unit or large complex design teams on a
project basis," and "[o]rganize[s] and direct[s] the work of an
assigned project team members and support staff." The position
requires five years of experience supervising employees.
Quist testified that he decides when to hire employees, draft job
descriptions, interview applicants, and he makes effective
recommendations to hire specific individuals. He also testified
that he assigns all the work that employees under his charge perform
and he evaluates their performance. Quist's superiors review the
evaluation scores only on appeal by the affected employee;
otherwise, the evaluations remain in employees' files as written by
Quist. He also testified that he corrects employees when they
infringe on work norms by meeting with them and suggesting changes,
or by issuing memos. Quist addresses grievances at the first level,
and has the authority to settle them, however, he must consult with
the human resources office when facing a situation that may involve
terminating an employee. Quist testified that he performs the
aforementioned duties around half of his working time, and that he
spends the other half working on projects alongside the employees
that he supervises.
Quist recounted a recent instance in which he decided to fill a
specific position. When he received approval to add a new position,
he decided how to publish the vacancy, selected who to interview and
who would sit on the interviewing panel, conducted the interviews,
and selected the new employee. He recommended a compensation higher
than the base wage because of the new employee's experience, and his
recommendation was approved by the county executive.
Quist monitors the workload of the engineers to make sure they're
not overloaded or "under-loaded." He manages the schedules of his
team members, and addresses performance and timeliness concerns by
discussing them with the employees and instituting changes. He has
the authority to begin the process of progressive discipline by
writing reports on performance and punctuality issues. He
evaluates all the team members annually, and the evaluations are
only subject to review by his superiors upon request by the employee.
The evidence clearly indicates that Quist performs predominantly
supervisory functions, which would place him in conflict with the
members of his team if they were included in the same bargaining
unit. Therefore, Quist occupies a supervisory position.
Supervisor of Structural Engineering and Facilities
John Davis occupies this position as a Transit Engineer V. Davis
testified that the supervisors decide collectively in regularly held
meetings whether the employer will build or contract out each
project. Davis testified to a hiring process very similar to the
one described by Quist in which he effectively determines which
positions are filled and who occupies them. He also described a
evaluation process similar to those described by Eng and Quist, as
well as similar responsibilities regarding work distribution and
correction of performance issues. Davis also stated that he has the
duty to address employee complaints, although he has not had to
address grievances. The time performing supervisory duties varies
widely, according to the issues presented during the month, but
consumes approximately half of his working time.
The evidence establishes that Davis performs predominantly
supervisory functions, which would place him in conflict with the
members of his team if they were included in the same bargaining
unit. Therefore, Quist occupies a supervisory position.
Supervisor of Electrical Engineering
Charles Reynolds occupies the position. Reynolds described his
duties as quality control, which entails certifying the work of
employees who are not licensed electrical engineers, and evaluating
the performance of team members. Additionally, he described playing
the same role in the hiring process that Quist described. Reynolds
added that Crippen has always participated in the interviewing
process but has never interfered with Reynolds' judgment, including
one instance when Crippen wanted to call an interviewee a second
time and Reynolds disagreed. Reynolds may also recommend that an
employee be hired at a pay rate higher that entry level, which the
human resources office ultimately handles.
Reynolds described the same evaluation process that Quist did,
adding that he advises employees about areas that need improvement
and that there may be consequences to employees for not doing so.
Crippen and Riley review the evaluations after he issues them. He
has effectively recommended both denying employees merit pay for
lackluster performance and promoting employees for outstanding
performance. Reynolds also effectively recommended that the
employer discontinue an arrangement for an employee to work from her
residence. Reynolds handles the first step of the grievance process.
The evidence indicates that Reynolds performs predominantly
supervisory functions, which would place him in conflict with the
members of his team if they were included in the same bargaining
unit. Therefore, Quist occupies a supervisory position.
Comparison with Non-supervisors
The TEA presented testimony regarding the duties of other Transit
Engineers V included in the staff bargaining unit of the waste water
management division of the employer. The TEA asserted that
comparing these employees to those at issue would support its
contention that the employees at issue are not supervisors, because
the employer recognized both bargaining units voluntarily under the
same memorandum of understanding. This comparison is inapposite,
since supervisory relationships are unique in each work environment
regardless of the specific pay grade. The Commission seeks to avoid
conflicts of interest, based on the particular circumstances.
It is perhaps more instructive to compare the Transit Engineers V at
issue here with the Transit Engineers IV, who belong to the
non-supervisory staff bargaining unit. The Transit Engineers IV
direct the work of technical transit engineering personnel and
consultants on a project basis to achieve the teamwork required for
the production of plans, specifications and cost estimates. They
also assist field personnel in reviewing and approving shop drawings
and interpreting specifications; ensure the completion of as-built
drawings by technical staff or outside consultants; and provide
assistance to Transit Engineers I, II and III with complex emergency
repairs of transit facilities or when technical assistance is
necessary. These duties are not indicia of supervision.
In contrast, the evidence shows that Davis, Eng, Quist, Reynolds,
and Campbell have effective authority to hire, assign, promote,
transfer, and discipline subordinates. Their job descriptions
generally describe the extent of their authority to oversee the work
performed by the positions they supervise. The testimony
established details that their recommendations regarding hiring and
transferring employees are effective, and that they have the
authority to discipline employees. The requirement that they
delegate to superior authorities any recommendation to discharge or
lay employees off is not controlling, given the obvious
preponderance of the other indicia of supervision. The supervisory
duties they perform dominate their work and involve the exercise of
effective authority over the other employees on their teams.
Contrary to the TEA's assertion, the fact that some of the
aforementioned work concerns quality control does not reduce or
negate its supervisory nature, since it reinforces the employees'
ability to monitor performance and take corrective action. The
presence of the employees' superiors in the decision-making process
does not reduce the effectiveness of their recommendations, since
the employer has generally not overruled their decisions.
Therefore, the supervisory duties of the five employees at issue
involve a great potential for conflicts of interest with
subordinates if they were included in the same bargaining unit. The
wide variations in time spent in supervisory duties from week to
week does not decrease this potential. Their authority meets the
threshold to be considered supervisors under applicable law.
Conclusion on Supervisory Status
Donald Campbell, John Davis, Paul Eng, Ronald Quist, and Charles
Reynolds exercise sufficient supervisory duties to support the
conclusion that they are supervisors under applicable law. As a
result, the positions they occupy will remain in the supervisory
bargaining unit.
Issue 2. Determination of Appropriate Bargaining Units
Applicable Legal Principles
The Commission is charged with determining appropriate bargaining
units under RCW 41.56.060. In determining an appropriate bargaining
unit, the Commission seeks to group together employees who have
sufficient similarities in responsibilities (community of interest)
to indicate that they will be able to bargain collectively with
their employer. Washington State University, Decision 9613-A (PSRA,
June 13, 2007); King County, Decision 5910-A (PECB, 1997). The law
requires that the Executive Director find that the existing
bargaining unit is an appropriate unit, not that it is the most
appropriate one possible. Washington State University; City of
Winslow, Decision 3520-A (PECB, 1990).
In order to determine whether the existing unit remains appropriate,
the Executive Director examined the duties, skills and working
conditions; the extent of organization; and the bargaining history,
as RCW 41.56.060(1) requires. The desires of the employees shall be
determined through secret ballot.
Application
The TEA admits that there is a bargaining unit comprised of
supervisory employees of the design and construction section of the
transit division of the department of transportation of King County.
That description is consistent with the bargaining unit sought by
Teamsters in its petition. Furthermore, the TEA signed a collective
bargaining agreement which covers the supervisory bargaining unit.
Therefore, there is no disagreement regarding the bargaining unit
proposed by the petitioner. The disagreement is limited to whether
these employees share a community of interest.
Duties, Skills and Working Conditions
The foregoing discussion of the employer's operations and the
employees' duties shows that employees of the existing supervisory
bargaining unit perform very similar duties and work within a
unified managerial structure. Therefore, this factor supports a
finding that they share a community of interest.
The TEA argues that the supervisory employees at issue also perform
the same duties as the members of the non-supervisory staff
bargaining unit. However, the evidence shows that they have done so
since the bargaining units were recognized, and the TEA has not
questioned the appropriateness of the supervisory bargaining unit
until the Teamsters filed the instant petition. Furthermore, the
duties of employees supervised by these supervisors does not affect
the community of interest shared by them as supervisors.
Extent of Organization
The existing bargaining unit, as recognized in the expired
bargaining agreement, does not fragment the employer's workforce or
strand any employees. Therefore, this factor weighs in favor of a
finding that the existing bargaining unit is appropriate.
Bargaining History
This supervisory bargaining unit was originally voluntarily
recognized by the employer on March 13, 2001. On January 31, 2005,
an interest arbitration award concluded the process leading to the
first collective bargaining agreement between the TEA and the
employer, from February 4, 2002, to December 31, 2004. A successor
collective bargaining agreement covered the supervisory bargaining
unit from January 1, 2005, to December 31, 2007.
The TEA argues that the propriety of this unit was not an issue
until the present petition was filed because both units had been
represented by the same union, and that it had agreed to the units
in order to obtain voluntary recognition and finalize successive
collective bargaining agreements. This argument ignores the mandate
in the Washington Statutes and Administrative Code to maintain a
separation between supervisors and rank-and-file employees in the
formation of appropriate bargaining units, regardless of who is the
bargaining agent. See, e.g., IAFF, Local 1052 v. PERC, 45 Wn. App.
686 (1986). Even though the same bargaining agent may represent
both units does not allow the parties to agree to inappropriate
units. Further, the fact that the TEA and the employer agreed to
add the position of Capital Projects Managing Supervisor to the
supervisory bargaining unit shows that they had considered the
composition of the bargaining unit, even after drafting their first
collective bargaining agreement. Therefore, the bargaining history
supports a finding that the existing bargaining unit of supervisors
has functioned well.
Conclusion Regarding Appropriateness
The evidence presented by the TEA failed to establish that the
existing supervisory bargaining unit it represents is not
appropriate. Furthermore, the aforementioned analysis of the
duties, skills, working conditions, the extent of organization, and
the bargaining history shows that the existing bargaining unit is
appropriate.
FINDINGS OF FACT
1. King County is a "public employer" within the meaning of RCW
41.56.030(1).
2. The Technical Employees Association, a "bargaining
representative" within the meaning of RCW 41.56.030(3), is the
exclusive bargaining representative of a bargaining unit of
supervisory employees of the design and construction section of
the transit division of the department of transportation of
King County.
3. Teamsters Local 117 is a "bargaining representative" within the
meaning of RCW 41.56.030(3), and has petitioned to represent
the supervisory bargaining unit referenced in Finding of Fact 2.
4. Donald Campbell, Paul Eng, John Davis, Ronald Quist, and
Charles Reynolds are supervisors with the design and
construction section of the employer's transit division.
5. The supervisor of the facilities group, Donald Campbell, hires
personnel, assigns and schedules work, evaluates performance,
and initiates disciplinary actions. He has the authority to
accept or reject the transfer of employees from other sections
of the division, and has the duty to address grievances at the
first step. King County and the Technical Employees
Association agreed on June 12, 2007, that this position
belonged in the supervisory bargaining unit, asserting that
they had reviewed its job description and that it was an
appropriate placement.
6. The supervisor of civil engineering and CADD, Paul Eng, decides
when to hire employees, conducts the hiring process, makes
effective recommendations to hire specific individuals,
evaluates employees, corrects performance issues, and monitors
schedules and performance. He spends approximately half his
time supervising team members.
7. The supervisor of structural engineering and facilities, John
Davis, supervises five employees; the supervisor of mechanical
engineering, Ronald Quist, supervises four employees; and the
supervisor of electrical engineering, Charles Reynolds,
supervises five employees. Davis, Quist, and Reynolds decide
when to hire employees, draft job descriptions, interview
applicants, and make effective recommendations to hire specific
individuals. They assign work, evaluate their performance,
correct employees, address and settle grievances, and may
initiate processes leading to terminations. These employees
spend approximately half their time performing these duties
and spend the other half working on the projects alongside
their charges. Their positions require five years of
experience supervising employees.
8. On March 13, 2001, King County voluntarily recognized the
Technical Employees Association as exclusive bargaining
representative of the bargaining unit described in Finding of
Fact 2. On January 31, 2005, an arbitration award concluded
the process leading to the first collective bargaining
agreement between the TEA and the employer, from February 4,
2002, to December 31, 2004. A successor collective bargaining
agreement from January 1, 2005, to December 31, 2007, was
subsequently agreed upon by the employer and the TEA.
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 positions held by Donald Campbell, John Davis, Paul Eng,
Ronald Quist, and Charles Reynolds are "supervisors" for
purposes of WAC 391-35-340 and are appropriately placed in the
existing supervisory bargaining unit.
3. The employees in the bargaining unit described in paragraph 2
of the foregoing Findings of Fact share a community of interest
and constitute an appropriate bargaining unit.
DIRECTION OF ELECTION
A representation election shall be conducted by secret ballot, under
the direction of the Public Employment Relations Commission, in the
appropriate bargaining unit consisting of:
All supervisory employees of the design and construction
section in the transit division of the department of
transportation of King County, excluding non-supervisory,
confidential, and all other employees,
for the purpose of determining whether a majority of the employees
in such unit desire to be represented for the purposes of collective
bargaining by Teamsters Local 117, or by the Technical Employees
Association, or by no representative.
Issued at Olympia, Washington, this 20th day of May, 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 391-25-660.