King County, Decision 11490-A (PECB, 2013)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
In the matter of the petition of:
King county security guild
Involving certain employees of:
DECISION 11490-A - PECB
ORDER ON ELIGIBILITY
Jared C. Karstetter, Jr., Attorney at Law, for the Guild.
Robert S. Railton, Labor Negotiator, for the employer.
Spencer Nathan Thal, General Counsel, for the Teamsters, Local 117.
On June 29, 2011, the King County Security Guild (Guild) filed a petition seeking to represent security employees employed by King County (employer). The employees in question were represented by Teamsters, Local 117 (Teamsters). Processing of the petition was delayed by several intervening procedural steps. Commission staff conducted an investigation conference on March 28, 2012.
At that conference, the Teamsters objected to the appropriateness of the petitioned-for unit by claiming that the unit was part of the larger “Joint Crafts Council.” Both the Teamsters and the employer challenged the inclusion of three security sergeant positions as supervisors in the bargaining unit. On April 24, 2012, and June 15, 2012, Hearing Officer Robin Romeo conducted a hearing regarding those two disputed issues. During the hearing, the employer stated that it did not believe that the security sergeants met the Commission’s criteria for supervisor. Following the hearing, the Teamsters dropped its claim that the bargaining unit was part of a larger bargaining unit. The parties jointly requested that an election be held to determine the representational status of the employees.
A second investigation conference was conducted on July 30, 2012, and the parties agreed to the following bargaining unit description:
All full-time and regular part-time Security Officer and Security Officer-Dispatch in the King County Department of Executive Services, Facilities Management Division, excluding supervisors, confidential employees, and all other employees of the employer.
The Teamsters continued to challenge the inclusion of the security sergeants in the bargaining unit. On September 19, 2012, agency staff conducted a mail ballot election. The security sergeants voted by challenged ballots. The election results demonstrated that the employees selected the Guild as their exclusive bargaining representative. The challenged ballots did not affect the outcome of the election. An Interim Certification was issued on September 27, 2012. The remaining issue of the eligibility of the security sergeants was remanded for subsequent proceedings.
Should the security sergeant position be excluded from the bargaining unit based upon supervisor status?
The security sergeants do not spend a preponderance of time performing supervisory duties and do not perform a majority of the supervisory activities. Additionally, the position does not exercise independent judgment to act in the interest of the employer and make meaningful changes in the employment relationship. The supervisory authority that the position exercises is similar to a lead worker as opposed to a supervisor. Therefore, the position is included in the bargaining unit as described.
APPLICABLE LEGAL STANDARDS
The determination and modification of bargaining units is a function delegated to the Commission by the Legislature. RCW 41.56.060. Ronald Wastewater District, Decision 9874-C (PECB, 2009). The exclusion of supervisors from the bargaining units of their subordinates is presumed appropriate when they exercise authority on behalf of the employer over rank-and-file subordinates, and such exclusion avoids a potential for conflicts of interest. WAC 391-35-340.
Chapter 41.56 RCW does not define supervisor. The Commission applies the definition of supervisor in RCW 41.59.020(4)(d) to differentiate supervisors, who are excluded from bargaining units with their subordinates, from lead workers, who are included in the bargaining units with those they lead. Supervisor is defined as:
[S]upervisor, which 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.
Granite Falls School District, Decision 7719-A (PECB, 2003).
“Preponderance” as used in the definition of supervisor can be met in two ways. An employee is a supervisor if he or she spends a preponderance of his or her time performing one or more of the statutory supervisory activities. City of East Wenatchee, Decision 11371 (PECB, 2012); Inchelium School District, Decision 11178 (PECB, 2011). An employee may also be a supervisor if he or she spends less than a preponderance of his or her time performing supervisory activities but performs a preponderance of the type of supervisory activities enumerated in RCW 41.59.020(4)(d). City of East Wenatchee, Decision 11371; King County, Decision 10075 (PECB, 2008). The determination of whether an employee possesses sufficient authority to be excluded from a rank-and-file bargaining unit as a supervisor is made by examining the actual duties and authority exercised by that individual, not on the basis of his or her title or job description. Rosalia School District, Decision 11523 (PECB, 2012); Morton General Hospital, Decision 3521-B (PECB, 1991).
With respect to potential future duties, the Commission has found that if particular functions have never been exercised, absent concrete evidence of assignment, only those duties currently performed by the employee can be examined. State - Office of Administrative Hearings, Decision 11503 (PSRA, 2012), citing Ronald Wastewater District, Decision 9874-C.
When examining supervisory indicia, the Commission places emphasis on whether a disputed position has independent authority to act in the interest of the employer and make meaningful changes in the employment relationship. State - Office of Administrative Hearings, Decision 11503, citing State - Corrections, Decision 9024-A (PSRA, 2006). If an employee merely executes the instructions of a higher ranking employee when making meaningful changes to the workplace, that employee has not exercised independent judgment. State - Office of Administrative Hearings, Decision 11503, citing City of Lynnwood, Decision 8080-A (PECB, 2005), aff’d, Decision 8080-B (PECB, 2006).
A determination under the Commission’s definition of supervisor does not negate or strip away any titular or other supervisory authority of that employee. Indeed, an employee may possess a lower level of supervisory authority than the statutory definition contemplates and still be deemed a “supervisor” by subordinates. The distinguishing characteristic is that the authority does not create the level of conflict expressed in the statute that would require separating the employee out of the bargaining unit. Rosalia School District, Decision 11523.
The security unit is responsible for the protection of all persons and property on assigned King County premises and at full staffing levels is comprised of: one security chief, three security sergeants, approximately 39 security officers and ten security dispatchers. Each security sergeant is in charge of their respective shift as well as collateral duties as described herein. Greg Meyer (Meyer) is the day shift sergeant, Al Hampton is the swing shift sergeant, and Joe Villarino is the graveyard sergeant. Approximately two years ago, the employer added one security sergeant per shift for the current total of three sergeants. Prior to that time, King County only employed one security sergeant, Meyer. The sergeants report to the Security Chief, Jack Johnson; Johnson reports to the building service manager, who in turn reports to the Director and Deputy Director of the Facilities Management Division (FMD), Kathy Brown (Brown) and Ameer Faquir (Faquir), respectively.
Currently the day shift sergeant is in charge of a total of eight security officers and dispatchers when fully staffed. These eight positions are posted at several locations around King County, including the Maleng Regional Justice Center (Kent), the Chinook and Yesler buildings (downtown Seattle), the King County Courthouse (downtown Seattle), and the Youth Services Center (downtown Seattle). Some of the facilities are open 24 hours a day. Sergeants may also direct the officers to other King County locations to escort a contractor, or protect courthouse doors that must remain open for a period of time. The other two shifts, swing and graveyard, have less staffing.
APPLICATION OF STANDARD
Preponderance of Time
Meyer was the only sergeant to testify at the hearing. Meyer’s and Faquir’s testimony indicate that the security sergeants spend less than a preponderance of time performing supervisory duties. The sergeants’ involvement in hiring, transfer, promotion, layoff and recall, recommending disciplinary action and assisting with performance evaluations is minimal at best. Performance evaluations of the security officers occur in two-month increments for the first six months of their employment. Otherwise, Meyer and the other security sergeants do not conduct performance evaluations of their subordinates. The security sergeants create staffing schedules only according to the master schedule and the collective bargaining agreement. The security chief, who is not in the bargaining unit, created the master schedule in collaboration with Faquir and King County Labor Relations. The record lacks sufficient evidence to support that the security sergeants spend a preponderance of their time performing one or more of the statutory supervisor duties.
Preponderance of Duties
Concerning whether the security sergeants perform a preponderance of the type of supervisory activities enumerated in RCW 41.59.020(4)(d), the record reveals the following:
Hiring/Transfer/Promotion/Layoff and Recall -
Meyer testified that he has written testing questions for the security officer and security sergeant positions, has sat on “oral boards” for security officer hiring “on occasion,” and has conducted background checks for prospective hires. Faquir testified that according to the King County Code, only Brown or her designee has authority to hire. Faquir also testified that hiring or promotion authority has not been delegated to the sergeants. Furthermore, Faquir explained that while security sergeants may participate in formulating questions for the interview panel and may participate as a panelist, they assume no role in the hiring decision other than scoring the interviewees. Panelists must strictly adhere to the set of questions provided to them. The security sergeants may only temporarily deploy officers to different posts for such purposes as back-fill for employees taking sick leave or special assignments with contractors. The security sergeants have no authority to permanently transfer employees. Finally, Faquir testified that security sergeants have no input or authority to layoff or recall employees.
Meyer and Faquir testified that while security sergeants may participate in a preliminary initial intake of information for allegations leading to potential discipline, they do not have the authority to discipline employees, including reprimands, suspensions, demotions, or termination. Meyer also testified he could send an employee home if there’s an urgent need, but he would have to go through the chain of command first. Faquir recalled one occasion where a security sergeant independently issued a counseling letter without the direction of King County Human Resources or the security chief’s office. Faquir testified, “It was inappropriate for a sergeant to believe they could issue any form of counseling or discipline to any of his members without the explicit direction of myself or the director.” He also emphasized that this was not acceptable to the division and that particular security sergeant was advised he did not have authority to do so. The counseling letter was removed from the officer’s file. Bob Railton, King County Labor Relations, confirmed that security sergeants have prepared incident reports for allegations of employee misconduct, but do not conduct the subsequent formal investigations.
Meyer testified if a security officer has work or performance issues, a security sergeant is the first in line for the chain of command. He provided an example of an officer who fails to properly screen building visitors and explained that in that scenario, a security sergeant would be responsible for investigating and forwarding the issue up the chain of command to the chief of security. The evaluation of probationary officers only occurs in two-month increments for the first six months of an officer’s employment. Sergeants make recommendations to the security chief at each of those two-month increments. The chief makes the final decision, signs the incremental evaluations, and the security sergeants review them with the officers. Meyer testified that once an officer passes his or her probationary period, he “supervises” their performance, but neither the security sergeants nor upper management conduct annual performance evaluations of the officers. Faquir affirmed that the security sergeants are in the best position to observe officers or dispatchers performing their duties and provide input to the security chief. The security chief, in turn, is the one who ultimately makes the final decision on employee evaluations and whether an employee passes his or her probationary period.
Scheduling of Work/Overtime -
The swing shift sergeant bears the responsibility of scheduling work for officers and dispatchers as outlined in the collective bargaining agreement. In his former capacity as a Section Manager, Faquir testified that he worked with the security chief and King County Labor Relations to create a master schedule which could be populated by officers and dispatchers per the collective bargaining agreement. While sergeants do not have the authority to change the master schedule, Faquir explained that they do have the authority to back-fill the schedule if an officer calls in sick. The swing shift sergeant, who has the collateral duty of scheduling, is also responsible for assigning overtime. In his absence, the assignment of overtime may be delegated to another security sergeant.
Assignment of Work -
Meyer testified that he is responsible for the training and development of officers. Sergeants temporarily deploy officers to different King County locations based on business needs, provide guidance to officers and dispatchers regarding compliance with policies and procedures, and motivate staff.
Adjustment of Grievances -
The security sergeants are not responsible for adjusting grievances.
The security sergeants’ current duties and authority demonstrate that their position does not have the authority to make meaningful changes in the employees’ employment relationship with King County. The security sergeants lack the independent authority to hire, transfer, promote, layoff or recall, or discipline employees. Security sergeants are only allowed to schedule officers within the bounds of the master schedule and the collective bargaining agreement. While the sergeants may train the officers and monitor their performance, any concerns regarding an officer’s performance or conduct are forwarded up the chain of command for resolution. Any disciplinary action, even an informal counseling, is administered at a level above the sergeants. Sergeants have a limited role in the hiring process and never make the final decision on new hires or transfers.
While a record may reflect that “lead workers” exercise some supervisory authority, there still must be a sufficient preponderance of supervisory duties to warrant their separation from the rank-and-file employees they lead. Ronald Wastewater District, Decision 9874-C, citing City of Lynnwood, Decision 8080-B. Monitoring the work of a fellow employee, even if done constantly, is not enough to satisfy the “preponderance of time” standard. City of East Wenatchee, Decision 11371, citing Inchelium School District, Decision 11178. A lead worker’s authority might extend to evaluating a subordinate’s job performance because the lead worker is in the best position to observe that performance, but this activity does not automatically create a conflict of interest that would warrant a supervisory exclusion. State - Fish and Wildlife, Decision 10962 (PSRA, 2011), citing City of Lynnwood, Decision 8080-A.
The security sergeants monitor the officers’ performance, advising them of non-compliance with policies and procedures when necessary. The monitoring shapes the types of training that Meyer and the other sergeants provide for the officers. Non-compliance with policies and procedures may result in a sergeant providing guidance to an officer, but any other corrective or disciplinary action is carried out by upper management. As such, these activities do not rise to the level of a statutory supervisory exclusion of the security sergeant position from the bargaining unit.
The security sergeant position is more similar to the sergeant position in City of East Wenatchee, Decision 11440 (PECB, 2012). In that case the Commission found that the position failed to meet the standard for supervisory exclusion because while the position had the ability to assign work and coordinate daily job assignments, it lacked the independent authority to hire, promote, discipline, or adjust grievances. Similarly, the security sergeants assign work and coordinate officer scheduling, have been panelists for hiring officers, but like the City of East Wenatchee sergeants, they lack the authority to hire or discipline employees or otherwise make meaningful changes to the employment relationship.
Even where lead workers have the authority to direct subordinate employees in their daily job assignments, they generally do not have the authority necessary to make meaningful changes in the employment relationship. Inchelium School District, Decision 11178, citing Grant County, Decision 4501 (PECB, 1993). While the security sergeants may have the authority to schedule shifts and overtime within the master schedule and the collective bargaining agreement, they lack authority to make meaningful changes to the employees’ relationship with King County in discipline, hiring, promoting, layoff and recall, transferring, or issuing performance evaluations.
The record demonstrates that the security sergeant position does not perform supervisory activities for a preponderance of work time, nor does the position perform a preponderance of supervisory duties. As a result, the security sergeant position is appropriate to include in the bargaining unit.
FINDINGS OF FACT
1. King County is a public employer within the meaning of RCW 41.56.030(12).
2. The King County Security Guild is a bargaining representative within the meaning of RCW 41.56.030(2).
3. On June 29, 2011, the Guild filed a petition seeking to represent security employees employed by King County.
4. On September 27, 2012, the Commission issued an Interim Certification in King County, Decision 11490 (PECB, 2012), certifying the Guild as the exclusive bargaining representative of the bargaining unit described as:
All full-time and regular part-time Security Officer and Security Officer-Dispatch in the King County Department of Executive Services, Facilities Management Division, excluding Supervisors, confidential employees, and all other employees of the employer.
5. Greg Meyer, Al Hampton, and Joe Villarino are employed by King County as security sergeants.
6. The security sergeants do not spend a preponderance of work time engaged in the supervision of subordinate employees.
7. The security sergeants do not have the authority to independently perform or make effective recommendations on a preponderance of the following types of activities: hire, assign, promote, transfer, layoff, recall, suspend, discipline, discharge, or adjust grievances.
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. As described in Findings of Fact 5, 6 and 7, the security sergeants are public employees under RCW 41.56.030(11) and are not supervisors under RCW 41.59.020(4)(d) or WAC 391-35-340.
The position of security sergeant is included in the bargaining unit represented by the King County Security Guild.
ISSUED at Olympia, Washington, this 22nd day of January, 2013.
PUBLIC EMPLOYMENT RELATIONS COMMISSION
MICHAEL P. SELLARS, 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.
 On July 12, 2011, the Teamsters filed a set of unfair labor practice complaints against the Guild and employer. The blocking charge rule, WAC 391-25-370, was invoked and processing of the Guild’s petition was suspended pending the outcome of the unfair labor practice charges. On November 10, 2012, Examiner Lisa Hartrich issued King County, Decision 11223 (PECB, 2011), finding the Guild and the employer committed unfair labor practices. No party appealed that decision and compliance was tendered. On April 13, 2012, the Teamsters filed a second set of complaints against the Guild and employer. Cases 24738-U-12-6323 and 24739-U-12-6324. On July 12, 2012, the Teamsters filed a request to proceed with the Guild’s petition despite the existence of the unfair labor practice complaints.
 Decision 11490 (PECB, 2012).
 The parties were provided an opportunity to submit briefing on the question of the supervisory status of the sergeants, but neither party chose to file a brief. .
 While the record reflects that the officer and dispatcher positions have distinct duties, the overwhelming majority of the record refers to the sergeants’ oversight of “officers,” which is understood to encompass both positions.