State – Fish and Wildlife, Decision 10962 (PSRA, 2011)
STATE OF WASHINGTON
BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION
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In the matter of the petition of:
WASHINGTON FEDERATION OF STATE EMPLOYEES
Involving certain employees of:
state – fish and wildlife
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CASE 23426-E-10-3584
DECISION 10962 - PSRA
DIRECTION OF ELECTION
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Attorney General Robert M. McKenna, by Gil Hodgson, Assistant Attorney General, and Michael Rothman, Assistant Attorney General, for the employer.
Younglove and Coker, by Edward E. Younglove III, Attorney at Law, for the union.
On August 4, 2010, the Washington Federation of State Employees (union) filed a petition for investigation of a question concerning representation with the Public Employment Relations Commission. The union sought certification as the exclusive bargaining representative of all full-time and regular part-time information technology specialists of the Washington State Department of Fish and Wildlife (employer) in the Wildlife Science Division, excluding supervisors, confidential employees and all other employees. At the time of the hearing, there were nine employees in the petitioned-for unit.
On September 10, 2010, Representation Coordinator Sally Iverson conducted an investigation conference, during which the parties disagreed as to whether the Information Technology Specialist 6 positions currently occupied by Rajbir Deol, Jeff Foisy, and Shelly Snyder should be excluded from the proposed bargaining unit as supervisors. Before the hearing, the parties stipulated that there was no longer a challenge to Foisy’s inclusion in the proposed bargaining unit. On September 28, 2010, Hearing Officer Robin Romeo conducted a hearing pertaining to Deol’s and Snyder’s exclusion from the proposed bargaining unit. The employer and union filed post-hearing briefs for consideration.
ISSUES
1. Should the information technology specialist 6 position currently held by Rajbir Deol be excluded from the proposed bargaining unit as a supervisor?
2. Should the information technology specialist 6 position currently held by Shelly Snyder be excluded from the proposed bargaining unit as a supervisor?
Based upon the record, applicable statutes, rules, and case precedent, the Executive Director concludes that the information technology specialist positions in question are not supervisors and should be included in the proposed bargaining unit. An election is ordered.
APPLICABLE LEGAL STANDARDS
Under Chapter 41.80 RCW, the Personnel System Reform Act of 2002 (PSRA), a bargaining unit is not considered appropriate if that unit includes both supervisors and nonsupervisory employees. RCW 41.80.070(1)(a). Chapter 41.80 RCW defines supervisor in RCW 41.80.005(13):
“Supervisor” means an employee who has authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees, or to adjust employee grievances, or effectively to recommend such action, if the exercise of the authority is not of a merely routine nature but requires the consistent exercise of individual judgment.
When interpreting and administering Chapter 41.80 RCW, interpretations of similar statutory language administered by the Commission, including Chapter 41.56 RCW, the Public Employees’ Collective Bargaining Act (PECB), are persuasive. Washington State University, Decision 9613-A (PSRA, 2007), citing State – Natural Resources, Decision 8458-B (PSRA, 2005).
In cases under Chapter 41.56 RCW, the Commission has historically used the definition of supervisor provided in RCW 41.59.020(4)(d) due to the lack of a supervisory definition in Chapter 41.56 RCW:
(d) Unless included within a bargaining unit pursuant to RCW 41.59.080, any supervisor, 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, and shall not include any persons solely by reason of their membership on a faculty tenure or other governance committee or body. The term "supervisor" shall include only those employees who perform a preponderance of the above-specified acts of authority.
The Commission has interpreted preponderance as meaning that the disputed employee spends either a majority of work time engaging in supervisory duties or performs a majority of the supervisory activities enumerated in RCW 41.59.020(4)(d). Ronald Wastewater District, Decision 9874-B (PECB, 2008), affirmed, Decision 9874-C (PECB, 2009). To make these determinations, it is necessary to determine whether the disputed employee has independent authority to act in the interest of the employer. It is not necessary for disputed employees to have final authority in these actions; recommendations to a higher authority are sufficient if the recommendations are effective. City of Lynnwood, Decision 8080-A (PECB, 2005), affirmed, Decision 8080-B (PECB, 2006).
Actual duties and authority exercised by the disputed employee – not job title or job description – play the predominant role in determining whether that individual is a supervisor excluded from a rank-and-file bargaining unit. Morton General Hospital, Decision 3521-B (PECB, 1991). The Commission has distinguished between supervisors and “lead workers” who lack authority and independent judgment in several cases, including City of Toppenish, Decision 1973-A (PECB, 1985), which held that lead workers “may be given some supervisory responsibilities, but not a full complement, or they may be allowed to share supervisory responsibilities with their own superiors.” In Grant County, Decision 4501 (PECB, 1993), the Executive Director determined that “[w]hile lead workers may possess authority to direct subordinates in their daily job assignments, they generally do not have the authority necessary to make meaningful changes in the employment relationship.” 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. City of Lynnwood, Decision 8080-A.
ANALYSIS
ISSUE 1 – Should the information technology specialist position currently held by Rajbir Deol be excluded from the proposed bargaining unit as a supervisor?
Deol has been an Information Technology Specialist 6 in the biological data management unit of the Washington State Department of Fish and Wildlife’s Wildlife Science Division for seven years. The Wildlife Science Division’s organizational chart shows that Deol reports to Division Manager John Pierce and has six subordinates: two full-time information technology specialists who are part of the proposed bargaining unit, three full-time biologists, and one non-permanent biologist. Based upon evidence introduced at the hearing, the three full-time biologists are represented by the Washington Association of Fish and Wildlife Professionals and are not at issue in this matter.
Supervisory Activities
Hiring – Deol has participated in the hiring of three subordinates in his unit. When openings occur in his unit, Deol creates or revises position descriptions and consults with Pierce and the human resources division, which does the initial screening of potential candidates. Deol then assembles a hiring panel responsible for deciding which candidates to interview, the questions to be asked and a scoring system that will be used to evaluate the answers. Deol and the panel reach a hiring recommendation following the interviews based on their notes and the scoring system, and Deol passes along the panel’s recommendation to Pierce and appointing authority David Pulliam, Assistant Director of the department’s Wildlife Program, for approval. Deol testified that the panel rarely fails to reach a consensus on a hiring recommendation, but added that Pierce is available to enter the process if consensus isn’t achieved.
Deol and Pierce testified that the hiring panel’s recommendation has been followed 100 percent of the time, but all recommendations have to be approved by Pierce and Pulliam in order to go into effect. This was also true for Deol’s recommendation that the division extend an employee’s temporary assignment.
Direction of Employees – Deol plans, assigns, monitors and evaluates the work performed by his subordinates. On some projects, he serves as a technical lead and performs similar work to that performed by his subordinates. According to his testimony, Pierce occasionally assigns work directly to employees who are supervised by an Information Technology Specialist 6, such as Deol. Pierce also testified that he reviews the employee performance and development plans Deol creates for the employees Deol oversees. Deol has the ability to approve leave requests without Pierce’s approval and has sole responsibility for managing his subordinates’ flex-time assignments, but does not have the ability to approve overtime.
Promotions, Rewards, and Transfers – Deol has had no involvement in promotions or transfers. He has had input on employee reclassification, which occurs when an employee’s duties more closely match those of a higher classification than the employee’s current classification. Reclassification requires approval of Pierce and Pulliam. In one case, Deol recommended an employee’s pay increase in an effort to retain the employee, but the subsequent raise had to be approved by Pierce and Pulliam.
Layoff and Recall – Deol has not participated in a layoff or recall of any employee. According to Pierce’s testimony, layoffs are handled through merit system rules and are not influenced by supervisors.
Discipline, Suspension, and Discharge – Deol was involved in one instance in which an employee was not retained after a six-month probationary period, but otherwise has not been involved in discipline, suspension, or discharge. Deol’s involvement in the process with the probationary employee who was not retained included setting the standards for the position and monitoring the employee’s progress, but the final decision had to be approved by Pulliam. Deol testified that he received direction from Art Irving, the employer’s classification and compensation manager, and from Pierce throughout this process.
Adjustment of Grievances – Deol has not been involved in any grievances in his current position.
Percentage of Time Spent on Supervisory Duties – Deol estimated the time he spends on supervisory duties is 30 to 50 percent, but he also estimated that he spends approximately 10 percent of his time supervising the information technology specialists in his unit. Pierce testified that the Information Technology Specialist 6 employees who report to him spend between 20 and 25 percent of their time on supervisory duties.
Deol testified that during the last six months he has not been involved in any hiring, disciplinary or reclassification matters, although he has been involved in directing, assigning, and evaluating work of employees below him and spent perhaps about 30 percent of his time doing those functions.
Conclusion
Based upon the preponderance test enumerated in numerous Commission decisions, I find that Deol does not meet supervisory criteria and is properly included in the proposed bargaining unit. While Deol has some ability to exercise independent judgment on behalf of the employer, he neither spends a majority of his work time performing supervisory duties, nor exercises a majority of the supervisory activities listed in RCW 41.80.005(13).
ISSUE 2 – Should the information technology specialist position currently held by Shelly Snyder be excluded from the proposed bargaining unit as a supervisor?
Snyder has been an Information Technology Specialist 6 and Geographic Information System (GIS) manager in the Washington State Department of Fish and Wildlife’s Wildlife Science Division for approximately 17 years. The Wildlife Science Division’s organizational chart shows that Snyder reports to John Pierce and has four information technology specialists as subordinates. A fifth information technology specialist in Snyder’s unit reports to one of Snyder’s subordinates.
Supervisory Activities
Hiring – Snyder testified that she has participated in the hiring of nine employees in her unit. When openings occur in her unit, Snyder creates or revises position descriptions and consults with Pierce and the human resources division, which does the initial screening of potential candidates. Snyder then assembles a hiring panel responsible for deciding which candidates to interview, the questions to be asked, and a scoring system that will be used to evaluate the answers given. Snyder and the panel reach a hiring recommendation following the interviews based on their notes and the scoring system, and Snyder relays the panel’s recommendation to Pierce and appointing authority David Pulliam for approval. Snyder’s scoring is accorded no more weight than others on the panel who may be subordinate to Snyder. The hiring panel is collaborative. Although Snyder conducts reference checks, hiring selections are based primarily upon the scoring matrix. Snyder and Pierce testified that the hiring panel’s recommendation has been followed 100 percent of the time, but all recommendations have to be approved by Pierce and Pulliam in order to go into effect.
Direction of Employees – Snyder plans, assigns, monitors, and evaluates the work performed by her subordinates. Snyder testified that her assignment of specific work tasks to subordinates can vary widely based upon the employee involved and the stage of the project. For example, Snyder testified an Information Technology Specialist 5 requires less direct supervision than an Information Technology Specialist 3, based upon the former specialist’s advanced knowledge. Pierce also testified that he reviews the employee performance and development plans Snyder creates for the employees she oversees. Snyder has the ability to approve leave requests without Pierce’s approval and has sole responsibility for managing her subordinates’ flex-time assignments, but does not have the ability to approve overtime.
Promotions, Rewards, and Transfers – There was no testimony to indicate that Snyder has been involved in promotions and transfers. She has had input on employee reclassifications.
Layoff and Recall – According to Pierce’s testimony, layoffs are handled through merit system rules and are not influenced by supervisors. Snyder testified that she has experienced one layoff of a subordinate during her years as a GIS manager, and that she was not the final authority on the matter.
Discipline, Suspension, and Discharge – Snyder has not been a part of any disciplinary action involving her subordinates.
Adjustment of Grievances – Snyder has participated in one Step 1 grievance meeting during her tenure. She testified that her role was “relatively minor” and that she reviewed and signed the Step 1 response after the employer’s human resources operations manager composed the first draft.
Percentage of Time Spent on Supervisory Duties – Pierce testified that the Information Technology Specialist 6 employees who report to him spent between 20 and 25 percent of their time on supervisory duties. Snyder’s estimate of the time she spent on supervisory duties varied from 40 to 75 percent, but she testified on cross-examination that she would cut that estimate in half if the administrative duties involved in work plan development – including budget creation and oversight – were removed from the equation.
Conclusion
Based upon the preponderance test detailed by Commission precedent, I find that Snyder does not meet supervisory criteria and is properly included in the proposed bargaining unit. While Snyder has some ability to exercise independent judgment on behalf of the employer, she neither spends a majority of her work time performing supervisory duties, nor exercises a majority of the supervisory activities enumerated in RCW 41.80.005(13).
FINDINGS OF FACT
1. The Washington State Department of Fish and Wildlife is an employer within the meaning of RCW 41.80.005(8).
2. The Washington Federation of State Employees is an employee organization within the meaning of RCW 41.80.005(7).
3. Rajbir Deol and Shelly Snyder are employed by the employer in the classification of Information Technology Specialist 6. Neither spend a preponderance of their work time engaged in supervisory duties, nor do they have the authority to independently perform or make effective recommendations on a preponderance of the following types of supervisory activities: hire, transfer, suspend, lay off, recall, promote, discharge, direct, reward, or discipline employees or to adjust grievances.
4. Rajbir Deol and Shelly Snyder are public employees within the meaning of RCW 41.80.005(6) whose authority is insufficient to establish them as supervisors under RCW 41.80.005(13) or exclude them from the proposed bargaining unit under RCW 41.80.070(1)(a).
CONCLUSIONS OF LAW
1. The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.80 RCW and Chapter 391-25 WAC.
2. For purposes of collective bargaining under Chapter 41.80 RCW, an appropriate bargaining unit consists of:
All full-time and regular part-time information technology specialists of the Washington State Department of Fish and Wildlife in the Wildlife Science Division, excluding supervisors, confidential employees and all other employees.
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 described in paragraph 2 of the foregoing conclusions of law, for the purpose of determining whether a majority of the employees in that unit desire to be represented for the purposes of collective bargaining by the Washington Federation of State Employees or by no representative.
ISSUED at Olympia, Washington, this 11th day of January, 2011.
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 391-25-590.