FEDERAL WAY WATER AND SEWER DISTRICT, DECISION 3794 (PECB, 1991)

IUOE, Local 286 v. Federal Way Water & Sewer District

                                         DIRECTION OF ELECTION

 

 

On November 2, 1990, the International Union of Operating Engi­neers, Local 286, filed a petition for the investigation of a question concerning representation with the Public Employment Relations Commission, seeking certification as exclusive bargaining representative of certain employees of Federal Way Water and Sewer District.  A pre-hearing conference was held on December 11, 1990, at which time issues were framed as to whether the petitioned-for bargaining unit is appropriate, and as to whether certain individu­als should be excluded from the bargaining unit as supervisors.  A hearing was held at Federal Way, Washington, on January 11, 1991, before Hearing Officer William A. Lang.  The parties stipulated to make the record in a previous representation case involving the same employer a part of the record in this case.[1]  Post-hearing briefs were filed on February 28, 1991.

 

BACKGROUND

 

The Federal Way Water and Sewer District is a municipal corporation organized as a special purpose district under the authority of Titles 56 and 57 of the Revised Code of Washington (RCW).  It provides street lighting,[2] water services and sewer services to approximate­ly 80,000 residents.  The area served covers approxi­mately 40 square miles in southern King County.  An elected three-member Board of Commis­sioners sets policy and hires a general manager.  The current employer entity was created in 1985, by the merger of the Lakehaven Sewer District with King County Water District 124.  Prior to that merger, those two entities participat­ed in a high degree of joint operations, and they had used the same policy manual.  The new entity continued to use the same policy manual, and the merger did not cause employees to be laid off, or even to change their work loca­tions.   

 

In addition to office and shop facilities housed in two buildings located near one another, the employer operates 20 wells, 24 sewer pumping stations, and 2 sewage treatment plants in the area served.[3]

 

The current general manager, James Miller, has held that position since January 1, 1986.  Miller is responsible for day-to-day operations, and he heads an administra­tive staff of three persons, including a director of human resources, an executive secretary and a clerical employee.  Since approximately January 1, 1989, General Manager Miller has been implementing a reorganization plan calling for four primary divisions reporting directly to him:  Finance and Customer Service; Engineering and Technical Services; Water Operations; and Sewer Operations. 

 

The employer has about 110 full-time and regular part-time employ-ees.  The employer has some employer-wide personnel policies, and all employees are paid from a single salary schedule with 23 pay ranges.[4]  All employ­ees receive the same health insurance benefits, vacation and sick leave accruals, holidays, and retire­ment. 

 

Some distinctions cut across divisional lines:  Overtime is paid at the time-and-one-half rate to employees in all divisions who are on pay range 13 or below.[5]   Other distinctions are made along divisional lines:  The 40 employees in the sewer opera­tion and the 29 employees in the water opera­tion have similar work hours, using a schedule of four 10-hour days in the summer and a schedule of five 8-hour days in the winter,[6] while the employees in other divisions have different work schedules.

 

                 Finance and Customer Services

 

The Finance and Customer Services Division is headed by Roger Brown, and is primarily responsible for billing and collection of customer accounts for water, sewer and lighting services.  The 20 employees assigned to the division in addition to Brown include accountants, accounting technicians, comptrol­lers, purchasing specialists, customer service representatives, an administrative secretary, and several clerical employees.  The division relies on data processing with its records on computers.  These employees are housed in the same building as the administrative office.[7] 

 

There is evidence that this division interacts with the Engineering Division with regard to the handling of federal and state grant monies, and the funding of projects. 

 

This division receives and processes customer complaints and requests for service changes, and so interacts with the water and sewer divisions with regard to the handling of delinquent accounts and service orders.  Meter turn on/off requests are forwarded by the customer service personnel to the meter readers and maintenance person employed in the Water Division.   

 

              Engineering and Technical Services

 

The Engineering and Technical Services Division is headed by Steve Wieneke, and is primarily responsible for dealing with developers in the design and construction of water and sewer lines.  The division monitors private projects under construc­tion.  There are 19 employees assigned to this division, working under job classifi­cation titles of engineer, field technician, engineer technician, and secretary.  The engineer­ing personnel are housed in the same building as the adminis­trative office and the finance personnel. 

 

This division provides technical support services to the employer's water and sewer operations, in the form of mapping and technical advice on the construction of facilities.   One engineer assigned to water quality spends an estimated 25% of his time with water operations.  Field technicians inspect new water and sewer lines with maintenance persons assigned to the Sewer Division.  According to the testimo­ny, a technician spends part of one day per week as an above-ground safety lookout while a maintenance worker goes down manholes to check sewer line construction.[8]  In emergencies, the Engineering Division provides technical assistance, as needed, to the water and/or sewer operations.[9]          

 

                       Water Operations

 

The Water Division is headed by Superintendent Don Young, and is primarily concerned with the delivery of potable water to custom­ers.  The 29 employees under Young's direction include his secretary, a part-time customer engineer, meter readers, mechanics, maintenance workers, and groundskeepers.  The Water Division is housed in the separate building located across the parking lot from the main office.  

 

The grounds mainte­nance employees do work for all of the employer's divisions, but most of their time is spent with the sewer and water operations. 

 

The mechanic services all of the approximately 50 vehicles owned or used by the employer.  Most of those vehicles are used in the sewer and water operations, with only five or six used by finance and engineer­ing personnel.  Extensive or complicated repairs are contracted out.[10] 

 

At least one of the maintenance employees is assigned to "cross connect" for both water and sewer services.

 

The meter readers receive instructions from the finance personnel to start or stop service to customers.  There was evidence that some water meters also meter sewer usage.

 

                       Sewer Operations

 

The Sewer Division is headed by Superintendent Bill Martin.  The division is primarily concerned with the collection of wastewater from customers and the treatment/disposal of the material.  The division has 40 employees, including sewer plant operators, utility workers, maintenance persons, a janitor, and an electri­cian.  The Sewer Division is headquar­tered at the sewage treatment plants.

 

The janitor and the electrician regularly perform duties for the other divisions, although their primary responsibilities are with sewer and water operations.

 

 

POSITION OF THE PARTIES

 

The union seeks a bargaining unit limited to employees in the sewer and water divisions.  It contends that the employees in those two divisions perform similar work, and that they share a community of interest as predominately "blue collar" workers.  The union argues that it need not propose the most appropriate bargaining unit, but only an appropriate unit.  The union proposes the exclusion of two secretaries who work for the division superintendents, as not sharing a community of interest with the blue collar employees.  The union also believes that the duties of those individuals as personal secretaries to the division superintendents makes them "confiden­tial" employees who should be excluded from the bargaining unit on that basis.  On the other hand, the union objects to the supervisory exclusions sought by the employer.

 

Relying on the earlier Commission decision involving its employees, the employer contends that its workforce is integrated to such an extent as to require rejection of the petitioned-for bargaining unit.  The employer contends that the only appropriate unit for bargaining would include all of the employees of the employer except for profes­sionals, supervisors and confidential employees.  The employer would exclude its accountant, its financial analyst and its engineers as profession­als.  The employer contends that the three senior operators and the wastewater treatment foreman should be excluded as supervi­sors.  The employer would include the two clericals as non-supervi­sory employees.

 

 

DISCUSSION

 

      The Propriety of the Petitioned-For Bargaining Unit

 

As a municipal corporation and/or political subdivision of the state of Washington, the Federal Way Water and Sewer District is a "public employer" within the meaning and coverage of the Public Employees' Collective Bargaining Act, Chapter 41.56 RCW.  The determination of bargaining units under that statute is a matter delegated by the Legislature to the Public Employment Relations Commission.  RCW 41.56.060.  The decision in Feder­al Way Water and Sewer District, Decision 3228 (PECB, 1989), has some obvious relevance to this proceeding, but the duty of the Commission under RCW 41.56.060 to decide unit issues in "each" case must also be given effect.  Further, any distinctions of fact and law must also be recognized. 

 

Duties, Skills, and Working Conditions -

In this case, the proposed bargaining unit encompasses two operational divisions which include essentially all of the employees of this employer who perform "blue collar" work such as maintenance or manual labor.  The petitioner distinguishes them from "white collar" employees even in the same branches of the employer's organizational structure.

 

The petitioned-for employees are paid on the same salary schedul­e, and they enjoy the same benefits, as other employees of the employer, but other aspects of their hours and working conditions are entirely different from those of the finance, engineering and clerical employees:

     The "blue collar" employees in the sewer and water operations generally work at sites that are removed from the work sites of the employees in the other divisions.

     The sewer and water divisions conduct joint safety meetings, to the exclusion of the other groups.

     The sewer and water employees share the use of equipment, such as backhoes and trucks.  Those are the only divisions having equipment suitable for such interchange.

 

The employer makes a substantial contention that its operations are integrated to such an extent as to make separation unrealistic and, therefore, to make a separate bargaining unit inappropriate.  A similar argument was successfully made in the earlier proceedings, but it must fail here.  The earlier case involved an attempt by another union to organize only the employees of the sewer division.  A "high degree of interaction" was found to exist among the employees of various divisions, but close analysis of the decision reminds that many of the examples given involved interchange between the water and sewer employees.  The union's evident extent of organization was not found sufficient to warrant a separate "vertical" unit in the Sewer Division.  In distinct contrast to the earlier case, the petition now before the Commission involves a "horizon­tal" unit defined by the "blue collar" occupations of the employees sought. 

 

The decision in the earlier Federal Way case was not reviewed by the Commission "on the merits",[11] but the Commission has subse­quently issued several decisions which provide guidance on its unit determination policies.  See, City of Centralia, Decision 3495-A (PECB, 1990), where the Commission stated:

 

The statute does not confine us to certifying only "the most appropriate unit" in each case.  It is only neces­sary that the petitioned-for bargaining unit be an appropriate one.  Thus, the fact that there may be other groupings of employees which would also be appropri­ate, or even more appropriate, does not require re­jecting a proposed unit that is appropriate. 

 

All of the employees of an employer inherently share some community of interest in dealing with their common employer.  Thus, when sought by a petitioning union, employer-wide bargain­ing units have been viewed as presumptively appropriate.

 

Units smaller than employer-wide may also be appropriate, especial­ly in larger workforces.  The employees in a separate department or division may share a community of interest separate and apart from other employees of the employer, based on their commonality of func­tion, duties, skills and supervision.  Conse­quently, departmen­tal (vertical) units have sometimes been found appropriate when sought by a petitioning union.  Alternatively, em­ployees of a separate occupational type may share a community of interest based on their commonality of duties and skills, without regard to the employer's organizational struc­ture.  Thus, occupational (horizon­tal) units have also been found appropriate, on occasion, when sought by a petitioning union.

 

Concerns about "fragmentation" of bargaining units arise from time to time.  One very real concern is that employees not directly in­volved in an organizational effort will be deprived of their statutory bargain­ing rights by being left "stranded" alone or in a unit that is too small to bargain effectively.  Another concern is that the establishment of a bargaining relation­ship gives rise to a scope of "bargaining unit work", and a duty on the part of the employer to give notice to the exclusive bargaining representative and pro­vide opportu­nity for bargaining prior to transfer of bargaining unit work to employees outside of the bargaining unit.  Thus, deci­sions have required that fringe groups be incorporated into the bargain­ing units to which they logically relate, and have re­ject­ed unit configurations that Balkanize departments or occupational groups into units that can be explained only on the basis of "extent of organization".

 

[emphasis by bold supplied; footnotes omitted]

 

See, also, City of Winslow, Decision 3520-A (PECB, 1990). 

 

The record here does not show that the interac­tion among all of the employer's divisions is so pervasive as to require a conclusion that the employer's workforce be considered only as a single, integrated operation.  The Engineering Division does provide support services, such as maps and technical advice, and there are some circumstances where individuals from that division work with some of the petitioned-for employees, but there is no evidence that employees of the Engineer­ing Division routinely work alongside water or sewer employees in the operation of heavy equipment or perform­ing construction or labor tasks.  The engineer who performs water quality functions for the Water Division is a professional who would be excluded as such from an "employer-wide" unit under the employer's own argument.  The field inspectors who work with the sewer maintenance persons do so on a safety basis only, as the testimony indicates that the actual inspection is performed by the sewer worker while the field technician watches the manhole.  Finance preparation of delinquent lists for the meter readers and maintenance person for purposes of meter turn on or offs are ministerial in nature and do rise to the level of working side by side.  The other examples of "integra­tion" presented by the employer are very limited and unconvincing. 

 

Instances of cross-training are limited to employees of the water and sewer opera­tions, and those operations share the same work classifications of mainte­nance persons.  The mechanic, ground maintenance and janitor primarily do work in the sewer and water divisions, with very little activity for other divisions.  Sharing of personnel primarily occurs among the secretaries, but only after the pool of temporary clerical employees is exhausted.[12]  Since the petitioned-for work­ers share "blue collar" duties and share similar classifications (wages) and work hours, they are appropri­ately included in the proposed "occupational" bargaining unit.    

 

The administrative secretaries provide clerical support for the superintendents of the respective divisions.  Consistent with its quest here for an occupationally-oriented bargaining unit, the union would exclude these secretaries from the unit claimed appropriate.  While there was testimony that these secretaries would not be involved in confiden­tial labor relations matters, there are numerous Commission precedents, as well as precedent developed by the National Labor Relations Board, holding that "office clerical" employees have a community of interest separate and apart from "blue collar" employees.   

 

The clear conclusion from the foregoing is that the unit sought here is "an appropriate unit" under the "duties, skills and working conditions" portion of the statutory unit determination criteria.

 

History of Bargaining -

There is no history of bargaining for any of the petitioned-for employees.[13]

 

If anything, the previous certification and history of bargaining for an employer-wide (i.e., "occupational" or "horizontal") clerical unit reinforces the conclusion that the secretaries to the superintendents in the divisions touched by the petitioned-for unit would share a stronger community of interest with other clericals than with an operational unit of blue collar workers. 

 

Extent of Organization -

The union's extent of organization and proposed bargaining unit in this case conform to all of the "blue collar" employees of the employer, without creating any problems of "stranding".  The other employees of the employer are properly categorized as clerical, technical and professional employees.

 

Desires of the Employees -

Evidence of the "desires of employees" is irrele­vant here.  Neither the showing of interest filed in support of a petition under RCW 41.56.070 and WAC 391-25-110, nor the testimony of individual employees is relied upon to assess the "desires of employees" for purposes of RCW 41.56.060.  City of Seattle, Decision 781 (PECB, 1979).  Rather, the confiden­tiality of employee views on such sensitive matters will be protected by conducting a unit determina­tion election when it is necessary to make an assessment of employee preference.  Oak Harbor School District, Decision 1319 (PECB, 1981).  There is no need to direct a unit determination election in this case, however, as there is no employee organiza­tion seeking certification in an appropriate unit different from the appropriate unit sought by the petitioner.

 

              The Proposed Supervisor Exclusions

 

Supervisors are employees within the meaning and coverage of Chapter 41.56 RCW, and are entitled to organize for the purposes of collective bargaining.  METRO v. Department of Labor and Indus­tries, 88 Wn.2d 925 (1977).  The Commission has exercised its unit determination authority in the past to exclude "supervisors" from bargaining units containing their rank-and-file subordinates, in order to limit or prevent conflicts of interest arising within the bargaining unit due to the exercise by the supervisors of their authority over subordinates.  City of Richland, Decision 279-A (PECB, 1978), aff. 29 Wn.2nd 599 (Division III, 1981), rev. denied, 96 Wn.2nd 1004 (1981).  

 

Senior Operators -

There are three senior operators, who are in charge of shifts at the sewer plant.  They report to Waste Water Treatment Plant Supervisor Melva Yoder who, in turn, reports to Assistant Superin­tendent Charles Babel, and to Superintendent Martin. 

 

The operators are generally assigned regular, routine tasks to be accomplished during their work shifts, and those activities are monitored by the senior operators.  The senior operators provide "input" to Yoder for inclusion in the performance evaluations of their subordi­nates.  The senior operators have authority to approve overtime for subordinat­es in the absence of their supervisor.

 

The senior operators do not have authority to hire subordinates.  New personnel are hired by use of an interview panel process.  The panels usually consist of three employees:  The personnel director, a supervisor from another division, and an employee from the hiring division who is familiar with the duties of the vacant position.  The panel makes a recommen­dation to the division head.  The general manager must approve all hiring.  While senior operators may serve on such panels, there is no evidence that they have done so. 

 

The senior operators do not have authority to discharge subordi­nates, but they do have authority to issue disci­plinary warnings in the absence of their supervisor. 

 

The senior operators regularly perform duties involving monitoring dials, taking readings, checking samples under microscopes, monitoring the operation of machinery, and overseeing the work of other employees.  They are, themselves, paid time-and-one-half for overtime work.

 

The record is clear that these employees have only limited supervisory authority, and then only in the absence of their supervi­sors.  There are as many as five levels of supervision above them, and the record indicates that severe disciplinary actions are subject to approval all the way up through the supervisory chain of command to General Manager Miller, with appeals to the Board of Commissioners.  Miller also approves all hiring decisions. 

 

These employees assign work, but their subordinates regularly perform tasks of a daily routine associated with an ongoing operation.  The evidence describes working foremen who should be in the same bargaining unit as their subordinates.  There is only very limited potential for conflicts of interest arising out of their inclusion in the bargaining unit.

 

Maintenance Foreman 

Maintenance Foreman Bernard Stump is in charge of performing plant maintenance.  Stump also reports to Yoder.  Three maintenance persons are assigned to work under Stump's direction.  Stump gives input on their performance evaluations, makes up work schedules, and approves overtime if his supervisor is not around. 

 

Stump does not hire, but has given recommendations to hire temporary employees who worked with him.  Such recommendations are different from those made under the interview panel process. 

 

Stump does not have authority to discharge subordinates, but can give disciplinary warnings.

 

Most of Stump's duties involve mainte­nance responsibilities similar to those performed by his subordinates.  Unlike other employees at his pay range, Stump is paid time-and-one-half for overtime work.

 

Again, the evidence describes a working foremen who has been treated in the past more like a rank-and-file workman than like a member of the management.  With the real authority vested in the persons of Yoder, Babel, Martin and, ultimately, Miller, there is only very limited potential for conflicts of interest arising out of Stump's inclusion in the bargaining unit. 

 

 

                       FINDINGS OF FACT

 

1.Federal Way Water and Sewer District is a municipal corpora­tion and/or political subdivi­sion of the state of Washington, and is a public employer within the meaning of RCW 41.56.030­(1). 

 

2.International Union of Operating Engineers, Local 286, a bargain­ing representative within the meaning of RCW 41.56.030­(3), has filed a timely and properly supported petition for investiga­tion of a question concerning representation, seeking certifi­cation as exclusive bargaining representative of certain employees of the Federal Way Water and Sewer District.

 

3.The petitioned-for bargaining unit includes all of the nonsupervi­sory operations and maintenance employees of the employer, and excludes clerical employ­ees, technical employ­ees, professional employees, confidential employ­ees, and supervi­sors.

 

4.The employees in the petitioned-for bargaining unit work in the water and sewer operations of the employer, and have a community of interest based on similar duties and skills as "blue collar" workers.

 

5.All of the employees in the petitioned-for bargaining unit work the same scheduled hours.  Those schedules are different from those of all other employees of the employer.

 

6.All of the employees in the petitioned-for bargaining unit are paid at premium rates for work in excess of 40 hours per week.

 

7.The administrative secretaries assigned to the sewer and water operations provide clerical support to the superin­ten­dents of those divisions.  They have duties, skills, working conditions and a history of bargaining that are separate and apart from those of the "blue collar" workers in their respective divisions.

 

8.The petitioned-for bargaining unit will not strand employees of the same occupational type.

 

9.The "Waste Water Treatment Plant Supervisor" and the employees in the "Senior Operator" classification perform duties similar to those of their subordinates and have only limited authority to act in the name of the employer on personnel matters.  They are lead workers who perform functions which are primarily ministerial in nature, carrying out the directives of the board and general manager and three intervening levels of supervision. 

 

 

                      CONCLUSIONS OF LAW

 

1.The Public Employment Relations Commission has jurisdiction in this matter pursuant to Chapters 41.56 RCW and 391-25 WAC.

 

2.A bargaining unit consisting of:

 

all full-time and regular part-time operations and maintenance employees of Federal Way Water and Sewer District, excluding elected officials, offi­cials appointed for a fixed term, the general manager, clerical employees, technical employees, profession­al employ­ees, confidential employees, and supervi­sors

 

is an appro­priate unit for the purposes of collective bargain­ing within the meaning of RCW 41.56.060, and a question concerning represen­tation presently exists in such unit.

 

3.The "Waste Water Treatment Plant Supervisor" and the employees in the "Senior Operator" classification are nonsupervisory employees who are properly included under RCW 41.56.060 in the appropriate bargaining unit described in paragraph 2 of these conclusions of law.

 

 

                     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 Interna­tional Union of Operating Engineers, Local 286.

 

Issued at Olympia, Washington, on the  30th  day of May, 1991.

 

 

                             PUBLIC EMPLOYMENT

                             RELATIONS COMMISSION

 

 

 

                             MARVIN L. SCHURKE

                             Executive Director

 

 

This order may be appealed

by filing timely objections

with the Commission pursuant

to WAC 391-25-590.



    [1]On June 19, 1989, another organization filed a petition seeking to represent only the employees in the employer's sewer division.  That petition was dismissed in Feder­al Way Water and Sewer District, Decision 3228 (PECB, 1989).

    [2]Street lighting is provided in cooperation with Puget Power, a private utility.  While the employer is respon­sible for the formation of lighting districts and service billing, it does not operate any power plants or maintain any street lighting equipment.

    [3]Located at Lakota and Redondo, both sewage treatment plants are each about three miles away from the main office, in different directions.  Travel time between the sewage plants is about ten minutes.

    [4]The pay rates range from a low of $950 per month to a high of $6025 per month.

    [5]An exception is made for the Waste Water Treatment Plant Foreman, who also receives the time-and-one-half pay premium for overtime work. 

    [6]The daily shift starting and ending times are also the same in those two divisions. 

    [7]Also housed there is a secretarial pool of temporary employees who are available to the adminis­tration and other divisions on an as-needed basis.

    [8]Both employees then sign off on the "punch sheet", which lists discrep­ancies discovered in previous inspec­tions.

    [9]The work to repair damaged lines or pumps is performed by the sewer or water crews.

    [10]The record indicates that the employer intends to contract out the mechanic's services to the City of Federal Way.

    [11]A petition for Commission review of Feder­al Way Water and Sewer District, Decision 3228 (PECB, 1989) was filed by the union involved there, but was dismissed by the Commission as untimely.  See, Feder­al Way Water and Sewer District, Decision 3228-A (PECB, 1990).

 

    [12]The sharing is limited in any case to covering short term absences such as illness or vacation. 

    [13]In Federal Way Water and Sewer District, Decision 1261 (PECB, 1981), Teamsters Local 117 was certified as the exclusive bargain­ing representative of the employer's clerical staff.  That history has no direct bearing on the petitioned-for bargaining unit, and the Commission's docket records show that the unit was later disclaimed by the Teamsters, but it is aptly observed that the unit did not conform to the employer's insistence here on a wall-to-wall unit including all of its employees.