City of Lynden v. Public Employment Relations Commission, No. 52113-6-I (WA 1/18/2005)

• Decision Date: 18 January 2005
• Docket Number: No. 52113-6-I,52113-6-I
• Parties: CITY OF LYNDEN, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS COMMISSION, and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL 160, Respondent.
• Court: Washington Supreme Court

Page 1

Unpublished Opinion

CITY OF LYNDEN, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS COMMISSION, and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, LOCAL 160, Respondent.

No. 52113-6-I

Court of Appeals of Washington, Division One.

Filed: January 18, 2005

Appeal from Superior Court of Whatcom County. Docket No. 02-2-02366-1. Judgment or order under review. Date filed: 02/07/2003. Judge signing: Hon. Steven J Mura.

Counsel for Petitioner(s), Deborra E. Garrett, Zender Thurston PS, PO Box 5226, Bellingham, WA 98227-5226.

Counsel for Respondent(s), Spencer Walter Daniels, Attorney at Law, PO Box 40108, Olympia, WA 98504-0108.

Terry Carlyle Jensen, Rinehart & Robblee, 1100 Olive Way Ste 1620, Seattle, WA 98101-1827.

Anne Elizabeth Senter, Rinehart & Robblee PLLP, 1100 Olive Way Ste 1620, Seattle, WA 98101-1827.

KENNEDY, J.

The City of Lynden appeals the decision of the Public Employment Relations Commission (PERC) in City of Lynden, Decision 7527-B (PECB, 2002) in which PERC held that the chief of police is not a confidential employee and is properly included in a bargaining unit consisting of the chief and two lieutenants. On this record, we affirm the PERC ruling.

FACTS

In February 2001, the International Association of Machinists and Aerospace Workers, District Lodge 160 (the Union) filed with the Public Employment Relations Commission a petition for investigation of the question of representation of all uniformed supervisory police department employees of the City of Lynden. The bargaining unit at issue included the police chief and two lieutenants. Other non-supervisory and clerical police department employees were already represented in two separate bargaining units. In May 2001, Hearing Officer Rex L. Lacy heard testimony regarding the City's position that the police chief, Jack Foster, should be excluded from the bargaining unit because he was a confidential employee under RCW 41.56.030(2)(c).

At the hearing, former City Administrator, Stephan Jilk testified that he was the sole negotiator for the employer in all collective bargaining negotiations with unions representing City employees. Jilk requested input from the City department heads, one of them being Chief Foster, prior to and during negotiations with the unions. Regarding the administration of collective bargaining agreements, Jilk testified that he learned of questions of interpretation through the union representative or through Chief Foster. He testified that Chief Foster once raised an issue regarding detective pay but that only the council, and not the chief, had the authority to agree to changes in pay rates during the term of the contract. According to Jilk, when a labor organization first filed a petition to represent the two police department clerical employees, he considered challenging the establishment of a bargaining unit because one of the positions may have been considered a confidential employee. While Jilk agreed that he considered Chief Foster's opinion on the issue, he ultimately made the decision to recommend certain actions to the council. During Jilk's testimony, the following exchange took place:

Q: . . . Throughout the time that you worked with Jack Foster what was Chief Foster's role in personnel administration within the police department?

A: Well, he along with the other department heads had the responsibility to manage on a day-to-day basis all personnel matters within the department of course based upon the guidelines established by the collective bargaining unit contract or personnel policies established by the city. My approach personally was not to try to micro manage any of the departments in terms of their operation or their personnel and so because of that approach I relied quite heavily upon their input and their recommendations on how to deal with personnel matters.

Q: In personnel matters that involved the operation of the department and the administration of the collective bargaining agreement were you normally consulted on a day-to-day basis on those issues or was Chief Foster the final authority on those issues?

A: Chief Foster — I wouldn't say that Chief Foster was the final authority on those issues. At the same time I was not consulted on a day-to-day basis because there was no need to have that regular communication on personnel matters. Any decisions that were — had to be made relative to policy established by the city through city council action or collective bargaining unit the chief would be making those decisions on a day-to-day basis as far as interpretation of the bargaining unit agreement. But if there was a question as to the interpretation of the bargaining unit contract or other personnel matters and he needed assistance or sought out assistance then he would come to me and say I've got an issue here, I think it should be, but, you know, you're the personnel manager, how do you interpret this and what should we do about it. That's the kind of approach we would take.

Report of Proceedings at 45-47.

As an example of the process he described, Jilk testified that Chief Foster repeatedly consulted with him about a disciplinary matter that eventually led to a separation agreement with an officer.

Jerald Osterman, who had been serving as Interim City Administrator for the City of Lynden for nearly two months at the time of the hearing, testified that Chief Foster had the authority to make `interpretations and judgments with respect to the application of the union contract that {his employees} may be covered under,' id. at 55, and that `if the administrative decision was not clear to the chief the chief would contact {him} for discussion on the interpretation of that issue.' Id. at 65.

In October 2001, PERC's Executive Director ruled that the police chief was not a confidential employee, and issued a direction of cross-check. Following its interim certification of the union as the exclusive bargaining representative of the unit pending further proceedings regarding the status of the chief, in October 2002, PERC affirmed the Executive Director's decision that the unit should include the chief and the two lieutenants.

The Whatcom County Superior Court certified PERC's decision for direct appeal to this court under RCW 34.05.518(2) and a commissioner of this court granted the City's motion for discretionary review. The City challenges PERC's findings of fact and conclusions of law, contending that the chief is a confidential employee because (1) he is the executive head of the police department and its three existent bargaining units; and (2) he was substantially and directly involved in the City's preparation for bargaining, in developing the labor policy of the City, and in administering collective bargaining agreements. The City also contends that PERC erred in determining that the City's argument regarding the lack of community of interest between the chief and the lieutenants was procedurally barred.

ANALYSIS

Judicial review of agency orders in adjudicative proceedings is governed by RCW 34.05.570(3), which provides in pertinent part:

The court shall grant relief from an agency order in an adjudicative proceeding only if it determines that:

. . . .

(d) The agency has erroneously interpreted or applied the law; {or}

(e) The order is not supported by evidence that is substantial when viewed in light of the whole record before the court, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this chapter{.}

The appellate court reviews the administrative decision directly, based on the record before the agency. Potter v. Dep't of Retirement Sys., 100 Wn. App. 898, 903, 999 P.2d 1280 (2000). Although we may substitute our judgment for that of an administrative agency on questions of law, we will accord substantial weight to the agency's view of the law it administers when determining the legislative intent behind an ambiguous statute. Pasco Police Officers' Ass'n v. City of Pasco, 132 Wn.2d 450, 458, 938 P.2d 827, (1997) (citations omitted). Additionally, `The burden of demonstrating the invalidity of agency action is on the party asserting invalidity{.}' RCW 34.05.570(1)(a).

The Public Employees' Collective Bargaining Act establishes the right of public employees to join and be represented by labor organizations. RCW 41.56.010; Int'l Ass'n of Firefighters v. City of Yakima, 91 Wn.2d 101, 109, 587 P.2d 165 (1978). The definition of `public employee' excludes any person `whose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to {} the executive head or body of the applicable bargaining unit{.}' RCW 41.56.030(2)(c).¹ When considering this definition in City of Yakima, our Supreme Court described as instructive the definition of confidential employee in the Educational Employment Relations Act, RCW 41.59, which provides:

(i) Any person who participates directly on behalf of an employer in the formulation of labor relations policy, the preparation for or conduct of...