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Summer 2012

Ruling clarifies when a worker is a supervisor

by County and City Employee staff on July 18, 2012

When the East Wenatchee public works director is out of the office, the associate engineer stands in for him, making decisions affecting the department. Does this mean the associate engineer is a supervisor who should not be represented by Local 846-W?

Yes, said the City of East Wenatchee management.

No, said Council 2.

The union last year asked the Public Employment Relations Commission to resolve the issue, filing a unit clarification petition seeking to include the position of associate engineer in the existing bargaining unit. Council 2, represented by General Counsel Audrey Eide, argued that an examination of the associate engineer’s actual duties showed that he spent more of his time working as an engineer on storm water activities than on supervising employees.

Michael P. Sellars, PERC Executive Director, agreed, ruling in mid-May that the associate engineer is a lead worker, not a supervisor.

“The associate engineer does not have the independent authority to promote, transfer, layoff, recall, suspend or discharge employees, or adjust employee grievances,” he said. “Although the associate engineer may have the authority of a supervisor while standing in for the director ... the time spent on such activities does not meet the preponderance test for supervisory duties.”

He directed the associate engineer should be included in the bargaining unit.

In his ruling, Sellars said the purposes of the rule excluding supervisors from bargaining units containing their subordinates is to avoid the potential for conflicts of interest created by including a supervisor acting on behalf of an employer in the same bargaining unit as the employees being supervised.  If an employee spends a preponderance of his or her time performing one or more of the supervisory activities, that employee is a supervisor, he added.

“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,” Sellars said.

Supervisors, who act with independent judgment, are different than lead workers, who carry out the decisions of a supervisor and so are not excluded from a subordinate bargaining unit, he added.

The associate engineer acts in the capacity of a lead worker, not a supervisor, he said, “because he does not have the independent authority to make meaningful changes to the employment relationship of subordinate employees.”