[07-26-00] Oregon AFSCME Council 75, Local 2479-2 v. Morrow County, Unit Clarification, Case No. UC-2-00

A telephone hearing was held before Administrative Law Judge (ALJ) B. Carlton Grew on April 24, 2000, in Salem, Oregon.

Allison Hassler, Legal Counsel, AFSCME Council 75, 1174 Gateway Loop, Suite 112, Springfield, Oregon 97477, represented Petitioner.

Patrick J. Mosey, Mosey Consulting, 3260 Balsam Drive S, Salem, Oregon 97302, represented Respondent.

On January 25, 2000, Oregon AFSCME Council 75, Local 2479-2 (Union) filed this petition for unit clarification regarding an accounting technician position in Morrow County (County). The petition alleged that the County had removed the position from the bargaining unit. The Union seeks to clarify the position back into the unit.

During a telephone hearing on April 24, the parties examined witnesses and presented their arguments. The record closed on April 25 after the ALJ received Exhibit J-1.

The issue is as follows: Is accounting technician Tawny Miles a confidential employee?

RULINGS

  1. At hearing, the County asked Miles about her views on running for Union office. The Union objected to the question, arguing that the question sought irrelevant material. The County argued that Miles' feelings about how her access to confidential, bargaining-related information would affect her decision to run for Union office were relevant to this Board's decision on the issue in this case. The ALJ sustained the objection, permitting the County to make an offer of proof. The ALJ's ruling was correct. The question was not relevant to the issue presented; the statutory standards do not include an employee's feelings or preferences in the determination of whether the employee has confidential status. ORS 243.650(6).
  2. The ALJ's other rulings were reviewed and are correct.

FINDINGS OF FACT

  1. The Union, a labor organization, is the exclusive representative of a bargaining unit of employees of the County, a public employer.
  2. The Union and the County are parties to a collective bargaining agreement. The unit description in the agreement provides that the positions listed in the addendum to the agreement are members of the unit. The accounting technician position is listed in the addendum.
  3. The County has approximately 113 employees. Most of them work in one of the three units of represented workers: (1) 14 workers in the Sheriff's Department, represented by the Teamsters; (2) 22 workers in the Public Works Department, represented by AFSCME; and (3) 33 workers in the unit of "general employees," also represented by AFSCME. The remaining 44 employees are excluded from representation for various reasons. Aside from the position at issue here, only one employee, the director of the Personnel Department, has been excluded from the bargaining units based on her confidential status.
  4. The County is governed by a County court comprised of a judge (the chair) and two other members. The County has a budget committee, made up of three members of the County court and three citizens.
  5. Lisanne Currin is the director of the County Finance Department and a certified public accountant (CPA). Currin reports directly to the budget committee and County court, and directly supervises two employees: Tawny Miles and a part-time accounting technician. Currin advises the County court regarding fiscal matters, including capital improvements, purchases, and the budget. She is responsible for administering County taxes, fringe benefits, accounts payable, retirement paperwork, cash flow, financial records, and IRS audit preparation. She is also responsible for estimating the costs of County crushed rock and asphalt use, budget options, and Union and management collective bargaining proposals. Currin is not currently on the County's bargaining team. In 1997, she was on the County's bargaining team in bargaining with the County's unit of general employees. This service was not due to her financial responsibilities, but was part of her duties as a department head. County department heads rotate into bargaining duty.
  6. Andrea Denton is the director of the County Personnel Department. She reports directly to the budget committee and County court. Denton sits on all of the County bargaining teams, along with one or two designated department heads.
  7. Tawny Miles is an accounting technician and CPA. Her position was in the bargaining unit of general employees before the County designated it as confidential. Miles reports directly to Currin. Miles does the financial work on the state reports, accounts payable, billings, budget, and yearly audit. She performs the majority of the financial work related to the County payroll, and determines the costs of various County and Union bargaining proposals (see below).

The County budget and negotiation process

8. In March, the County budget committee meets for four or five days to develop various spending alternatives, reviews their financial impact, and creates the County budget. As part of that work, the budget committee evaluates Union proposals and develops counter proposals for collective bargaining. It also identifies budget and policy issues that might affect represented employees. The budget committee provides financial parameters for the County bargaining team, but does not have the authority or practice of supervising that team.

9. The County court generally follows the recommendations of the County budget committee, but is not required to.

10. Currin participates in the budget committee meetings. She presents the draft budget prepared by the individual departments and her office, suggests alternative means to balance the budget, and determines the cost of various financial scenarios. Currin's alternatives are based on individual department budgets, her own ideas, and the committee's discussions. Currin has brought issues and recommended solutions to the attention of the budget committee, including disparities between departments in calculation of holiday pay for part-time workers and the possibility of creating an early retirement program in lieu of layoffs.

11. Currin works approximately 45 to 50 hours per week during the month before the budget committee meets. She works approximately 50 hours in the week before the meeting and approximately 60 hours during the week of the meeting.

12. Currin also discusses cost issues arising out of collective bargaining with Personnel Director Denton, and she sometimes directs Miles to calculate those items for Denton.

Accounting Technician Tawny Miles

13. Currin directs Miles to accompany her to budget committee meetings. Meetings related to collective bargaining are held in executive session. When the committee discussion has reached a point where Currin believes actual monetary calculations would be helpful, Currin directs Miles to return to Miles' office and estimate the cost of the relevant budget change, proposal, or contingency. Currin usually gives Miles one scenario at a time. Miles has never met with the County bargaining team.

14. Miles has estimated the cost of various options regarding reduced hours of employee work, elimination of positions, and differential pay to public works employees based on the type of equipment they operate. In connection with the 1999 bargaining, Miles estimated the cost of proposals regarding particular cost of living increases and on-call pay. Miles also learned of County proposals concerning layoffs and early retirement. In performing those calculations, Miles has relied on financial information that was available to the Union. Based on her attendance at the budget committee meetings and the proposals she is given to cost, Miles knows where management, in her words, "wants to end up" on the financial issues she works on and "what management is looking at."

15. Miles has, on occasion, brought financial matters that might affect represented employees to Currin's attention. For example, Miles alerted Currin to the fact that the various County departments used different approaches in calculating holiday pay for part-time workers.

16. Miles does not disclose her knowledge of County financial matters to the Union. When Miles voted, as a member of the Union, on the County's final offer regarding the last contract, she was aware that the County had no additional money available. This knowledge affected her vote, but was based on applying her expertise to County financial information that was also available to the Union. The bargaining unit members voted to accept that contract by a vote of 25 to 1.

17. The parties submitted no evidence regarding the amount of time Miles spends on costing proposals or other financial scenarios related to issues in collective bargaining. The costing process generally involves entering numbers into a spreadsheet.

18. Currin's workload would increase if she had to perform these calculations herself. That increase would be minimal except for the one or two weeks of the County budget process.

19. When Currin is not available, Personnel Director Denton has occasionally contacted Miles directly and asked her to calculate the cost of various collective bargaining proposals. If Currin is available, Currin may do the cost calculations or assign them to Miles. Denton is not comfortable performing the cost calculations, because she is less familiar with the details of payroll and benefits, and tends to overlook linkages between such items as wages, taxes, and pension contributions.

20. The County fears that, if Miles is in the bargaining unit, she could disclose the County's negotiation strategies to the Union. It also fears that, even as to matters available to the public, Miles could disclose the fact that certain issues are particularly important to the County. Finally, it fears that Miles could disclose the issues the County is looking at before the County decides whether or how to address those issues publicly. One example of such an issue is the disparity of County treatment of holiday pay for part-time workers.

21. Of the remaining 44 employees excluded from the bargaining units, only Currin and Denton were identified as having the ability to perform these cost estimates.

CONCLUSIONS OF LAW

  1. This Board has jurisdiction over the parties and subject matter of this dispute.
  2. Miles is not a confidential employee.

Confidential Employee Issue

ORS 243.650(6) defines "confidential employee" as "one who assists and acts in a confidential capacity to a person who formulates, determines and effectuates management policies in the area of collective bargaining." (Emphasis added.)

To determine whether an individual is a confidential employee, we apply a three-part test: (1) Does the allegedly confidential employee provide assistance to an individual who actually formulates, determines, and effectuates management policies in the area of collective bargaining? (2) Does the assistance relate to collective bargaining negotiations and administration of a collective bargaining agreement? and, (3) Is it reasonably necessary for the employee to be designated as confidential to provide protection against the possibility of premature disclosure of management collective bargaining policies, proposals, and strategies? OSEA v. Phoenix-Talent School District, Case No. UC-10-93, 14 PECBR 776, 781 (1993).

A. Currin does not actually formulate, determine, and effectuate management collective bargaining policies.

Currin participates in County budget committee meetings. The record establishes that Currin synthesizes and articulates the positions of the budget committee in order to direct the cost numbers to be run. Currin also recommended what steps the County should take regarding the disparity in treatment of holiday pay for part-time workers. She is a County department head, but supervises only one full-time employee and one half-time employee. Personnel Director Denton seeks Currin's assistance in cost issues related to collective bargaining. Currin does more than simply react to management proposals, at least at the budget committee stage.

On the other hand, Currin does not have a vote on the budget committee or the authority to establish County bargaining positions. The budget committee only recommends proposals to the County court. Neither Currin nor the budget committee direct the decisions of the County bargaining team, and Currin has served on the County bargaining team only once. Currin does not participate in discipline, grievances, arbitrations, or other matters regarding contract administration.

Managers who have minimal involvement in bargaining and grievance handling are typically held not to be managers of confidential employees. The focus in such cases is whether the manager was, in fact, a person making decisions or simply advising the decision-makers. Thus, in Clackamas County Employees' Association v. Clackamas County, Case No. UC-23-87, 10 PECBR 481, 491 (1988), this Board held that a manager who acted as a resource person to management negotiators in costing and analyzing employee benefit programs was not a manager of confidential employees because he provided only input and assistance to employer negotiators.(1)

In this case, Currin's direct involvement with collective bargaining is minimal--she has served on only one management bargaining team during her employment, and that service flowed from her status as department head, not her financial role. Although chief negotiator Denton asks Currin for assistance, there is no evidence that Currin's assistance is provided through policy-making or decision-making. Instead, Currin appears to be a resource for financial information. Indeed, Currin sometimes passes Denton's requests directly to Miles. There is no evidence in the record of Currin's involvement in discipline, grievances, or arbitrations. She creates the initial draft of the budget, proposes alternatives, and perhaps guides the budget committee discussions, but she is not a decision-maker. She is not even a member of the budget committee. In short, Currin simply advises decision-makers. She does not make decisions in bargaining or grievance handling. She does not formulate, determine, or effectuate management policies in the area of collective bargaining.

In cases where the manager was held to be a manager of a confidential employee without direct participation in bargaining, the managers have far more involvement in bargaining and grievance processing than in this case. For example, in Multnomah County v. Multnomah County Employees Union, Local 88, Case No. UC-74-88, 11 PECBR 766, 768, 773-4 (1989), this Board ruled that an assistant county counsel who was not a member of the negotiating team, but regularly advised the bargaining team chief spokesperson on bargaining matters and represented the employer in grievance arbitrations and an interest arbitration, was a manager of a confidential employee. In Tri-County Metropolitan Transportation District of Oregon v. Amalgamated Transit Union, Division 757, Case No. UC-42-88, 11 PECBR 798, 800-1, 802 (1989), this Board held that a personnel director had only a "modest" involvement in contract negotiations. The director only attended bargaining sessions as a resource person in the most recent bargaining, and had prepared and discussed only one proposal at the table in the prior contract negotiations. However, despite that finding, this Board ruled that the director was a manager of a confidential employee because she acted as more than a resource person in helping draft bargaining proposals, was the hearing officer for grievances, had established the wage rates for new positions in her department, and was the general administrator of a unit of clerical workers.(2)

We conclude that Currin does not actually formulate, determine, and effectuate management policies in the area of collective bargaining. Currin's primary role is to supply the financial information the County court budget-committee bargaining team needs to make those decisions.

Although Personnel Director Denton's involvement in collective bargaining might be sufficient to render her a manager of a confidential employee, the work Miles does directly for Denton is minimal and limited in scope. The first prong of the test has not been met.

Having concluded that the employer has not met the first part of the test, we need not analyze the other two parts of the confidential employee test. However, we offer the following observations.

B. It is not reasonably necessary for Miles' position to be designated confidential.

Miles provides assistance in the area of collective bargaining negotiations. She costs out various management and Union collective bargaining proposals and occasionally brings problems to Currin's attention. However, the facts did not establish that it was reasonably necessary for Miles' position to be designated as confidential to provide protection against the possibility of premature disclosure of management collective bargaining policies, proposals, and strategies.

This Board has repeatedly held that the policies and purposes of Public Employee Collective Bargaining Act (PECBA) require that an employer assume some burden in organizing work to avoid unnecessary extensions of confidential status: "being mindful of the PECBA's built-in incentive for proliferation of confidentials, this Board has long recognized that managerial convenience alone is not reason enough to exclude from the unit more employes than are reasonably necessary to perform the bargaining related tasks." Centennial School District, 5 PECBR at 4347.

While Currin established that Miles' assistance can be very important, the critical assistance took place only in the intensive one- or two-week period before and during the annual budget committee meeting. Currin would not have difficulty performing calculations outside of this period. Viewed in this light, Miles provides limited, specific, backup assistance to Currin during a one- or two-week period of intense work.(3) We have previously held that backup assistance or minimal confidential work is not sufficient to grant confidential status to an employee. Clackamas County, 10 PECBR at 494; AFSCME v. Clatsop County, Case No. UC-4-93, 14 PECBR 434, 439 (1993); Scio School District, 8 PECBR at 6571; and Reynolds School District v. OSEA, 5 PECBR 4461 (1980), reconsid. 6 PECBR 4543, 4552 (1981), aff'd 58 Or App 609, 650 P2d 119 (1982).

The County is particularly concerned about disclosing its intentions and deliberations through the costing-out process. However, this Board has implicitly rejected this argument by holding that certain employees who merely calculated cost summaries for an employer in connection with collective bargaining would not be designated confidential employees. Clatsop County, supra, 14 PECBR at 438-9, citing Pendleton School District 16R v. Oregon School Employees Association, Chapter 115, Case Nos. C-208/218-83, 7 PECBR 6435 (1984). We have also repeatedly stated that fear of a breach of confidentiality alone is insufficient to establish confidential status where the employer has the means to restrict access to confidential material by rule or through security measures. Clackamas County, supra, 10 PECBR at 495, and Tri-County Metropolitan Transportation District of Oregon, supra, 11 PECBR at 803.

In this case, there is no demonstrated need for Miles to attend the County budget committee meetings, which is where the vast majority of sensitive information is disclosed.(4) Currin can communicate the costing information by a handwritten note or telephone call. Most of this material does not reveal the County's intentions and is based on public records already available to the Union. The County identified only one or two areas of great sensitivity, and there was no evidence that Currin's performance of the calculations on these matters would have a significant impact on her workload.

In addition, the County controls the apparent significance, if any, of the proposals it asks Miles to cost-out. Costing-out only one salary increase, of 5 percent, might lead the Union to believe that a 5 percent increase was the County's bottom line, if this information were disclosed. However, in addition to having this work done by Currin or Denton, the County could eliminate any significance by requesting cost information about a range of salary increases, such as 3 to 6 percent. Therefore, it is not reasonably necessary for Miles to be designated as confidential to provide protection against the possibility of premature disclosure of management collective bargaining policies, proposals, and strategies.

The accounting technician position held by Tawny Miles does not satisfy the statutory requirements for confidential employee status.

PROPOSED ORDER

The accounting technician position held by Tawny Miles is not a confidential position and is included in the Union bargaining unit.

SIGNED AND ISSUED this 26th day of July 2000.

1. See also OSEA Chapter 151 v. Linn-Benton Community College, Case No. C-5-84, 8 PECBR 6691, 6702 (1984) (manager who gave general financial information and projections to bargaining team held not to be manager of confidential employees; another manager held not to be manager of confidential employees where he gathered and relayed input and feedback to the bargaining team, discussed negotiations in weekly meetings, and recommended final disposition of grievances to college president); Oregon AFSCME, Council 75 v. Benton County, Case No. C-210-82, 7 PECBR 5973, 5980, 5989 (1983) (health department head was held not to be a manager of a confidential employee where the manager attended a negotiation strategy meeting and regular administrative review group meetings (but not bargaining sessions), supervised and discussed costing of bargaining proposals, development of possible contract language, and department's strike plan, but did not actually make decisions which set management policy); and OSEA Chapter 137 v. Scio School District, Case No. C-210-83, 8 PECBR 6566, 6570-1 (1984) (several school principals were not managers of confidential employees because, though they helped formulate management policy, only the superintendent had the authority to determine policy).

2. See also Oregon Association of Classified Employees v. Centennial School District and Oregon School Employees Association, Case No. C-88-79, 5 PECBR 4340, 4342, 4348 (1981) (assistant superintendent held to be a manager of a confidential employee where he was the chief fiscal officer of the district, had central involvement in all the employer's financial matters, had general supervisory responsibility over four departments, and had, with the personnel director and district superintendent, the final voice in determining management policy in the area of collective bargaining).

3. Neither party presented evidence regarding the amount of time Miles spent on this work except for her attendance at the week of annual budget committee meetings.

4. This Board has held that an employee's access to bargaining information, input into bargaining, and mere presence when bargaining is discussed is insufficient to render the employee confidential. AFSCME v. Eastern Oregon Correctional Institute, Case No. UC-76-87, 10 PECBR 820, 828-9 (1988).