Oregon Cases January 23, 2020: Salem City Attorney's Collective Bargaining Unit v. City of Salem

Case Description

RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

Daryl S. Garrettson, Attorney at Law, Lafayette, Oregon, represented Petitioner.

Jeffrey P. Chicoine, P.C., Attorney at Law, Miller Nash Graham & Dunn, Portland, Oregon, represented Respondent.

On January 23, 2020, Administrative Law Judge B. Carlton Grew issued a recommended order in this matter. The parties had 14 days from the date of service of the order to file objections. OAR 115-010-0090(1). No objections were filed, which means that the Board adopts the attached recommended order as the final order in the matter. OAR 115-010-0090(4).

In these circumstances, OAR 115-010-0090(5) allows the Board to limit the precedential value of the final order. The Board does so in this case. Accordingly, the order is binding on, and has precedential value for, only the named parties in this case.

The petition is dismissed.

DATED: February 13, 2020.

/s/ _________
Adam L. Rhynard, Chair

/s/ _________
Lisa M. Umscheid, Member

/s/ _________
Jennifer Sung, Member

This Order may be appealed pursuant to ORS 183.482.

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(UNIT CLARIFICATION)

RECOMMENDED RULINGS, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND PROPOSED ORDER

A hearing was held before Administrative Law Judge (ALJ) B. Carlton Grew on September 5, 2018, at the offices of the Oregon Employment Relations Board (ERB) in Salem, Oregon. The record closed on October 18, 2019, following submission of the parties' post-hearing briefs.

Daryl S. Garrettson, Attorney at Law, Lafayette, Oregon represented Petitioner.

Jeffrey P. Chicoine, P.C., Attorney at Law, Miller Nash Graham & Dunn, Portland, Oregon represented Respondent.

On June 3, 2019, the Salem City Attorney's Collective Bargaining Unit (Petitioner or Union) filed a petition for unit clarification regarding the inclusion of the Deputy City Attorney (DCA) position in the Union bargaining unit.

On June 24, Respondent City of Salem (City) filed objections to the petition asserting that the DCA position is supervisory under ORS 243.650(23) and the collective bargaining agreement.

The issue in this case is:

Should the existing bargaining unit of "[A]ll career status assistant City Attorney's for the City of Salem, excluding confidential and supervisory employees" be clarified to include the position of Deputy City Attorney?

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We conclude that the DCA position at issue is supervisory and therefore not appropriately included in the bargaining unit. We therefore will dismiss the petition.

The rulings of the ALJ have been reviewed and are correct.

The Parties

1. The City is a public employer within the meaning of ORS 243.650(20). Its employees are organized into several bargaining units. One administrative unit of the City is the Office of the City Attorney. That office includes three units whose employees are relevant to this Petition, a civil litigation unit, a general counsel unit, and a prosecution unit. Throughout the events at issue in this case, the City Attorney has been Dan Atchison.

2. The Union is a labor organization within the meaning of ORS 243.650(13). Prior to the events at issue, the Union represented approximately five Assistant City Attorney IIs (ACAs) in the three units of the City Attorney's office.

3. As of June 10, 2019, the City Attorney's office had seven staff attorney positions: litigation DCA Gaddis; two prosecutors overseen by prosecutor DCA Zimmerman; and three general counsel ACAs who report to and are directly supervised by the City Attorney. The prosecutor ACAs prosecute criminal offenses or violations of the city code in the City of Salem Municipal Court, and handle appeals from that court's decisions. The general counsel ACAs provide general counsel services to various City departments. The litigation DCA, like her litigation ACA predecessor, represents the City against tort claims in state and federal court.

4. As of June 10, 2019, the City Attorney's office had seven non-attorney staff positions: one City Recorder/office manager, one Deputy City Recorder, one paralegal, three legal assistants, and one part-time office support person. All are unrepresented. The City Recorder serves as the office manager and supervises the other employees except for the paralegal and a legal assistant. The City Recorder reports to and is supervised by the City Attorney.

2013 Bargaining Unit Certification

5. On May 8, 2013, the Union filed a petition with this Board seeking recognition of a bargaining unit of "6 Assistant City Attorneys for the City of Salem, Unit includes 3 general counsel attorneys, 1 civil litigator, 2 prosecutors. All attorneys responsible for covering prosecution when staffing needs dictate." (Exh. P-1 at 2.) When the petition was filed, each of the proposed bargaining unit attorneys was classified as an ACA.

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6. The City objected to the petition, arguing that the ACA responsible for litigation (litigation ACA) was not properly included in the bargaining unit. The ALJ's Recommended Order, as adopted by this Board on July 14, 2014, stated in part:

"An appropriate bargaining unit is: Assistant City Attorneys for the City of Salem excluding confidential and supervisory employees . The parties stipulated that [then Acting City Attorney] Atchison is excluded from the bargaining unit as a supervisory employee under ORS 243.650(23), and that [the prosecutor ACA, now the prosecutor DCA] Zimmerman is excluded from the bargaining unit as a confidential employee under ORS 243.650(6). The remaining employees are appropriately included in the bargaining unit." Salem City Attorney's Collective Bargaining Unit v . City of Salem , Case No. CC-004-13 at 2, 26 PECBR 61 at 62 (July 1, 2014) (emphasis added).

7. On October 23, 2014, during bargaining for its first collective bargaining agreement, the Union proposed a recognition clause stating: "The City recognizes the Association as the sole and exclusive bargaining representative under ORS 243.650 et seq. for all Assistant City Attorneys for the City of Salem excluding confidential and supervisory employees." (Exh. P-7.) On December 9, 2014, the City proposed a recognition clause stating:

"The City recognizes the Association as the sole and exclusive bargaining representative under ORS 243.650 et seq . for all career status employees in the classification of Assistant City Attorney I & II. Employees in supervisory or confidential position[s] as defined in ORS 243.650 are neither covered by this contract nor represented by this association." (Exh. P-6.)

The Union rejected the City's proposal.

8. On March 18, 2015, the parties agreed upon the following recognition clause: "The City recognizes the Union as the sole and exclusive bargaining representative under ORS 243.650 et seq. for all career status Assistant City Attorneys I & II for the City of Salem, excluding confidential and supervisory employees." (Exh. P-8.)

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9. Prior to the events at issue here, in early 2018, the Office of the City Attorney had approximately 14 employees: one City Attorney, one DCA, one City Recorder/office manager, five ACAs, a paralegal, a legal assistant, and four other support staff. The City Attorney is the head of this office. At that time, there were two supervisory employees, the City Attorney and the City Recorder. The City Attorney directly supervised the City Recorder, three ACAs, and the confidential DCA. At some point prior to 2018, the prosecutor DCA had become the supervisor of the two ACA prosecutors. The City Recorder supervised the support staff.

10. Until October, 2018, ACA Jane Doe was the City's in-house civil litigator. Previously, the City's litigation unit had consisted of the civil litigator ACA and a legal assistant. Under Doe, the City added a paralegal position funded by the City's self-insurance fund. The paralegal and legal assistant were supervised by the City Recorder.

11. Litigation ACA Doe had difficulties working with the paralegal and litigation assistant. They questioned Doe's work assignments and direction with their supervisor, the City Recorder, who is not an attorney. Mina Hanssen, the City Human Resources Director, coached Doe in working with these employees. During Doe's tenure, two legal assistants transferred out of the unit, and one was terminated.

12. City Attorney Atchison had some concerns that the City Recorder did not completely understand the skills and personality required for civil litigation, and that the shared oversight between the City Recorder and the litigator ACA created room for second-guessing.

13. On September 13, 2018, Atchison emailed HR Director Hanssen the following:

"I've been thinking of adding a second deputy or other senior ACA in the office. Increasingly I have called upon [an ACA] to take on complicated non-risk litigation and involved him in a number of upper management issues. While those are not strictly confidential 'labor' issues, I would like the flexibility to bring him in discussions that may affect employees, and which the unions would likely object to. Because of that I am limited and haven't brought him in on a number of discussions.

"The financial cost would be fairly minimal. Let me know what you think."

(Exh. R-19.)

14. In response to Atchison's query, City Human Resources staff reviewed alternatives for the civil litigator position, including reviewing the responsibilities of civil litigators in other jurisdictions.

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15. On October 2, 2018, the City offered an ACA prosecutor position to a candidate; she accepted the offer.

Adding a Second DCA Position in the City Attorney's Office

16. In October, 2018, litigation ACA Doe left City employment. The City began a recruitment process to fill that vacancy.

17. During the recruitment for the litigation ACA position, HR Director Hanssen discussed the position with her analyst team. On October 16, 2018, Hanssen sent an email to Atchison, stating in part:

"We are recommending that the litigator be a supervisor over the litigation team. The litigator would supervise the paralegal and the legal secretary assigned to litigation. By making the litigator a supervisor the position is no longer represented by the Union. The additional duties would provide for great wage possibilities." (Exh. R-26 at 1.)

18. On October 17, the City Recorder/office manager emailed Hanssen regarding the City Attorney's request to reclassify the vacant ACA position as a Senior Assistant City Attorney. She stated,

"Dan sent me an email asking that I check in with you regarding his request to reclass the position to a senior asst city atty. He said you had indicated language could be put in the job posting that the classification and pay scale are subject to change but he was not sure who would do that. He did not put that in the draft posting * * * so if we are supposed to do that, let me know and I can edit the attachment. He just wanted to be sure it was included." (Exh. R-23 at 2.)

19. On October 18, 2018, HR Director Hanssen responded that the City had no Assistant City Attorney classifications except Assistant City Attorney I and II. Hanssen presented Atchison with three options: (1) Post the position immediately at the current pay and classification. (2) City Human Resources would develop a new classification, Assistant City Attorney III, which would require Union agreement, and City Council adoption, of the pay scale. Such a position could not be posted until adopted by the City Council. (3) The third option was to:

"[M]ake some minor adjustments to [the DCA] classification so that it would include the litigator. The litigator would no longer be part of the union and would need to be given supervisory responsibilities ([over the] paralegal and litigation legal secretary). This option would not require us to negotiate the classification with the union or go to [City] council. You would essentially end up with two supervisors (litigation team and prosecution team). If you decided to go with this option we could post fairly quickly." (Exh. R-22 at 1.)

20. On October 23, 2018, Atchison informed Hanssen that they should not make any changes and see whether the current recruitment succeeded. If the recruitment failed, the City

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could consider reclassifying the position or making other changes. Atchison also stated that he would talk with Hanssen about potential changes in the position for the next budget year.

21. On November 30, the City offered the litigation ACA position to a candidate. On December 3, the candidate declined the offer, stating that her current employer had raised her salary above the City's offer. That same day, Atchison offered to place the candidate on the DCA pay scale, and, the following day, step 7 of that pay scale, but the candidate continued to decline the position, ultimately citing personal reasons. On December 6, Atchison forwarded the candidate's final email declining the position to Hanssen. Hanssen replied, "Well . . . . too bad. Should we prep to repost at the higher position." (Exh. P-11 at 1, ellipses in original.) Atchison replied that they should.

22. On December 6, 2018, Hanssen and Atchison decided to repost the position at the DCA wage scale. Shortly thereafter, Atchison notified the Union about the reclassification of the litigation ACA to DCA; Union officials expressed concerns about the change. Hanssen decided that the City could meet and discuss the issue with the Union but that this reclassification was a management right under the collective bargaining agreement.

23. On December 11, 2018, the City posted the recruitment for a litigation DCA. The posting stated in part:

" The civil litigator works as the lead within the litigation team , comprised of paralegal , legal assistant , and other city attorneys who assist with case preparation and prosecution ."

(Exh. P-18 at 1, emphasis added.)

Other than the language emphasized above, the posting did not refer to any supervisory role, and did not state that supervisory experience was necessary or desirable to perform the litigation DCA duties.

24. On December 12, 2018, Atchison emailed City Attorney staff that the litigation ACA recruitment had failed, the City had opened a new recruitment, the position would be posted as a DCA, and the DCA would "oversee the litigation team and have direct supervisory responsibilities over the paralegal and legal assistant positions and other attorneys who assist in litigation matters." (Exh. R-27.) On December 19, the Union demanded to bargain over the change. The City agreed to bargain.

25. The December recruitment failed, and the City hired a professional recruiting firm. On February 12, 2019, the recruiting firm sent a position profile checklist to the City, which was filled out by Atchison. The sole mention of a supervisory role was the following language: "The civil litigator works as the lead within the litigation team, comprised of a paralegal, legal assistant, and other city attorneys who assist with case preparation and prosecution." (Exh. P-28 at 5.) The position title used by the City Attorney was "Deputy City Attorney - Civil Litigation." (Exh. P-28 at 5.)

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26. On February 13, 2019, pursuant to the City Attorney's December 10, 2018 request, the City HR department issued a Position Classification Review of the vacant litigation attorney position, formally reclassifying it from ACA to DCA effective December 10, 2018. The review states in part,

"The legal department requested reclassification of a vacant Assistant City Attorney II to Deputy City Manager [ sic ] after a failed recruitment. The position is responsible [for] providing civil litigation services for the City, and representing the City and the Urban Renewal Agency in a wide variety of claims. The position serves as lead over the litigation team over other assistant city attorneys , a paralegal and legal assistants , and serves as general counsel for assigned City departments. The scope of duties and requirements of the civil litigator is more closely aligned with the Deputy City Attorney job classification in that it requires more experience in representing local governments or equivalent in order to represent the City in civil litigation matters." (Exh. P-36 at 2, emphasis added.)

27. The parties had their last bargaining session on March 12, 2019. The statutory 90-day bargaining period ended on March 19.

28. The final recruitment announcement, on March 14, used the same position title and litigation team lead language as before.

29. While the published recruitment material used the terms "lead" and "oversee," but not "supervise," Atchison believed that applicants outside the Oregon labor law community would likely not know the differences between those terms as used under the Public Employee Collective Bargaining Act (PECBA).

30. In his discussions with the ultimately successful candidate for this position, Atchison told the candidate that she would have hiring, firing, and assignment authority over the paralegal and legal assistant. Atchison viewed this information as an inducement to the candidate to accept the position.

31. On May 7, 2019, City Attorney Atchison announced that the City had hired Jenn Gaddis for the litigation DCA position. On May 8, Hanssen informed the Association that the City would implement its proposal to move the litigation ACA duties out of the bargaining unit to the DCA position, and to provide a one percent pay increase to the ACAs.

32. Gaddis began work on June 3, 2019.

33. Also on June 3, 2019, the Union filed this petition.

Litigation DCA Gaddis' responsibilities

34. Two of DCA Gaddis' previous jobs included supervisory responsibilities: chief administrative prosecutor for the Bureau of Labor and Industries; and chief deputy district attorney. As litigation DCA, Gaddis oversees two positions, a paralegal (temporarily vacant at the time of hearing) and a legal assistant. The litigation unit continues to defend the City against tort

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claims and oversees and coordinates with outside counsel. DCA Gaddis also provides counsel to the City's risk division and appears in court on behalf of the City.

Assignment and direction of work

35. DCA Gaddis sets the work hours of her two subordinates, reviews and approves their flexible schedules, and approves adjustments to those schedules. Gaddis reviews and approves time cards, requests for time off and adjusted work hours. For example, Gaddis has approved compensatory time in lieu of overtime pay when her assistant worked overtime; approved a request for flexing a schedule in August, but refused to do so for that December, stating that December was too far into the future; granted various schedule changes based on an employees need for medical leave; and granted the legal assistant the day off.

36. Gaddis generally makes these adjustments without any input from the City Attorney or any other superior to Gaddis. Gaddis has consulted with Human Resources staff regarding how certain leave events should be handled under City policies.

37. DCA Gaddis assigns work to her legal assistant and paralegal, depending on the skill required for the assignment and the skill and training of the two employees. However, as of the time of hearing, the paralegal Gaddis was to oversee had been on medical leave, on administrative leave pending an investigation, and then no longer employed by the County, leaving the paralegal position effectively vacant from early June, 2019, until the time of hearing.

38. The work Gaddis has assigned to the legal assistant includes drafting pleadings such as an answer and a response to a document request; compiling and labeling exhibits; adding exhibit citations to a submission in a legal proceeding; drafting correspondence; scheduling meetings; and managing contact with a prison in a case involving a prisoner. Gaddis has chosen not to have her legal assistant perform research, filing, or reviewing records.

39. Gaddis is responsible for the work product of the litigation unit. If a paralegal drafted, and Gaddis filed, an insufficient pleading, Gaddis would be held accountable by both the tribunal and the City Attorney.

Discipline and discharge

40. In early June, 2019, City officials discovered that litigation paralegal MC, one of Gaddis' subordinates, had possibly abused her work access to the Police Records Management System (PRIORS) database and the State Law Enforcement Data System (LEDS). PRIORS contains information such as police reports and witness statements; LEDS holds information about arrests and convictions. An investigation determined that (1) MC looked up certain individuals based solely on her personal life; (2) MC had a previous criminal conviction which disqualified her from having any access to the database in any event; (3) access to PRIORS and LEDS was a requirement for MC's position; and (4) another employee of the litigation unit, legal assistant TP, had assisted MC in looking up the individuals in question.

41. DCA Gaddis, with substantial assistance from Human Resources staff, oversaw MC's disciplinary process. Human Resources associate Kirsten Madigan performed an

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investigation, and provided Gaddis with the information she obtained. The State Police also conducted an investigation, and DCA Zimmerman acted as the City Attorney liaison for that investigation. Gaddis, however, formally made the decisions for the City during the process, and she alone signed the relevant notices to MC. Those decisions included placing MC on administrative leave, determining that the investigation was complete, and concluding that there was cause to terminate MC. In drafting these notices, Gaddis referred to similar notices that the City had issued before. City Attorney Atchison did not participate in the decision to hold the due process hearing or in drafting the notice. Gaddis was the sole signatory of the notices of possible misconduct and termination.

42. After the due process hearing notice was issued, Gaddis agreed to MC's requests to change the hearing date and to bring a third-party observer. Gaddis attended the hearing with Human Resources associate Madigan and then decided to terminate MC. The decision to terminate MC was based on MC's inability to lawfully access the PRIORS and LEDS criminal databases, an essential function of her position, and was therefore a foregone conclusion.

43. Gaddis informed Atchison of the results of the investigation and her decision to terminate MC. Atchison accepted Gaddis' decision and did not conduct his own investigation.

44. Gaddis was responsible for determining whether legal assistant TP should be disciplined for assisting MC in improperly accessing the databases. Gaddis chose to issue TP a counseling and an oral reprimand, and documented the counseling in a note in TP's personnel file. Gaddis understood that she was authorized to issue more significant discipline.

45. Prosecutor DCA Zimmerman has held the lead prosecutor's position since at least 2015. At the time of the bargaining unit certification in 2014, Zimmerman was an ACA, but the Union stipulated that she was excluded from the bargaining unit as a confidential employee under ORS 243.650(6). She has provided labor relations and collective bargaining assistance to City management since that time. DCA Zimmerman oversees the City's prosecution unit, which is Zimmerman and two ACAs who prosecute criminal offenses or violations of the city code in the City of Salem Municipal Court and handle the resulting appeals.

46. DCA Zimmerman sat on hiring interview panels as one of three panel members. She exercised her judgment and discretion in deciding whether to accept or reject the panel recommendation, undertake additional interviews, check applicant references, and evaluate information obtained in the additional interviews and reference checks. Zimmerman has also evaluated the work of new hires on trial service, deciding whether to promote a hire from trial service to career status. In one instance, Zimmerman decided to extend the trial service period for a new prosecutor and put him on a work plan.

47. At the time of hearing, the City was recruiting to hire paralegal MC's replacement. Gaddis was overseeing the hiring. She decided on test questions for the applicants, had the

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authority to accept or reject panel recommendations, and the authority to direct a new recruitment if she was not satisfied with the field of candidates selected for interview or the candidate picked by the panel.

48. The City has granted DCA Gaddis the authority to evaluate the new hire's performance during and following their trial service period and deciding whether to grant the new hire permanent status.

49. The City intends that the relatively new litigation DCA Gaddis perform actions regarding hiring, discipline, trial service completion, assignment, and other supervisory functions with the same level of authority and discretion demonstrated by the longer-serving DCA Zimmerman.

The issue in this case is:

Should the existing bargaining unit of "[A]ll career status assistant City Attorney's for the City of Salem, excluding confidential and supervisory employees" be clarified to include the position of Deputy City Attorney?

We conclude that the DCA in the City's litigation unit is a supervisory employee and therefore not appropriately included in the existing bargaining unit.

Standards of Decision

Under the PECBA, "[p]ublic employees have the right to form, join and participate in the activities of labor organizations of their own choosing for the purpose of representation and collective bargaining with their public employer on matters concerning employment relations." ORS 243.662. However, "supervisory employees" are not "public employees" as defined by the statute and cannot be appropriately included in a bargaining unit. ORS 243.650(19); Office and Professional Employees International Union , Local #11 v . City of Hillsboro , Case No. RC-4-99 at 6-7, 18 PECBR 269, 274-75 (1999).

To determine supervisory status, this Board determines whether an employee meets the specific criteria set out in ORS 243.650(23). That provision defines a "supervisory employee" as:

"any individual having authority in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively recommend such action, if in connection therewith, the exercise of the authority is

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not of a merely routine or clerical nature but requires the use of independent judgment."

This Board analyzes these factors by applying three questions to each of them. These three questions must be answered in the affirmative for at least one factor for an employee to be deemed a supervisory employee: (1) Does the employee have the authority to take action or to effectively recommend action be taken in any one of the 12 listed activities? (2) Does the exercise of that authority require the use of independent judgment? (3) Does the employee hold the authority in the interest of management? City of Portland v . Portland Police Commanding Officers Association , Case No. UC-017-13 at 22-23, 25 PECBR 996, 1017-18 (2014) (citing Deschutes County Sheriff's Association v . Deschutes County , Case No. UC-62-94 at 12-13, 16 PECBR 328, 339-40 (1996)).

For an employee to effectively recommend actions, his or her position must be given substantial credence more often than not. Oregon AFSCME , Council 75 v . Benton County , Case No. C-210-82 at 14, 7 PECBR 5973, 5986 (1983). Evidence of an effective recommendation can be found by a lack of any independent review or investigation of the recommendation by a higher level supervisor. City of Portland , UC-017-13 at 22-23, 25 PECBR at 1017-18 (citing American Federation of State , County and Municipal Employees , Council 75 v . Lane County Sheriff's Office , Case No. C-281-79 at 11, 5 PECBR 4507, 4517 (1981)).

When determining whether an individual exercises independent judgment , we may consider related factors such as whether superiors reinvestigate matters handled by the individual and whether the individual merely follows a recipe provided in a management cookbook. Department of Administrative Services v . Oregon State Police Officers Association , Case No. UC-35-95 at 15, 16 PECBR 846, 860 (1996) (citing International Association of Firefighters , AFL-CIO , Local No . 314 v . City of Salem , Case No. C-96-83, 7 PECBR 6163 (1983)); Lane County Sheriff's Office , C-281-79 at 11, 5 PECBR at 4517.

To determine whether a purported supervisor acts in the interests of management , we consider facts including whether the employee acts as more than a mere lead worker who ensures that day-to-day tasks are completed; enforces the employer's management culture and particular approach to its mission; acts with awareness of a hierarchical structure and a management expectation that employees respect the supervisor's authority to responsibly direct them; and ensures that employees act in a manner consistent with the employer's goals. Keizer Police Association v . City of Keizer , Case No. UC-004-18 at 57-8, ___ PECBR ___, ___ (May 28, 2019).

In a unit clarification case such as this one, no party bears a burden of proof. OAR 115-010-0070(5)(a). Nevertheless, because a "supervisory employee" is a statutory exclusion from the otherwise broadly defined term "public employee," there must be sufficient evidence in the record to establish that the statutory exclusion applies before we may conclude that an otherwise "public employee" is a "supervisory employee." This Board has stated that mere inferences and conclusory statements regarding supervisory authority are insufficient to render an employee a statutory "supervisor." City of Coquille Police Officers Association v . City of Coquille , Oregon , UC-002-18 at 29-30, 27 PECBR ___ at ___ (citing City of Portland v . Portland Police

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Commanding Officers Association , Case No. UC-017-13 at 24, 25 PECBR 996, 1019 (2014)). Accordingly, without detailed, specific evidence establishing that a putative "supervisor" has authority under the statutory criteria, we will conclude that the employee is a "public employee" covered by the PECBA and not a "supervisory employee" under ORS 243.650(23). City of Portland , UC-017-13 at 23, 25 PECBR at 1018.

Hiring

While the litigation DCA is a new employee in a new position, the record demonstrates that the City Attorney has deferred substantial authority in hiring to DCA Gaddis, and the City's expectation is that Gaddis will exercise that authority with the hiring of a new paralegal and in the future.

Gaddis was responsible for initiating the process to hire a new paralegal and to write and approve application test questions. Gaddis was the supervisor overseeing the hiring. She had the authority to accept or reject panel recommendations. She also had the ability to direct a new recruitment if she was not satisfied with the field of candidates selected for interview or the candidate picked by the panel. Gaddis will be responsible for evaluating the new hire's performance during and following their trial service period and deciding whether to grant the new hire permanent status.

To support a conclusion that Gaddis will, in fact, exercise these powers in the hiring process, the City points to the longer-serving DCA Zimmerman. Zimmerman sat on interview panels as one of three panel members, but also exercised her judgment and discretion in deciding whether to accept or reject the panel recommendation, undertake additional interviews, and undertake reference checks, and in deciding on information obtained in the additional interviews and reference checks. Further, Zimmerman evaluates the work of new hires on trial service, deciding whether to promote a hire from trial service to career status.

Because Gaddis, like Zimmerman, will do more than participate in interview panels with a single vote equal to other panel members, this is not a situation in which her role in hiring "is essentially no greater than that of any participating subordinate * * * ." City of Coquille , UC-002-18 at 16, 27 PECBR at 584 (citing City of Portland , Case No. UC-017-13 at 24, 25 PECBR 996, 1019). The litigation DCA's responsibilities in hiring are more akin to the police sergeants in Teamsters Local 206 v . City of Reedsport , UC-46-98 at 8, 18 PECBR 189, 196 (1999), and Jackson County Sheriff's Employees Association v . Jackson County and Jackson County Sheriff's Department , Case No. UC-10-89 at 17-19, 12 PECBR 322, 338-40 (1990), where, after a panel interview, the sergeants undertook background investigations and then made an effective recommendation to the police chief regarding the hiring.

Further, while being responsible for evaluating other employees is not one of the 12 factors in the test for supervisory status, this Board will consider evaluations when they are "a factor in making personnel decisions that relate to" one of the 12 factors. City of Coquille , UC-002-18 at 18, 27 PECBR at 586 (internal quotation marks and citation omitted). See also SEIU Local 503 v . Portland State University , Case No. UC-002-17 at 14, 27 PECBR 222, 235 (2018), and City of Portland , UC-017-13 at 30, 25 PECBR at 1025 (advancement to trial service was routine and not

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a promotion as used in the 12-factor test). The evidence in this case is that graduating from trial service as an attorney in the City Attorney's Office is not a routine matter; DCA Zimmerman has extended the trial service of an employee and put him on a work plan when she believed that passing the employee from trial service to regular status was not warranted. Both Zimmerman's extension of an employee's trial service period and the imposition of a work plan on that employee imply that Zimmerman had the authority to conclude that the employee had failed their trial service and were not suitable for the relevant position.

City Attorney Atchison deferred to Zimmerman's decisions regarding hiring without undertaking an independent review. "Evidence of an effective recommendation can be found by a lack of any independent review or investigation of the recommendation by a higher level supervisor." City of Coquille , UC-002-18 at 13, 27 PECBR at 581 (citing City of Portland , UC-017-13 at 22-23, 25 PECBR at 1017-18). This includes her assessment of the references and need for and evaluation of second interviews, her decision whether to accept the panel recommendation, and her evaluation of the new hire's trial service performance and promotion to career status. While largely prospective, because Gaddis is a new employee in a new position, the evidence presented by the City is credible and clear that it intends that Gaddis hold the power to effectively recommend the hiring of an employee, and will follow the model set by Zimmerman's preexisting DCA position.

Finally, we conclude that the litigation DCA holds the authority to responsibly direct her hiring activities in the interests of management. The Union does not challenge on whose behalf DCA Gaddis exercises her authority, and there is no evidence that the DCA's actions in the hiring process are not in the customary alignment with management interests that such a responsibility entails. DCA Gaddis has been granted the authority to fill the future needs in the workplace through her hiring decisions.

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We conclude that the litigation DCA has the authority to take action or to effectively recommend action be taken regarding City hiring, that the exercise of that authority requires the use of independent judgment, and holds that authority in the interest of management.

Discipline and discharge authority

This Board has stated,

"There are few more fundamental supervisory functions than the exercise of authority to assess culpability on the basis of an investigation, or to conclude that the evidence is insufficient to ascribe fault one way or another, thereby effectively exculpating the accused." City of Salem , UC-58-88 at 17-18, 12 PECBR at 124-25, quoted in Jackson County , UC-10-89 at 20, 12 PECBR at 341.

This Board has, on occasion, considered five aspects of the discipline process: (a) how the process is initiated; (b) who investigates the conduct in question; (c) who defines and determines culpability; (d) how and by whom the type and severity of discipline is determined; and, (e) who imposes the discipline and in what manner. Department of Administrative Services v . Oregon State Police Officers Association , Case No. UC-35-95 at 18, 16 PECBR 846, 863 (1996).

Gaddis' ultimate decision to terminate MC was a foregone conclusion; Gaddis had substantial support from the City's Human Resources officials in making that decision; and, at the time the decision was made, Gaddis had been the litigation DCA for only three months. Nevertheless, the evidence in the record demonstrates that Gaddis was the City official responsible for overseeing the process and bringing it to a conclusion. Gaddis decided to put MC on administrative leave, drafted and issued the due process notice, identifying herself as the decisionmaker, articulated the grounds for termination, and made and signed the decision to terminate MC. The City Attorney deferred to Gaddis' decisions during the process. Regarding legal assistant TP, Gaddis investigated TP's conduct and made the decision to exercise her discretion to verbally counsel rather than issue a written reprimand. Gaddis' decision was not independently reviewed or overridden by the City Attorney.

As the City notes, a decision not to discipline an employee is not as illustrative of supervisory status as is a decision to discipline. Nevertheless, the actual capacity to make such a decision tends to support a determination that the decisionmaker is supervisory. Here, the record demonstrates that Gaddis did make a decision whether, and at what level, to discipline legal assistant TP.

The Union argues that the litigation DCA's role in the paralegal's termination was meaningless given that the paralegal could not remain in her position because of her criminal background. Nevertheless, someone had to oversee the paralegal's disciplinary process, use her authority to formally issue the required notices and issue the termination. DCA Gaddis was that person. In addition, the evidence in the record demonstrates that the City Attorney and litigation DCA both understand that the DCA has the disciplinary power the DCA exercised in the paralegal situation and declined to exercise in the legal assistant situation.

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We also conclude that the litigation DCA holds hold the authority to responsibly direct her disciplinary activities in the interests of management. DCA Gaddis holds her subordinates accountable for violations of the City's rules. The record demonstrates that DCA Gaddis is aware of, and accepts a responsibility to, ensure that her subordinates act in a manner consistent with the goals of the City Attorney's Office. We conclude that the litigation DCA holds the authority to responsibly direct discipline in the interests of City management.

We conclude that the litigation DCA has the authority to take action or to effectively recommend action be taken regarding the discipline of litigation department staff, that the exercise of that authority requires the use of independent judgment, and that she holds that authority in the interest of management.

Assign work

This Board defines "assign" as "the act of designating an employee to a place (such as a location, department, or wing), appointing an employee to a time (such as a shift or overtime period), or giving significant overall duties, i . e ., tasks, to an employee.' City of Portland , 25 PECBR at 1021." Hillsboro Sergeants' Association v . City of Hillsboro , Oregon , CC-009-14 at 5, 26 PECBR 491, 495 (2015) (internal quotation marks and citation omitted).

Gaddis has assigned work to her legal assistant and the evidence in this case indicates that she would do the same with the new paralegal. She has also chosen to assign certain duties to the legal assistant such as drafting pleadings and correspondence, and compiling and labeling exhibits. She has also chosen not to assign certain duties to the legal assistant, such as research, filing, or reviewing records. The litigation DCA also, through flexible schedules and short term schedule adjustments, assigned her staff to work at particular times.

We conclude that the litigation DCA has the authority to take action or to effectively recommend action be taken regarding assignment, and that the exercise of that authority requires the use of independent judgment. We also conclude that the litigation DCA holds hold the authority to responsibly direct her disciplinary activities in the interests of management. DCA Gaddis looks towards the present and potential future needs of the litigation unit in granting and denying leave, and coordinates with City Human Resources staff regarding management expectations regarding employee leave. On this record, we conclude that the litigation DCA holds the authority regarding the assignment of work to responsibly direct in the interests of Department management.

Additional Union arguments

In its post-hearing brief, the Union devotes most of its text to making the following arguments: (1) the DCA position is part of the bargaining unit under the collective bargaining agreement; (2) making the litigation DCA position supervisory creates an unfavorable ratio of management employees versus bargaining unit employees; and (3) the timing and manner of the creation of the DCA position suggests that it was simply a device to remove work from the bargaining unit. We will deal with each in turn.

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DCAs and the collective bargaining agreement

The Union argues that the DCA position is part of the bargaining unit pursuant to the original petition for certification and the parties' collective bargaining agreement. The recognition clause of the collective bargaining agreement states, in part: "The City recognizes the Union as the sole and exclusive bargaining representative under ORS 243.650 et seq. for all career status Assistant City Attorneys I & II for the City of Salem, excluding supervisory and confidential employees ." (Finding of Fact 7, emphasis added.) However, it is not necessary for us to address this argument in light of our conclusion that the DCA position at issue is supervisory , and the fact that the parties have already agreed that the other DCA position is excluded from the bargaining unit as confidential. We make no determination of the bargaining unit status of any additional DCAs added to the City Attorney's Office.

Supervisory ratio

The Union argues that the DCA position should be held to be part of the bargaining unit because making this DCA position supervisory was unnecessary and creates an inappropriate ratio of management employees to bargaining unit employees. However, the issue we must determine is whether this DCA's duties are supervisory, not whether it was necessary, or creates a certain supervisory ratio, to give those duties to this DCA. The menu of choices available to an employer considering giving a position supervisory duties to an employee is irrelevant to the determination of supervisory status under ORS 243.650(23).

This Board has stated,

"We have rarely even mentioned the ratio of supervisors to bargaining unit personnel, instead focusing on the authority of the alleged supervisors. See Portland Fire Fighters' Association . Local 43 , IAFF v . City of Portland , Case No. UC-59-92, 14 PECBR 726, 737 (1993) (the ratio of 5 supervisors to 600 bargaining unit employees is insignificant; the 'strong lead workers' were determined not to be supervisors where they 'effectively run the division without the need to exercise independent judgment' due to having detailed general orders); AFSCME , Council 75 , Local 2975 v . City of Corvallis , Case No. UC-73-85, 9 PECBR 8859 at 8870, n.2 (1986) (absent evidence of employer subversion of statutory rights or evidence that the delegation of authority is 'ostensible but not real,' certain personnel held to be supervisors); SEIU v . Salem Child Development Center , Case No. R-11-84, 8 PECBR 6760 (1985) (private sector jurisdiction); Teamsters Local Union No . 223

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v . City of Wilsonville , Case No. C-123-81, 6 PECBR 4925 at 4933, n.2 (1981) ('We believe the question of supervisory status must logically and equitably depend on the specific facts of each case, rather than on any particular number of employes allegedly supervised.')." Sisters Police Association v . City Of Sisters , Case No. RC-46-96 at 7 n. 12, 17 PECBR 212, 220 n. 12 (April, 1997).

We adhere to our longstanding refusal to consider the necessity of a supervisory position or the resulting supervisory ratio. This Board's approach is consistent with the statutory requirements, and the diversity of size and function of public employment in this state. We do not consider the supervisory ratio created by a new supervisory position, but whether the actual duties and authority granted to and exercised by the position meet the statutory definition of a supervisor. We reject the Union's argument that the supervisory ratio created with the litigation DCA's duties lead to a different result in this case.

Motive to subvert PECBA rights

Finally, the Union argues the supervisory status at issue here is a sham and an artifice to remove the litigation ACA/DCA from the bargaining unit. As explained above, we have concluded that the litigation DCA meets the statutory definition of supervisor and that status, therefore, is not a sham or "ostensible but not real." Corvallis , Case No. UC-73-85 at xx, 9 PECBR at 8870 n.2.

As to the artifice to subvert PECBA rights, the Union argues that:

"The Petitioner recognizes that the City presented evidence that the incumbent was involved in the termination of an employee and that this evidence if accepted would in normal circumstances be sufficient to exclude the position from the bargaining unit. However, the ERB has long recognized that the assignment of supervisory status for the purpose of depriving an employee of PECBA rights or as a sham will not result in the exclusion of an employee from the bargaining unit.

"Absent evidence of employer subversion of statutory rights or evidence that the delegation of authority is 'ostensible but not real' certain personnel has held to be supervisors. Sisters Police Association v City of Sisters , RC-46-96, 17 PECBR 212 (1997), [quoting City of Corvallis , Case No. UC-73-85, 9 PECBR at 8870 n.2 (1986)].

"* * *

"The addition of supervisory duties, is done for the purpose of subverting the PECBA rights of the employee to join a labor organization, and to negotiate for his or her conditions of employment. The fact that a termination occurred, does not in this case establish supervisory duties in that the employee in question was instructed through the process and that there was not a need for this employee to conduct this matter other than a petition was pending and the City seized upon that

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as an opportunity to cover up the misconduct they had engaged in." Union Post-Hearing Brief at 12, 17-18.

First, the term "subversion" appears only in the Corvallis case (1986) and the Sisters case (1997). In both cases, the remark is dicta, and it has not been repeated since. The Union cites no case in which this Board's determination of supervisory status was actually based on the employer's motive for creating that status. More recently, this Board has stated that even if the timing of assignment of supervisory duties supported an inference that the assignment was issued in reaction to union organizing activities, "our decision in this case would not be different without further evidence to support a finding that the supervisory powers assigned to [putative supervisors] are illusory rather than real ." Teamster Local Union No . 670 v . Yamhill County Sheriff's Office , Case No. UC-25-95 at 11, 16 PECBR 344, 354 (February 1995) (emphasis added). To the extent "subversion" of PECBA rights was ever considered by this Board to be a bar to finding an employee to be a supervisor, that position has been repudiated by Yamhill County .

The reasons why this Board has never based a determination of supervisory status on an employer's motive in granting that status are readily apparent. First, the question posed by the statute and regulations is whether the position is supervisory, not whether it was created with the motive to remove a position from a bargaining unit to deprive employees of PECBA rights. Moreover, there is no statutory remedy under the PECBA unit composition provisions if an employer gives a position supervisory duties to alter the composition of a bargaining unit. The PECBA does not grant this Board the power to strip an employee of supervisory duties in a unit composition case, and the statute bars this Board from including a statutory supervisor in a bargaining unit. Issues of employer motive to deprive an employee of their PECBA rights are addressed in the unfair labor practice section of the statute, ORS 243.672 et seq ., not the section regarding bargaining unit composition.

While an employer's motive is not relevant to the PECBA's treatment of an actual statutory supervisor position, that motive may be relevant to the credibility of an employer's evidence that the position at issue is in fact supervisory. Yamhill County , supra . Here, however, we have determined that the litigation DCA does, in fact, have supervisory authority. We also note that direct supervision of the litigation paralegal and legal assistant existed before the creation of this DCA position - the supervisory duties at issue have been transferred from another position, not invented for the litigation DCA. For similar reasons, since a low level manager supervised these employees before, it is believable that those duties have actually been transferred to another low level manager rather than, as the Union contends, evidence of the creation of a mere pretense of DCA supervision while the City Attorney performs the actual supervision. The Union does not argue that the City Recorder/office manager was not a supervisor, or that she did not supervise the paralegal and legal assistant prior to the creation of DCA Gaddis' position, or that the City Recorder continues to supervise those employees since that position was created. The facts of this case reflect a transfer of supervisory duties over two employees from one supervisory position to another, not creation of a supervisory relationship out of whole cloth.

In any event, the evidence in this record suggests that the primary reason for the City's decision to grant supervisory powers to the litigation DCA was to enable the City Attorney to offer

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compensation and responsibilities for the position sufficient to attract a worthy candidate without having to go through the lengthier process of obtaining approval from both the Union and the City Council. The change in the position followed a lengthy process of recruitment that did not generate a viable candidate to take the position as an ACA.

We conclude that the litigation DCA position is supervisory under ORS 243.650(23). Therefore, we will dismiss the Petition.

The Petition is dismissed.

SIGNED AND ISSUED 23 January 2020.

/s/ _________
B. Carlton Grew
Administrative Law Judge

NOTE: The Employment Relations Board's rules provide that the parties shall have 14 days from the date of service of a recommended order to file specific written objections with this Board. (The "date of filing objections" means the date objections are received by this Board; "the date of service" of a recommended order means the date this Board mails or personally serves it on the parties.) A party that files objections to a recommended order with this Board must simultaneously serve a copy of the objections on all parties of record in the case and file proof of such service with this Board. The objections must be mailed, emailed, faxed, or hand-delivered to this Board. Email filings should be directed to ERB.Filings@oregon.gov . This Board may disregard the objections of a party that fails to comply with those requirements, unless the party shows good cause for its failure to comply. ( See Board Rules 115-010-0010 (10) and (11); 115-010-0090; 115-035-0040; and 115-070-0055.)