King County, Decision 12859 (PECB, 2018)

 

STATE OF WASHINGTON

 

BEFORE THE PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

In the matter of the petition of:   WASHINGTON STATE COUNCIL OF COUNTY AND CITY EMPLOYEES   Involving certain employees of:   KING COUNTY

CASE 129501-E-17   DECISION 12859 - PECB     ORDER OF DISMISSAL

 

Ed Stemler, General Counsel, for the Washington State Council of County and City Employees.

Kristi D. Knieps, Senior Labor Negotiator/Litigator, for King County.

 

On June 28, 2017, the Washington State Council of County and City Employees (union) filed a petition to represent the bailiffs employed by King County (employer).  The employer contended that the bailiffs are exempt from the definition of “public employee” and from collective bargaining under Chapter 41.56 RCW because they are personal assistants to superior court judges.  On November 16, 2017, Hearing Officer Dario de la Rosa conducted a hearing to take testimony and evidence regarding the employer’s challenge.  On January 19, 2018, the parties filed post‑hearing briefs.

 

The petitioned-for employees are “personal assistants” to superior court judges under RCW 41.56.030(11)(e) and, as such, are excluded from collective bargaining under the statute.  The union’s petition is dismissed.

BACKGROUND

The employer operates the King County Superior Court (KCSC), which is a general jurisdiction trial court with four locations in King County.  Currently, the KCSC is comprised of 53 judges, 9 court commissioners, 53 bailiffs, and approximately 284 other employees.  The judges are elected by a vote of the people.  Laura Inveen serves as the presiding judge of the KCSC.  The judges, bailiffs, court commissioners, and other judicial officers report directly to the presiding judge.  The presiding judge also leads the Executive Committee of Judges, which consists of 14 judges who are elected to the committee by all 53 judges.

 

All 53 judges also appoint the chief administrative officer, who reports directly to the presiding judge.  The chief administrative officer oversees the administrative functions and operations of the court.  Paul Sherfey is the chief administrative officer.  Sherfey oversees several departments and sections within the KCSC, including the Department of Judicial Administration, Juvenile Court Services, Family Court Operations, Court Operations, Information Services, Human Resources, and Facilities and Security.

 

Each judge may hire one bailiff, who serves as the public representative of the appointing judge and acts as a sworn officer of the court.  A bailiff primarily serves as a specific judge’s case manager, trial administrator, executive assistant, and liaison with respect to attorneys, litigants, jurors, and the general public.  Each bailiff works almost exclusively in the courtroom for the appointing judge, except during periods when the judge allows the bailiff to fill in for absent bailiffs in other courtrooms.

 

Each judge determines the hiring process and criteria as well as the tenure for his or her bailiff.  The bailiff serves in an at-will status at the discretion of the judge.  Some judges prefer recent law school graduates whereas others prefer experienced bailiffs regardless of educational background.  Recruitment of bailiffs is left to the judges individually, with some relying on word of mouth to locate bailiffs while others send out job notices to local law schools.  Certain judges appoint bailiffs for specific periods of time, such as one to two years, while other judges retain their bailiffs throughout the judges’ tenures.  Unless appointed by another judge, a bailiff’s employment ends with the tenure of his or her judge.

 

The Executive Committee of Judges created a set of bailiff policies, which were adopted by all of the judges in January 2015.  The policies cover such topics as appointments, working conditions, and how leave benefits are administered.  Some individual judges have also adopted policies specific to their courtrooms that bailiffs are expected to adhere to when working for those particular judges.

 

A bailiff’s leave requests are reviewed and approved by the appointing judge.  Several judges and bailiffs have developed a practice of taking leave at the same time.  Alternatively, if a bailiff is on leave or absent for a period of time, a judge can request coverage from other bailiffs.  Court Operations is heavily involved in coordinating coverage for absent bailiffs by locating available bailiffs and assigning them to courtrooms in need.  Given the size of the KCSC operations, coverage is an ongoing need and is done largely on a voluntary basis.  The KCSC adopts an “all‑hands-on-deck” mentality when coverage is required, but each judge makes the final decision over whether his or her bailiff can volunteer in another courtroom.

 

Each courtroom also has a court clerk who is hired by and works within the Department of Judicial Administration.  The court clerk is largely responsible for maintaining official written records of court proceedings and managing court documents.  Court clerks may be assigned to specific courtrooms, but in recent years the employer has developed more of a pool assignment process whereby clerks may work and perform different functions in various courtrooms.  The judges have relatively little interaction with the court clerks, are not responsible for hiring the court clerks, and have no authority over the employment of the court clerks.

ANALYSIS

Applicable Legal Standards

The Washington State Legislature delegated to this agency the authority to determine appropriate bargaining units for purposes of collective bargaining.  City of Richland, Decision 279-A (PECB, 1978), aff’d, International Association of Fire Fighters, Local 1052 v. Public Employment Relations Commission, 29 Wn. App. 599 (1981), review denied, 96 Wn.2d 1004 (1981).  In assessing the appropriateness of a bargaining unit, this agency discerns whether a community of interest exists among the employees sufficient to enable them to bargain effectively with their employer.  Quincy School District, Decision 3962-A (PECB, 1993), aff’d, Public School Employees of Quincy v. Public Employment Relations Commission, 77 Wn. App. 741 (1995), review denied, 127 Wn.2d 1019 (1995).  Inherent in that examination is the obligation to ensure the bargaining unit does not contain employees who are excluded from collective bargaining.  See, e.g., State – Transportation, Decision 8317-B (PSRA, 2005) (explaining that “internal auditors” at state agencies are excluded from collective bargaining and cannot be included in any bargaining unit).

Personal Assistants

RCW 41.56.030(11) broadly defines a “public employee” as

 

any employee of a public employer except any person . . . (e) who is a personal assistant to a district court judge, superior court judge, or court commissioner.  For the purpose of (e) of this subsection, no more than one assistant for each judge or commissioner may be excluded from a bargaining unit.

 

The words used within a statute must be given the full effect intended by the Legislature.  State – Transportation, Decision 8317-B (PSRA, 2005).  A statute’s subject matter and the context in which a word is used must also be considered.  Chamberlain v. Department of Transportation, 79 Wn. App. 212, 217 (1995).  Statutes must be interpreted and construed so that all language used is given effect and no portion is rendered meaningless or superfluous.  Whatcom County v. City of Bellingham, 128 Wn.2d 537 (1996).

 

“Personal assistant” is not defined in any part of Chapter 41.56 RCW.  Absent a specific definition, contrary legislative intent, or ambiguity, words in statutes are accorded their plain and ordinary meaning.  State v. Gonzalez, 168 Wn.2d 256, 263 (2010); see also City of Yakima, Decision 3503-A (PECB, 1990).  Statutes are not ambiguous merely because different interpretations are conceivable.

 

In this case, it is necessary to turn to the ordinary meaning of the words to ascertain the Legislature’s intentions in exempting a judge’s personal assistant from the definition of public employee.  The phrase “personal assistant” itself is not commonly defined in the dictionary, but the individual terms are and lend themselves to a common, joint meaning.  An “assistant” is “a person who assists someone” or “a person whose job is to help another person to do work.”^[1]  The definition of “personal” is “of, relating to, or affecting a particular person.”^[2]  Based upon these ordinary definitions, the phrase “personal assistant” as used in the statute is best understood as an individual who helps or supports a particular person.

 

This agency has on two occasions ruled on the personal assistant exemption, finding in both instances that an assistant to a municipal court judge was exempted from the definition of “public employee.”  In City of Winlock, Decision 4056 (PECB, 1992), a part-time court clerk whose responsibilities included entering notices of appearances, establishing the court calendar, and communicating with various parties was found to be excluded from collective bargaining under the statute and ineligible for representation.  Similarly, in City of Chehalis, Decision 4123-A (PECB, 1993), the court clerk for a municipal court judge was also excluded from representation on the personal assistant exemption.

Application of Standards

The bailiffs at the KCSC are personal assistants to the superior court judges.  Each judge is authorized to hire one bailiff.  The fact that each judge has only one bailiff and RCW 41.56.030(11)(e) allows only up to one personal assistant to be exempted from the definition of public employee solidifies the fact that the KCSC bailiffs are excluded from collective bargaining rights under Chapter 41.56 RCW.

 

The process and criteria for appointing bailiffs are determined by each individual judge and can vary widely.  Bailiffs serve at the pleasure of their appointing judges, and each judge has the discretion to discipline or terminate the employment of his or her bailiff.

 

A bailiff’s primary function is to support and aid the work of the appointing judge in carrying out his or her constitutional duty and the responsibilities of the elected office.  The judges utilize their bailiffs in different ways.  The working relationship between bailiff and judge is closely integrated, with the bailiff serving as the eyes, ears, and public face of the courtroom and the assigned individual judge.  The judges determine and oversee the work, approve leave, and decide whether to allow their bailiffs to cover other courtrooms upon the absence of a bailiff.

 

The union asserts that the Legislature would have used the term “bailiff” had it intended to exempt bailiffs from bargaining rights.  This argument ignores the fact that the classification and usage of bailiffs in county courts are not universal or set by state law.

 

What constitutes a “personal assistant” as contemplated by the statute is determined on a case‑by‑case basis by examining the duties and functions of the disputed position rather than simply relying on a title.  Whether the statutory definition is met may vary from one jurisdiction to the next, and the classification designation of “bailiff” is not determinative in this analysis.

 

The union also suggests that the employer was opportunistic throughout the processing of this case, having only referred to the bailiffs as “personal assistants” subsequent to the filing of the petition.  Nonetheless, this agency has a statutory duty to determine which employees qualify as public employees and to determine appropriate units based on existing statutory parameters.  That assessment is done independent of how an employer may choose, or may not choose, to describe its employees.

CONCLUSION

The KCSC bailiffs are not public employees as defined by RCW 41.56.030(11) because they meet the RCW 41.56.030(11)(e) definition of “personal assistants.”  Accordingly, because the union has petitioned for a bargaining unit configuration that only includes employees not eligible for collective bargaining, the union has petitioned for an inappropriate bargaining unit configuration that cannot be cured through amendment.  The union’s petition is dismissed.

FINDINGS OF FACT

1.                  King County is a public employer within the meaning of RCW 41.56.030(12).

 

2.                  The Washington State Council of County and City Employees (union) is a bargaining representative within the meaning of RCW 41.56.030(2).

 

3.                  The employer operates the King County Superior Court (KCSC), which is a general jurisdiction trial court with four locations in King County.  Currently, the KCSC is comprised of 53 judges, 9 court commissioners, 53 bailiffs, and approximately 284 other employees.  The judges are elected by a vote of the people.

 

4.                  All 53 judges also appoint the chief administrative officer, who reports directly to the presiding judge.  The chief administrative officer oversees the administrative functions and operations of the court.  Paul Sherfey is the chief administrative officer.  Sherfey oversees several departments and sections within the KCSC, including the Department of Judicial Administration, Juvenile Court Services, Family Court Operations, Court Operations, Information Services, Human Resources, and Facilities and Security.

 

5.                  Each judge may hire one bailiff, who serves as the public representative of the appointing judge and acts as a sworn officer of the court.  A bailiff primarily serves as a specific judge’s case manager, trial administrator, executive assistant, and liaison with respect to attorneys, litigants, jurors, and the general public.  Each bailiff works almost exclusively in the courtroom for the appointing judge, except during periods when the judge allows the bailiff to fill in for absent bailiffs in other courtrooms.

 

6.                  Each judge determines the hiring process and criteria as well as the tenure for his or her bailiff.  The bailiff serves in an at-will status at the discretion of the judge.  Some judges prefer recent law school graduates whereas others prefer experienced bailiffs regardless of educational background.  Certain judges appoint bailiffs for specific periods of time, such as one to two years, while other judges retain their bailiffs throughout the judges’ tenures.  Unless appointed by another judge, a bailiff’s employment ends with the tenure of his or her judge.

 

7.                  The Executive Committee of Judges created a set of bailiff policies, which were adopted by all of the judges in January 2015.  The policies cover such topics as appointments, working conditions, and how leave benefits are administered.  Some individual judges have also adopted policies specific to their courtrooms that bailiffs are expected to adhere to when working for those particular judges.

 

8.                  A bailiff’s leave requests are reviewed and approved by the appointing judge.  Several judges and bailiffs have developed a practice of taking leave at the same time.  Alternatively, if a bailiff is on leave or absent for a period of time, a judge can request coverage from other bailiffs.  Court Operations is heavily involved in coordinating coverage for absent bailiffs by locating available bailiffs and assigning them to courtrooms in need.  Given the size of the KCSC operations, coverage is an ongoing need and is done largely on a voluntary basis.  The KCSC adopts an “all hands-on-deck” mentality when coverage is required, but each judge makes the final decision over whether his or her bailiff can volunteer in another courtroom.

 

9.                  Each courtroom also has a court clerk who is hired by and works within the Department of Judicial Administration.  The court clerk is largely responsible for maintaining official written records of court proceedings and managing court documents.  Court clerks may be assigned to specific courtrooms, but in recent years the employer has developed more of a pool assignment process whereby clerks may work and perform different functions in various courtrooms.  The judges have relatively little interaction with the court clerks, are not responsible for hiring the court clerks, and have no authority over the employment of the court clerks.

CONCLUSIONS OF LAW

1.                  The Public Employment Relations Commission has jurisdiction in this matter under Chapter 41.56 RCW and Chapter 391-25 WAC.

 

2.                  Based upon Findings of Fact 3 through 9, the petitioned-for bailiffs are “personal assistants” to superior court judges within the meaning of RCW 41.56.030(11)(e) and are not eligible for collective bargaining under Chapter 41.56 RCW.

ORDER

The representation petition filed by the Washington State Council of County and City Employees in the above-captioned matter is DISMISSED.

 

ISSUED at Olympia, Washington, this  20th  day of April, 2018.

 

PUBLIC EMPLOYMENT RELATIONS COMMISSION

 

 

 

MICHAEL P. SELLARS, Executive Director

 

This order will be the final order of the agency

unless an appeal is filed with the Commission

under WAC 391-25-660.