ERB Reviews Confidential Employee Criteria - IBEW, Local Union No. 659 v. City of Canyonville, 23 PECBR 962 (2010).

The International Brotherhood of Electric Workers filed a unit clarification petition with the ERB, requesting that it determine whether a bookkeeper and a deputy city recorder were confidential employees and thereby excluded from the bargaining unit. ORS 243.650(19)(excluding confidential employees from PECBA and collective bargaining agreement). The ERB applies a three-part test for determining confidential employee status:
(1) Does the employee provide assistance to a person who 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?
Because the small unit was newly formed, the ERB had to consider anticipated duties related to collective bargaining, rather than a prior history.
The ERB concluded that the Deputy city recorder was a confidential employee because she assists the City council and the City administrator, who will deal with management policies in the area of collective bargaining. She compiles and prepares confidential information for the council and takes minutes at meetings and executive sessions. The ERB determined however that the bookkeeper was not a confidential employee. While her position met the first two-parts of the test, the ERB invoked its policy of rejecting “undue proliferation of confidential employee status based on the convenience of the employer.” Thus, the ERB held that it was not reasonably necessary for two employees of the small unit to be designated as confidential.
The IBEW also sought clarification as to whether the bargaining unit included temporary employees but the ERB did not consider that issue because it determined it was an attempt to expand the unit, and therefore, not appropriate for review.

Christine Moore represents public employee unions in representation and unit clarification matters.