(dissenting) — While I dissent with the conclusion reached by the majority, I concur in much of the discussion and reasoning used therein. I believe that the legislature intended to exclude from the provisions of the Public Employees' Collective Bargaining Act, RCW 41.56, those persons intimately associated with the public official or executive head of a bargaining unit. I also agree, as the majority states, that for an employee to come within the exception of RCW 41.56.030(2), the duties which imply the confidential relationship must flow from an official, intimate fiduciary relationship with the executive head of the bargaining unit or public official.
The Superior Court's findings of fact on the duties of the employees here involved are voluminous, but as I will note later, support its conclusions of law and judgment. The legislative intent regarding the meaning of "confidential relationship" is unclear. However, each company commander is a supervisor under the usual meaning of that term and is also a deputy or administrative assistant within the meaning of RCW 41.56.030(2). A battalion chief is in charge of five of these company commanders and is the alter ego of the executive head, the fire chief, for a shift. The battalion chiefs substitute for the head of the department in his absence for at least 168 hours per week. For 8,760 hours each year, battalion chiefs substitute for the fire chief.
The Superior Court found the battalion chief is responsible for the annual proficiency rating of captains under his command and shares in the proficiency rating of lieutenants under his command. He is responsible for maintaining good order and proper discipline, has authority to grant *111leaves of absence to members of his battalion and to summarily suspend from duty for cause any subordinate officer or member. He also holds the officers under his command responsible for the complete discharge of their duties and makes regular reports on their performance. The Superior Court's conclusion that "battalion chiefs do bear a confidential relationship to the executive head of the bargaining unit, the fire chief" is supported by substantial evidence. The actions of these battalion chiefs can be reasonably construed to come within the boundaries of formulation of labor relations policy by their evaluative reports and functions in a confidential relationship with the fire chief. To conclude otherwise simply ignores the reality of how a line staff structure functions. As such, they are not public employees within the meaning of RCW 41.56.030(2) and the order of the trial court excluding the battalion chiefs from the bargaining unit should be sustained.
Stafford, Horowitz, and Hicks, JJ., concur with Utter, J.