[12-08-00] Oregon State Police Officers' Association, Petitioner v. State of Oregon, Department of State Police, Respondent and Oregon AFSCME Council 75, Incumbent, OAR 115-25-005(6) Unit Clarification Petition. Case No. UC-6-00
Upon no objections to a recommended decision issued by Administrative Law Judge (ALJ) Vickie Stilley-Cowan on October 20, 2000, following a hearing on July 6, 2000, in Salem, Oregon. The hearing closed on August 21, 2000, upon receipt of the parties' post-hearing briefs.
Daryl S. Garrettson, Attorney at Law, Garrettson, Goldberg, Fenrich & Makler, 638 E. 5th Street, McMinnville, Oregon 97128, represented Petitioner.
Stephen D. Krohn, Assistant Attorney General, Labor and Employment Section, Department of Justice, 1162 Court Street N.E., Salem, Oregon 97310, represented Respondent.
Allison Hassler, Legal Counsel, AFSCME Council 75, 1174 Gateway Loop, Suite 112, Springfield, Oregon 97477, represented Incumbent.
On March 7, 2000, Oregon State Police Officers' Association (OSPOA) filed this OAR 115-25-005(6) unit clarification petition, asserting that certain employees filling the classification of Lab Technician II (Lab Tech II) more appropriately belong in the OSPOA bargaining unit than in the Oregon AFSCME Council 75 (AFSCME) unit. The State of Oregon (State), Department of State Police (OSP), and AFSCME filed timely objections.
The issue presented for hearing is: Are the Lab Tech IIs, with the working title of Evidence Technician (Evidence Techs), who are assigned to the patrol offices more appropriately represented in the OSPOA bargaining unit than in the AFSCME bargaining unit?
The ALJ concluded that the OSPOA unit is not a more appropriate unit for the Evidence Technicians than the AFSCME unit. We agree, and adopt her conclusions with minor modification.
Having the full record before it, this Board makes the following:
RULINGS
The ALJ's rulings were reviewed and are correct.
FINDINGS OF FACT
1. OSPOA and AFSCME are labor organizations and the exclusive representatives of separate bargaining units of personnel employed by OSP, a public employee
2. OSP has three bargaining units. OSPOA represents a mixed strike-permitted/strike-prohibited unit consisting of sworn troopers, nonsworn trades maintenance workers, telecommunicators, communication systems analysts, criminalists, and forensic scientists. AFSCME represents two units. One unit consists of employees acquired when OSP assumed the fire marshals' office. The other is a strike-permitted, support unit consisting of clerical and administrative positions, including the Lab Tech II classification.(1)
3. The recognition clause of the AFSCME/OSP collective bargaining agreement for the support unit provides that AFSCME is the exclusive representative of:
"* * * All classified employees of the Oregon State Police, excluding managerial, supervisory, confidential and temporary employees, employees who work less than thirty-two (32) hours per month, and personnel represented by other labor organizations."
4. The recognition clause of the OSPOA/OSP collective bargaining agreement provides that:
"The Association is certified as the sole collective bargaining agent for all employees in the bargaining unit as defined by the Employment Relations Board."
5. In 1996, OSP received a federal grant entitled COPS MORE. The purpose of the grant was to fund nonsworn Evidence Cadet positions to relieve sworn officers of certain nonsworn administrative tasks. The grant required that 80 percent of the nonsworn employees' work must have previously been performed by sworn law enforcement officers. Pursuant to the grant, OSP created the Evidence Cadet positions. The positions were temporary in duration and unrepresented. Employees hired to fill these positions were assigned to work in patrol offices and in forensic laboratories (about 16 patrol office cadets and 10 laboratory cadets).
6. In 1999, the state legislature approved permanent funding for 15 Evidence Techs to be assigned to patrol offices. The basis for the approval was that Evidence Techs would be responsible for evidence lockers at patrol offices, thus releasing a sworn officer at each patrol office to sworn officer duties.
7. The State analyzed the Evidence Cadet positions utilizing a generic Lab Tech II job description and the Hay Point System. The State determined that, although not an ideal fit, given the brief amount of time within which to classify the positions and short of creating a new classification, the existing classification of Lab Tech II most closely fit the knowledge, skills, and abilities required for the position. The State then classified the Evidence Cadet positions as Lab Tech IIs with a working title of Evidence Techs.
8. Because existing technicians working in the forensic laboratories were classified as Lab Tech IIs and were covered by the AFSCME collective bargaining agreement, the State placed the Evidence Techs in the AFSCME bargaining unit.
9. Temporary employees in the Evidence Cadet program were required to reapply for the permanent Evidence Tech positions. To the extent there were remaining vacancies, the vacancies were filled through open recruitment and were not offered to the existing Lab Tech IIs working in the forensic labs.
10. Permanent Evidence Tech positions were assigned to patrol offices throughout the State: Albany, Astoria, Bend, Central Point, Coos Bay, General Headquarters Salem, Klamath Falls, Ontario, Pendleton, Portland, Roseburg, Salem, Scappoose, Springfield, and The Dalles.
11. The Evidence Techs were required to complete 27 hours of in-service training to meet the minimum qualifications of the job. The training covered property and evidence management, legal guidelines, data entry, fingerprinting and evaluation of latent prints, evidence locker safety, exposure controls, and the OSP property procedure manual.
12. Minimum qualifications for Lab Tech II positions (including Evidence Techs) are: two years of experience performing routine, standardized analytical tests and laboratory procedures in accordance with well-defined written instructions and high school courses in chemistry, biology, mathematics, or any course which included laboratory work; or a bachelor's degree in biology, chemistry, microbiology, or a closely related field.
13. The job duties of Evidence Techs vary by location. Each patrol office has its own Evidence Tech job description. All Evidence Techs have certain duties in common. These duties are: manage and maintain the evidence locker by ensuring all items received are properly packaged, sealed, labeled, and accompanied by the necessary forms; properly dispose of evidence; transport evidence requiring analysis to the appropriate forensic laboratory; assist police officers at the crime scene by photographing, collecting, and preserving evidence including latent fingerprints; testify in court; attend autopsies; fingerprint deceased persons and others, and perform various clerical duties. Some Evidence Techs conduct vehicle identification number (VIN) inspections. Some work with the court staff to set traffic trial cases; others assist in serving search warrants.
14. Lab Tech II job duties include conducting a variety of standardized analytical tests; preparing reagents, gels and solutions; weighing materials; preparing laboratory kits; assisting in the calibration of lab equipment; inventorying lab equipment and supplies; transporting hazardous materials, equipment, supplies, and evidence; receiving incoming physical evidence; recording, labeling, and storing evidence; packaging and returning evidence; maintaining lab equipment; and performing some clerical duties.
15. Lab Tech IIs with the working title of IBIS Technician are primarily responsible for testing of firearms. They receive evidence, test-fire firearms, prepare reagents and solutions for testing of firearms, and calibrate and test the equipment.
16. Evidence Techs wear a uniform; Lab Tech IIs wear lab coats.
17. Both Lab Tech IIs and Evidence Techs have contact with the courts, District Attorney's office, police officers, and the general public.
18. Evidence Techs primarily work day shift, Monday through Friday, but are subject to call out at any time.
19. Lab Tech IIs are assigned to a shift and may be assigned irregular hours and overtime, depending upon workload.
20. Evidence Techs are supervised by a sworn officer at their particular patrol office. Lab Tech IIs may report to either a forensic scientist or a sworn officer located in the forensic lab. Sworn officers and forensic scientists are represented by OSPOA.
21. Evidence Techs assist and interact with sworn officers on a daily basis. They also interact with clerical support staff who are represented by AFSCME.
22. Lab Tech IIs work with other laboratory personnel such as laboratory support specialists who are represented by AFSCME and forensic scientists and sworn officers who are represented by OSPOA.
23. OSPOA currently represents approximately 730 employees, 598 of which are sworn and 132 nonsworn. Of the 730, 58 are strike-permitted and 672 are strike-prohibited.
24. Evidence Techs and Lab Tech IIs receive the same wages and benefits provided under the AFSCME collective bargaining agreement.
25. Lab Tech IIs and Evidence Techs can transfer into the other's position only if they possess the requisite skills, knowledge, and ability. There is no right of transfer based solely on classification.
26. There is no promotional ladder for the Lab Tech II classification.
27. Some of the Evidence Techs wish to be represented by OSPOA.
CONCLUSIONS OF LAW
Discussion
OSPOA seeks to transfer 15 Evidence Techs to its bargaining unit for several reasons. OSPOA argues that the Evidence Techs perform work exclusively at the patrol offices; their work supports the law enforcement function; they were never given the opportunity to choose their bargaining representative; and they more appropriately belong in the OSPOA unit.
The State and AFSCME contend that transferring Evidence Techs to the OSPOA unit would fragment the Lab Tech II employees employed by OSP. The State and AFSCME claim that the duties, wages, and working conditions of Evidence Techs are similar to Lab Techs assigned to the forensic labs. The State and AFSCME also claim that it would be inappropriate to add these strike-permitted employees to a strike-prohibited unit. We agree.
In an OAR 115-25-005(6) unit clarification case, we must evaluate two bargaining units and determine which is the more appropriate unit for the subject employees, under ORS 243.682(1), keeping in mind our overriding goal to place in a bargaining unit those employees who share the greatest community of interest. AFSCME v. State of Oregon, Department of Corrections and AOCE, Case No. UC-37-97, 17 PECBR 767 (1998).
ORS 243.682(1) requires that this Board shall:
"* * * designate the appropriate bargaining unit, and in making its determination shall consider such factors as community of interest, wages, hours and other working conditions of the employees involved, the history of collective bargaining, and the desires of the employees. * * *"
Community of interest factors include similarity of duties, skills, benefits, interchange or transfer of employees, promotional ladders, and common supervision between departments. OAR 115-25-050(2).
Classifications and Job Functions
There are numerous Lab Tech positions within OSP. Some work in forensic labs and others in the field. The Lab Tech job classification is represented by AFSCME, a strike-permitted unit. The 15 Evidence Techs at issue here work at various patrol offices throughout the State. OSP Lab Techs receive, test, preserve, and process physical evidence relating to a specific crime.
The primary differences between Evidence Techs and Lab Techs are as follows: Evidence Techs assist sworn troopers at the crime scene, while Lab Techs do not. Evidence Techs are responsible for the physical evidence long-term while Lab Techs are responsible for the evidence on a short-term basis. Lab Techs conduct scientific testing; Evidence Techs do not. However, the essential functions--inventorying, recording, and processing evidence--are common to both Evidence Techs and Lab Techs.
Work Location
Evidence Techs work at various patrol offices throughout the State. Lab Techs work at various forensic labs throughout the State.
Organizational And Supervisory Structure
Evidence Techs are supervised by a sworn officer, represented by OSPOA, at the patrol office to which the Evidence Techs are assigned. Lab Techs are supervised by a sworn officer or a forensic scientist, represented by OSPOA, acting as the lab supervisor of the specific forensic lab to which the Lab Techs are assigned.
Interchange/transfer of Employees
There is no automatic right of transfer between Lab Techs and Evidence Techs. Either may apply for the other's position but must possess the requisite skills and knowledge to qualify.
Wages, Hours, and Working Conditions
The wages, benefits, hours, and working conditions are governed by the AFSCME collective bargaining agreement. However, some of the day-to-day working conditions of the Evidence Techs differ from the Lab Techs. The Evidence Techs assist sworn officers at the crime scene, Lab Techs do not. Evidence Techs maintain an evidence locker, Lab Techs do not. Both are responsible for processing, recording, and inventorying of physical evidence. The hours worked are comparable--primarily day shift. Both are subject to call out if needed. Evidence Techs wear a uniform, Lab Techs do not. Both interact with sworn personnel, district attorneys, investigators, and court personnel.
Desires of Employees
OSPOA's petition was supported by an adequate showing of interest. In addition, evidence at hearing established that some Evidence Techs want to be in the OSPOA unit.
History of Collective Bargaining
Lab Techs have been represented by AFSCME since approximately 1996. The State added Evidence Techs to the AFSCME bargaining unit in approximately July 1999.
Other Considerations
OSPOA represents a mixed unit of strike-prohibited and strike-permitted employees, the large majority of which are strike-prohibited. The employees in the AFSCME unit are strike-permitted.
In this case, OSPOA must not only establish that its unit is more appropriate than AFSCME's, but it must justify adding strike-permitted employees to a mixed unit. We do not favor this result.
"* * * The Public Employee Collective Bargaining Act (PECBA) provides for separate modes of dispute resolution for strike-permitted and strike-prohibited employees. These distinctive methods of dispute resolution are a significant community of interest factor. That the law establishes such very different dispute resolution models indicates a policy that does not favor mixed units. For that reason, we do not lightly make unit determinations that convert statutorily strike-permitted employees to strike-prohibited status. There must be compelling reasons for that result based upon other community of interest factors. * * *" AOCE v. State of Oregon, Department of Corrections and AFSCME, Council 75, Case No. UC-25-99, 18 PECBR 576, 587-588 (2000).
In deciding whether to add strike-permitted employees to a strike-prohibited or mixed unit, we consider: (1) the percentage of strike-prohibited employees in the proposed unit; (2) in a law enforcement workplace, the relationship of employees' duties to the law enforcement mission; (3) uniqueness of employees' positions; (4) the extent to which other employees with similar duties are, or could be, organized; (5) the pattern of organization in the workforce; and (6) the history and stability of labor relations. AOCE v. State of Oregon, Department of Corrections and AFSCME, at 584, and Washington County Police Officers Association v. Washington County and ONA, Case No UC-27-90, 13 PECBR 1, 17-18 (1991).In this case, we do not find compelling reasons to transfer the Evidence Techs. Most of the considerations we use to decide whether to add strike-permitted employees to a strike-prohibited unit do not support transferring the Evidence Techs. If Evidence Techs were added to OSPOA's unit, strike-prohibited employees would remain the majority. However, the Evidence Techs do not hold unique positions. Their work requires the same general skills as Lab Techs, particularly those working in the forensic laboratories. Although there are some differences in the duties performed, they both assist OSP in gathering, processing, and storing physical evidence. As such, both positions support the law enforcement mission of OSP. The OSP/AFSCME strike-permitted bargaining unit is primarily comprised of employees who support law enforcement. Under these circumstances, rather than fragmenting the Lab Tech II classification, the history and stability of labor relations favors keeping all of the Lab Techs together in the strike-permitted, support OSP/AFSCME unit. See Lane County Peace Officers' Association v. Lane County and AFSCME Council 75, Case No. UC-17-99; 18 PECBR 400, 406 (2000), AWOP Or App (November 8, 2000).
OSPOA argues that Evidence Techs are more appropriately represented by OSPOA because the duties now performed by Evidence Techs were previously performed by sworn officers. However, the duties currently performed by Evidence Techs are administrative and support-oriented. They are duties which do not require a sworn officer. In fact, the reason the positions were created was to release a sworn officer of nonsworn administrative duties.
Based on the above analysis, we determine that OSPOA is not a more appropriate unit for the Evidence Techs. We shall dismiss the petition.
ORDER
The petition is dismissed.
DATED this 8th day of December 2000.
1. The current labor agreement for this AFSCME unit refers to it as "Oregon State Department of State Police Support Unit."