[12-5-01] Multnomah County Deputy Sheriff's Association, Petitioner v. Multnomah County, Respondent and AFSCME Local 88, Incumbent, Case No. UC-14-01
A hearing was held before Administrative Law Judge (ALJ) B. Carlton Grew on July 11 and September 20, 2001, in Portland, Oregon. The hearing closed on October 9, 2001, with the receipt of the parties' post-hearing briefs.
Will Aitchison, Attorney at Law, Aitchison & Vick, 3021 N.E. Broadway, Portland, Oregon 97232, represented Petitioner.
David N. Blankfeld, Assistant County Attorney, Multnomah County, 501 S.E. Hawthorne Boulevard, Suite 500, Portland, Oregon 97214, represented Respondent.
Don S. Willner, Attorney at Law, Willner, Wren, Hill & U'Ren, 111 S.W. Naito Parkway, Suite 303, Portland, Oregon 97204-3500, represented Incumbent.
On April 3, 2001, Multnomah County Deputy Sheriff's Association (Association) filed this OAR 115-25-005(6) unit clarification petition asserting that the classification of civil deputy sheriff more appropriately belongs in the Association bargaining unit than in the AFSCME Local 88 (Local 88) unit. Multnomah County (County) and Local 88 filed timely objections.
The issue presented for hearing is: Are the civil deputy sheriffs employed in the Civil Process Unit of the Enforcement Division of the Multnomah County Sheriff's Office who are currently represented by Local 88, more appropriately included in the bargaining unit represented by the Association, pursuant to OAR 115-25-005(6)?
RULINGS
The ALJ's rulings were reviewed and are correct.
FINDINGS OF FACT
1. The Association and Local 88 are labor organizations and the exclusive representatives of separate bargaining units of personnel employed by the County, a public employer.
2. The Association represents a strike-prohibited unit consisting of 90 non-supervisory employees of the Sheriff's Office defined by Civil Service as deputy sheriff/public safety officers, scientific investigators(1) and sergeants. (For brevity, this recommended order will refer to the members of the Association unit as "law enforcement deputies.")
3. Local 88 represents a "collector unit" of approximately 3200 strike-permitted workers employed in various departments of the County, including ten civil deputies working in the Civil Unit of the Sheriff's Office. The unit includes all employees in County classified service except temporary employees; employees working less than 40 hours in two weeks; employees in other bargaining units; supervisory, confidential, professional, managerial, administrative employees; and, elected officials and their staff. There are more than 200 job classifications in the Local 88 unit. (Exhibit R-1 at 5.)
4. The County also employs personnel in other bargaining units, which are the registered nurses; electricians; operating engineers; painters; corrections officers; and custody service specialists.
5. The Sheriff's Department has approximately 950 employees, which includes 525 strike-prohibited corrections officers; 90 strike-prohibited deputy sheriffs; and 256 positions represented by Local 88. The civil deputies have been part of the Local 88 unit since at least 1970. (Exhibits I-1, I-6, and I-7.)
6. The ten civil deputies who are the subject of this petition work for the Civil Unit, a component of the Sheriff's Law Enforcement Division located in the County's Hansen Building in Northeast Portland. The Civil Unit consists of two sections, the Civil Process Section and the Mental Health Transport Section. Six civil deputies are assigned to the Civil Process Section; four civil deputies are assigned to the Transport Section. Seven law enforcement deputies, represented by the Association, are also assigned to work in the Civil Process Section. The other positions in the Civil Unit are a sergeant, four Local 88 clerical and technical workers, and a dispatcher. Seven other clerical and technical members of Local 88 also work in the Hansen Building, which is also the precinct headquarters for the law enforcement deputies. (Exhibits P-11, P-12, and P-13.)
7. A number of Local 88 unit members work in other parts of the Sheriff's Enforcement Division.
8. Before 1993, the Civil Unit was supervised by a law enforcement lieutenant and a civilian manager. In 1993, a law enforcement sergeant position (dealing mostly with records) was placed under that lieutenant; that sergeant position was removed in 1995. Also in 1995, the civilian manager position was removed, and the lieutenant position was changed to a law enforcement sergeant position. The civil deputies reported directly to that sergeant until August 1, 2001, when the sergeant position was changed back to a lieutenant position.
9. In April 1996, the Sheriff's Office removed some higher risk job functions from the civil deputies. Those functions included assisting in move-out restraining orders and searching for wanted subjects to serve. At the same time, the Sheriff moved corrections deputies into court guard and transport duties, previously performed by law enforcement deputies, and assigned some law enforcement deputies to the Civil Unit to perform higher risk assignments there. (Exhibits P-13 and I-3D at 10-33 to 32-33.)
10. In recent years, the civil deputies have sought the assistance of the Association in seeking the Sheriff's agreement that civil deputies may attend the annual 40-hour, in-service training, and would be provided with standard firearms and ballistic vests. The Association was able to obtain these benefits for the civil deputies.
11. The Association has a 24-hour contact number for bargaining unit employees who need legal or other assistance outside of regular working hours because of a "critical incident." A critical incident includes such things as an officer's shooting a person. Local 88 does not provide those services, although the home number of the Local 88 staff representative is listed in the telephone book. There is no evidence in the record of civil deputies' direct involvement in a critical incident.
Duties, Experience and Training: Civil Deputies
12. The duties of civil deputies include: (1) serving civil process; (2) serving notice process (such as restraining orders); (3) citing illegally parked vehicles; (4) writing reports and communicating with individuals and social services agencies; (5) serving citations and warrants on "allegedly mentally ill persons" (AMIPs), pursuant to ORS 426.080 and 426.090; (6) transporting AMIPs to mental commitment hearings or treatment facilities; (7) restraining AMIPs with physical or mechanical restraints when necessary; (8) detaining AMIPs and providing for their personal care and basic needs in custody; and (9) accompanying AMIPs to hearings and providing security during AMIPs' hearings. (Exhibit R-6.)
13. The focal duties of civil deputies are to serve civil process and take AMIPs to court. In 2000, Civil Unit employees served more than 23,000 persons with process after making more than 40,000 stops to attempt service. In most cases, service is performed by a single civil deputy. Civil deputies transported approximately 500 AMIPs to court during 2000. Those transports are generally performed by two deputies, with law enforcement deputies participating when the AMIP is believed to present a significant risk. (Exhibit P-18.)
14. Qualifications of civil deputies include knowledge of: (1) Oregon law and legal procedures; (2) safe firearm operation; (3) proper use of restraints (ranging from handcuffs to bed restraints); (4) proper control and restraint of potentially extreme behavior; (5) court and civil process procedures; and (6) basic medical issues related to AMIPs. (Exhibit R-6.)
15. The Sheriff's Office guidelines for experience and training for civil deputies includes "[a]ny combination of experience and training that would likely provide the required knowledge and abilities * * *." (Exhibit R-6 at 3.) The guidelines state that a "typical way" to obtain the requisite knowledge is:
"Experience: One year of experience involving public contact in such areas as collections or investigations, or one year experience in law enforcement, or one year experience dealing with patients in a psychiatric or mental health treatment facility or related area.
"Training: Equivalent to completion of the twelfth grade. The following additional training is desirable: law enforcement, such as police reserves or college level courses in law enforcement or, in social work or psychology." (Exhibit R-6 at 4.)
16. Civil deputies are not required to have graduated from the police academy. Four civil deputies have completed Oregon police academy training. Once hired, civil deputies must complete 40 hours of in-service training per year. That training covers a wide variety of civil and law enforcement topics, but it is not as extensive as the police academy's training program.
17. The Sheriff has not given civil deputies authority to arrest or make traffic stops. The Sheriff has not designated them as "peace officers" pursuant to ORS 133.033, 133.235, and 133.310. Rather, the Sheriff appoints them pursuant to ORS 204.635. Their oath states, in part:
"Pursuant to ORS 204.635(2), you are hereby specially authorized to perform the duties of Civil Deputy Sheriff. The exercise of such authority shall be limited to duties only relating to receipt and service of summons and civil process as covered by ORS 206.010(3), and Oregon Rules of Civil Procedure: the service of warrants of detention pursuant to ORS 426.080 issued by the Circuit Court for Allegedly Mentally Ill Persons; the service of public health petition warrants pursuant to ORS 433.019 and issuing parking citations as specified in Multnomah County Code 15.800 to 15.813 and ORS 811.550 to 811.637." (Exhibit R-9. See also Exhibit R-13.)
18. The civil deputy promotion path is to senior civil deputy only; they cannot be promoted to law enforcement deputy, sergeant, or lieutenant. They cannot transfer to a law enforcement deputy position unless they apply through the same process as non-employees and meet the additional educational and other requirements for that position. Two civil deputies were hired into law enforcement deputy positions, but neither completed their probationary period.
Duties, Experience and Training: Law Enforcement Deputies
19. The duties of law enforcement deputies include: (1) responding to calls for service; (2) criminal and non-criminal peacekeeping; (3) traffic enforcement, control, and accident investigation; (4) investigation of calls and on-scene incidents; (5) arrest and proper disposition of individuals behaving in a criminal fashion; (6) detection and disposition of evidence; and (7) patrol. In addition, regular law enforcement deputies serve documents on occasion. (Exhibits P-19, R-3, and R-5.)
20. At the time of hearing, seven law enforcement deputies were assigned to work in the Civil Unit. (We will refer to these deputies as "law enforcement civil deputies.") The law enforcement deputies were brought in to the Civil Unit to perform tasks and contacts which are believed to be higher risk and to help with the general workload. They may perform the routine tasks performed by civil deputies as well as the higher risk activities. (Exhibits P-11, P-12, and P-19.)
21. The higher risk tasks performed by law enforcement civil deputies typically include serving (and, where required, enforcing) the following documents (Exhibit I-5):
Writ of assistance
Writ of attachment
Claim and delivery
Citation
Execution
Writ of habeas corpus
Writ of mandamus
Personal property levies
memorandum
Provisional process
Real property seizure
Writ of restitution
Restraining order
Writ of review
Warrant
Modification-R/O
Continuing-R/O
Vacating-R/O
Answer to garnishment
Visitation order
Stalking protective order
Stalking complaint
Courts temp stalking order
Stalking notice
22. In addition, specific tasks which are usually lower in risk are performed by law enforcement civil deputies "if in the opinion of the unit supervisor or the Civil Deputy assigned to that service, the location or the individual should be considered dangerous." Dangerous circumstances include forced entry, but do not necessarily include restraint of an AMIP. (Exhibit I-5.)
23. Law enforcement deputies are required to have a bachelor's degree. Before becoming full-fledged deputies, they must (1) graduate from a 12- to 16-week, full-time course at the police academy; (2) complete a 3-week orientation period; and (3) complete an on-the-job Field Training and Evaluation Program (FTEP) lasting from 18-weeks to 18 months. (Exhibit R-8.)
24. Law enforcement deputies have arrest authority and are "sworn police officers." Their promotion path is sergeant, lieutenant, captain, chief deputy and up the chain of command. They can transfer to the Civil Unit and back to law enforcement duties.
Duties, Experience and Training: Other Local 88 positions
25. The membership of Local 88 is diverse. Local 88 positions within the Sheriff's Office include clerical workers, corrections counselors, corrections hearings officers, technicians, corrections deputies, network analysts and a sewing specialist. (Exhibit I-6.)
26. The educational requirements for Local 88 positions range from a high school degree to a post-graduate degree.
27. The Local 88 clerical workers in the Civil Unit serve process on individuals who appear at the Hansen Building. They do so from behind a security window.
Working Conditions
28. Civil deputies and law enforcement civil deputies often attend in-service trainings and firearms trainings together. However, civil deputies tend to pick and choose between particular segments of trainings based on their job and skill needs, unless attendance is required. In 2000, civil deputies were required to attend an in-service training which included law enforcement subjects such as high-risk traffic stops and vehicle pursuits as well as subjects such as restraining order enforcement. Both civil and law enforcement deputies are required to attend the same one-week firearms course and biannual firearms qualification tests. Some civil deputies take additional firearms training; one civil deputy teaches firearms training to both civil and law enforcement deputies. (Exhibits P-14 and R-5.)
29. Law enforcement deputies wear a uniform consisting of a green shirt with green slacks and County Sheriff patches. Civil deputies wear a similar uniform, but with a tan shirt and green slacks, and an additional patch that states "Civil Unit." Civil and law enforcement deputies wear ballistic vests and carry tool belts containing a handgun, pepper spray, baton, handcuffs, cell phone, pager and radio. They drive similar vehicles marked with a Sheriff's star and have emergency lighting, a caged backseat, and a data terminal. A Sheriff's designation and "Civil Unit" appear on civil deputy vehicles. The civil deputy vehicles do not have the blue overhead lights traditionally associated with police vehicles. The differences in uniforms and cars reflect the Sheriff's concerns that citizens might assume that the civil deputies are able to respond as peace officers in emergencies. (Exhibit I-3G at 2.)
30. Civil deputies, law enforcement civil deputies, and regular law enforcement deputies work out of the Hansen Building. They share a common office space and work tables. However, most Civil Process Unit work is done in the field. The civil deputies and law enforcement civil deputies frequently interact during the day, and may ride in vehicles together. They report to the same afternoon roll call, which may be conducted by a civil deputy or a law enforcement civil deputy. The morning roll call is held jointly with the law enforcement deputies and is conducted by a law enforcement sergeant. The civil deputies and law enforcement civil deputies are assigned to the same day and swing shifts. (Regular law enforcement deputies work three shifts). The swing shift civil deputies and law enforcement civil deputies work four ten-hour shifts while their day shift counterparts work five eight-hour shifts. Both types of deputies are also on call during meal and rest periods. They file the same reports. (Exhibits P-11, P-12, R-1 at 55-6, and R-2 at 58-9.)
31. Civil and law enforcement deputies often take breaks together, and socialize together. The Association president considers them to be part of the same "Sheriff's office family." There is no evidence that the civil deputies have contact with other members of Local 88 outside their work duties. Testimony of Hadley.
32. The law enforcement civil deputies and the civil deputies share the same supervisor, now a lieutenant, and the same chain of command. The lieutenant reports to the operations captain, who also supervises regular law enforcement deputies. (Exhibits P-11 and P-12.)
33. The four other Local 88 positions in the Civil Unit also work in the Hansen Building, doing clerical and technical work. Their work shifts do not appear in the record. They share the same chain of command with the civil deputies and the law enforcement civil deputies. Their contact with the civil deputies is less frequent, consisting primarily of picking up paperwork and work assignments. Most Local 88 members are not required to be on call. (Exhibits I-7, P-11, P-12, and R-1 at 55-6.)
34. Civil deputies may encounter dangerous situations. As a result, they wear bulletproof vests and carry handguns. If a particular task is expected to be dangerous, the Sheriff requires the civil deputies to arrange for law enforcement civil deputies to either perform the task or accompany the civil deputy. When encountering unexpected danger, the civil deputies are directed to withdraw and seek assistance. Their handguns are to be used for defensive purposes only, unlike law enforcement deputies, who have more freedom in the use of their weapons. Both civil deputies and law enforcement civil deputies have been struck by individuals and are subject to risks such as contagious disease, illegal toxic chemicals, or violence in the premises they visit. (Exhibit I-3.)
35. Other positions represented by Local 88 are exposed to significant risks. They include 120 parole and probation officers (who may carry handguns), animal control officers (who are uniformed and carry pepper spray), two truancy officers, mental health consultants, involuntary commitment officers, and alcohol and drug counselors.
36. On occasion, civil deputies have provided backup for a traffic stop performed by a law enforcement civil deputy in their presence.
37. In several instances civil deputies have acted in concert with law enforcement civil deputies to confront armed individuals and search premises for persons. (Exhibits P-20 to P-27.) For example, on March 6, 2001, three law enforcement civil deputies and one civil deputy were assigned to seize some rental property from a residence. When no one opened the door, the deputies called in a locksmith. After the door was opened, a woman with a knife confronted the deputies. All of the deputies drew their weapons; the woman was subdued by the law enforcement deputies and taken into custody, and the premises was searched. (Exhibit P-20.)
38. Chief Deputy Pieter Van Dyke of the Sheriff's Office reviews summary reports of such incidents, and has affirmed that the level of force used by the deputies in these incidents was proper and justified. He did so regarding the March 6 incident. However, the reports he reads do not describe the actions of individual deputies. The sergeant (now lieutenant) who supervises the civil deputies reviews and signs more detailed reports regarding such incidents. No civil deputy has been disciplined for assisting law enforcement deputies in service or AMIP situations where weapons were drawn, persons subdued or premises searched. (Exhibit P-20.)
39. Some civil deputies are eager to take on responsibilities in higher risk situations that are more typical of law enforcement deputies. Van Dyke believes that the actions of those deputies are not always consistent with his directives to withdraw in the face of a hazard and contact law enforcement personnel. In August 2001, the position of supervisor for the Civil Unit was changed from a sergeant to a lieutenant at least in part to address this concern.
Benefits
40. The starting wage for civil deputies is $14 per hour. The starting wage for law enforcement deputies is $19 per hour. The wages of other Local 88 employees vary widely, from less than $10 per hour to more than $23 per hour. (Exhibits R-1 at 128, R-2 at 111, and R-6.)
41. All three groups of employees have the same benefits. However, civil and law enforcement deputies have a paid meal period; the other positions in Local 88 generally do not. (Exhibits R-1 at 37 and 55-6, and R-2 at 17.)
Desires of the employees
42. The civil deputies have a strong desire to be transferred to the Association unit. The Association executive board voted unanimously to seek that transfer, and its membership voted four to one in favor of the same position.
CONCLUSIONS OF LAW
1. This Board has jurisdiction over the parties and subject matter of this dispute.
2. The civil deputy sheriffs more appropriately belong in the bargaining unit represented by Local 88 than the unit represented by the Association.
The Association seeks to transfer ten civil deputies in the Sheriff's Civil Process Unit to its bargaining unit. The Association argues that the civil deputies work with law enforcement deputies assigned to the Civil Process Unit, perform tasks similar to law enforcement civil deputies based on similar training, have less of a community of interest with the Local 88 unit, and are inadequately represented by Local 88. Therefore, the Association argues, the civil deputies more appropriately belong in the Association unit.
The County and Local 88 argue that the training and work of civil deputies is quite unlike the vast majority of law enforcement deputies, the civil deputies are adequately represented, and the present unit is more appropriate for the civil deputies. Therefore, they argue, the civil deputies should remain in the present collector unit.
Legal standards
In determining whether a proposed unit is appropriate, we 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. ORS 243.682(1). Community of interest considerations include similarity of duties, skills, and benefits; interchange or transfer of employees; promotional ladders; and common supervision. OAR 115-25-050(2).
In analyzing a unit clarification petition under OAR 115-25-005(6), this Board applies the above factors in determining which unit is the more appropriate unit for the affected employees. Our overriding goal is to group together those employees who share the greatest community of interest, although all statutory criteria are considered. AFSCME, Council 75 v. State of Oregon, Department of Corrections and AOCE, Case No. UC-37-97, 17 PECBR 767 (1998).
The Association seeks to add strike-permitted employees to a strike prohibited law enforcement unit. In such cases, we also consider: (1) the percentage of strike-prohibited employees in the proposed unit; (2) the relationship of employees' duties to the law enforcement mission; (3) the 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 work forces; and (6) the history and stability of labor relations. Washington County Police Officers Association v. Washington County and Oregon Nurses Association, Case No. UC-27-90, 13 PECBR 1, 17-18 (1991).
Classifications and job functions. The ten civil deputies are included in the Local 88 strike-permitted collector unit, which has 3200 employees. The focal duty of six deputies is to serve civil process. The focal duty of the remaining four is to transport allegedly mentally ill persons (AMIPs) to commitment hearings. Higher risk tasks within these duties are performed by the seven Association law enforcement civil deputies alone or with the assistance of civil deputies.
The focal duties of the remaining Association unit members are traditional law enforcement activities. The other members of the Local 88 unit perform a wide range of tasks, ranging from clerical and information technologies to the supervision of persons on parole or probation.
The civil deputies wear uniforms; carry handguns, batons and handcuffs; are trained and authorized to physically restrain certain individuals; and provide security services in commitment hearings. However, they are not peace officers and have no arrest authority. Civil deputies and the seven law enforcement civil deputies perform similar work, but Civil Unit work does not generally involve criminal law enforcement. The civil deputies perform none of the duties of traditional law enforcement officers such as responding to calls, peacekeeping, traffic enforcement, investigation, arrest of alleged criminals and patrol.
The Association argues that the handful of incidents in which civil deputies have drawn weapons or been involved in the discovery of criminal activity indicate that their duties are similar to those of law enforcement deputies. However, in each incident, the civil deputies accompanied one or more law enforcement civil deputies, consistent with a significant division of functions between the two. Those few incidents are also less significant in light of the approximately 23,000 acts of service, approximately 40,000 attempts at service, and transport of approximately 500 AMIPs to court by the Civil Process Unit during 2000. Finally, despite the fact that seven law enforcement deputies work in the Civil Process Unit, the focal duty of the remaining 83 Association unit employees is criminal law enforcement.
Work location. The ten civil deputies and seven law enforcement civil deputies work out of the Hansen Building. They share morning roll call and work space with each other and with the regular law enforcement deputies, but most of their work is in the field. Eleven clerical and technical employees represented by Local 88 also work in the Hansen Building. Four of them work in the Civil Unit. Other Local 88 members work in various locations in County facilities, including 242 employees in the Sheriff's Office.
Organizational and supervisory structure. The Civil Process Unit is a part of the Sheriff's Law Enforcement Division. The civil deputies, other Local 88 Civil Unit members, and law enforcement deputies report to a law enforcement officer and the law enforcement chain of command. The record does not contain the supervision patterns of the other 246 Sheriff's employees represented by Local 88, but most members of Local 88 report to a variety of supervisors in numerous County departments.
Interchange/transfer of employees. Two civil deputies sought to become law enforcement deputies. They did not complete their probationary period and returned to the Civil Unit. Although seven law enforcement deputies are assigned to the Civil Unit, and perform similar, albeit higher risk work, the law enforcement deputies have retained their law enforcement status. They have not become civil deputies. There is no evidence that other Local 88 members have become civil deputies or law enforcement deputies.
Wages, hours, and working conditions. The benefits for all three groups of employees are similar. The starting wage for civil deputies is $14 per hour. The starting wage for law enforcement deputies is $19 per hour. The wages in Local 88 cover a wide range, from less than $10 per hour to more than $23 per hour.
The day-to-day working conditions of the civil deputies are similar to those of civil law enforcement deputies, but unlike the vast majority of law enforcement deputies. Like law enforcement deputies generally, the civil deputies wear a uniform; carry a handgun, baton, and handcuffs; can restrain certain individuals; drive vehicles equipped with data terminals and emergency lights; and transport unwilling individuals. They also share work space with law enforcement deputies. However, they do not patrol, investigate, arrest, or perform other law enforcement functions. The civil deputies work only two shifts, day and swing, while the law enforcement deputies work three shifts. The civil deputies have significant interactions with law enforcement civil deputies on a daily basis; their interactions with other Local 88 members, although frequent, are less significant.
Like law enforcement deputies, civil deputies visit private residences and contact individuals. Other Local 88 members perform tasks which represent a lesser imposition of civil government authority on individuals. They include parole and probation officers, animal control officers, truancy officers, and involuntary commitment officers. However, with the possible exception of parole and probation officers, civil deputies are exposed to significantly more risk than other Local 88 members.
Desires of employees. The Association's petition was supported by an adequate showing of interest. The four civil deputies that testified were strongly in favor of the petition. At least some civil and law enforcement deputies consider themselves to be part of the same law enforcement family. The civil deputies' positive feelings toward the Association are complemented by negative feelings towards Local 88. Some civil deputies consider themselves to have little in common with members of a bargaining unit that includes clerical workers. No civil deputy wishes to be a steward in Local 88.
History of collective bargaining. The civil deputies have been represented by Local 88 since at least 1970.
Other considerations--Quality of representation. None of the civil deputies' allegations of inadequate representation rise to the level of a pattern of violations of the duty of fair representation.(2) Accordingly, we will not consider that factor in this unit clarification proceeding. Revenue Hearing Officers Association v. Oregon Department of Revenue and Oregon Public Employes Union Local 503, Case No. C-155-83, 7 PECBR 6086, 6090 (1983).
Other considerations--Strike prohibited status.
Percentage of strike-prohibited employees--The Association represents a bargaining unit of 90 employees. All of them are strike-prohibited. The ten civil deputies are strike-permitted. If the civil deputies are transferred to the Association unit, the percentage of strike-prohibited employees in the proposed unit would change from 100 percent to 90 percent.
Relationship of employees' duties to the law enforcement mission--Although, on occasion, civil deputies have performed such tasks as drawing weapons on threatening individuals, the focal duties of civil deputies are not the performance of a law enforcement function. Their work is not directly related to the law enforcement mission. See Douglas County Law Enforcement Association v. Douglas County Sheriff's Department, Case No. UC-18-94, 15 PECBR 496, 506-7 (1994) (although the work of animal control officers bears some limited similarity to that of law enforcement deputies, that similarity is not enough to warrant their inclusion in a strike-prohibited unit of deputies); See also AFSCME Local 2505 v. Oregon Liquor Control Commission, Case No. UC-68-86, 9 PECBR 9128, 9148 (1986) (the focal job duty of liquor control officers is not criminal law enforcement, but the enforcement of certain statutes regarding liquor control). The fact that seven law enforcement deputies work in the Civil Process Unit does not alter this conclusion.
Uniqueness of employees' positions--The positions of civil deputies are unique within the County, with the exception of the law enforcement civil deputies. However, there are some similarities between tasks performed by civil deputies and the tasks performed by law enforcement deputies or employees represented by Local 88. The restraint and transfer of AMIPs is arguably similar to the restraint and transport of arrestees by law enforcement deputies. However, that apparent similarity is undercut by the fact that no law enforcement civil deputy is permanently assigned to the Transport Unit. Employees in the Local 88 unit perform tasks that have some similarities to the work of civil deputies, including parole and probation officers, animal control officers, truancy officers, and involuntary commitment officers. The other Local 88 members of the Civil Process Unit can serve process on individuals who appear at the Sheriff's Office.
Extent to which other employees with similar duties are, or could be, organized--The other County employees with similar duties are already organized and are included in the Local 88 bargaining unit. The law enforcement civil deputies are included in the Association unit.
Pattern of organization in the work forces--The pattern of organization in the County workforce is largely functional and horizontal. Shifting the ten civil deputies to the Association unit would not appreciably change that pattern of organization.
History and stability of labor relations--The civil deputies have been in the Local 88 unit for at least 30 years without apparent controversy, until recently. No current civil deputy wishes to be a steward in Local 88. At the deputies request, the Association has successfully advocated for the deputies regarding training and protective equipment. Moving the civil deputies will have minimal impact on labor relations for Local 88. Representation of the civil deputies would add some complexity to Association bargaining and contract administration because of the different wage rates and job duties of the civil deputies.
Analysis. The policy expressed in the PECBA does not favor mixed units of strike-permitted and strike-prohibited positions. Accordingly, this Board does not "lightly make unit determinations" that create mixed units. The PECBA requires "compelling reasons for that result based upon community of interest factors." Association of Oregon Correction Employees v. State of Oregon, Department of Corrections and AFSCME, Council 75, Case No. UC-24-99, 18 PECBR 441, 450 (2000).
A review of the relevant factors shows that the civil deputies have some community of interest with law enforcement deputies. Their duties and skills are different. Although employees in both classifications restrain and transport unwilling persons, this apparent similarity is less significant given that no law enforcement civil deputies are assigned to work in the Mental Health Transport Section. Although seven law enforcement deputies work in the Civil Unit, law enforcement deputies perform the full range of criminal law enforcement while civil deputies do not. There is some interchange or transfer of employees. Although seven law enforcement deputies work in the Civil Process Unit, no civil deputy has become a permanent law enforcement deputy. The promotional ladders are different. There is common supervision. The wages, hours and other working conditions of the employees are different, although the working conditions of the seven law enforcement civil deputies have substantial similarities to civil deputy work. The history of collective bargaining is that the civil deputies have been represented by Local 88 for at least 30 years without apparent controversy until recently. All of the civil deputies desire to join the Association's law enforcement unit.
The Association argues that the community of interest between the seven law enforcement civil deputies and ten civil deputies justifies transfer of the civil deputies to the Association bargaining unit. This Board concludes that the dramatic differences between the work of civil deputies and the work of the 83 law enforcement deputies and other law enforcement personnel outside the Civil Unit is more significant. We conclude that the community of interest between civil deputies and law enforcement deputies is too weak to justify transfer of these positions to the Association unit.
The factors governing placement of strike-permitted positions in a strike-prohibited unit lead to the same conclusion. The percentage of strike-permitted employees in the proposed unit would be only ten percent. The civil deputies have a weak connection to the law enforcement mission of the Association unit, although their work does fulfill an important statutory mandate of the Sheriff. ORS 206.010(3). The position of civil deputy is unique. Other employees with similar duties are organized, whether they be law enforcement civil deputies or parole and probation officers. The pattern of organization in the work force is largely horizontal, by function, except for the large collector unit which includes the civil deputies. However, a large number of Sheriff's employees would remain in the collector unit even if the petition were granted, so that the proposed unit would not be a vertical, departmental unit. The history of labor relations features more than 30 years of representation of the civil deputies in Local 88.
As noted above, the substantial differences between the focal duties of civil deputies and law enforcement deputies is a factor that tips strongly in favor of dismissing the petition. The Association argues that two cases support a different view of that comparison, Marion County Sheriff's Department v. OPEU, Case No. UC-58-86, 9 PECBR 9441 (1987) and Klamath County Peace Officers Association v. Klamath County and Laborers' International Union of North America, Local 915, Case No. RC-12-86, 9 PECBR 8944 (1986). In those cases, this Board considered petitions to move strike-permitted civil deputies into or out of units which included strike-prohibited law enforcement deputies.
In Marion County, the Sheriff's Department sought to redesignate a unit of 82 positions to remove one strike-permitted civil deputy, three civil process clerks, and 17 others, including office specialists and a mechanic. This Board noted that the civil deputy and process clerk positions were "unique to the Sheriff's department," and that the civil deputy's duties "are directly supporting of Sheriff's Department functions pursuant to ORS 206.010(3), which requires sheriffs to serve court papers." 9 PECBR at 9451-52. We also noted that the civil deputy worked with deputy sheriffs in carrying out her duties and was subject to some physical risk. We held that these facts demonstrated a "strong community of interest." In addition, the percentage of strike-permitted employees in the existing strike-prohibited unit was low, and the unit had a long history of collective bargaining. This Board also noted that the removal of the strike-permitted employees would leave them unrepresented. Therefore, we held that the existing unit was appropriate and denied the petition to redesignate it. 9 PECBR at 9453.
In Klamath County, a Peace Officers Association sought to represent a bargaining unit of all non-supervisory positions in a Sheriff's Office, including one civil deputy and one civil clerk. The Laborers Union represented a bargaining unit of all non-supervisory County employees. This Board noted that the Laborers had agreed upon separate contract terms and ratification votes for the Sheriff's employees. This Board held that, in the context of a proposed separation of Sheriff's personnel from an employer-wide unit, the civil deputy and civil clerk positions were "directly supportive of functions peculiar to the Sheriff's Department." 9 PECBR at 8956. That fact, along with the history of separate contract ratification and the "apparent daily contact between these employees and sworn employes" caused this Board to conclude that the proposed unit was more appropriate for those employees than the Laborers unit. 9 PECBR at 8956.
Marion County and Klamath County do not mandate that civil deputies always be included in law enforcement units. In both cases, a number of circumstances not present in this case, favored placement with the strike-prohibited unit. In Marion County, the rejected placement of the employees would have left them unrepresented. In Klamath County, the approved placement built upon the parties' past practice of conducting separate negotiations for Sheriff Department personnel, and created a department-wide unit. Neither case presented the lengthy history of representation and unified bargaining presented here, although in Marion County the ten years of representation of civil deputies by the law enforcement unit favored the status quo.
Moreover, in the years since Marion County and Klamath County were decided, this Board has refined its analysis and emphasized the importance of placing strike-permitted and strike-prohibited employees in separate units. In a number of recent cases, this Board has concluded that a variety of strike-permitted positions should not be included in strike-prohibited law enforcement bargaining units.(3)
In two of those cases, we held that the subject position lacked a sufficient connection to the law enforcement function. In Douglas County, supra, 15 PECBR at 506-7, this Board concluded that it was not appropriate to transfer 3 strike-permitted animal control officers to a strike-prohibited unit of 80 strike-prohibited and 20 strike-permitted employees. The strike-prohibited unit included sheriff's deputies, civil deputies, police and civil records clerks. We held that the duties of animal control officers were not directly related to the law enforcement mission; were not unique to their positions; had some similarities to law enforcement deputies, but were not sufficiently similar to that work to justify transfer, especially in light of the considerably higher skill level of those deputies. We also noted that there was only occasional interchange of duties with deputies; no physical integration or common supervision between the two groups; and no direct promotion or transfer opportunities. We concluded that there was no persuasive reason to depart from this Board's longstanding preference to place strike-permitted and strike-prohibited employees in separate units.
In Washington County, supra, 13 PECBR at 18-20, a Police Officers Association sought to include unrepresented public safety clerical employees in a strike-prohibited unit. That unit was comprised mostly of law enforcement deputies and corrections officers, but also included strike-permitted secretary/clerks. This Board held that the clerical workers had a connection to the law enforcement mission, but that connection was not as significant as that of the dispatchers; that the positions were not unique; that transfer would fragment the residual unit; and that transfer would result in a vertical, departmental unit contrary to the horizontal, functional pattern of organization of the work force. The Association unit had remained essentially unchanged for 20 years, and the continued employment of similar employees outside the proposed unit would produce instability in labor relations. Accordingly, this Board denied the petition.
This case presents a closer question than the facts of Douglas County and Washington County. However, this Board generally does not mix strike-permitted and strike-prohibited law enforcement employees, where the strike-permitted employees are not directly supportive of the law enforcement function. In this case, the civil deputies have only a modest community of interest with law enforcement deputies and a limited connection to the law enforcement mission. Those considerations do not overcome the labor stability inherent in 30 years of civil deputies being represented in the Local 88 collector unit. Given the record in this case, these strike-permitted civil deputy positions are not more appropriately included in the Association's strike-prohibited unit. The petition is dismissed.
PROPOSED ORDER
The petition is dismissed.
SIGNED AND ISSUED this 5th day of December 2001.
1. The parties offered no evidence or argument regarding the number or duties of the scientific investigators.
2. The Association argues that Local 88 has pursued only three specific issues on behalf of the civil deputies, and has filed no grievances, in the last several years. (Exhibits I-3B and I-3C.) Deputy Marshall Ross testified that Local 88 failed to provide timely notice to him of his right to challenge a reclassification (Local 88 disputes this). Deputy Tina Ford testified that she called Local 88 offices approximately 20 times for advice about an issue, and finally reached a representative who was unfamiliar with Ford's job; Ford believes that Local 88 should have resolved a seniority dispute in her favor. The civil deputies believe that Local 88 should provide them with a 24-hour contact number for emergency representation. It appears, however, that this request was not made to Local 88. The civil deputies have not had a steward for several years, apparently because no civil deputy has been interested in the position.
3. In many of those cases, the fact that the strike-permitted positions at issue were not unique to the proposed unit played an important role. See, e.g., Oregon State Police Officers Association v. State of Oregon, Department of State Police and Oregon AFSCME Council 75, Case No. UC-6-00, 18 PECBR 930, 938 (2000) (evidence technicians whose work supports law enforcement should remain in a strike-permitted unit with similar lab technicians); Association of Oregon Corrections Employees v. State of Oregon, Department of Corrections and AFSCME, Council 75, Case No. UC-25-99, 18 PECBR 576, 588 (2000) (noncorrectional officer employees of prison working in food service, plant maintenance, corrections counseling and clerical positions should remain in existing unit because they were not unique to the proposed unit; strike-permitted unit represented vast majority of similar employees; and, there was a long history of representation in the strike-permitted unit); Department of Corrections, Case No. UC-24-99, supra, 18 PECBR at 450 (prison nurse, health services technician, pharmacy technician, dental assistant, office specialist, and canteen worker should remain in existing unit because they were not unique to proposed unit; vast majority of similar employees were in strike-permitted unit; there was long history of representation in the strike-permitted unit); Lane County Peace Officers' Association v. Lane County et al, 18 PECBR 400, 406-7, AWOP 170 Or App 791 14 P3d 102, 103 (2000) (although other factors such as work location, organizational and supervisory structure, and desire of some employees supported placement in the strike-prohibited unit, similarity of jail maintenance specialist positions to other maintenance specialists outside proposed unit made proposed unit less appropriate).