[03-17-00] Association of Oregon Corrections Employees, Petitioner v. State of Oregon, Department of Corrections, Respondent and AFSCME, Council 75, Incumbent. Unit Clarification. Case No. UC-24-99

Oral argument before this Board on January 14, 2000, upon Petitioner's objections to a proposed order issued by Administrative Law Judge (ALJ) Vickie Stilley-Cowan on October 21, 1999, following a hearing on August 12, 1999, in Salem, Oregon.

John Hoag, Attorney at Law, Goodpasture Plaza, 323 Goodpasture Island Road, Eugene, Oregon 97401, represented Petitioner.

M. Ann Boss, Assistant Attorney General, Labor and Employment Section, Department of Justice, 1162 Court Street N.E., Salem, Oregon 97310, represented Respondent.

Monica A. Smith, Attorney at Law, Smith, Gamson, Diamond & Olney, 2110 S.W. Jefferson, Suite 200, Portland, Oregon 97201-7712, represented Incumbent.

On April 30, 1999, the Association of Oregon Corrections Employees (AOCE) filed two unit clarification petitions involving employees represented by the American Federation of State, County, and Municipal Employees, Council 75 (AFSCME) and employed by the State of Oregon (State), Department of Corrections (DOC). The cases, UC-24-99 and UC-25-99, were consolidated for hearing, with the parties agreeing that a single evidentiary record would be created for both petitions.

AOCE filed this OAR 115-25-005(6) petition, UC-24-99, alleging that certain AFSCME-represented, noncorrectional officers at the Oregon State Correctional Institute (OSCI) are more appropriately included in the AOCE bargaining unit. AOCE apparently seeks to transfer to its unit about 14 employees filling the classifications of nurse, health services technician, pharmacy technician, dental assistant, office specialist for health services, and canteen worker.⁽¹⁾ The DOC and AFSCME filed timely objections.

The issue is: Are the AFSCME-represented, noncorrectional officer personnel employed within the walls at OSCI, who are not subject to central administration, more appropriately included in the AOCE bargaining unit?

The ALJ concluded that the petitioned-for employees did not more appropriately belong in the AOCE unit than in the AFSCME unit. We agree, and adopt with some modification, her findings of fact and conclusions of law.

Having the full record before it, this Board makes the following:

RULINGS

1. This Board takes official notice of the Findings of Fact and Conclusions of Law in the unit clarification cases of AOCE v. Department of Corrections and AFSCME, Case No. UC-35-97, 17 PECBR 721 (1998); AOCE v. Department of Corrections and AFSCME, Case No. UC-36-97, 17 PECBR 730 (1998); and AFSCME v. Department of Corrections and AOCE, Case No. UC-37-97, 17 PECBR 767 (1998).

2. The ALJ's other rulings were reviewed and are correct.

FINDINGS OF FACT

• AOCE and AFSCME are labor organizations and the exclusive representatives of separate bargaining units of employees employed by DOC, a public employer.
• The DOC operates the following 13 correctional facilities located throughout the State:

Columbia River Correctional Institution in Portland (CRCI)

Eastern Oregon Correctional Facility in Pendleton (EOCI)

Mill Creek Correctional Facility in Salem (MCCF)

Oregon Correctional Intake Center in Oregon City (OCIC)

Oregon State Correctional Institution in Salem (OSCI)

Oregon State Penitentiary in Salem (OSP)

Oregon Women's Correctional Center in Salem (OWCC)

Powder River Correctional Institution in Baker City (PRCI)

Santiam Correctional Institution in Salem (SCI)

Shutter Creek Correctional Institution in North Bend (SCCI)

Snake River Correctional Institution in Ontario (SRCI)

South Fork Forest Camp in Tillamook (SFFC)

Two Rivers Correctional Institute in Umatilla (TRCI)

• DOC personnel are currently organized into six separate bargaining units that are represented by three unions: AOCE, Oregon Public Employees Union (OPEU), and AFSCME.
• AOCE represents approximately 700 employees in a mixed strike-permitted and strike-prohibited unit which includes all employees at OSP, MCCF, and SFFC, and the strike-prohibited employees at OSCI.
• The most recent collective bargaining agreement between AOCE and the State covered the period July 1, 1997 through June 30, 1999. The recognition clause of that agreement reads as follows:

"The Employer recognizes the Association as the sole and exclusive bargaining agent for the employees within the certified bargaining unit. The terms and conditions of employment set forth in this Agreement shall apply to all classified positions (except temporary positions and those positions excludable by ORS 243.650) within the bargaining unit within the Department of Corrections which are at the Oregon State Penitentiary, the Mill Creek Correctional Facility, the South Fork Forest Camp and the Correctional Officers, Correctional Corporals and Correctional Sergeants at Oregon State Correctional Institute."

• OPEU represents a bargaining unit that includes approximately 62 strike-permitted employees at OSCI. Employees in the OPEU unit work inside the institution and report through the institution chain of command to the superintendent.
• The most recent collective bargaining agreement between OPEU and the State covered the period July 1, 1997 through June 30, 1999. The recognition clause of that agreement reads as follows:

"Section 1. The Employer recognizes the Union as the exclusive bargaining representative for all classified and unclassified employees in positions represented by the Union in the Agencies listed in Section 2 below. * * *

"Section 2.

"* * * * *

"(b) The Employer and the Union have established a single bargaining unit which is not prohibited from striking. This unit is made up of employees located at the following agencies: * * * Oregon State Correctional Institution * * *."

• AFSCME represents approximately 1,639 DOC employees in four bargaining units: (1) a "craft unit" of all dentists employed by the DOC; (2) a "mixed unit" of all strike-prohibited and strike-permitted employees at OWCC; (3) a statewide "security unit" that includes all strike-prohibited employees other than those represented by AOCE; and (4) a statewide "nonsecurity unit" that includes all strike-permitted employees other than those represented by AOCE and OPEU.
• The AFSCME statewide units include employees who work on the grounds of an institution, such as OSP or OSCI, but whose programs are administered on a centralized, statewide basis. The AFSCME nonsecurity unit also includes employees who work in centralized programs located in a number of work sites that are separate from any correctional facility, such as the Dome Building in Salem.⁽²⁾
• The classifications sought by AOCE in this petition are canteen worker, health services technician, nurse, pharmacy technician, dental assistant, and office specialist for health services.⁽³⁾

Canteen workers

• At one time, canteen workers were centrally administered. They currently report to the General Services Department through the chain of command at the institution.
• Canteen workers provide items for sale through the canteen which are not available through the institution. They supervise and train inmates at OSCI, SCI, MCCF, and SCCI. They are responsible for the security of the canteen and may shakedown inmate workers for theft and contraband.

Health services

• Prior to 1984, each institution provided health services to its inmate population. DOC centralized the health services function between 1984 and 1985. At that time, all health services employees (except OSP and OWCC) were placed in the AFSCME statewide nonsecurity unit.⁽⁴⁾

• Health services maintains three pharmacies, one of which is located on the grounds of OSP. The OSP pharmacy provides services to OSP, SCCI, SCI, MCCF, OWCC, and OSCI. Two other pharmacies, located in Pendleton and Ontario, service EOCI, CRCI, SRCI, and PRCI. Each of the three pharmacies is staffed with pharmacists, technicians, and an office specialist.

• Dental services are provided through health services. The dentists are members of a separate statewide AFSCME "craft" bargaining unit, comprised of 12 DOC dentists, the mental health program, and developmental disabilities program.
• The clinic at OSCI provides 24-hour health care to approximately 800 inmates. The staff includes doctors, a dentist (who reports to the clinical director of the Health Services Division), nurses, a health services technician, a pharmacy technician, and a dental assistant, all of whom report to the clinic manager. The pharmacy technician and dental assistant are dually supervised by both the clinic manager and the respective pharmacist or dentist with whom they work.
• Nurses work on all shifts in the clinic. Those on the day shift interact with doctors, dentists, physician assistants, and other medical personnel on a daily basis. They also interact on a daily basis with security personnel when performing sick calls in the units and when retrieving patients from medical visits off the premises. The OSCI clinic is located next to the segregation unit within the walls of the institution. During sick call, nurses regularly see 30 to 40 inmates per day. One nurse is assigned the night shift from 10 p.m. to 8 a.m. That nurse interacts only with security staff and inmates.
• The functions performed by health service employees are essentially the same as those performed by health service employees at other DOC institutions, including OSP and OWCC. The primary difference between the OSCI clinic and the OSP clinic is that at OSP, security personnel are stationed within the clinic, due to OSP's maximum security rating.
• OSCI health service employees receive training with health service employees from other institutions.
• The standards, policies, and procedures applicable to health services are the same at all institutions. In emergency situations, health service employees may fill in at other DOC institutions.
• The wages, benefits, and other terms and conditions of employment are determined by the applicable collective bargaining agreement. These terms are substantially the same throughout DOC.

CONCLUSIONS OF LAW

• This Board has jurisdiction over the parties and subject matter of this dispute.
• The petitioned-for employees do not more appropriately belong in the AOCE unit than in the AFSCME bargaining unit.

DISCUSSION

Overview

The question we must answer here is whether the petitioned-for employees currently in AFSCME's statewide, strike-permitted bargaining unit should be transferred to AOCE's mixed bargaining unit which includes strike-prohibited employees at OSCI. AOCE contends that it makes no sense that it can represent nurses at OSP but not at OSCI. AOCE argues that our prior unit clarification cases lack logic and are confusing to practitioners and employees. AOCE urges us to enunciate guidelines governing unit clarifications that provide more clarity and predictability.

We realize that the outcome of unit clarification proceedings may not be readily predictable. Unit determinations are by their nature fact driven. ORS 243.682 and our administrative rules require a fact-based analysis tailored to the subject employees and workplace at issue. That being said, to the extent there are guiding principles that may be generalized from cases, we identify them. As discussed below, in this case we conclude that the subject employees are not more appropriately included in the AOCE unit. We decide so mainly because a transfer would add new strike-permitted employees to an existing mixed unit--a result we do not favor and which is not supported by important community of interest factors.

community of Interest factors

This Board's job in subsection (6) unit clarification cases is similar to designating an appropriate bargaining unit. Unlike a unit determination case, however, in a subsection (6) case, we must evaluate two alternative bargaining units and decide which best satisfies the requirements of ORS 243.682(1). That is, we must determine which unit is more appropriate.

ORS 243.682 provides, in relevant part, that this Board shall:

"* * * [D]esignate 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 such considerations as similarity of duties, skills, benefits, interchange or transfer of employees, promotional ladders, and common supervision between departments. OAR 115-25-050(2). In deciding whether to add strike-permitted employees to a strike-prohibited unit, we also 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. Washington County Police Officers Association v. Washington County and ONA, Case No. UC-27-90, 13 PECBR 1, 17-18 (1991).

Appropriate unit analysis

At hearing, AOCE stated that it was petitioning for AFSCME-represented employees who were not subject to central administration. AOCE agreed to an issue statement with that limitation. Apparently, AOCE is under the (incorrect) impression that this Board's recent unit clarification decisions between these parties turn on the factor of centralized administration.⁽⁵⁾ In agreeing to this issue, AOCE by definition seems to have excluded most of the OSCI employees it originally petitioned to represent in this case--employees in health services. In order to alleviate AOCE's misunderstanding of our analysis, and regardless of the stated issue, we analyze this case according to the community of interest factors identified above.

Classifications and Job Functions

The job classifications at issue are held by employees in the AFSCME statewide, strike-permitted unit. The functions performed by health service employees at OSCI are essentially the same as the those performed by employees holding the same classifications at other DOC institutions.⁽⁶⁾ AFSCME represents most of the DOC employees holding these classifications. AOCE represents some health service employees (nurses) in its mixed unit at OSP.

Supervisory structure

Health services, including medical and dental services, has been centralized since 1984 and 1985. The health services staff at OSCI report to a clinic manager.⁽⁷⁾ The pharmacy technician and dental assistant are dually supervised by both the clinic manager and the respective pharmacist or dentist for whom they work. Canteen workers currently report to the General Services Department through the chain of command at each institution.

Work location

The affected employees work at OSCI within the walls of the institutions. OSCI is in Salem, as are OSP and OWCC.

Interchange of employees

Nurses working day shift interact with the health services personnel, security personnel, and inmates when performing sick calls in the units and when retrieving patients from medical visits off the premises. The nurse assigned to night shift interacts only with the security staff and inmates. OSCI health service employees receive the same training, and train with, health service employees from other institutions. In emergency situations, health service employees may fill in at other institutions.⁽⁸⁾

Wages, hours, and other working conditions

Employee wages, benefits, and other terms and conditions are determined by the applicable collective bargaining agreements. These terms are substantially the same throughout DOC. The standards, policies and procedures applicable to health services are the same at all institutions.

History of collective bargaining

DOC and AFSCME statewide strike-permitted and strike-prohibited bargaining units were formed after DOC opened several new institutions between 1988 and 1990. The mixed units at OSP and OWCC were represented by AFSCME at that time, and these were not reconfigured; that is, they remained mixed units. In 1992, AOCE was certified as the bargaining representative for employees in the mixed unit at OSP.⁽⁹⁾ AOCE has represented the strike-prohibited employees at OSCI since 1997.⁽¹⁰⁾

Desires of employees

There is some question as to whether AOCE has produced a sufficient showing of interest for its petition.⁽¹¹⁾ Furthermore, this Board has acknowledged that showing of interest cards or petitions are not necessarily the best indicators of the desires of employees. AFSCME v. State of Oregon and AOCE, 17 PECBR at 774, n. 12. The record does not contain other evidence of the desires of employees. Regardless of employee desires, for the reasons spelled out below, we find that the AOCE unit is not more appropriate than the AFSCME unit.

Here, AOCE not only must establish that its unit is more appropriate than AFSCME's, but it must support adding new strike-permitted employees to a mixed unit. This Board does not favor such a result. As a part of the statutory dispute resolution process, the Public Employee Collective Bargaining Act (PECBA) grants public employees, other than certain emergency and security personnel, the right to strike. The PECBA only prohibits emergency telephone workers, police officers, fire fighters, and guards at correctional institutions or mental hospitals from striking.⁽¹²⁾ These employees must proceed to interest arbitration. The policy of the PECBA is for separate modes of dispute resolution for strike-permitted and strike-prohibited employees. That policy 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 community of interest factors. Here, most of the considerations we use in determining whether to "mix" employees do not favor transferring the subject employees. Although not altogether clear, it appears that strike-prohibited employees would remain the majority if the proposed strike-permitted employees were added to AOCE's mixed unit. However, the employee classifications that AOCE seeks to add to its unit are not unique to OSCI. Rather, these classifications exist at all DOC institutions. The subject employees perform substantially the same work as employees filling the same classifications at the other institutions. Health service employees at OSCI train with employees in the same classifications at other institutions. They are subject to the same standards, policies, and procedures that govern all such employees. This Board has said that the strongest community of interest is among persons in the same functional classification series. Teamsters Local 57 v. Lane Co. and AFSCME, Case No. C-199-82, 7 PECBR 5763, 5779 (1983). We adhere to that view.

Furthermore, the history and stability of labor relations as well as the organization of the work force do not support a transfer. AFSCME represents employees filling the subject classifications across DOC institutions. While AOCE represents some nurses at OSP in its mixed unit, the vast majority of employees filling the classifications at issue are in AFSCME's statewide, strike-permitted unit. The petitioned-for employees have a long history of representation by AFSCME, and fragmenting these employees from other employees in the same classification series would not stabilize labor relations. These factors coupled with the fact that AOCE representation would result in adding new strike-permitted employees to the mixed unit drive our determination that the AOCE unit is not more appropriate.

AOCE argues that it should be allowed the opportunity to represent the subject employees because they work within the walls at OSCI and routinely interact with OSCI strike-prohibited employees that AOCE represents.⁽¹³⁾ These considerations are not compelling reasons for adding new strike-permitted employees to a mixed unit in light of the other community of interest factors that favor continued representation in AFSCME's statewide, strike-permitted unit.

AOCE's petition will be dismissed.

ORDER

The petition is dismissed.

DATED this 17th day of March 2000.

1. However, see Discussion, infra at p. 8-9, concerning the statement of the issue which seems to significantly change the scope of AOCE's petition.

2. Findings of Fact 1 through 9 are the result of a partial fact stipulation signed by the parties prior to hearing.

3. Five other nonsecurity employees represented by AFSCME work inside the walls of OSCI. One is a hearings officer (part of the Inspections Unit), two mental health specialists and an office specialist (in the Counseling and Treatment Services Program), and two release counselors (in the Transitional Release Program). These employees are included in centralized services and are not sought by AOCE in this petition. Also see: Footnote 1, supra, and Discussion, infra at p. 8-9, regarding the statement of issue.

4. Some health service employees at OSP, such as nurses, are represented by AOCE as part of its wall-to-wall mixed unit. Some health service employees at OWCC, such as nurses, are represented by AFSCME as part of its wall-to-wall mixed unit.

5. It seems that AOCE draws this impression from our decision in AFSCME v. Department of Corrections and AOCE, supra,17 PECBR at 778. In that subsection (6) case, we determined that it would be appropriate to transfer certain DOC employees at SFFC to an AFSCME unit subject to a self-determination election. Contrary to AOCE's impression, the result in that case did not turn solely on "centralized administration." We reviewed all of the community of interest factors. Most of the factors did not favor one unit over the other. However, the chain of command, organizational alignment, and integration of the involved institutions, as well as interchange of employees, favored the AFSCME unit. Id.

6. The primary difference between employees working at the OSCI clinic and those working at the OSP clinic is that since OSP is a maximum security facility, security personnel are stationed in the clinic.

7. The OSCI dentist reports to the clinical director of the Health Services Division.

8. One nurse from OWCC works at OSCI about once a week.

9. See AOCE v. State of Oregon and AFSCME, 17 PECBR at 725; Findings of Fact 14 and 15.

10. We take notice of this Board's Certification of AOCE as representative of certain strike-prohibited employees at OSCI on June 17, 1997.

11. The State argues that this Board should re-examine the showing of interest because it may be inadequate since AOCE changed its position at hearing with respect to the employees it seeks to represent at OSCI. Since we determine that AOCE is not a more appropriate unit, we do not address this argument.

12. See ORS 243.736.

13. AOCE claims that institution-specific units are appropriate units for DOC employees. Without addressing the merits of that argument, we note that AOCE's mixed unit is not institution specific. It includes employees at OSP, MCCF, SFFC, and OSCI.