[5-01-00] Association of Oregon Corrections Employees, Petitioner v. State of Oregon, Department of Corrections, Respondent and AFSCME, Council 75, Incumbent. OAR 115-25-005(6) unit clarification petition. Case No. UC-25-99

Oral argument before the Board on January 14, 2000, upon objections filed by all parties to a proposed order issued by Administrative Law Judge (ALJ) Vickie Stilley-Cowan on October 26, 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) unit clarification petition, UC-25-99, seeking to transfer to its existing bargaining unit certain noncorrectional officer employees employed at Columbia River Correctional Institution (CRCI) who are currently represented by AFSCME in its statewide, strike-permitted bargaining unit.⁽¹⁾ The State and AFSCME filed timely objections.

The issue is: Are Columbia River noncorrectional officer employees more appropriately included in the AFSCME or the AOCE bargaining unit?

The ALJ concluded that the petitioned-for employees at CRCI more appropriately belong in the AOCE "mixed" unit than in the AFSCME unit.⁽²⁾ We disagree. We conclude that the subject employees do not more appropriately belong in the AOCE unit. We dismiss the petition.

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

RULINGS

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).

The ALJ's rulings were reviewed and are correct.

FINDINGS OF FACT

1. AOCE and AFSCME are labor organizations and the exclusive representatives of separate bargaining units of employees employed by DOC, a public employer.

2. 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 Center in Baker City (PRCC)

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)

3. DOC personnel are currently organized into six separate bargaining units represented by three unions: AOCE, Oregon Public Employees Union (OPEU), and AFSCME.

4. AOCE represents approximately 700 employees in a mixed strike-permitted/strike-prohibited unit which includes all employees at OSP, MCCF, SFFC, and the strike-prohibited employees at OSCI.

5. 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."

6. 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 to the superintendent through the institution chain of command.

7. 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 * * *."

8. 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 "non-security unit" that includes all strike-permitted employees other than those represented by AOCE and OPEU.

9. In addition to employees who work and are supervised by a chain of command at a particular institution, 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.⁽³⁾

10. The most recent collective bargaining agreement between AFSCME and the State covered the period from February 16, 1994 through June 30, 1999. The recognition clause of that agreement reads, in part, as follows:

"* * * 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 appropriate bargaining units within the Department of Corrections which are:

"a. Non-security Unit - Encompasses all other classified employees excluding supervisory and confidential employees as defined in ORS 243.650, employees at Oregon State Correctional Institution covered by Oregon Public Employees Union, and the Oregon State Penitentiary covered by the Association of Oregon Corrections Employees."

11. Employee training is centralized. Since 1989, the same in-service training is provided throughout DOC to newly-hired employees and as part of continuing training programs for veteran employees. Currently, CRCI, SFFC, and OCIC employees attend in-service training together.⁽⁴⁾

12. In 1992, this Board certified AOCE as the exclusive bargaining representative of a mixed unit of all employees at OSP, the Farm Annex, SFFC and the Unigroup Unit [prison industries], formerly represented by AFSCME.

13. SFFC was established in 1951 as a joint venture between the Oregon State Board of Forestry and OSP. During the early years, SFFC served as an honor camp under the supervision and control of the OSP. It currently houses adult male inmates.

14. CRCI was officially opened in September 1990 as an adult minimum security prison. The institution houses 500 minimum security adult male and female inmates.

15. In 1992, DOC assigned the administrative responsibility for the operation of SFFC to CRCI, primarily due to the facilities' proximity, similar security work, and program missions. CRCI and SFFC are operated under the same superintendent.

16. At SFFC, there is one plant maintenance worker, three food service coordinators, and one corrections counselor. SFFC's plant maintenance worker reports to the physical plant manager at CRCI. The food service coordinators at SFFC report to the food services manager at CRCI. SFFC's corrections counselor reports to the program services staff at CRCI. These employees are represented by AOCE.

17. At CRCI there are four plant maintenance workers, four food service coordinators, and six corrections counselors that report to their respective supervisors at CRCI. These employees are represented by AFSCME.⁽⁵⁾ AFSCME represents these same strike-permitted positions at all other DOC institutions except at the institutions where OPEU or AOCE represent any such employees (OSCI, OSP, MCCF, and SFFC).

18. DOC issued a procedural manual for CRCI and SFFC that covers a variety of topics, including out-of-class and developmental assignments, staff scheduling, and attendance. DOC has also issued an employee handbook covering both CRCI and SFFC. The handbook sets forth the mission of DOC and includes brief histories of CRCI and SFFC. It also describes day-to-day operations and employee services, as well as compensation practices and leave policies. The wages, hours, and conditions of employment for CRCI and SFFC are established through collective bargaining.

19. Employee scheduling for both CRCI and SFFC is performed by the CRCI relief factor management system (RFMS) coordinator.

20. There are out-of-class and/or developmental assignments for CRCI and SFFC staff. CRCI and SFFC staff may submit letters of interest for temporary assignments at either institution. As a result, employees may work cross-over assignments between the two institutions.⁽⁶⁾

21. The honor of "employee of the quarter" is chosen from a pool of all SFFC and CRCI employees.

22. In most respects, the differences in benefits and working conditions between employees covered by the AOCE contract and those covered by the AFSCME contract are insubstantial. Although some differences exist in wage rates, the wage increases are similar. Benefits such as insurance, holidays, vacations, and sick leave are essentially identical. Both contracts provide just cause for discipline and discharge; both have a similar grievance procedure ending in binding arbitration; and both define the work day and hours of work in the same way. The biggest differences are in the areas of promotions, layoff, and seniority rights.

Centrally-administered employees

23. Health services is a centrally-administered program within the Correctional Programs Division of the DOC, separate from the administration of the institutions. The program currently provides health care to inmates at all Oregon correctional institutions.

24. Health services operates a medical clinic at CRCI. It has a large mental health component and services associated with CRCI's function as a release center. The clinic is managed by a registered nurse classified as a "principal executive C" (clinic manager). All the clinic staff, except the doctor and dentist, report to the clinic manager. The dental assistant and pharmacy technician are dually supervised by the medical professionals under whom they work, as well as by the clinic manager.

25. Interchange of employees between the CRCI medical clinic and other medical clinics or offices occurs on a regular basis.

26. Offender Information and Sentence Computation is a centrally-managed program responsible for maintaining inmate records and computing prison sentences and discharge dates for inmates. The records function has been centralized since 1997.

27. Two administrative specialists at CRCI are "prison term analysts" who are responsible for the record keeping related to inmate intake and release, sentence calculations, and security and control of records. These positions report to the Central Unit in Salem.

28. Transitional Release Services is a centrally-administered program and is part of the Community Corrections branch of DOC. The release program employs nine release counselors who are stationed at five different correctional facilities. The release counselors prepare release plans for inmates prior to their release from detention and assist the parole board in setting conditions for supervision upon the inmate's release. Staff are moved between institutions as needed.

CONCLUSIONS OF LAW

1. This Board has jurisdiction over the parties and subject matter of this dispute.

2. The petitioned-for employees do not more appropriately belong in the AOCE unit than in the AFSCME bargaining unit.

DISCUSSION

Similar to the issue in UC-24-99, here we must decide whether the petitioned-for employees--currently in AFSCME's statewide, strike-permitted bargaining unit--should be transferred to AOCE's mixed unit. For reasons similar to those in UC-24-99, we conclude that the subject employees are not more appropriately included in the AOCE unit. We decide so mainly because a transfer would move strike-permitted employees from a strike-permitted unit to a 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 ascertain which best satisfies the requirements of the applicable statute and rules. That is, we must decide which unit is more appropriate.

In making such determinations, ORS 243.682(1) requires that 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. 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 or mixed 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

As in UC-24-98, at hearing AOCE stated that it was petitioning for AFSCME-represented employees who were not subject to central administration. 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.⁽⁷⁾ By limiting the scope of its petition to such employees, AOCE seems to have excluded many of the CRCI employees it originally petitioned to represent in this case--employees in health services, release services, and record retention/maintenance (Offender Information and Sentence Computation [OISC]). Despite AOCE's qualification to its original petition, the analysis set forth below applies to all of the positions in AOCE's original petition. We explain why such employees, whether or not subject to central administration, do not more appropriately belong in the AOCE unit.

Classifications and job functions

The job classifications at issue are held by employees in the AFSCME statewide, strike-permitted unit. The functions performed by these employees at CRCI are substantially the same as those performed by employees holding the same classifications at other DOC institutions. AFSCME represents most of the DOC employees holding these classifications. AOCE represents employees in these positions at SFFC, MCCF, and OSP; OPEU represents any such strike-permitted employees at OSCI.

Supervisory and organizational Structure

CRCI has administrative responsibility for SFFC. CRCI and SFFC are supervised by the same superintendent.

Employees working in health services, release services, and records retention/maintenance (OISC) are in centrally-administered programs. This means that these programs have administration and supervision that, for the most part, is not institution-specific. For example, the medical clinic at CRCI is managed by a registered nurse who is classified as a "Principal Executive C" (clinic manager). With limited exceptions,⁽⁸⁾ the clinic staff report to the clinic manager, who in turn reports to the assistant administrator of operations for health services (Linda Bronson) who reports to the administrator of health services. In records, two administrative specialists (prison term analysts) at CRCI report directly to the Central Unit in Salem.

CRCI institution-specific positions (employees in plant maintenance, food services, certain correctional counselors, and clerical staff), report to supervisors at CRCI. SFFC nonsecurity personnel working in these areas also report to CRCI managers.

Work location

This case does not concern an institution-specific bargaining unit.⁽⁹⁾ The subject employees work on the grounds inside the fence at CRCI, which is located in Portland, Oregon. They are a part of AFSCME's statewide, strike-permitted bargaining unit. SFFC is located in Tillamook, Oregon. The employees at SFFC are a part of AOCE's mixed bargaining unit which includes employees from OSP (Salem), SFFC, MCCF (Salem), and strike-prohibited employees at OSCI (Salem).

Interchange of employees

Interchange of employees between CRCI and SFFC may occur--and has occurred--with respect to security personnel. Security personnel (strike-prohibited) have worked cross-over, temporary assignments between CRCI and SFFC on a fairly consistent basis. During a flood several years ago, employees, including a maintenance worker (strike-permitted), worked cross-over assignments between these two institutions.

In Health Services, there is interchange among employees working at DOC medical clinics and offices on a regular basis. In Release Services, there are nine release service (correctional) counselors that provide services all over the state. Two of these counselors currently are assigned to provide services at CRCI. If there is an emergency release at another institution, they may be used at that institution.

Employees from CRCI (Portland), SFFC (Tillamook), and OCIC (Oregon City) attend in-service training together.

Wages, hours, and other working conditions

Wages, hours, and working conditions are governed by the respective collective bargaining agreements. These terms are substantially the same throughout DOC.

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. As a result of voluntary recognition by the State, AFSCME has represented CRCI employees as part of its statewide unit since CRCI's opening in 1990. See OPEU v. State of Oregon, Corrections Department and Executive Department, and AFSCME, Case No. UP-91-90, 12 PECBR 876 (1991).

For many years SFFC employees have been part of a mixed unit. Originally, they were represented by AFSCME. In 1992, as the result of an election, the employees chose AOCE as their exclusive representative.

Desires of employees

AOCE produced a 50 percent showing of interest for its original petition. There is, however, some question as to whether AOCE has produced a sufficient showing of interest for its petition in light of AOCE's amendment to the scope of its petition at hearing.⁽¹⁰⁾ 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 here does not contain other evidence of the desires of employees.

Summary

In this unit clarification case, AOCE 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. As we said in UC-24-99, this Board does not favor such a 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. There are no such reasons here.

Most of the considerations we use to decide whether to "mix" employees do not support transferring the petitioned-for CRCI employees. It appears that strike-prohibited employees would remain the majority if the 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 CRCI and SFFC. 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. AFSCME represents the large majority of employees filling these strike-permitted positions in its statewide unit. AOCE represents these employees at SFFC, MCCF, and OSP, and OPEU represents any such strike-permitted employees at OSCI. The fact that the subject positions are not unique and that AFSCME represents the substantial majority of employees filling such classifications does not support AOCE's bid for transfer.

In addition, the history and stability of labor relations as well as the organization of the workforce do not support a transfer. As mentioned above, AFSCME represents employees filling the subject classifications across DOC institutions. While AOCE represents some of the positions in its mixed unit, the vast majority of the subject employees are in AFSCME's statewide, strike-permitted unit. The petitioned-for employees have a long history of representation by AFSCME. Fragmenting these employees from other employees in the same classification series in the statewide unit would not stabilize labor relations.⁽¹¹⁾ These factors, together with the fact that AOCE representation would result in adding strike-permitted employees to the mixed unit convince us that the AOCE unit is not more appropriate.

AOCE argues that since this Board determined that SFFC employees were entitled to an election in UC-37-97, supra, it only makes sense that CRCI employees also should be allowed an election to see if they want to join AOCE's mixed unit which includes SFFC employees. We disagree. The petition in UC-37-97 did not involve the question of whether to add strike-permitted employees to a mixed unit. The subject employees in that case were already in a mixed unit. Also, the petition in UC-37-97 covered all SFFC employees, not a portion of them, so there was no possibility of undue fragmentation of the workforce.

Here the community of interest factors do not strongly weigh for transfer of the subject employees. While there is an administrative connection between CRCI and SFFC, and some interchange of employees between these two institutions, there are important factors that do not justify a transfer. The statewide nature of these classifications, the history and stability of labor relations, and the organization of the workforce--as well as the petitioned-for employees' strike-permitted status--all do not support transfer.

AOCE's petition will be dismissed.

ORDER

The petition is dismissed.

DATED this 1st day of May 2000.

1. At hearing AOCE clarified that its petition did not include certain AFSCME-represented employees who were subject to central administration. Apparently, AOCE seeks only to represent employees filling institution-specific positions in food service, plant maintenance, corrections counseling, and certain clerical positions. See Discussion infra at pp. 9-10.

2. The AOCE unit contains both strike-permitted and strike-prohibited employees. The "mixing" of these two types of employees results in the strike-permitted employees being prohibited from exercising their right to strike. See AFSCME v. Executive Dept., 52 Or App 457, 62 P2d 1228 (1981).

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

4. Findings of Fact 11-16 and 18-22 are basically taken from AFSCME v. Department of Corrections and AOCE, Case No. UC-37-97, 17 PECBR 767 (1998). Case No. UC-37-97 concerned security personnel at CRCI and SFFC. The parties to this case requested by stipulation that this Board take official notice of the testimony, exhibits, and final orders in UC-37-97, as well as UC-35-97 and UC-36-97. Unless noted, the evidence does not indicate that there are any significant distinctions between security and nonsecurity personnel with respect to these factual findings.

5. In 1990, the State voluntarily recognized AFSCME as the exclusive representative for several new correctional institutions coming on-line. CRCI was one of those institutions.

6. It was established in AFSCME v. Department of Corrections and AOCE, 17 PECBR at 772, that security personnel worked cross-over assignments on a "pretty consistent" basis. At the hearing in this case, plant maintenance worker David Humbert testified that when he worked at CRCI (1995-1996) employees, including a maintenance worker, worked cross-over assignments during a flood.

7. It seems that AOCE draws this impression from our decision in AFSCME v. Department of Corrections and AOCE, UC-37-97, 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 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 institutions, as well as interchange of employees, favored the AFSCME unit. Id. Unlike this case, UC-37-97 did not involve the additional consideration of whether to transfer strike-permitted employees to a mixed unit.

8. The dental assistant and pharmacy technician are dually supervised by the medical professionals for whom they work and the clinic manager.

9. There remains only two institution-specific bargaining units of DOC employees: the mixed unit of employees at OWCC represented by AFSCME and the strike-permitted employees at OSCI represented by OPEU.

10. 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 CRCI. Since we determine that AOCE is not a more appropriate unit, we do not address this argument.

11. Similarly, labor stability and equality of bargaining power would not be fostered by fragmenting CRCI strike-permitted employees into two groups--one of "centrally administered employees" represented by AFSCME in its statewide, strike-permitted unit and one group of institution-specific employees represented by AOCE in its "mixed" unit.