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sr-082383-12b/~ AUG 2 3 )ggg PEsSEM:p Santa Monica, California Council Meeting: August 23, 1983 TO: Mayor and City Council FROM: City Staff SUBJECTc Administrative Appeal of the Professional Association of Civilians In Law Enforcement Regarding Appropriate Unit Determination. Introduction This report transmits the appeal of the Professional Association of Civilians In Law Enforcement (PACLE) regarding the determination of the Municipal Employee Relations Officer that the organization is not an appropriate unit under Ordinance No. 80.1 (CCS). Background Under Ordinance No. 801, the City Manager in his capacity as Employee Relations Officer must determine whether a proposed bargain-ing unit is an "appropriate unit". PACLE's petition and supplement to petition are attached for the City Counci.l's information, as is a copy of the City Manager's response. PACLE appealled the' City Manager's determination within the ten day period provided under `Ordinance No. 80I and the City Council has thirty days from the filing of the appeal to reach a decision in the matter. Copies of the appeal and the City Manag'er's point by point response are also attached to this report. oa- AUG 2 3 ,3g3 Discussion The City Council may choose to concur with the City Manager's findings or may find that PACLE is in fact an appropriate unit for all or part of the positions they seek to represent. The following are staff's comments on the substance of the appeal. The essential matter before Council is whether the positions PACLE seeks to represent are sufficiently distinct from other positions in the units which currently represent them to warrant establishment of a separate bargaining unit. It is the position of the City Manager that they are not. In responding to PACLE's petition, the City Manager did not suggest that in a variety of areas some or all of the "PACLE positions" do not differ from some or all of the other positions in their current units. The response cited examples that show that the differences are neither uniform nor material and that PACLE's arguments could be applied to other small groins in large units. PACLE's argument rsgaxding "fullest freedom'° is one which bears careful consideration. They contend that the smaller unit they propose would enable them to `better concentrate their efforts on bargaining issues of `common Fo~lcern to them. This argument could be as forcefully posed by cl~ri~al employees who work in the Police Department and feel heir cpncerns are different than those of clericals in other departments or by Building, Public Works and Street Inspectors who feel they have different concerns than clericals or Administrative:Analysts or Engineers with whom they now have common representation. The argument has recently been raised by Transportation maintenance employees who feel their concerns differ from City Yards maintenance employees. In the extreme, eaeh City employee could feel their concerns differ from their co-workers and only by individual representation can they enjoy the "fullest freedom" to represent their interests. Council must decide where to draw the line. PACLE forcefully argues that association with the Police function and criminal law enforcement distinguishes them. The City Manager points -out. that this argument could be used to distinguish criminal attorneys from civil litigation attorneys who now have common representation and that many employees in the current units have law enforcement duties. At the civilian level penal rather than civil code enforcement does not appear to constitute a real difference. The fact that PACLE employees must observe the strict chain of command pra_sent in tYte Police Department does not recognize that other departments have a gain of command .which employees must observe. General Services. emplb~ees have lead workers, full supervisors, managers and- depar~~ent heads through whom they respond ih a chain. The presence of a sworn officer in the chain of command does not sighificantly distinguish the PACLE chain and does not -apply to all positions PACLE seeks to represent. Civilian work in the Police Department as opposed to another City Department does not appear to constitute a distinguishing condition. The- argument regarding physical hazard and stress experienced by PACLE employees is also unpersuasive. Job stress is becoming an issue of national focus in unions that represent clerical workers. The Council Secretary, for example, could be consulted about job stress and the need to apply psychology in handling the public contact she has. Physical hazards experienced by Harbor Patrol Guards and Airport Security Guards are no greater than those experienced by other STA members such as sanitation workers and laborers. $pme, but net all PACLE positions can involve contact with criminals, for Jailers and Identification Technicans sworn personnel are present or nearby. Community Services Officers are not or-dered to respond to calls when a suspect is present. PACLE positions, like other City positions can be subject to random violence. The danger to PACLE positions can and should be lessened by careful adherence to Department policies which prohibit intervention in assaults and call for reliance on sworn personnel in situations where there is a suspect. In considering PACLE's appeal, Council should be mindful that MEA is not a "clerical° unit. MEA's full name is MEA/PACT, the Municipal Employees Association Representing Professional, Administrative, Clerical and Technical Employees. It is a unit established to represent the concerns of a wide range of positions. MEA has sought benefits to distinguish its "para-Police" members. As with all bargaining situations, the unit does not gain everything it seeks but as the current MEA contract demonstrates, they have achieved some of their goals for these members. The precedent setting nature of the decision before Council is a serious concern. If the current fragmented nature of bargaining in the City precludes Council forever from taking a rational position on maintaining consolidation where distinctions are not significant, the City must be prepared for an increasing multiplicity of units in the near and forseeable future. Consequences Of Council Action If Appeal Is Granted If Council grants PACLE's appeal and recognition is granted, the City will have twelve bargaining units and added precedent for further fragmentation of representation which may be used to support the claims of other graups. Consequences Of Council Action If Appeal Is Denied Under Ordinance No. 801, Council's decision on the appeal is final, If the appeal is denied, PACLE may then pursue a civil action The City would experience litigation costs if this occurs. Recommendation It is recommended that the City Council deny the appeal of PACLE on the basis that they have not established a sufficient rationale for separate representation under Ordinance No. 801. Prepared By: John Alschbler Susan E. McCarthy Point By Point Response of City Manager To Issues Raised In PACLE Appeal Fullest Freedom: This argument would suggest that because -the working conditions and other issues of concern to Harbor Patrol Guards are not identical to those of other-PACLE positions such as Community Services Officers, Identification Technicians and the Xouth Ser-vices Counsellor in that they have to swim and operate boats, their interest cannot be represented by PACLE since they are in a minority. Taken to its extreme it would argue that each employee should choose to be individually represented to ensure that they have the fullest freedom to exercise their rights. PACLE's examples of MEA failures to represent their interests show a lack of understanding of what a bargaining unit can achieve and when they can legitimately raise an issue. It is not clear what benefit would have been served by the MEA Board agreeing to a salary survey for PACLE positions since MEA will mot be negotiating for a new contract until the Fall of 1984 at which time such a survey could be the subject of bargaining. Under the City's administrative practices, any employee can request a salary survey from their Department Head and Personnel outside the negotiation process in conjunction with the budget process. In regard to worker's Compensation, the City°s worker's compensation program is already substantially more generous than that provided by State law. It is unrealistic in the extreme to expect that the City would further liberalize those benefits. PACLE Regardless of how the individual wage adjustment requests bites were originated, MEA and STA employees pursued them through their bargaining units which brought those issues to the table rather than leaving the employees to "fight" it out on their own. Had they not done so, there would be no reference to the adjustments as part of the negotiated settlement. PACLE implies that MEA has favored clerical in regard to the night shift differential. MEA has in fact consistantly attempted to get the City to adopt the 10~ differential for all MEA employees. .The origin of the 10~ for police clericals was not in the collective bargaining process. It pre-dates Ordinance 801 and i~ a hold over from the period when wages and benefits were sit ~y ResolutioH. While the City has not been successful in`bargaihrig out of 't'he long standing practice for clericals, our opposition to "percentage" as opposbd to "flat-rate" bonuses has been raised consistantly at the table., with the last notable success bein§ the flat-rated paramedic bonus negotiated in the ~i~efighter agreement.. The fact that MEA retains counsel familiar with Police operations supports the City Manager's fullest freedom argument and does not imply that Police operations are sufficiently distinguishing to warrant a separate employee group. with the recognition of the Supervisor's Team (STA) the Council clearly established their philosophy that supervisors have unique requirements that must be recognized. The long standing practice of including safety supervisors in the Police and Fire Unions are perhaps unfortunate but Council need not feel that PACLE's argument is compelling for miscellaneous employees. Employee Relations History: The City Manager's arguments here are not inconsistent. Reference to the chart in the Manager's response letter. to PACLE bears this out. MEA has existed in several forms over the years, but individual classifications have not bhen consistently represented. The result of employee relations history has clearly been that the positions PAGE seeks to represent have been represented by a variety of units `over time and thet even their MEA representation has been 'by differing bodies. PACLE argues that sworn personnel used to perform their duties and implies that since sworn personnel are represented separately they too should be. Civilianzation is specifichlly designed to release sworn officers to perform duties requiring those skills and authorities only sworn officers posess. To argue that civilianization has not changed the nature of the positions PACLE seeks to represent is faulty. The PACLE positions include only non sworn responsibiities, not the full range of duties that officers who formerly took on those tasks had to perform. In addition, Ordinance 801 provides that sworn police personnel cannot be part of a larger unit. This is not true of civilian employees. Contrary to PACLE's assertion, the City Manager dial not ignore the fact that the Police Chief feels PACLE positions warrant consideration of separate pay and promotional lines. These positions are already distinct in pay from clerical positions and consideration has been given by Personnel to establishing career ladders. Several civilian supervisory positions have been created to address this need and other classifie~tion actions will ensue as appropriate. In regard to PACLE's arguments about similar public employment, Ordinance 801 clearly states that the extent to which employees in the proposed unit hAVe organized is not a sufficient. basis for unit determination. The fact that PACLE has formed and has been consulted by employees in other cities does not altar the fact that in similar public employment such units are rare. Several of the functions PACLE seeks to' represent have been civilianized for long periods both here and in other agencies. Only the Community Services Officer function is "new". Jailers, Identification- Technicians, Communications Operators, Parking Checkers and non sworn Security Guards are relatively "old" not new. Effect of Unit on Effir_ient Operation: PACLE may feel their argument is stronger than that of others and that the Council should not consider that as a concern in any event. However, Council's actions in this matter will be precedent setting and that fact cannot be ignored. Each request for unit determination must be approached on its own merits and the opinion of the City Manaer is that PACLE has not established a sufficient rationale for recognition. Community of Interest: In their appeal, PACLE again overstates the hazardous nature of the positions they seek to represent, ignoring the fact that the City's policy and their training stress that sworn personnel are to be called and relied upon in hazardous situations. They overstate. the differences between themselves and other City personnel who are uniformed and in the field who may observe criminal activities and who, like PACLE's positions, are to contact sworn personnel for assistance. Their argument about penal code versus civil code enforcement would argue that Deputy Attorneys assigned to criminal prosecution should receive pay and benefits different from those in civil litigation. This is not a sound position. All City employees as a matter of policy must report any criminal activity they observe to the Police, Only sworn employees have the duty to int~rve~e physically to stop a criminal act and even sworn employees can obser-ve reasonable precautions in terms of back-up, Despite the 1976 memorandum of the Recreation and Parks Director and despite the representations of PACLE that failure to intervene would subject the City to liability, City employees other than sworn employees have no greater duty to intervene than the average employee or citizen. Supervision: PACLE's arguments that because sworn personnel are part of the chain of command, PACLE's positions are distinguished from others is not supportable. The City Manager in his response pointed out that this is true of Police clerical personnel who PACLE excludes and is not true of Harbor Patrol Guards and Airport Security Guards. On any given subject, PACLE's arguments apply to some .but not all of the positions it seeks to represent and apply to other employees of the City they do not seek to represent. All City employees, for example, accept direction from a police officer in emergency. situations where it is appropriate for an officer to take command. This does not constitute regular supervision. Police clerical employees are subject to taking orders and the strict chain of command. Workplace: The Police Department like the Finance Department, the Personnel Department and the Recreation and Parks Department are part of City Hall. The courtyard does not make the Police Department a distinct workplace, nor does the fact that some employees work at the Civic Auditorium entitle them to separate representation absent other compelling arguments. Interchange With Other Employees: The job. skills of a Building Inspector are no more or less transferable than those of a Jailer. It is not clear what PACLE meant in originally raising the issue of interchange with other employees if not work and social contact. The City Manager points out in his response that they do have interchange with other MEA employees as well as sworn personnel and other City employees. Hiring: PACLE ingores the fact that all City employees are fingerprinted and that their conviction records must be cleared by the Personnel Board. The background check is simply an extension of this process. PACLE's contention that only Police Department personnel are hired by supervising employees of the same job function is faulty. Supervising Staff Assistants hire Staff Assistant I's, II's and III's, and Recreation Supervisors hire Recreation Leaders, Recreation Specialists and Recreation Aides, to name only a few. The City Manager did not represent that the examples he cited in any portion of this response were exhaustive, but only representative of his arguments. Hours: PACLE accurately asserts that greater numbers of Po-lice civilians work shifts than do other civilian employees. The police shift work does include clerical as well as PACLE positions. Training: The training PACLE positions receive is in procedures and techniques, as is the training for other City positions. We cannot train individuals to be mature and unemotional. These are personal qualities that we seek in the selection of employees through testing, the employment interview and reference check procedures we follow for all employees. PACLE again overstates the distinctions between themselves and others. Summary PACLE contends that they are more different or distinguished than other groups of employees. This is the heart of the dispute the City Council is asked to resolve. Each employee of the City has an opinion about the complexity, importance, and unique conditions of his or her position. PACLE's perception of the uniqueness of the positions it seeks to represent is well expressed but overstated. APPEAL TO CITY COUPICIL AND RESPONSE TO DECISION OF MUNICIPAL E:~PLOYEE RELATIONS OFFICER I INTRODUCT-ION The Professional Association of Civilians In Law Enforcement ("PACLE"} hereby appeals to the City Council of the City of Santa Monica from the decision of the Municipal Employee Relations Officer determining that the bargining unit requested. by PACLE. is not an appropriate unit. This document constitutes a response to the written decision of the Municipal Employee Relations Officer dated July 18, 1983. It is respectfully submitted that the decision of the Municipal Employee Relations Officer is not supported by the facts which are relevant to this determination, and in numerous instances ignores facts which militate in favor of a determination that the unit requested by PACLE is appropriate. In addition to this written response, PACLE will make an oral presentation to the City Council at the hearing to be held on this matter on August 23, 1983. 1. II FREEDOM OF EXERCISE OF RIGHTS In his discussion of the criterion of "which unit will insure employees the fullest freedom in the exercise of rights set forth in Ordinance P7o. 801", the Municipal Employee Relations Officer misconceives the meaning of that criterion. The Municipal Employee Relations Officer states that he did not find that employees in the positions which PACLE proposes to include in the proposed bargaining unit (the "PACLE positions") ".are in any way constrained from freely exercising their rights under Ordinance No. 801 while part of MEA." This is not the issue. The question posed by the Ordinance is "which unit will insure employees the fullest freedom in the exercise of rights". Thus, to say that the employees are not "constrained" from freely exercising their rights while part of MEA is irrelevant to the issue of which unit will allow them the "fullest freedom" in exercising those rights. No one more than a member of a deliverative body such as the City Council should be more aware of the problems inherent in being a member of a body which takes action by majority vote. The members of PACLE have 25~ of the voting power on the Board of Directors of MEA. 2. Thus, when matters before the Board of i~LEA are put to a vote, the members of PACLE have only a 25~ vote on the issue, clearly not enough to swing the vote in their favor. It is obvious beyond any doubt that were. the. member of PACLE in a unit constituted only of PACLE: membership, they would have the "fullest freedom" in exercising their rights. Two examples should be sufficient to illustrate the problem. within the last one year, representatives of the membership of PACLE on the Board of MEA have requested that the Board authorize a salary survey to determine what salaries are paid to employees in comparable positions in other municipalities. Because a salary survey had already been done for clerical positions, the Board refused to authorize a separate salary survey for positions represented by the membership of PACLE. Had PACLE members been in a unit of their own, .they certainly could have and would have authorized such a salary survey. In another instance, members of PACLE have sought for sometime to cause the Board of Mr.A to make the issue of supplemental industrial pay a lead issue in wage and hour negotiations with the City. Currently, an employee injured on the job .receives Sdorkers' Compensation at a fraction of his or her full salary. He or she receives .from the City supplemental pay to make up the difference only for the first 90 days of 3. such disability. Thereafter, the employee must make do solely on Workers' Compensation, a fraction of full salary. Police officers, on the other hand, by law receive full salarly for up to one year. Members of PACLE have indicated to the Board of MEA that they would be willing. to "trade" benefits to receive further supplemental disability pay; that is, they would be willing to negotiate on. the basis of possibly taking funds allocated to some other benefit and switching them into benefits for supplemental disability pay. Because the overall membership of MEA is not exposed to the same type of on-the-job injury risk and therefore does not have the same degree of concern regarding industrial dis- ability, MEA has refused to make this issue a primary negotiating issue in wage and hour negotiations with the City. Clearly, if the members of alI PACLE were. in a unit of their own, this issue could be purused. Thus, even if the Municipal Employee Relations Officer had determined that the proposed unit was not one which would assure members of PACLE the "fullest freedom" in the exercise of their bargaining rights (which he did not), such a determination would be clearly erroneous. 4. Several of the comments made by the P~unicipai Employee Relations Officer in his discussion of the freedom of exercise issue should be addressed. He notes that in the current MEA contract, two special pay adjustments were made to classifications PACLE seeks to represent. First, the mere fact that PACLE positions have benefits under the MEA (or STA} contract does not demonstrate that the unit represented by MEA (or STA} is the one in which they would have the "fullest freedom" in exercising their bargaining rights. Secondly, these special pay adjustments were created through the efforts. of the employees in the two. classifications themselves, working directly with their supervisors and personnel within the Police Department.. Perhaps the most telling statement made by the Municipal Employee Relations Officer is that MEA negotiated a night- shift differential "which primarily benefits classifications PACLE seeks to represent." This statement is simply untrue. In fact, the nightshift differential negotiated by MEA discriminates in favor of clerical personnel and against positions represented by PACLE. Personnel in positions which PACLE seeks to have placed in a separate unit receive a nightshift differential of only $.25 per hour for only those hours actually worked. between 6:00 P.M. and 6:00 A.M. This situation completely ignores the fact that a shift from 4:00 P.M. through midnight has a completely disrupting effect 5. upon the employee's home life and normal sleeping patterns and only pays him for the hours between 6:00 F.M. and midnight. On the other hand, clerical employees of the Police Department receive nightshift differential pay in an amount equal to 10$ of their base salary. Thus, a clerical employee making $6.00 per hour receives $.60 per hour compared to the $.25 per hour granted to other employees. This is a clear example of the type of inequality which could be, perhaps, eliminated if the employees which are the subject of the PACLE request were placed in a unit of their own. Finally, it is surprising that the Municipal Employee Relations Officer uses the legal counsel retained by MEA as an example of how the employee represented by PACLE are fully represented by MEA. He specifically notes that. the same lawyer who represents the City's sworn Police personnel at the table also represents MEA and states that "this professional representative is eminently qualified to represent civilian Police personnel based on his knowledge of the operation of the Police Department." This statement clearly indicates the recognition of the Municipal Employee Relations Officer that civilian Police personnel have special needs and are best represented by someone knowledgeable of the operations of the Police Department. This demonstrates 6. once again. the dissimilarity of the positions of civilian Police personnel from those of other personnel in the City generally. The Municipal Employee Relations Officer demonstrates a completely inappropriate approach to this issue when he states that MEA's size provides the advantage of professional regresentation at a lower cost per member than could be had if the employees were in a unit represented by PACLE. First of all, this is not necessarily true. Secondly, the Municipal Employee Relations Officer demonstrates by this comment that he has attempted to place himself in the position of deciding "what is best" for employees represented by PACLE. This is not his function. He is simply to determine which unit would allow these employees the "fullest freedom" in the exercise of .their rights under Ordinance No. 801. His comments demonstrate that he has failed to make this determination appropriately. This same bias is demonstrated in his comments regarding STA. The fact that he personally believes that supervisory personnel will be better off if they are re- presented separately from their subordinates is not relevant. The fact is that these supervisory personnel have requested that they be placed in the unit requested by PACLE. 7. Further,. he completely ignores the fact that these "super- visory personnel" in the PACLE positions are themselves supervised in most instances by Sergeants in the Police Department, employees who are in a non-supervisory bargaining unit. Finally, he is in error when hs says that there is an assumption on the part of PACLE that the City could focus more time and/or resources on the positions PACLE proposes to represent if they were in a separate unit. The fact is that PACLE. assumes that the available resources of the employee bargainers could be more fully focused on '~.he needs of the employees represented by PACLE if they were in a unit which did not include employees not performing similar functions. This is obvious. It is also obvious that the issues which are covered in wage and hour negotiations are not solely economic issues. There are numerous issues which effect the working conditions of employees which PACLE seeks to represent which are non- economic in nature. The fact is that these issues can be better addressed by a bargaining unit consisting solely of these employees than by one in which they constitute only 8. approximately 25~ of the overall makeup of the unit, and in which other employees have jobs which have significantly different concerns than those of the employees which PACLE seeks to represent. III EMPLOYEE RELATIONS HISTORY It is hard to conclude that the Punicipal Employee Relations Officer has approached this issue with an attitude of fairness when he states that all classifications which PACLE seeks to represent have at one time or another been represented by MEA and then goes on to state that "there is clearly no history of unified representation for these positions.." These two statements are simply inconsistent. Further, the Municipal Employee Relations Officer concedes that the duties now being performed by the majority of the employees in the proposed bargaining unit previously were performed by sworn police officers who were and are members of the Santa Monica Police Officers Association. Thus?, the City has in the past dealt with the problems associated with these positions through consultation and negotiation with a separate bargaining unit,' the Santa Monica Police Officers Association. All that has taken place, in fact, is that the functions performed by the employees which PACLE seeks to represent were assigned to civilians, rather than 4. sworn Police personnel. To take the position that this action somehow transmuted the functions performed by these employees from police-type functions to functions similar to those performed by the clerical employees., building inspectors, financial-clerical employees, secretaries, and others, in the larger MEA unit is simply ridiculous. . The Municipal Employee Relations Officer has not responded to and seems to ignore the memorandum from James F. Reane, Chief of Police, of 1981, wherein he states his belief that the employees in the proposed bargaining unit are "performing police service functions" and that the positions are sufficiently distinct in nature from other clerical employees of the City to warrant consideration of establish- ment of separate pay and promotional skills. The decision of the .Municipal Employee Relations Officer, rather than dealing directly with the issues raised by the Petition, states simply that he is "not persuaded" that the concerns of these employees are. different from those of the vast majority of city employees. This bald conclusion is inadequate and contrary to the facts before him. Once again, the Dunicipal Employee .Relations Officer has adopted an inappropriate "parental" approach to this process. He states that a consolidation of units appears "to be the rational approach to empowering employees in the i0. bargaining process." It is not the job of the Municipal Employee Relations Officer to empower employees in the bargaining process, This job and the decisions associated with it belongs to the employees themselves.. It simply is not up to the Municipal Employee Pelations Officer to determine what is best for the employees. Finally, the Municipal Employee Relations Officer states that in a number of cities named by him, classifications such as those PACLE seeks to have placed in a separate bargaining unit are grouped with other miscellaneous white or blue collar employees. While this may be true, members. of PACLE will inform the City Council at the hearing to be held on this. matter that two things are true. First, having civilians perform the functions performed by employees represented PACLE is a relatively new process. Most of these functions were previously performed by sworn police personnel. Thus, the positions themselves are relatively new. Secondly, employees in many of the cities listed by the Municipal Employee Relations Officer have contacted officials of PACLE to determine-..what steps they can take to secure separate bargaining units for themselves. 11. IV EFFECT OF UNIT ON EFFICIENT OPERATION It is interesting to note that the Municipal Employee Relations Officer concedes that the creation of a new bargaining unit for members of PACLE would "not overwhelm the City's resources." Thus, it would not have a dilatorious effect on the efficient operation of the City and sound employer-employee relations. Further, he states that "PACLE's rationale on Community of Interest is no stronger than that which can be made by other sub-groups of larger bargaining units." This, as will be demonstrated below, is not true. However, even if it were, the fact that other employees may have a legitimate claim to separate bargaining units is no valid. reason for denying one to PACLE. In effect, the Municipal Employee Relations Officer has admitted that his decision has been made on the basis of political considera- tions, rather than upon the facts placed before him. This is completely unfair and improper. V COMMUNITY OF INTEREST Many of the comments and arguments used by the Municipal Employee Relations Officer to support his decision that the members of PACLE do not share a unique Community of Interest demonstrate a superficial approach to the problem. 12. A point by point discussion of these comments will demon- strate this to the Council. A. Job Function. Perhaps the most .egregious example of the .failure of 'h.e Municipal Employee Relations Officer to address the issues presented by the Petition in this case is in his response to the facts presented to him with respect to the job function of PACLE employees as opposed to other employees of the City. In the Supglement To Petition For Recognition filed by PACLE, a detailed discussion. was set forth of the many. law enforcement functions performed by PACLE employees and the unique job skills required in the performance of their duties. Finally, the critical elements of physical risk associated with the joki was discussed in detail. The response of the Municipal Employee Relations Officer to these facts is, to characterize it in its best light, superficial. The Municipal Employee Relations Officer states that building inspectors, zoning inspectors, street inspectors, business license inspectors, plan check engineers, and fire prevention inspectors are engaged in enforcing the laws of the City and State. The clear implication is that h e sees 13. no differences betzaeen the function performed by these positions and those performed by the positions represented by PACLE. This assertion is ridiculous. Perhaps the most obvious distinction between the positions listed by the Municipal Employee Relations Officer and. the positions represented by PACLE is that PACLE employees are involved in enforcement of penal regulations in many instances, while the positions listed by the Municipal Employee Relations Officer are involved primarily with the enforcement of business oriented, licensing and construction regulations. As an example, it was pointed out in the Supplement that the Identification Technician, the Community Service Officer, the Jailer, the Harbor Guard, the Airport Security Officer, the Youth Services Counselor, and Domestic Crisis Counselor all are involved .with the enforcement of penal and criminal codes. These personnel, as part of the routine functions performed by them, come into contact with suspects in violent crimes, and prisoners arrested for violent crimes. Further, they, along with the Parking Checker and Parking Structure Guard, are often present during the actual commission of violent crime. It is ridiculous to asserts,. as does the Municipal Employee Relations Officer by implication, that these hazzards are in any way truly similar to those faced by building in- spectors, zoning. inspectors, and the like. None of the people in these positions are involved in situations where 14. their actions may results in the immediate deprivation of personal liberty by the taking into custody of suspects suspected o£ commission of violent crimes. Further, the laws with which they deal do not involve the infliction of bodily harm or the theft of property, as do those with which PACLE employees are involved. To compare these functions on an equal footing reveals a true failure to make a serious analysis of these issues, and gives the impression that the Municipal Employee Relations Officer is attempting to find a rationale for a decision already made, rather than to state the actual basis for a rational determination of this case. Further evidence of the disparity between PACLE positions and those listed by the Municipal Employee Relations Officer is the fact that the other positions do not routinely become involved in dealing with greatly distraught, injured, and/or traumatized members of the public in the course of enforcement of licensing and construction regulations. They are not routinely called upon to know how to react in life- endangering situations and their work in enforcing the laws which they enforce does not involve a great deal. of personal stress due to traumatic or dramatic events. Finally, they are not routinely called upon to testify effectively in court in cases in which their testimony may result in the jailing of the suspect in question; nor does their job routinely involve being engaged in violent physical 15. confrontation, with either animals or human beings. The fact is that while their functions may be called "law enforcement", the nature of the job performed is completely separate and distinct from that performed by PACLE employees. The same type of superficiality is demonstrated in the Municipal Employee Relations Officer's comment that "many blue collar employees represented by SEA are exposed to risks occasioned by work in the streets.." To even s~iggest that the risk faced by a construction worker as the result of working in the streets is the same as the risk faced by a person engaged in the investigation of criminal actions and the apprehension of criminal suspects is ridiculous. The same problem exists in his statement that these other employees by virtue of their uniforms are also recognized. by the public as city employees with radio cam- munication to the City. This completely ignores the true issue. That is, PACLE employees are identified as "Police". They look like policement and wear patches and badges and carry identification identifying them as Police employees. Citizens engaged in criminal confrontation turn to these personnel for help and assistance. It is highly unlikely that the same citizens would have the same tendency to attempt to flag down a maintenance truck or call for help from a construction workers as they would someone who they see as a "policeman". 16. The Municipal Employee Relations. Officer apparently agrees that observation and investigation skills are common to employees which PACLE seeks to represent. He passes over this issue and moves on to the issue of whether these employees are expected to take action in life-threatening situations. The fact is that the observation and investigation skills which these employees are required to utilize on a-daily basis are particularized and extensive and completely separate and distinct from those required of other city employees with the exception of policemen and firemen. He further ignores the fact that the public relations work done by PACLE employees is completely different from that done by a clerk meeting the public over a counter. PACLE employees routinely find themselves questioning persons suspected of possible commission of crime, while at the same time being required to attempt. to avoid unduly or improperly antagonizing or harassing people who may, in fact, be guilty of no infraction. Further, they deal routinely with distraught and/or trauma- tized members of the public, often involving the application of principles of first aid, psychology and/or effective use of authority. In large part, it is these required skills and the use to which they must be put which distinguishes these employees from other employees in the MEA unit. 17. The Municipal Employee Relations Officer takes issue with previous statements that these employees are expected to take action in Iife-threatening situations. He states that they are taught to observe. only and to call upon sworn Police-personnel in situations where criminal activity is in progress or suspects are present., Attached hereto as Exhibit °'A°' is a memorandum from the Director of Recreation and Parks to Harbor Division Personnel dated June 8, 1979. A review makes it clear that para-Police employees are expected to take action, rather than stand and watch.. Further, while it may be true that the training of PACLE employees does not primarily focus on violent confrontation, it is also true that. when confronted with the active commission of a crime and called upon by members of the public for assistance, it is unrealistic to suggest that a uniformed city employee wearing a police badge can simply stand by and advise a member of the public to wait while help is on the way. As an example, it is seriously questionable whether a parking structure guard would be properly performing his duties if the-came upon a person being assaulted and robbed outside of their car in a 18. parking structure and did nothing. Were that employee to simply stand and watch the assault and robbery take place while awaiting the arrival of Police personnel, it is respectfully suggested. that the City would be subject to liability and the employee might be subject to discipline. Finally, these employees are instructed to keep criminal suspects in sight and to abserve their activities where possible. It is hard to see how this function is to be carried out, unless the employee chases fleeing criminal suspects. Once he engages upon this course of conduct, it is highly likely that the criminal suspect himself, perceiving the employee to be a Police Officer, will engage in violent physical confrontation with him in an attempt to escapte. 19. Even were the Municipal Employee Relations Officer correct in .his view of the situation, it must be admitted that the job performed by these employees palces them in situations where these decisions msut be made much more often than does the job of any other city employee, except for policemen ahd firemen.. The Municipal Employee Relations. Officer simply ignores the comments in the Supplement regarding the emotional pressures which being placed in these positions generates. While a mistake in judgment made by a non-para- Police employee (other than a policeman or fireman) will ordinarily result in inconvenience, or perhaps, cost a mistake in judgment by a pare-Police employee may result in .the death of a citizen, loss of evidence (and loss of a criminal case), injury to self or others or escape of a criminal. These consequences simply are not faced by other employees repre- sented by MEA. B. Supervision. The Municipal Employee Relations Officer concedes that the ultimate chain of command of most of the employees which PACLE seeks to place in a separate unit includes sworn Police personnel. His only comment is that this is also true of clerical personnel in the Police Department. He apparently feels that the failure of PACLE to seek to include these clerical personnel in the proposed unit somehow constitutes 20. a mark against their request for the proposed unit. This is hard to understand. While these employees may have supervision in common with the PACLE employees, in almost all other areas they have much more in common with other clerical employees performing essentially similar functions than they do with PACLE employees. It is for percisely this reason that PACLE does not seek to include them in the proposed unit. With respect to Harbor Patrol Guards and Airport Security Guards, while their actual chain of command does not include sworn Police personnel, they take routine supervision and direction from Police Department personnel and. are involved in law enforcement functions like other PACLE employees. In evey instance where Airport Security Guards or Harbor Patrol Guards become involved in law enforcement incidents, they are in direct radio contact with sworn Police personnel and accept direction and supervision during the course of the incident. They function, as do otY:er PACLE employees, as a criminal law enforcement arm of the Police Department. The Municipal Employee Relations Officer ignores the fact that the Police Department is a para-military organization and is run accordingly, with strict chains of command and'supervisicn. He ignores the fact that this means that they are necessarily sub~,ected to more strict guidelines 21. ih the areas of obedience to orders and following of procedures than most other employees represented by MEA. Further, he ignores the fact that their off-duty conduct has a greater potential for affecting their job than does that of employees not charged with criminal law enforcement functions. C. Work Place. In his comments on the separate work place factor, the Municipla Employee Relations Officer appears to miss the goint. It is not the "mere" fact that these employees have a separate work place that militates in favor of a separate unit for them. However, it is another in a series of factors which demonstrates that they are distinct from other employees. As an example, if employees of'the cemetery performed a unique job function, had separate supervision, had no interchange with other employees and if '~.hese differences were sufficiently striking, they might, arguably, be entitled to a separate bargaining unit. The fact is that the work place of PACLE employees is separate and distinct from the work place of other employees in the persent bargaining unit. D. Interchange With Other Employees. The fact that employees in the proposed unit have interchange with clerical employees of the Police Department is not particularly relevant to this discussion. The fact is that employees in the Para-Police positions which PACLE seeks to have placed in a separate bargaining unit have very little, 22. if any,. interchange with most of the other employees represented by MEA, Further, their job skills are seldom tranferable to other positions. Finally, it is hard to understand the relevant of the comment by the Municipal Employee Relations Officer regarding the "opportunity for broader interchange that is provided by the larger bargaining units" as being "healthy". Simply being placed in a unit with other non-related employees does not. promote a broader interchange with which the Ordinance is concerned. The "social" interchange of which the Municipal Employee Relations Officer is concerned would be better promoted by forming some sort of a social organization in which all the employees could participate.. Further., the purpose of a bargaining unit is not to "promote an awareness of city-wise rather than narrow departmental issues." The functioning of a bargaining unit is to allow the employees to freely exercise their bargaining rights. These comments demonstrate a lack of serious appreciation of the true issues involved in this proceeding. E. Hiring, In order to support his surprising statement that "2 find no unique distinctions regarding the hiring of the positions you seek to represent," the Municipal Employee Relations Officer selects isolated groups of 23. employees represented by MEA as examples. For instance, he states that "background checks are common to Fire as well as Police Department civilian personnel." These are the only two example cited. This supports the argument made by PACLE. Apparently, only PACLE employee and clerical employees of the Fire and Police Department receive such background checks.. It has already been noted that clerical employees, insofar as their actual iob function is concerned, appear to PACLE to have more in common with other clerical employees represented by MEA than with PACLE employees. Thus, only PACLE employees, of all the employees represented by MEA other than clerical employees of the Fire and Police Department, are subject to the type of background check involved in the hiring of PACLE employees. .This fact alone is enough to demonstrate the error in the statement of the Municipal Employee Relations Officer regarding "no unique distinctions." Again, apparently only other civilian positions in the Police Department (clerical) are hired on the advice of a supervising employee of the same job function. That is, para-Police employees are hired with the advice of a super- vising para-Police employee and almost all actual decisions regarding the hiring of para-Police employees are made by other para-Police employees. This does not appear to be the case with other employee positions represented by MEA. 24. Here, again, the Municipal Employee Relations Officer simply ignores the fact that incidents such as a felony arrest, drug conviction or arrest, or those involving emotional instability will result in rejection of a para- Police employee during the probationary period, while the same factors normally will not result in the rejection of other employees in the MEA bargaining unit. How this is determined not to be a "unique distinction" is hard to see. Finally, the Municipal Employee Relations Officer appears to have simply di ccunted the fact that these employees have very little opportunity toward advancement compared. to other employees represented by MEA because of the structure of the positions themselves, as pointed out in the Supplement. F. Hours. While the Municipal Employee Relations Officer points out that some other employees. in the present bargaining unit do not work 8-5 or 9-5, he does not make any mention of the percentage of these employees which. make up the current membership of the current bargaining unit. The percentage of employees other than PACLE who do not work so-called "normal" hours is very small. It is only PACLE employees,.. as a group, who routinely have the non-standard working shifts described in the Supplement at pages 23 to 24. PACLE stands by its statement that .these kinds of working hours are vitually unknown for other employees in the present bargaining unit. 25. Finally, few other employees in the bargaining unit currently constituted are subject to call during lunch hours and must remain in contact with their department during such lunchtime. While the "many blue collar and skilled craft personnel" mentioned by the Municipal Employee Relations Officer may be on call for emergencies that arise, these emergencies are rare in number while they are routine for PACLE employees. Thus, the hours worked actually are very distinct. G. Training. PACLE has no quarrel with the obvious statement by the Municipal Employee Relations Officer that "every city department provides appropriate training to new personnel". However, this statement again is superficial, ignoring the differences in the type of training given. Clearly, all employees are or should be trained to do their job. However, training to react maturely and unemotionally in a split second, life-endangering situations is almost non- existent outside of Police., Fire and PACLE employees. The fact that CPR training has .been offered to personnel of many departments in the past is irrelevant. The fact is that it is required of all PACLE personnel. Further, the fact that the City has made plans to provide similar training to other personnel in the future is likewise irrelevant. The real question is how relevant such training 26 . is to the job being done. In the case of PACLE employees the training is part and parcel of the job function itself, which simply is not true of other employees. It would be extremely enlightening to see documentation regarding the incidents of involvement in life-threatening situations for non-Fire, non-Police, and non-para-Police personnel of the City included in the present bargaining unit. VI CTTMMA R V In conclusion, the final comments of the Municipal Emgloyee Relations Officer that it is important for all city employees to understand that regardless of their departmental assignment or specific job duties their primary identification is with the City in its overall mission is indicative of his overall appraoch to this problem. While his statement may be true as a general matter, it has very little if anything to do with the determination as to what constitutes an appopriate unit for purposes of bargaining on the issues of wages, hours and other conditions of employment. His statement that if he were to find the proposed unit to be an appropriate unit, he would have to acknowledge the individual interest of a significant number of "casual groupings" of other employees does not appear to be either 27. accurate or truly appropriate. If other employees do in fact have a unique community of interest and meet all the criteria with respect to the nature of the job function, supervision, work place,. interchange with other employees, hiring, hours and training, perhaps they should be placed in a separate unit .should they so request it. However, the fact is that none of the employees mentioned by the Municipal Employee Relations Officer are distinct from other employees in the unit in the manner or to the same degree as are employees represented by PACLE. Having to deal with irate contractors and citizens, face "stressful deadlines", and face the liability of "losing" valuable city data is simply not the same as the issues demonstrated in the Supplement to the Petition filed in this case. Ih this case, the facts show that the Para-Police positions which PACLE proposes be placed in a separate bargaining unit share a unique community of interest as to their working conditions not shared with other employees in the current unit. For this reason, it is respectfully submitted that the City Council should find, after a thorough and considered review of the facts in this situation, that the bargaining unit proposed by PACLE is 28. an appropriate bargaining unit and should direct that it be certified as such. DATED: August /S"`f, 1983. PROFESSIONAL ASSOCIATION OF CIVILIANS AND LAW ENFORCEME ~- ~~'~ B i Y 29 .