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 .